2321006 (Refugee)

2321006 (Refugee) [2024] AATA 2011 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2321006

COUNTRY OF REFERENCE: Philippines
MEMBER:Alison Murphy
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 08 April 2024 at 2:19pm
CATCHWORDS
REFUGEE – protection visa – Philippines – drug-related crime – criminal activities – fear of vigilante groups – fear of killing – detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC 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 review of a decision made by a delegate of the Minister for Home Affairs on 14 December 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of the Philippines. He first arrived in Australia in February 2017 as the holder of a skilled visa and he applied for the protection visa on 1 December 2023. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 15 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages.
The issue in this case is whether the applicant meets the criteria set out in either of s 36(2)(a) or s 36(2)(aa). A summary of the relevant law is attached at Attachment A. 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, 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. As at the date of the Tribunal’s decision, the relevant report is the DFAT Country Information Report: Philippines dated 23 August 2021.
For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.
ISSUE FOR DETERMINATION
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
The applicant travelled to Australia on an apparently genuine passport issued by the Filipino authorities and he has been accepted by the Department to be a national of the Philippines Islands. The Tribunal finds that the Philippine Islands is the applicant’s country of nationality and the receiving country.
The applicant’s personal background
The applicant is [an age]-year-old male from Pampanga in the Philippine Islands. He grew up in a household comprising his parents and [siblings]. At hearing he gave evidence that his father is deceased and his mother lives with his grandmother, while his adult siblings have moved to other towns or cities in the Philippines. The applicant was previously married for a short period of time but divorced in about 2008. He is of Catholic religion and Filipino ethnicity.
The applicant attended high school until [specified year], when he went to work as [an occupation 1] in Pampanga. In or around 2008 he travelled to [Country 1] on a work permit where he was employed by [Employer 1] in [location]. He worked in [Country 1] for approximately seven years, returning to the Philippines on three occasions:
·[November] 2010 to [December] 2010;
·[December] 2011 to [January] 2011;
·[January] 2013 to [February] 2013.
At hearing the applicant said he got bored of working and living in [Country 1] because it offered no opportunities to stay in the long-term or bring his family. He thought he needed a new opportunity, and a friend told him that Australia offered that kind of opportunity, so he returned to the Philippines in December 2015 and spent 2016 organising a skilled visa to come to Australia. While in the Philippines he lived with his mother in Pampanga.
The applicant travelled to Australia as the holder of a skilled 457 visa in February 2017 and has not departed since. The delegate’s decision records that the applicant’s skilled 457 visa was cancelled in March 2020. At hearing the applicant gave evidence that two years after his arrival on the skilled 457 visa his employer was supposed to sponsor him for permanent residency. When his employer still hadn’t sponsored him after three years, the applicant left his employment in the hope of finding another sponsor. However he had difficulty finding another sponsor and his visa was subsequently cancelled because he was not employed. After his visa was cancelled, he could only work for cash in poor conditions.
The applicant has provided the Department with a copy of the biodata pages of his Filipino passport, renewed in 2021. At hearing the applicant said that he renewed it because he had no option after losing all other forms of identification during COVID‑19 times.
The applicant provided the Department with an application for an intervention order dated [in] December 2022 in which he is named as the respondent. In a written statement in support of his protection claims he stated that he was also charged with a car theft offence going back to 2021 and served a [term] prison sentence for both offences. At hearing the applicant told the Tribunal that he and his girlfriend had an argument and the police applied for the order against him. He was charged with car theft after he bought a vehicle from his then employer and failed to make the final two payments because he believed he was being underpaid. His employer reported the vehicle as stolen to the police, claiming that he had stolen it from one of the company’s yards. He thinks the prison sentence he served [in] 2022 related to the family violence charges but he is not completely sure. He was taken into immigration detention immediately after his prison term ended.
The Tribunal accepts the above matters to be true.
Claims for protection
In essence the applicant claims he faces serious harm from the Philippine authorities and vigilante groups contracted by the government on return to the Philippines because of his involvement in drug-related activities and car theft. This is because the Philippines initiated an anti-drug and anti-crime campaign in 2016, using independent contractors known as vigilantes to pursue and target individuals involved in drug use and trafficking and they would carry out extrajudicial killings.
Involvement in drug-related activities in the Philippines
In a written statement submitted with the protection visa application, the applicant states that he periodically used drugs in the Philippines on each of the occasions he returned there during his time in [Country 1] (being 2010, 2011 and 2013). Upon his return to the Philippines in 2015, he used drugs more frequently because he was influenced by his friends and extended family. He stated that over time he became entangled in drug trafficking and participated in gang-related crimes such as carjackings and he began supplying drugs to individuals who approached him.
However at hearing the applicant gave quite different evidence about his drug use. He said he was a user of methamphetamine, but he never got involved in selling it. He started using methamphetamine at about 21 years of age and also occasionally used cocaine. He used only occasionally during his return to the Philippines in 2016 because he had to stay clean to get his Australian visa and he didn’t initially use any drugs for the first few years he was in Australia. However after his employer nomination didn’t eventuate and his visa was cancelled, he became depressed and began using methamphetamine again.
When I discussed with the applicant his written statement to the effect that he was involved in drug trafficking and supplying drugs in the Philippines, he stated that he provided the wrong answers in his statement because he didn’t have an interpreter and misunderstood the questions. He said it was for that reason that he made sure he had an interpreter at the Tribunal hearing. He said his friends were involved in these sorts of crimes but his only involvement was to give them money he had earned overseas to finance their criminal activities.
The applicant gave evidence that as at the time of the Tribunal hearing, he had been clean of all drugs for quite a while as he stopped using drugs about two months before he was jailed. He said he did not require medical or other assistance to stop using drugs but just stopped. He still had an alcohol problem at the time he was jailed but attended all the drug and alcohol programs that were offered to him while he was in jail. He found those programs to be extremely helpful, stopping all the cravings and also helping him to stop smoking.
In view of the applicant’s evidence at hearing, the Tribunal finds he began using methamphetamine periodically as a young adult in the Philippines and that he continued to do so on return to the Philippines on holiday during the time he was living and working in [Country 1]. The Tribunal accepts his evidence that he used only occasionally while living in the Philippines in 2016 because he had to stay clean to get his Australian visa. The Tribunal finds that he was not involved in trafficking or the supply of drugs in the Philippines as stated in his written claims, but that he provided money he had earned overseas to his friends who used it to engage in criminal activities and in particular the theft and resale of stolen cars.
The Tribunal accepts that the applicant did not initially use any drugs in Australia but returned to drug use after his visa was cancelled. The Tribunal finds that he ceased all drug use approximately two months before being jailed in mid-2022 and that he undertook drug and alcohol counselling in jail which helped him quit alcohol and smoking. The Tribunal finds that the applicant has been clean of all drug use for almost two years as at the time of the Tribunal’s decision.
Involvement in car theft in the Philippines
In the visa application, the applicant states that he became involved in gang-related crimes such as carjackings in the Philippines. At hearing he clarified that those crimes were in fact the stealing and reselling of stolen cars which he described as ‘carnapping’ or car theft, as distinct from carjacking. The applicant’s involvement was to provide money to his friends who used it to buy stolen cars and resell them when he returned to the Philippines on holidays from [Country 1]. When asked how he came to be involved in this activity, he said that at first it was out of adventurism and he didn’t realise how serious it was.
He gave evidence that because he had money from working abroad, he would finance the carnapping on his return trips to the Philippines in 2010, 2012 and 2013 together with a few friends. When he returned to the Philippines in 2016 the government was already taking serious actions against crime and a friend of his was shot, so in that year he didn’t engage in carnapping but just focused on applying for a job and a visa in Australia.
The Tribunal accepts his account of his involvement in car theft in the Philippines, being that he used money he earned overseas to finance the purchase of stolen cars and their resale. The Tribunal finds that the applicant engaged in these activities on return to the Philippines in each of 2010, 2012 and 2013 but that he did not continue to do so in 2016 because the government had already started a crackdown on crime and one of his friends was shot (discussed below).
Instances of past harm in the Philippines
In the protection visa application the applicant stated that while staying with a close friend who owned [an occupation 1 business], vigilantes appeared in front of the shop and opened fire on the applicant and his friend. The applicant managed to escape but his friend was shot multiple times. The applicant stated that he became certain that his safety in the Philippines was no longer assured and began making enquiries about potential job opportunities overseas that would enable him to establish a secure life abroad.
At hearing the applicant described those events somewhat differently, stating that he visited his friend at his friend’s workshop in Manila in February or March 2016, hoping to catch up and talk that friend into leaving the Philippines with him. This friend had also been engaged in the purchase and resale of stolen cars. The applicant entered the reception of his friend’s workshop after lunch and spoke to his friend. A number of men came into the reception area, pretending to be customers, and his friend accompanied them to the workshop area while the applicant waited in the reception area. He heard shooting and looked through a window in the reception area to see his friend being shot by the men. The applicant fled out the back of the building, later hearing that his friend had survived the shooting. He has had no contact with that friend since the shooting. He gave evidence that his friend was targeted because of his involvement in stealing cars and selling them in his workshop. After that incident the applicant returned immediately to Pampanga to see his mother before travelling to Bataan. He stayed in Bataan for almost a month, traveling to Manila on several occasions to follow up his visa application. For the remainder of 2016 he lived with his mother in Pampanga.
The Tribunal accepts that incident occurred as described by the applicant at hearing. The applicant did not suggest in his evidence to the Tribunal that he himself was targeted in that attack, rather he said his friend was targeted for his own involvement in criminal activities. The applicant’s evidence was that he had not been involved in car theft since his return to the Philippines in December 2015 because he was focused on staying clean to get his Australian visa. The Tribunal notes that the applicant was present only by chance, having visited his friend on the day the attack took place. The attack did not occur in the applicant’s home town and the shooters did not attempt to harm the applicant. For these reasons, the Tribunal does not accept the applicant was known to the shooters, nor that he was a target of that attack.
In his written statement, the applicant claims he was targeted on two further occasions as a result of the anti-drug campaign and that on both occasions he managed to escape because he was in a public area. When asked about these instances at hearing, he gave evidence that he would sometimes see suspicious‑looking men in public places and he thought they were following him. When asked why he thought they were following him, he said that his friends had told him that people were going around automotive shops pretending to be customers but asking suspicious questions. When asked why he thought that had anything to do with him, he said these things started to happen after his friend was shot. He said there were three occasions on which he felt he was being stalked – one in Pampanga, one in Manila and one in Bulacan. He managed to evade his stalkers on each occasion by changing direction. He said that because the police and military in the Philippines used non-uniformed vigilantes to target criminals and drug users, everyone looked suspicious to him. He described himself as paranoid about vigilantes during 2016, saying he just wanted to leave the country.
The Tribunal accepts that the applicant’s fears that was he being followed in 2016 are genuinely held, however it does not accept that men were following him or seeking to harm him as claimed. In making that assessment the Tribunal notes that the persons the applicant believes were following him never approached or spoke to him and he was able to evade them simply by changing direction. The Tribunal further notes the applicant’s evidence that everyone looked suspicious to him because he was paranoid about vigilantes in 2016 due to the government crackdown on drugs and crime and the shooting of his friend in Manila earlier that year. As well the applicant’s own evidence is that he was not involved in carnapping or other criminal activities during his return to the Philippines between December 2015 and February 2017 because he was scared of the government crackdown and focused on obtaining his Australian visa and employment. He gave evidence that apart from the feeling that he was being followed, he experienced no other problems during the year he remained living in the Philippines before traveling to Australia, rather he was able to work on his visa application, finalise the paperwork and leave the Philippines without difficulty. In these circumstances, the Tribunal does not accept the applicant was being followed or stalked by strange men during that year.
At hearing the applicant told the Tribunal that he had two other friends, a brother and sister, who were killed in or before 2016. When asked about the circumstances of their deaths, the applicant stated that the brother was killed at a [location] in Pampanga while the applicant was still living in [Country 1] and his sister was shot in front of her house in Bulacan in 2016 because of her involvement in car theft and drugs. The Tribunal accepts that those individuals were killed in the circumstances described by the applicant and that the reason for their deaths may have been their involvement in criminal activities.
The applicant also described the disappearance of another person he knew as [name]. At hearing the applicant gave evidence that he only knew her because she lived in Pampanga and belonged to a different carnapping group and he saw on social media that she was missing and later found dead. Following the hearing he provided the Tribunal with two Facebook links indicating that [Ms A] went missing in Bulacan in or around February 2024. The Tribunal notes that one of the Facebook links contains material that is not translated, but it accepts that [Ms A] went missing in Bulacan in or around January or February 2024 and was later found dead. The applicant believes her disappearance and her death was related to her criminal activities, and the Tribunal accepts that may be the case.
Risk of harm on return to the Philippines
The applicant fears that if he is returned to the Philippines he will be targeted for harm by the Filipino authorities or vigilante groups because of his past involvement in drug use and criminal activities. He claims that the Filipino authorities hired independent contractors known as vigilantes to pursue individuals who were involved in drug-related and gang‑related crimes, often resorting to lethal measures.
DFAT reported in 2021 that the former President Rodrigo Duterte was elected on a promise to eliminate the illegal drug trade and deal with crime and corruption, resulting in arrests and killings of drug users and dealers and impunity for police and soldiers who killed. Extrajudicial killings were often blamed on unidentified vigilantes, but DFAT notes it is highly likely that police were also involved in extrajudicial killings. DFAT cites official figures from the Philippines Drug Enforcement Agency as stating that 6,117 people were killed in anti‑drug operations between 1 July 2016 and 30 April 2021.[1]
[1] DFAT DFAT Country Information Report: The Philippines at 2.39

Since the most recent DFAT report was published, the President of the Philippines has changed. The current President Ferdinand Marcos Jr has said the focus of the government’s anti‑drug policy has changed towards prevention and rehabilitation, recognising that drug dependence is a ‘serious mental health condition’ and emphasising the need for ‘a holistic approach to crack down on the use of illegal drugs’ including ‘prevention, treatment, rehabilitation, and law enforcement’. It is reported that extrajudicial killings related to drugs have decreased in number but continue to occur and law enforcement officers and their agents have continued to conduct raids using former President Duterte’s orders as justification.[2]
[2] ‘Drug dependence a mental health problem, says Bongbong Marcos’, Mangaluz, J, Inquirer.net, 28 September 2023, 20240129185748
On the basis of the country information cited above and the applicant’s own evidence, the Tribunal accepts that drug users and dealers were targeted by the government and vigilantes as a consequence of former President Duterte’s drug policies. The Tribunal further accepts that while the new President has changed the focus of the government’s anti‑drug policy towards prevention and rehabilitation, extrajudicial killings continue to occur, albeit at a decreased level, and law enforcement officials continue to be implicated.
However the Tribunal does not accept there to be a real chance the applicant will be targeted for harm by the authorities of the Philippines or vigilantes for reasons of his drug use if he returns to the Philippines now or in the foreseeable future. This is because the applicant has not resided in the Philippines since 2008, except for a period of about 14 months from late 2015 to early 2017. He used drugs during his periods of return to the Philippines for one month in each of 2010, 2012 and 2013 but only occasionally after returning to the Philippines to live in 2016 because he had to stay clean to get his Australian visa. His evidence at hearing was that he was never involved in the trafficking or the supply of drugs in the Philippines. Given his drug use appears to have been limited to his brief returns from [Country 1] and infrequent use in 2016, the Tribunal does not accept there to be a real chance that the applicant will come to the adverse attention of or otherwise face harm from the Philippine authorities or vigilantes for any reason relating to his past drug use.
In considering the applicant’s claim that he may face harm if he returns to the Philippines and again starts using illicit drugs, the Tribunal considers that prospect to be merely speculative. While he returned to using methamphetamine in or about 2020 when his skilled visa was cancelled, he self-ceased using any illicit drugs a couple of months before being jailed in mid-2022 and has been clean of all illicit drugs for almost two years. He participated in drug and alcohol counselling which he said he found so helpful that he stopped using cigarettes or alcohol. In these circumstances, the Tribunal does not accept there to be a real chance that the applicant would face harm if he returns to the Philippines now or in the foreseeable future because of any future drug use.
In MIAC v SZQRB, the Full Federal Court held 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.[3] For the same reasons, the Tribunal does not accept there to be a real risk that the applicant will face significant harm from the Philippine authorities or vigilantes or any other person or group because of his past or future drug use.
Risk of harm on return to the Philippines – car theft
[3] MIAC v SZQRB [2013] FCAFC 33.
It became apparent during the course of the Tribunal hearing that the applicant’s primary fear about returning to the Philippines arose from his past criminal activities relating to car theft rather than his past drug use. In that regard, the Tribunal has accepted his evidence that he used money he earned overseas to finance the purchase of stolen cars and their resale on return to the Philippines in each of 2010, 2012 and 2013 but that he was not involved in these activities in 2016.
At hearing the applicant stated that he feared being shot or killed in the way that his friends had been because of his involvement in car theft. When the Tribunal discussed with him that it seemed unlikely that he would be similarly targeted given his evidence that he had been living overseas from 2008 until 2015 and he was not involved in car theft at all after returning to the Philippines in December 2015, the applicant stated that was the way it was, that he had been involved in carnapping in the past, that he would be associated with that activity and it was likely he would be targeted.
While the applicant acknowledged that there had been changes to the government administration since his departure from the Philippines, he was concerned that those vigilantes who were paid or hired to avenge the victims of criminal activities would still be around wanting to deliver revenge regardless of the changes. When asked if he believed that particular people were searching for him, the applicant said that he didn’t really know but no-one was arrested when his friends were killed so those persons would still be around.
The Tribunal does not accept there to be a real chance that any person or group would seek to harm the applicant for reasons of his past criminal activities relating to car theft. While the Tribunal has accepted that a number of persons known to the applicant were targeted in violent crimes that may relate to their own criminal activities, the applicant’s circumstances are quite different. Apart from three returns of one month each, he has resided in the Philippines for only 14 months since 2008 (being December 2015 – February 2017). His own involvement in car theft took place during each of his three brief returns in 2010, 2011 and 2013 and was limited to providing finances for his friends to purchase stolen cars for resale. The Tribunal has not accepted that he was targeted in the attack that took place on his friend’s workshop in Manila in February 2016, nor that he was being followed or stalked by strange men during that year. More than 10 years have passed since the applicant was last involved in car theft activities and more than seven years have passed since the applicant departed the Philippines for Australia.
The effluxion of time, together with the applicant’s relatively low level of involvement in criminal activities and his ability to reside in the Philippines without being targeted during 2016, cause the Tribunal not to accept there to be a real chance that any person or group would seek to harm the applicant for reasons of his past criminal activities, rather the Tribunal considers that prospect to be remote. For the same reasons, the Tribunal does not accept there to be a real risk that the applicant will face significant harm from the authorities of the Philippines or vigilantes or any other person or group for reasons of his criminal activities in the Philippines.
Cumulative assessment
Having accepted that the applicant is [an age]-year-old Filipino male who has in the past used methamphetamine and cocaine and been involved in car theft related crimes, I have considered whether the cumulative effect of such characteristics may result in a real chance that the applicant will be targeted for harm in the Philippines if he returns now or in the foreseeable future.
Given my findings above, I do not accept there to be a real chance that the applicant will be targeted for harm by the authorities of the Philippines or any other person or group on the separate or cumulative bases of his past drug use and criminal activities. For the same reasons, I do not accept there to be a real risk that the applicant will face significant harm from the authorities of the Philippines or any other person or group on the separate or cumulative bases of his drug use and criminal activities.
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.
Alison Murphy
Member

ATTACHMENT A - 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 2011

8 April 2024

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Immigration

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