2319203 (Refugee)

2319203 (Refugee) [2024] AATA 3033 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2319203
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Jessica McLeod
DATE:8 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 April 2024 at 12.05pm

CATCHWORDS
REFUGEE – protection visa – East Timor – debt to friend – borrowed to contribute to brother’s bride price and wedding – threats and fear of harm – intention to work in Australia to pay the debt, for siblings’ schooling and to start business – general economic conditions – delay in applying for protection – application completed by another person – inconsistent claims and evidence – lost contact with lender – availability of state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505

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 a review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Timor-Leste, arrived in Australia on a subclass 403 visa under the Pacific Australia Labour Mobility Scheme in March 2022. He travelled back to Timor-Leste in November 2022 and returned again to Australia in March 2023. He applied for the protection visa on 28 August 2023, claiming that he has been threatened and will be harmed in Timor-Leste over a debt owed to his friend.
At the primary stage, the delegate decided the application on the papers. The delegate refused to grant the visa, finding based on country information, that the applicant could obtain protection from the authorities in Timor-Leste, and therefore, the applicant is taken not to have a well-founded fear of persecution or a real risk of significant harm.
The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she 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.
Section 36(2)(a) 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 is satisfied Australia has protection obligations because the person is a refugee.
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: s 5H(1)(a). 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: s 5H(1)(b).
Under s 5J(1), 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, 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. 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 ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is 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 he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). 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 set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, to the extent that they are relevant to the decision under consideration. This ordinarily would include country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, however there is no such report on Timor-Leste.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee, meaning he has a well-founded fear of being persecuted in Timor-Leste for one or more of the five reasons set out in s 5J(1)(a) and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Timor-Leste, there is a real risk he will suffer significant harm.
Written protection visa application
In his written application lodged on 28 August 2023, the applicant claimed that he had borrowed a lot of money (“540.00”)[1] and received death threats because, as he did not have work, he did not have enough money to pay the weekly interest of $250. He said ‘they’[2] are looking for him and while he has managed to pay interest while working in Australia, if he returns, they will torture and/or kill him because he will be jobless and unable to pay the interest and capital which is continuing to increase.
[1] The monetary unit or currency was not specified.
[2] The applicant did not specify in the written application who exactly this was.
He said he did not seek help in Timor-Leste because the amount he borrowed was so huge and no one would help him to settle the amount. He had also signed some documents and even his family members, the police and local politician have been avoiding him because they do not want to become involved.
He has not tried moving within Timor-Leste as he does not have relatives in other parts of the country and his family members are avoiding him. It would also be extremely easy to find him in his small country.
Tribunal hearing
The applicant’s evidence given at the Tribunal hearing on 31 January 2024 can be summarised as follows:
Before coming to Australia at [age], he was living in [Town], Timor-Leste with some of his siblings and a step-relative. He had lost his parents to an accident in 2007. He has [siblings]. One sister and her husband live in Dili, along with [siblings] living in dormitories there attending school and university. The other siblings live in [Town]. The only work he did in Timor-Leste was collecting and selling firewood. In Australia he has been working in [Work sectors].
He left Timor-Leste in March 2022 because he owed money to his friend who had threatened to destroy him. He needed to find a way to get away and pay the money back. He said he needs to stay in Australia and work so he can pay off his debt and then help his family. He hopes to earn enough money to start a business (eg. by buying a bus), build a house for his family and support their ability to subsist.
In 2019, he borrowed USD $5000 in one lump sum from an old high school friend. He needed the money to contribute to his [brother]’s wedding and the $10,000 bride price demanded by his brother’s finance’s family. Together, he and his siblings managed to come up with the money.
The applicant had not repaid any of the money before he left Timor-Leste in March 2022, but he earned some money towards to the repayments while working in Australia. When he returned to Timor-Leste (between November 2022 and March 2023), he was able to repay $2000 but that repayment was just on the interest. He still owes $5000 on the loan, plus the additional interest.
The last time the applicant saw his friend was in December 2022, when they met in person. The applicant paid his friend the $2000 but his friend became angry because he wanted all his money back at that time. The applicant promised he would earn and save more money in Australia again and would pay it to him later. But his friend didn’t accept that; he chased the applicant with a machete. The applicant ran and managed to hide in the house of an unknown person he approached for help. He hid in that person’s house from midday until night time and then he went home.
The applicant never saw his friend again after the machete incident. He spoke to him on the phone in June 2023 – but while he was again promising to repay the money with money earned in Australia, there was a problem with the line. His friend’s number changed after that, and the applicant hasn’t been able to contact him ever since. His friend and his friend’s family appear to have moved away from [Town]. The applicant has been asking his own family to try to track his friend down, but they have been unsuccessful. His friend used to operate a passenger bus business in another district, but the applicant is unsure whether the business is still running.
The applicant has saved $3000 to repay the money he still owes on the capital, but without being able to contact his friend he hasn’t been able to get the money to him. His friend was also demanding interest and he doesn’t know how much his friend expects. He plans to ask him this when he is able to contact him, and then he plans to discuss the situation and what he can repay him. He is too afraid to return to Timor-Leste without being able to repay him his money.
Issues put to the applicant at hearing:
At the hearing, I put to the applicant that I had difficulty understanding why his friend would have loaned him USD $5000 when it appeared he (the applicant) had no means of paying the friend back. He responded that his friend was willing to loan to him then because by that time in 2019 he had already passed the testing and interview to come and work in Australia (though his arrival was delayed by the COVID entry restrictions to Australia).
I put to the applicant that there were some apparent discrepancies between his written protection visa application and his evidence given orally to the Tribunal. For example:
a)Whereas in his written application he indicated that he borrowed “540.00” but in the hearing he said the amount was 5000.
b)Whereas in his written application, he indicated the interest was $250 weekly, at the hearing he said he didn’t know how much interest he was expected to pay.
c)Whereas in his written application (and initially in the hearing too) he said he had come to Australia because of the threats against him, when asked during the hearing if he had experienced any problems before he came to Australia, the applicant responded “[N]o. No problem”. He said he had come to Australia to earn good money, so his siblings could attend school.
d)Whereas in his written application he said that ‘they’ were looking for him, at the hearing he said he hadn’t seen his friend since December 2022 and it was he himself (the applicant) that initiated the last contact in June 2023. He also said his own family have not been able to find the friend, all of which seems to indicate that the friend hasn’t been looking for him for him at all.
The applicant responded that he had not filled out the written application himself; rather, he explained his situation to another person who did it for him.
I asked the applicant to clarify with respect to (c) if he had received any threats before he left Timor-Leste the first time and he responded that he had received threats, but it wasn’t until he returned to Timor and met up with his friend that he made severe threats. It was only then that he feared being there.
I asked the applicant to clarify the issue in (d): whether his friend was in fact looking for him in August 2023 when he lodged the application, or not. The applicant responded by reiterating that his friend had severely threatened him in November 2022.
I asked the applicant why, if he had already faced some problems in Timor-Leste before coming to Australia in March 2022, he didn’t apply for his protection visa until August 2023. The applicant responded that he had been trying to earn money but wasn’t earning enough to repay the money and pay for his siblings schooling and accommodation (and his own expenses) so he eventually decided he couldn’t return to Timor and needed to apply for a protection visa.
I asked the applicant why he hadn’t mentioned in his protection visa application that he had been chased with a machete and forced to hide. The applicant responded that he didn’t write the application himself, that he had told it to the person who wrote it, but the person mustn’t have written that part down.
I noted to the applicant that the Department of Home Affairs had written to him inviting him to provide more information about his protection claims and I asked why he hadn’t taken the opportunity to respond. He responded that he had thought the person who was helping him did respond, though he hadn’t called and checked.
I explained to the applicant that his delay in lodging his application and his failure to raise some of his claims when he did lodge it, were leading me to question whether his claims were genuine. Pursuant to s.423A, I put to him that unless he has a reasonable explanation, the law would require me to draw an unfavourable inference for not raising claims and evidence he was now advancing before the Department’s decision was made. The applicant responded that he had not known how to apply and was relying on the person he paid that helped him and he had thought that that person had raised all the relevant claims.
Following a break in the hearing, I summarised my concerns for the applicant, revisiting some of the above. I noted that while I had not made any decision on any aspect of his claims yet, and would consider and reflect on all the evidence, as would be apparent from our earlier discussion, I had some concerns as to the credibility of his claims and evidence. I noted we had discussed the discrepancies in some of the information he had provided, the omission of the machete incident from his written form and the delay in lodging his application. I put to him that I also had some concerns that he had not provided any supporting evidence to show that he has taken a loan or is in debt, or has repaid any money on the loan, or been threatened. I also put to him that I was concerned that he did not seem to know the details around how much interest he owed or how much money his friend was expecting him to repay. The applicant was given the opportunity to respond to all this, but he declined.
I put to the applicant that even if I accepted his claims were credible, I had doubts as to whether he would face a real chance of harm or a real risk of harm on return. I said that I had doubts about whether the friend would be motivated to harm him, noting that the applicant has been taking steps to repay the money and he has been making an effort to find his friend and give him the rest of his money. I noted it doesn’t appear his friend has been looking for him – and he himself hasn’t even been able to make contact. I put to him that even taking the machete incident into account, that incident occurred in December 2022, and he had been able to return to his home and keep living there without any apparent incident over the next few months until he returned to Australia in March 2023. I noted it was he himself that had initiated the last contact in June 2023, and he has not spoken to him at any other time. I put to the applicant that it seemed that if his friend wanted to find him to recover his money, he would be in contact with him or his (the applicant’s) family members by now. The applicant offered no response. I asked him if he understood the issues I was raising with him, and he replied “[Y]es”. I asked if there was anything he wanted to tell me in relation to these matters and he declined.
I also discussed with the applicant the possibility of his seeking state protection. I put to him that there doesn’t appear to be any reason the police would deny him protection. I asked the applicant if he could think of any reason the police, or the authorities would not be able to help him if his friend came threatening or tried to harm him. The applicant responded that at the time, he had been really scared from the trauma of the machete incident and he didn’t know the number for the police or that he could contact them. I asked him again whether there would be any reason the police or authorities wouldn’t be able to help him in the future. He said that if he repays the money, the threats would be withdrawn but he is scared because he can’t find his friend or contact him and he fears that if this friend suddenly comes across him (before he has been able to repay him) it could destroy his life.
Findings
As noted above, I discussed with the applicant my concerns as to his evidence regarding the loan and the problems he claims he faced on account of that loan.
Although I have some reservations with his explaining all the discrepancies and the omission of the machete incident, and the lack of response to the Department’s invitation by blaming another person, I am prepared to accept there may be a plausible explanation for those differences.
However, I have significant concerns as to how vague and unpersuasive the applicant’s evidence has been overall regarding the loan arrangement, interest and the amounts still owing. And while he claimed in his written application that he had signed some documents, as I noted to him in the hearing, he has not provided any evidence of the loan or the problems resulting from it. As I also put to him, while he claims the friend wanted to harm him in November 2022, he was able to go home the night of the machete incident and continue living there for several months. And while he claims the friend would find him and harm him on return, he has not been looking for him and I consider had the friend wanted to find him and recover his money, he would have been in contact. The applicant’s evidence about not knowing that he could approach the police was also unconvincing. The applicant has not provided any further evidence to support his claims, and nor has he countered any of these concerns, despite being given the opportunity during the hearing, and offered additional time.
Having considered the evidence overall, I do not accept the applicant was ever in debt to the amount claimed, nor do I accept he still owes any money now. I do not accept that the applicant’s friend or anyone ever threatened the applicant or chased him with a machete. I do not accept his friend, or anyone has an any intention of harming the applicant now or in the reasonably foreseeable future. I do not accept he faces a real chance of any harm from his friend or anyone now or in the reasonably foreseeable future on account of any loan or debt.

I find that in relation to the claims about the loan, as the applicant does not face a real chance of any harm upon return to Timor-Leste now and in the reasonably foreseeable future, he does not meet s 5J(1)(b) or s 5J(1)(c) and therefore does not have a well-founded fear of persecution under s 5J(1), is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
Even if I did accept his claims on this basis (which I do not), I put to the applicant that he does not appear to be fearing harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment. The applicant did not dispute this; he made no comment during the hearing, nor afterwards. I find that the applicant does not fear harm from his friend or anyone for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion. He does not therefore, meet the criteria in ss 5J(1)(a) and (b) of the Act. On this basis as well, he is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for the complementary protection criterion, noting that my above finding related to ‘any harm’ and that ‘real chance’ and ‘real risk’ involve the same standard,[3] I find that in relation to his debt claim, there are not substantial grounds for believing that there is a real risk he would suffer significant harm inflicted by any act or omission by his friend or anyone else, as a necessary and foreseeable consequence of being removed to Timor-Leste. Accordingly, I find that the applicant does not meet s 36(2)(aa).
[3] MIAC v SZQRB (2013) 210 FCR 505.
Financial concerns
I accept that the applicant is concerned about his financial future. The applicant has expressed multiple times, his concerns about not being able to find work if he returns to Timor-Leste and at the hearing, he spoke about his concerns for earning enough money to support his studying siblings, and his family in general, going forward.
At the hearing, the applicant said his chances of getting a job would be affected by the family system and party system and that his education was too limited. He explained what he meant by the family system and party system: that if someone has a family connection or a connection to some other party in a particular business, those people with the connections would get the opportunity to be tested and apply for the job. He said you often need such connections to get a job. I asked the applicant whether there was any reason someone would try to stop him from getting work and earning a living and the applicant responded ‘yes’, because when a particular party is in power, they help those party members to get work – and then when power shifts to another party then only those members are helped. I asked the applicant if there was anything else he wanted to tell me about the employment issues, or about his issues relating to the debt and responded ‘no’.
I discussed with the applicant the concept of serious harm and explained that, although examples of serious harm in the Act include significant economic hardship and denial of capacity to earn a livelihood or access basic services, the degree of seriousness would need to be such that it threatens his capacity to subsist – and also relevant is whether someone would deny him the capacity to subsist or inflict harm on him. I also explained the concept of significant harm for the purposes of complementary protection, including the concept of harm being intentionally inflicted through act or omission. I put to him that I might not be able to find that he met the criteria in these respects. While he was invited to comment on all of the above, he declined.
When asked if he had anything else to say, the applicant declined. When asked if he would like to provide any further information if I was to give him additional time in which to do so, he also declined.
I accept that in Timor-Leste, like many places, nepotism and positive discrimination of the kind the applicant described, occurs. I accept too that the applicant has previously found it difficult to find work and that he will likely face difficulties upon return. However, on the evidence, I do not accept that the applicant missed out on particular work because he was personally negatively discriminated against in the past, nor that he has been specifically denied employment for any reason apart from some positive discrimination or preference towards someone else in a competitive employment field in the Timor-Leste economy. I do not accept he was passed over for any reason mentioned in s 5J(1)(a) or any personal attribute of his own, nor out of any act or omission intended to cause him harm for any other reason. I do not accept the applicant previously suffered persecution or significant harm manifesting through difficulty securing employment.
I acknowledge these difficulties were real, and that the applicant may face difficulties finding work and establishing himself financially upon returning too. However, he previously found some way of earning money and he would be returning to Timor-Leste where he has family connections in [Town] and Dili and he has diversified his skillset in [Australia]. I accept there will be challenges, but I am not satisfied that any difficulties he might face in getting work, or any other difficulties he might face financially, arise from a reason mentioned in s 5J(1)(a).
Nor am I satisfied any such difficulties would be the result of discriminatory conduct or intentional acts or omissions.
Nor am I satisfied that such difficulties or challenges would themselves amount to, or otherwise lead to, a real chance of the applicant facing any harm that would amount to serious harm. I do not accept he faces a real chance of economic hardship or a denial of opportunities to earn a livelihood or access basic services such that he would face a threatened capacity to subsist. Nor do I accept he faces a real chance of any other kind of serious harm.
I find that the applicant does not meet the criteria in s 5J(1)(a) of the Act. Nor do his circumstances involve persecution. He does not meet the criteria in s.5J(4)(a), (b) or (c) of the Act. I find that he does not have a well-founded fear of persecution, he is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for complementary protection, I find that the applicant does not face a real risk of facing the death penalty or being arbitrarily of his life or being tortured. Nor does he face a real risk of being subject to any intentional acts or omissions that would result in his suffering cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of him suffering any harm that would amount to significant harm.
Further, I consider the risk of harm to the applicant arising out of the state of the Timor-Leste economy is one faced by the population of Indonesia generally, rather than by the applicant personally. In such circumstances, s 36(2B)(c) has the effect that there is taken not to be a real risk the applicant will suffer significant harm.
There are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Timor-Leste. Accordingly, I find that the applicant does not meet s 36(2)(aa).
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 s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica McLeod
Member

ATTACHMENT - Extract from Migration Act 1958
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 3033

8 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal