2401161 (Refugee)

2401161 (Refugee) [2024] AATA 2387 (2 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2401161
COUNTRY OF REFERENCE: Timor-Leste

MEMBER:Alicia Bills
DATE:2 April 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 April 2024 at 11:31am
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – fear of harm from money lenders – parents borrowed animals and money for cultural ceremony, with applicant promising to work in Australia – demands for repayment but no threats or harm – vague and inconsistent claims and evidence – three returns after previous visas ceased – economic conditions – work history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
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 25 January 2024 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, applied for the visa on 1 November 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.
The applicant appeared before the Tribunal on 27 March 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, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment to this decision. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Timor-Leste passport, a copy of which is contained in the material before the Tribunal. The applicant has at all times maintained that she is a citizen of Timor-Leste. The Tribunal is satisfied that the applicant is a national of Timor-Leste and has assessed her claims against Timor-Leste as her country of nationality and the receiving country.
The applicant’s background and travel to Australia
The applicant is currently [Age] years of age. She was born in [District], Timor-Leste.
A Departmental movement record reveals that the applicant first travelled to Australia in June 2018 for a period of two months before returning to Timor-Leste in August 2018.
The applicant travelled to Australia on that occasion on a [Specified visa which is known as a Temporary Work (International Relations) visa and allows applicants to work in specific circumstances that improve Australia’s international relations.[1]
[1] Temporary Work (International Relations) (subclass 403) visa (homeaffairs.gov.au)
The applicant travelled to Australia again, on the same type of visa, for the period October 2018 to April 2019.
The applicant travelled to Australia for a third time, on the same type of visa, for the period October 2019 to December 2021.
The applicant travelled to Australia most recently, on the same type of visa, in October 2023. A Departmental record shows that the visa was granted in August 2023 and a condition of the visa is that the applicant is allowed to stay in Australia for no more than 9 months from the date of arrival.
In November 2023 the applicant lodged an application for a protection visa. The applicant has remained in Australia since her most recent arrival in October 2023.
The applicant’s claims for protection
In her protection visa application form lodged in November 2023 the applicant stated the following as her reasons for leaving Timor-Leste and claiming protection in Australia:
I was desperate to apply for visa protection because I felt there was a problem that was very dangerous to me if I return to my country, because I was threatened to go to prison or could be killed by people who had given me to borrow the money, that's all was happen because I didn't have much money to pay as much money as I have borrowed, so from there I beg to be able to get a protection visa because I'm afraid of being killed if I return to my country.
They will daily be torturing me, whenever I go back to Timor- Leste, because I will be jobless and unable to the interest every month as the interest and capital will keep increase every month.
No, because the amount which I borrowed, was so hug, and no one will help me to settle this amount, when I started pay them monthly interest, I also Sign some documents with them, and no one can help me even Police or local Politician Keep avoiding from me, as they do not want to get involved in this case.
No, I do not have relatives in other part beside my country, and I also cannot run or move from them since my relatives know about this matter, and all of them trying to avoid from me including my families.
They are totally looking up to and wants to kill me even if I manage to pay the interest every Six months while working in Australia but once I return to East Timor, I will be jobless while I am in Timor-Leste, so could not make payment to them, and the interest keep increasing every month, and make them keep torturing me in my daily life so I feel insecure when I Return to East Timor.
I will be harmed or mistreated if I returned because they want me to pay their money back, but I do not have money to pay that much money.
… it is extremely easy for them to fire me when I try to relocate to another place or area because Timor-Leste is a small country.
At the Tribunal hearing on 27 March 2024, the applicant confirmed that she had completed her protection visa application herself. The applicant then gave the following evidence of her background in Timor-Leste:
a.The applicant was born and raised in [Town], [District], Timor-Leste. [Town] is a town in the mountains. The town has a small population. The applicant’s parents are farmers. The applicant has [siblings]. The applicant has never married and has no children.
b.The applicant attended primary school, but was unable to attend high school as her parents could not afford to pay for high school. After completing high school the applicant helped her parents on the farm until she was approximately [age] years of age.
c.Thereafter the applicant moved to Dili to look after a child of a neighbour. The applicant lived with the family and was paid $80 per month. Each time the applicant was paid she arranged for rice, cooking oil, coffee and sugar to be sent to her family. The applicant saved some money and paid to attend an English language course. The applicant cared for the child for approximately four years until she was no longer needed.
d.Thereafter the applicant returned to live with her parents and helped them with their farming, including by selling cassava, cassava leaves, papaya and papaya leaves.
e.The applicant travelled to Australia for the first time in September 2023.
The Tribunal questioned the applicant to confirm whether it had understood her evidence correctly that her travel to Australia in September 2023 was her first time ever travelling to Australia. The applicant confirmed that when she travelled to Australia in 2023 that it was her first time travelling to Australia, that she had only been to Australia once.
The Tribunal informed the applicant that it had a Departmental movement record which stated that she had travelled to Australia on three occasions prior to her 2023 travel to Australia. The Tribunal informed the applicant that the information in the movement record was different to the applicant’s oral evidence and that the Tribunal may find the applicant’s oral evidence regarding her prior travel not to be credible. In response, the applicant stated that maybe she had heard the Tribunal question about her travel to Australia, but that the question had not been that clear. The applicant confirmed that she had been to Australia on three previous occasions. The applicant informed the Tribunal that she had worked in Australia on the previous occasions in [Job tasks].
The Tribunal asked the applicant why she came to Australia in 2023. The applicant gave the following evidence in response:
a.The applicant left Timor-Leste and came to Australia because she had an opportunity.
b.The opportunity was that she was asked by a company to come and work here. The company was [a Workplace] that she had previously worked at.
c.The applicant’s reason to come to Australia was to sustain her family, to send money to them.
d.Since the applicant has been in Australia she has been working in Adelaide [doing a Job task] for cash money. The season is currently over and she is having a rest.
The applicant agreed that she had arrived in Australia in late 2023 on a ‘403’ visa which allowed her to work and stay in Australia for up to 9 months from the date she arrived.
The Tribunal then asked the applicant why she had lodged an application for a protection visa. The applicant gave the following evidence in response:
a.The applicant is the second eldest daughter in her family and she wants to sustain her parents and younger siblings.
b.The applicant’s parents owned animals, which was a cultural practice.
c.Last year the applicant’s parents borrowed animals and money, and then had a debt. The applicant’s parents begged the applicant to pay off the debt.
d.The person who loaned the animals and money keeps raising the price and asking for payment.
e.The applicant came to Australia to earn money to give to her parents so they can repay the financial debt and the cost of the animals.
f.Some money has been repaid but not enough.
The Tribunal then questioned the applicant on whether there were any other reasons that she left Timor-Leste and came to Australia. The applicant gave the following evidence in response:
a.The reason the applicant came to Australia is because she is the second child and she plans to help her parents.
b.The applicant also borrowed money.
c.The applicant’s parents asked for money but the person wouldn’t give it to them and the applicant stated that she would go to Australia to earn money and so the person gave the applicant money.
d.The applicant’s parents had to pay for a cultural ceremony, which was urgent in nature and they couldn’t get a loan. The applicant was able to get a loan on the basis that she would be able to pay it back if she went to work in Australia. The applicant’s parents had to give a buffalo valued at $1,000.
e.The cultural ceremony related to the daughter-in-law and the owner of a house. It was not a ceremony like a wedding. The applicant’s parents were told to gather at a sacred house and were told what to do. It’s culture, in Timor-Leste you have to observe it, it’s customary practice. If you don’t observe it and do what the ancestors say, you won’t have a long life. The applicant’s parents didn’t have any money so they had to borrow.
f.The applicant’s parents borrowed $5,000 with monthly interest of $1,000. The applicant borrowed $3,000 with monthly interest of $300. The total of $5,000 borrowed by the applicant’s parents was not all in cash, some of it was in the form of animals.
g.The applicant borrowed the money in January 2023 from [Ms A]. The agreement was in writing.
h.Between January 2023 and September 2023 whilst the applicant was living in Timor-Leste the applicant did not make any repayments towards the loan.
i.Since the applicant has been in Australia she has not made any repayments towards the loan.
j.The applicant informed the person who loaned the money that if she got the opportunity to come go overseas and work that she would pay it back and the person was happy with that.
k.Every month the money lender demanded payment and used swear words but the money lender has never threatened or harmed the applicant. The money lender didn’t do anything because the applicant promised to pay. The money lender has contacted the applicant whilst she has been in Australia and the applicant has informed the money lender to just wait as she is only working a bit at the moment and when the applicant has some money she will pay the money lender and the money lender is okay with that.
l.The applicant’s parents have not repaid their loan and it has been a long time and they feel embarrassed. The money lender has not threatened or harmed the applicant’s parents.
The Tribunal questioned the applicant on whether she feared returning to Timor-Leste. The applicant stated that she was afraid for her parents because if she goes back early, how can she pay the loan. The applicant stated that she was not afraid that someone would do harm to her. The applicant stated that she was the second child and she had this opportunity in Australia and would like to help her parents.
The Tribunal then read to the applicant the entirety of her claims as written in her protection visa application form. The Tribunal observed that the applicant’s written claims differed from her oral evidence. The Tribunal noted that the applicant had not made any mention in her oral evidence of being tortured or threatened to be killed or imprisoned. The applicant then stated that she had told a person to organise her protection visa. The Tribunal observed to the applicant that in her earlier evidence she had stated that she had completed her protection visa application form herself. The applicant acknowledged this but stated that when she had said that she had completed it, she meant a person had completed it, that she hadn’t completed it.
The applicant confirmed that she wanted the protection visa for the reasons she had outlined, namely to repay loans.
Tribunal consideration
Fear of harm from money lender
In evidence before the Tribunal the applicant stated that she feared harm from a money lender in Timor-Leste. For the following reasons the Tribunal found the applicant’s evidence regarding her claims to fear harm from a money lender not to be credible.
a.The applicant’s claims in her written protection visa application form were materially different to the claims made in her oral evidence. Although both sets of claims raised the issue of the applicant borrowing money, the description of the money lender varied from a person who was threatening to torture, kill and imprison the applicant to a person who was comfortable waiting for the applicant to pay when she was able to do so without any repercussions. The Tribunal does not accept the applicant’s evidence that another person completed her written application form. This explanation is in contrast to the applicant’s earlier evidence that she completed the application form herself, and this explanation was only offered by the applicant when the differences in the claims were put to the applicant towards the end of the hearing. The Tribunal considers that the differences in the detail of the claims casts doubt on the veracity of the claims.
b.Despite being given opportunity to do so, the applicant was unable to explain with reasonable clarity why she and her parents had borrowed money. The applicant stated that she and her parents had borrowed $8,000. The applicant’s explanation for the purpose of the loan included a cultural ceremony which involved the daughter-in-law and the owner of the house, her parents following the instructions of ancestors and her parents having to give a buffalo valued at $1,000. The applicant’s explanation for the purpose of the loan was vague, lacked useful detail and was unclear. $8,000 is a significant amount of money. The Tribunal considers the lack of clear and logical explanation for the purpose of the loan casts doubt on the veracity of the applicant’s claims.
c.The Departmental movement record did not contain information that undermined, rejected or denied the applicant’s protection claims, but it did contain information about the applicant and her previous travel to Australia. The applicant’s clear oral evidence was that her first travel to Australia was in 2023, when in fact, the movement record revealed that she had travelled to Australia on three prior occasions. The Tribunal does not accept the applicant’s suggestion that the Tribunal question about her prior travel was not clear. The Tribunal afforded the applicant multiple opportunities, with the assistance of an interpreter, to clarify her evidence about her previous travel. The Tribunal considers the applicant initially misled the Tribunal regarding her previous travel to Australia and this causes the Tribunal to have concerns about the credibility of the applicant’s evidence generally.
d.When the Tribunal asked the applicant why she had come to Australia in 2023, her evidence was that it was for a work opportunity. The applicant explained that she wanted to sustain her family and send money to them. The Tribunal then asked the applicant why she had lodged an application for a protection visa and the applicant’s initial response was that it was because she was the second eldest daughter and that she wanted to sustain her parents and younger siblings. The applicant then informed the Tribunal about a loan her parents had taken. Following further questioning by the Tribunal the applicant informed the Tribunal of a loan she had taken. The Tribunal considers that the applicant’s initial and repeated responses that she had come to Australia to work and send money home are the reasons why she came to Australia in 2023. The applicant’s evidence in this regard was clear. The applicant’s evidence in this regard is also consistent with her travel to Australia on three previous occasions for the purpose of working here.

On the evidence before the Tribunal and for the reasons outlined above, the Tribunal does not accept that the applicant, or her parents, owe money to a money lender in Timor-Leste. The Tribunal does not accept that the applicant has ever been threatened or harmed in connection with money owed to a money lender. As such, the Tribunal is not satisfied that the applicant faces any harm if she returns to Timor-Leste as a result of money owed to a money lender. The Tribunal is not satisfied that there is a real chance that the applicant faces harm from a money lender if she returns to Timor-Leste, now or in the reasonably foreseeable future. For the same reasons the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm from a money lender as a necessary and foreseeable consequence of being removed from Australia and returned to Timor-Leste.
Fear of economic harm
Although the applicant did not expressly claim to fear economic harm should she return to Timor-Leste, it may be implied from her evidence that she fears economic harm by way of unemployment if she returns to Timor-Leste. In her written protection visa application form, the applicant mentioned being unable to pay a debt if she returns to Timor-Leste due to being jobless. In her oral evidence the applicant stated that she travelled to Australia on several occasions for work opportunities. The applicant gave evidence that in Timor-Leste she worked for four years caring for a child and was paid $80 per month. The applicant’s evidence was that each time she was paid, she arranged for food supplies to be sent to her family. I accept that the applicant’s earning potential may be higher in Australia than in Timor-Leste. I accept that the applicant has been motivated to work in Australia to support her family and has been granted a temporary visa to work in Australia on three previous occasions.
The applicant’s evidence was that after she finished primary school she helped her parents to support their farming. When the applicant was approximately 20 years of age she worked for a family for four years caring for their child. Following this period, the applicant returned home to her family and helped them with their farming, including by selling cassava and cassava leaves, and papaya and papaya leaves at the market. During her time in Australia on working visas, the applicant has worked in [Job tasks].
The applicant did not provide any evidence to the Tribunal of periods where she had been unemployed.
On the evidence available to the Tribunal, the applicant has a lengthy history of working in both Timor-Leste and in Australia. As such, the Tribunal considers that if the applicant returns to Timor-Leste she would be able to find employment. Accordingly the Tribunal is not satisfied that if the applicant returned to Timor-Leste she would face economic harm as a result of unemployment. The Tribunal is not satisfied that there is a real chance that the applicant faces economic harm from unemployment if she returns to Timor-Leste, now or in the reasonably foreseeable future. For the same reasons the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm from economic harm from unemployment as a necessary and foreseeable consequence of being removed from Australia and returned to Timor-Leste.
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.
Alicia Bills
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 2387

2 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies