2319180 (Refugee)

2319180 (Refugee) [2024] AATA 1254 (2 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2319180

COUNTRY OF REFERENCE: Timor-Leste
MEMBER:Wayne Pennell
DATE:2 February 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 February 2024 at 2:30pm
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – particular social group – threats from money lenders – physical assault – economic conditions – financial hardship – child born on Australia – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 13 November 2023.
The applicant, who claims to be a citizen of Timor-Leste, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act[3] and, therefore, she was not a person in respect of whom Australia has protection obligations.[4]
[2]The applicant’s application was received by the Department of Home Affairs on 4 October 2023.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicant filed an application with the Tribunal for a review of the delegate’s decision.[5] At a subsequent time, the Tribunal dispatched an email to her enclosing a letter advising that it had considered all the material relating to her application but was unable to make a favourable decision on that information alone. The letter also invited her to attend an in‑person review hearing scheduled for 19 January 2024.
[5]The applicant’s review application was filed with the Tribunal on 24 November 2023.
The applicant accepted the invitation and attended the scheduled hearing. She was not represented throughout the review process and the review hearing was undertaken with the assistance of an interpreter in both English and Tetum languages.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
[6]Migration Act 1958 (Cth), s 36.
[7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act provides that a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia in respect of whom the Minister, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]
[8]Migration Act1958 (Cth), s 36(2)(a).
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[9] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[10]
[9]Migration Act1958 (Cth), s 5H(1)(a).
[10]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[11]
[11]Migration Act 1958 (Cth), s 5J(1).
Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in the Act, extracted in the attachment to this decision.[12]
[12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[14]
[13]Migration Act 1958 (Cth), s 36(2)(a).
[14]Migration Act 1958 (Cth), s 36(2)(aa).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are expressly provided in the Act, extracted in the attachment to this decision.[15]
[15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines, that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]
[16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]
[17]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Timor-Leste and she provided to the Department a copy of her passport to authenticate this claim. The Tribunal accepts the applicant’s identity, and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Timor-Leste is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[18]
[18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[19]
[19]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
APPLICANT’S BACKGROUND AND CLAIMS
[20]Migration Act 1958 (Cth), s 499.
Background and events leading up to the review hearing
The applicant was granted a Temporary Work (International Relations) (subclass 403) visa on 3 November 2022 which was due to expire on 7 November 2025. Subject to the conditions of that visa, she arrived in Australia [in] November 2022.
After being in Australia for approximately eight months, the applicant lodged an application for a protection visa with the Department on 4 October 2023. She claimed that she had a well-founded fear of returning to Timor-Leste and the following passage has been extracted from her application where she explained her claims:
Provide reasons why this applicant left that country or those countries:
FOLLOW THE GOVERNMENT PROGRAM TO WORK IN
AUSTRALIA.
THIS IS THE ONLY WAY I HAVE TO ESCAPE MYSELF FROM
THE MANY PROBLEMS IN TIMOR LESTE. MY PROBLEM IS
SUCH A BAD FINANCIAL PROBLEM. I OWE A LOT TO MY
NEIGHBORS AND ALSO TO MANY OF MY ACQUAINTANCES.
I WAS THREATENED AND HARMED WHEN I COULDN'T RETURN
THE MONEY.
Did this applicant experience harm in that country or those countries?
Yes
Give details including:
• the type of harm this applicant experienced
• the person/people responsible for the harm
• why they harmed this applicant.
I AM GOING THROUGH MANY TROUBLE IN MY COUNTRY. I WAS
BEATEN AND BEATEN AS A RESULT OF BEING IN DEBT.
MY WIFE RUN AWAY BECAUSE OF THE DEBT I DID. NOW I DON'T
WANT TO GO THROUGH IT ANYMORE
On 13 October 2023, the Department sent to the applicant a letter acknowledging the receipt of her application and invited her to an appointment with the Department scheduled on 31 October 2023. This appointment was so she could provide her personal identifying particulars. The letter also advised that she could provide additional information relating her claims, along with how she could go about doing that. The letter also advised her that the decision on her application could be made without another opportunity for her to present any further information.
She provided no additional material to the Department and on 13 November 2023 the delegate refused her application. In assessing the applicant’s application and claims, the delegate assessed that from the information in her application, the applicant came to Australia to escape financial problems because she owed money to neighbours and acquaintances, and she was threatened and harmed when she could not return the money and there was no place that she could go in Timor‑Leste that would help with the situation. She also claimed that the there is nothing the Timor‑Leste authorities can do to protect her and if she returned to Timor-Leste she will be beaten and harmed by the people to whom she owes money.
When assessing her application, the delegate was not satisfied that the applicant was a refugee as defined in the Act[21] and accordingly found that she was not a person in respect of whom Australia has protection obligations as provided for in the Act.[22] Her application was refused and subsequently she lodged an application with the Tribunal on 24 November 2023 to review the delegate’s decision.
[21]Migration Act 1958 (Cth), s 5H(1).
[22]Migration Act 1958 (Cth), s 36(2)(a).
REVIEW HEARING
In regards to her background in Timore-Leste, the applicant explained that her parents are living in Dili, Timor-Leste. She [has specified members] in the family and neither her parents nor any of her siblings are employed. At the age of [age] she completed her high school education, and prior to arriving in Australia on her work visa, she was never employed in Timor-Leste. When initially asked by the Tribunal if she could explain why she was appearing at the review hearing, she said that it was because of her bridging visa.
When asked to clarify if she had made any other application for a visa, she acknowledged that she had applied for a protection visa. When asked to explain her claims for seeking protection in Australia, she said that she was from a poor family in Timor-Leste, and she and her family were facing financial difficulties. She was grateful for the opportunity to come to Australia to work as part of the PALM scheme and had worked for a company that gave her a short-term work contract. She worked for that company until her contract finished and she then decided not to go back because she did not have any money.
The Pacific Australia Labour Mobility scheme, or as it is more commonly referred to, the PALM scheme, allows eligible Australian businesses to recruit workers from nine Pacific islands and Timor‑Leste when there are not enough local workers available. The recruitment of workers can be for short-term jobs for up to nine months or long-term roles for between one and four years in unskilled, low-skilled and semi-skilled positions. The PALM scheme helps to fill labour gaps in rural and regional Australia and nationally for agriculture and select agriculture-related food product manufacturing sectors by offering employers access to a pool of reliable, productive workers. It also allows Pacific and Timor-Leste workers to take up jobs in Australia, develop their skills and send income home.[23]
[23]Pacific Australia Labour Mobility (PALM), accessed 22 January 2024.
The applicant told the Tribunal that while she was working she was sending money back to sustain her family in Timor-Leste, and if she went back to Timor-Leste she cannot guarantee she could return to Australia for work. During her stay in Australia she fell pregnant and she then made a decision to lodge an application for a protection visa. Her visa was lodged prior to the birth of her child. She said that the father of her child was also from Timor-Leste and he has since returned home and showed no interest in the upbringing of their child.
In regard to her application, she said that she was assisted by her friends. She paid one friend $250, and that friend got her other friend to fill out her application and lodge it with the Department. She said that although she gave her friend all of her personal particulars which were inserted into the application, she was not aware what protection claims were made out in the application. She admitted that she had not seen or read her own application.
At that point, the Tribunal read out to her the passages from her application which are included within paragraph 18 of these Reasons. She reiterated to the Tribunal that the reasons why she cannot return to Timor-Leste are for the economic reasons she told the Tribunal, as well as having a newborn baby. She posed the question in regards to what the future would be for herself and her baby if she returned home to Timor-Leste. She has a minimal level of education and would not be able to find work. She would be competing with those other people that have a higher level of education such as bachelor degrees and many of those people cannot find work either. If she and her child returned to Timor-Leste, she would be living in poverty.
She agreed with the Tribunal that the reasons for the claims for protection as outlined in her application do not match her real or actual economic circumstances she is facing. She told the Tribunal that what she told the Tribunal were the real reasons why she does not want to return to Timor‑Leste, and she did not know about those claims made in her application and they are not true. She told the Tribunal that she does not owe anyone money, she has never been beaten in Timor‑Leste because of any debt and she does not have a well-founded fear of returning to Timor‑Leste because she feared being harmed; it is her fear of living in poverty and not being able to support herself and her family that is her concern.
When very careful consideration is applied to the applicant’s testimony at the review hearing, and that evidence is weighed against the claims expressed in her initial application for a protection visa, the Tribunal is satisfied (and so finds) that her claims declared at the review hearing are a more accurate reflection of her correct position. Therefore, the Tribunal finds that she was not subjected to harm when she was in Timor-Leste, and there is not a substantial risk of her experiencing serous harm if she returned to Timor-Leste.
CONCLUSIONS AND REFUGEE FINDINGS
The issues in this matter are whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Timor-Leste, there exists a real risk that because of the claims she has raised, she will suffer significant harm, or there is a real chance she would suffer serious harm; and whether she is a person in respect of whom Australia has protection obligations as defined in the Act.[24]
[24]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because she claims that she will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
Because the applicant claims to be a person in respect of whom Australia has protection obligations, it is her responsibility to specify all particulars of her claim to be such a person and to provide sufficient evidence to establish the claim. To remove doubt, the Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of her claims; or establish, or assist in establishing, her claims.[25]
[25]Migration Act 1958 (Cth), s 5AAA.
Therefore, it is for the applicant to show that because she is outside Timor-Leste and, owing to a well‑founded fear of persecution, she is unable or unwilling to avail herself of the protection of that country.[26] Her well-founded fear of persecution applies if she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and there is a real chance that, if she returned to Timor-Leste, she would be persecuted for one or more of the reasons mentioned above, and there is a real chance of the persecution relating to all areas of Timor-Leste.[27]
[26]Migration Act 1958 (Cth), s 5H.
[27]Migration Act 1958 (Cth), s 5J.
Although within her application the applicant claimed that she held a well-founded fear of returning to Timor-Leste because she had borrowed money from neighbours and acquaintances, and she feared being harmed because she owed that money, she now claims that those claims are untrue. At the time of the review hearing, she told the Tribunal that her reasons for not wanting to return to Timor-Leste related solely to economic reasons. That is, she has a newly born child; there are minimal prospects of her securing employment in Timor‑Leste, and she did not want to return home with her young child to live in poverty.
To satisfy the criteria for a protection visa as provided in section 36(2)(a) of the Act, the applicant must be a person in respect of whom the Tribunal is satisfied that Australia has protection obligations because she is a refugee. Section 5H(1) of the Act provides a definition of a refugee as a person who is outside their country of nationality or former habitual residence and is unable or is unwilling to avail themselves of the protection of their country of nationality or to return to their country or former habitual residence due to a well-founded fear of persecution. The meaning of ‘well-founded fear of persecution’ is defined in section 5J(1)(a) of the Act to mean that a person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

The applicant’s claim that she cannot return to Timor-Leste for economic reasons does not relate to any of the reasons or the criteria outlined in section 5J(1)(a) of the Act and there is no other evidence or information before the Tribunal that convinces or satisfies the Tribunal that she will be subjected to harm upon her return to Timor-Leste for one or more of those reasons just described.
Having regard to, and carefully considering, all the facts, features and circumstances as outlined above, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as defined in the Act.[28] Therefore, the Tribunal does not accept she is a refugee as defined in section 5H of the Act, and nor has she satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to her.
[28]Migration Act 1958 (Cth), s 36(2).
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[29] the Tribunal has considered the alternative criterion.[30] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Timor‑Leste, there is a real risk that she will suffer significant harm as it is defined in the Act.[31]
[29]Migration Act 1958 (Cth), s 36(2)(a).
[30]Migration Act 1958 (Cth), s 36(2)(aa).
[31]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons she claims if she returned to Timor-Leste. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[32]
[32]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returns to Timor-Leste now or in the reasonably foreseeable future she will be arbitrarily deprived of her life, the death penalty will be carried out on her, she will be subjected to torture or to cruel or inhuman treatment or punishment, nor will she be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Timor-Leste, she will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, she does not satisfy any of the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
Senior Member
ATTACHMENT - Extract from Migration Act 1958 (Cth)
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1254

2 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction