2400686 (Refugee)

2400686 (Refugee) [2024] AATA 2595 (9 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2400686
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Rachel Da Costa
DATE:9 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 April 2024 at 10:04am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – fraudulent business activity – land dispute – fear of detention – torture – 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 16 January 2024 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 Vanuatu and applied for the visa on 13 September 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following information. He was born on the island of [Island 1], in the [named] province of Vanuatu. He has never been married. He speaks, reads and writes Bislama and English. He is a Christian.
He has no relatives in Australia with whom he is in contact. He is in contact with relatives outside Australia by telephone or social media.
He completed High School in Vanuatu. [Between specified years], he worked for [Employer 1] in [speciality areas]. In Australia, he worked on different farms.
In Vanuatu, he always lived on [Island 1] until he came to Australia. He arrived in Australia [in] December 2022 on a [temporary] visa, travelling on his Vanuatu passport.
Evidence before the Department
Claims for protection
In his protection visa application form, the applicant makes the following claims:
·     He left Vanuatu to save himself from the big group of community and the local government;
·     He was harmed because he was forced to withdraw his support for his government and a local NGO group unnecessarily questioned him and harassed him;
·     He tried to contact the police but instead of helping him, they tortured him;
·     If he returns to Vanuatu, he will be put behind bars by the state government;
·     He cannot seek help because the authorities are harassing him and so are the people of his community.
In a letter dated 13 September 2023, the applicant makes the following claims:
·     He was leading a happy life in Port Vila working as an employee in a small [business] which arranged to transfer money from place to place for people;
·     One day, he received money from someone to be transferred to another country, which he did immediately as instructed;
·     He didn’t know at the time, but the money was related to fraud and when the person who gave him the money realised they had been defrauded they took legal recourse;
·     They dragged the accused to court and the applicant’s name was not included in a First Information Report;
·     He was shocked when he didn’t see his name along with two accused because he had nothing to do with these transactions and just made them on the instruction of his company;
·     He was targeted and chased wherever he went;
·     He quit and went to [Country 1] but they found him and he was beaten by people who thought he was to blame;
·     He went to his village in [Island 1] but was found there too;
·     He had no other option but to leave Vanuatu and came to Australia as a seasonal worker;
·     He has some documents in Port Vila which he will get translated and will send them to the Department later.
The delegate’s decision
On 13 November 2023, the Department wrote to the applicant seeking more information about aspects of his claims for protection. The applicant did not respond.
On 16 January 2024, the delegate made their decision. Based on the information before them, the delegate was not satisfied of the credibility of the applicant’s claims and found that he was not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The applicant provided the Tribunal with a copy of the bio-data page of his passport, a copy of the delegate’s decision and a copy of his 13 September 2023 written statement. He did not provide any other relevant documents in support of his protection visa application.
The hearing
The applicant appeared before the Tribunal on 12 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Partner A]. The Tribunal invited the applicant to appear in-person but also offered him the choice to appear by Microsoft Teams video as he lives in [Town 1], NSW, which is [distance] from Sydney. The applicant chose to appear in person. As the Tribunal did not finish the hearing on 12 March 2024, the hearing was resumed on 5 April 2024. The resumed hearing was conducted by telephone, with the applicant’s agreement, to avoid him having to make another journey to Sydney for a short hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages. The Tribunal is satisfied that the applicant had the opportunity to participate in the hearing in a meaningful way.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the hearing, the applicant gave evidence that [a] man called [Migration Agent A] helped him fill in and lodge his protection visa application form and to write the written statement. A friend introduced the applicant to [Migration Agent A] in [Town 1] and [Migration Agent A] said the applicant could apply for a visa. The applicant does not know whether [Migration Agent A] is a lawyer or registered migration agent but he thinks [Migration Agent A] has a “certificate in migration”. The applicant paid him $800. The applicant gave [Migration Agent A] his passport which is all [Migration Agent A] said he needed to make the application, along with payment. The applicant said he knew what was in his application and statement and that it was all true.
In the hearing, the Tribunal discussed with the applicant his family, his residential history, his employment background, his migration history and the reasons he fears returning to Vanuatu. Overall, the Tribunal found the applicant to be an honest witness however it does not accept some of what he says are the consequences flowing from his claims. Further, the Tribunal considers the applicant has been poorly advised, if not misled, about his migration situation in Australia.
The applicant gave evidence that in Vanuatu, he has his parents, [and specified family members], and they all live together in [Island 1]. He is in contact with them usually via [social media] because the connection to [Island 1] is not strong. In Vanuatu, the applicant always lived in [Island 1] with his parents, but in 2019 he visited Port Vila for a couple of months for a holiday with a relative. He completed [grade] in Vanuatu and then started working in the garden with his parents. He never had any paid employment in Vanuatu and would make money by taking the things he had grown, namely [named crops], and selling them in the market. In Australia, he has a girlfriend, [Partner A]. She is also from Vanuatu but they met in Australia. His also has a friend, [Friend A], who was his neighbour in Vanuatu and also lives in [Town 1].
In the hearing, the applicant gave evidence that the reason he came to Australia is because he was involved in a land dispute in his village and was seeking a way to leave and support himself. He also said that when he was in Vanuatu he was unemployed and in Australia he can work and make a living for himself. The applicant gave evidence that if he returns to Vanuatu, he won’t own any land or have access to land and he would be homeless and have nowhere to stay.
In response to questions from the Tribunal, the applicant told the following story. Growing up on [Island 1], he lived with his parents and helped on their family land which was shared by his uncle. The applicant is the youngest child and his uncle is more powerful than his father, and so in about the year 2000 when the applicant was [age] his family told him he had to go and make his own living because there was no room for him on the land. The day this happened, there was a fight and the applicant was cut with a knife, but this is the only time there was any violence. The applicant went to live with another uncle, [Uncle A], who lived on the same island but in another place about two hours away by vehicle. [Uncle A] let the applicant use a small piece of land for farming which was enough to support himself, but after about two years, [Uncle A] told the applicant he could not stay there forever and he had to find his own land. The applicant decided to come to Australia and arrived in December 2022.
The applicant’s partner, [Partner A], gave evidence that the applicant had told her that if he returns to Vanuatu, he will face problems because of the land dispute. She said he told her he had been injured in the dispute. He told her there was not enough land available to him in Vanuatu to work a garden. He told her that he would apply for a protection visa so he could continue to earn money and work towards being able to buy a piece of his own land in Vanuatu. [Partner A] and the applicant have a plan to work and live in Australia together to earn money so they can go back and make a place for themselves in Vanuatu.
The Tribunal put to the applicant that in the hearing he had talked about a land dispute, but then reminded him of what it said in his protection visa application form and the written statement about why he feared returning to Vanuatu. The applicant said that [Migration Agent A] wrote those things without him knowing. The Tribunal put to the applicant that earlier in the hearing he had said he knew what was in his protection visa application and that it was all true. The applicant responded that [Migration Agent A] wrote these things without his knowledge or consent. The Tribunal asked the applicant why it should believe the story he had told the Tribunal in the hearing about the land dispute. The applicant suggested that maybe when asked earlier about whether everything in his application form and statement were true he hadn’t understood and insisted that what he was telling the Tribunal in the hearing was true. The Tribunal has considered the applicant’s explanation and response. The Tribunal found the applicant’s evidence about access to land and the family dispute in [Island 1] to be sufficiently detailed and consistent that the Tribunal is prepared to accept that he was speaking from personal experience about these events. The Tribunal is prepared to accept that the story about the land dispute is true. On this basis, the Tribunal is also prepared to accept [Partner A’s] evidence about what the applicant told her happened in Vanuatu and their plans together for the future. Based on the applicant’s evidence about his interactions with [Migration Agent A], the Tribunal is prepared to accept that the applicant had no idea of the claims that had been made in his protection visa application form and the written statement and finds that those claims are not true. The Tribunal will give those claims no further consideration.
In the hearing, the Tribunal discussed with the applicant the situation for him if he returns to Vanuatu. The applicant said he does not fear violence from his relatives if he returns to Vanuatu, but he is concerned that he has no land which means he has no future there. He doesn’t think he could find a job in Vanuatu because of his level of education and the only job he knows how to do is “gardening”, which the Tribunal understands to mean subsistence farming which is what he did in the past.
The applicant gave evidence that he would not try to get access to the family land he was excluded from by his uncle or the land [Uncle A] allowed him to use before he came to Australia. He confirmed that he did not attempt to regain access to this land while he was still living in Vanuatu and he agreed that he would not try to take back any of that land if he returned to Vanuatu when the Tribunal put this to him. The Tribunal put to him that it might find the land use issue was the only reason he experienced any harm in Vanuatu in the past and this harm was from his relatives who owned the land. It might find that if he went back, he would not try to regain access to family land and so he would not be harmed by his relatives. The applicant responded that Vanuatu is small and if you leave and go back it will be hard to find land. The Tribunal has considered the applicant’s response and finds that it does not respond directly to the Tribunal’s concern. The Tribunal also put to the applicant that based on the evidence, it might find there were no other reasons why anyone else would try to harm him if he returned to Vanuatu. The applicant responded again that it would be hard for him to find land. The Tribunal has considered the applicant’s response but does not accept it as it does not respond to the Tribunal’s concern. Therefore, based on the evidence before it, the Tribunal finds that if the applicant returned to Vanuatu in the reasonably foreseeable future, he would not try to regain access to family land and therefore he would not face a real chance of serious harm from his relatives who own that land.
In the hearing, the Tribunal discussed with the applicant what he would do if he went back to Vanuatu. In his evidence, the applicant was very focussed on his need and wish to have his own land to farm and expressed the view that without that, he did not know what he could do or how he could survive. The Tribunal discussed with the applicant the skills and experience that he had gained in Vanuatu and Australia. The applicant gave evidence that he was a farmer in Vanuatu. He gave evidence that in Australia, he works on [a] farm and his tasks include [duties specified]. He has learned more about [specified farm duties]. He has done a [related] course and received a certificate for that with the assistance of his boss. He gave evidence that since working in Australia he has saved around $9,500 and he occasionally sends money home to his parents.
The Tribunal asked the applicant where he would go back to if he had to return to Vanuatu. He said he would maybe go and live in Port Vila but he could not find a job. In the hearing, the Tribunal discussed country information with the applicant about employment prospects in Vanuatu. A recent report from the Asian Development Bank[1] explains that in Vanuatu, so many local people have left to go and work overseas that this has led to a shortage of working-age people in Vanuatu. This report says there are shortages of workers in the tourism sector, the health sector, as well as in agriculture and construction. Some Pacific countries are even having to import their own migrant workers to fill these labour shortages. Another academic source[2] indicates that Vanuatu is the largest supplier of labour to Australia and New Zealand under the Pacific seasonal worker schemes and this has created concern in Vanuatu about a shortage of domestic labour forces, particularly amongst working age men, of which the applicant is one. Media reports indicate that there are development projects taking place on the island of [Island 1], where the applicant is from, employing local workers in road construction and development of the tourism industry.[3] Port Vila also has development projects underway.[4]
[1] Rough Sailing: Navigating Labor Shortages and Remittance Needs in the Pacific | Asian Development Blog (adb.org) (accessed 13 March 2024)
[2] Pacific labour mobility over the last year: continued growth - Devpolicy Blog from the Development Policy Centre (accessed 13 March 2024)
[3] [Sources deleted.] (accessed 8 April 2024)
[4] [Source deleted.]
The Tribunal put to the applicant that while it understands that he can earn more money in Australia than in Vanuatu,[5] it might find that with his skills and experience, including the skills he has gained while working in Australia, he would be able to find employment back in Vanuatu, for example in the agricultural sector or construction. The applicant responded that in Vanuatu you need to have a certificate to be qualified in those sectors and get work. The Tribunal put to the applicant that with his skills and experience he appeared to be very well qualified to work in the agricultural sector, for example. The applicant put to the Tribunal that there are no big farms in Vanuatu like in Australia where he could be employed and there are only little farms owned by families, although he did not refer to any independent information in support of this. The Tribunal explained that this was not consistent with the information it had. Information indicates that there is an agricultural production sector in Vanuatu which faces a shortage of workers and this is different from people engaging in subsistence farming which is just for their own needs.[6]
[5] Pacific Islands fear brain drain from Australia job scheme | Labour Rights | Al Jazeera (accessed 13 March 2024)
[6] Pacific Islands fear brain drain from Australia job scheme | Labour Rights | Al Jazeera; Government urged to review labour policies to protect local jobs | News | dailypost.vu; Vanuatu grapples with seasonal worker success - Devpolicy Blog from the Development Policy Centre (accessed 8 April 2024)

The Tribunal put to the applicant that it understood it might be difficult or expensive for him to find his own land, but it might find that with his savings and his skills he would be able to find a place to live and he would be able to find employment and he would be able to subsist. The Tribunal explained that in these circumstances, it might find he would not face a real chance of serious harm or a real risk of significant harm. The applicant responded he doesn’t think the money he has saved is enough, the exchange rate is not good, he does not have land and has nowhere to go. The Tribunal has considered the applicant’s response but does not accept it. For the reasons explained above, the Tribunal finds that if the applicant returned to Vanuatu in the reasonably foreseeable future he would be able to find work and a place to live and he would be able to subsist.
Does the applicant meet the refugee criterion?
Based on the applicant’s evidence and the Tribunal’s findings above, it accepts that the applicant claims to fear harm if he returns to Vanuatu because he does not have any land to cultivate and he has nowhere to live and he won’t be able to find work. It also accepts that he does not fear harm from his relatives.
For the reasons set out above, and taking into account the country information referred to, the Tribunal finds that with his skills and experience and the money he has saved, if the applicant returned to Vanuatu in the reasonably foreseeable future he would be able to find work and a place to live and he would be able to subsist. Therefore, the Tribunal does not accept the applicant’s claims. The Tribunal finds that if he returned to Vanuatu in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
For the reasons set out above, the Tribunal has found that the applicant would not attempt to regain access to family land if he returned to Vanuatu. Therefore, the Tribunal finds that he would not face a real chance of serious harm from his relatives arising from these circumstances, or for any other reason, if he returned to Vanuatu in the reasonably foreseeable future.
The applicant did not suggest that he feared harm in Vanuatu for any other reason and the Tribunal does not consider that any other claims arise on the material before it.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Vanuatu now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[7] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[7] MIAC v SZQRB [2013] FCAFC 33
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.
Rachel Da Costa
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 2595

9 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies