2401304 (Refugee)

2401304 (Refugee) [2024] AATA 2120 (3 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2401304
COUNTRY OF REFERENCE:                   Samoa
MEMBER:Gary Ledson
DATE:3 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 June 2024 at 9:20am

CATCHWORDS
REFUGEE – protection visa – Samoa – applicant borrowed money to pay agent, who cheated her – threatened and house damaged – application completed by another person without applicant’s knowledge of purpose of visa or contents of applications – claims incorrect and no fear of harm – economic hardship – previously working in home country and working in Australia to support mother – partner in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J, 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 4 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 Samoa, applied for the visa on 8 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 by video before the Tribunal on 10 April 2024 to give evidence and present arguments. The hearing was conducted with the assistance on an interpreter in the Samoan and English languages. The hearing was adjourned due to technical issues experienced by both the applicant and the interpreter, both of whom were appearing by video. A continuation of hearing was scheduled for 27 May 2024 at 9.00am.
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.
Refugee criterion
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)). 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.
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[1]
[1] (1999) 197 CLR 510.
Complementary protection criterion
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) (and extracted in the attachment to this decision). ‘Significant harm’ is exclusively defined in s 36(2A) as follows:
(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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection under either the refugee criterion in s 36(2)(a), or under the complementary protection criterion in s 36(2)(aa) of the Act.
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.
Country of nationality
The applicant travelled to Australia on an apparently genuine Samoan passport, a copy of which is on the Department file. She has at all times declared she is citizen of Samoa and has been assessed on that basis by the Department. The Tribunal finds the applicant is a Samoan citizen and has assessed her claims against Samoa as her country of nationality and the receiving country.
There is no evidence before the Tribunal that the applicant has a right to enter and/reside, whether temporarily or permanently, in any other country.
Protection visa application
From the protection visa application, the applicant is a [Age] year-old female citizen of Samoa, born on [Date]. The applicant is ethnically Samoan and she is a Christian; she has never married; her mother and father are Samoan citizens, she provides no information of other family. The applicant speaks, reads and writes Bislama and English.
The applicant’s last arrival in Australia was [in] February 2020 as the holder of a Visitor (Subclass 600) visa granted to her on 7 October 2019. The applicant had previously travelled to Australia for short periods [in] April 2017 and [October] 2019 as the holder of a valid Visitor (Subclass 600) visas.
On 20 October 2022, the applicant was granted a Temporary Activity (Subclass 408) visa and on 14 November 2023, the applicant was granted a Bridging (Subclass 030) visa.
On 8 November 2023, the applicant lodged an application for a Protection visa.
In her protection visa application, the applicant set out her reasons for not wanting to return to Samoa, as follows:
Why did you leave that country(s)?
I work as [occupation 1] in [workplace 1] for 6 years. But when fascinated by the words of a friend who promises the beauty of working abroad like Australia I was interested. My friend told me about the agent who would handle all work, comfortable, cheap accommodation, and other facilities. There I work in [work sector] or [workplace 2] and offered a great salary. I'm excited when hear the offer of work in Australia from the agent. Because does not have a lot of money to finance expenditure there I make choices fast by borrowing with a credit company that is not licensed. As a promised, I continue to pay money to the agent of $8000 but after a week agent continue to fade without any news. Phone line is already turned off. After 2 weeks then I realized that I had been cheated. The unfortunate fate of me because money has been rescued and had to turn to pay the debt with high to the company is not licensed. Because cannot hold the suffering that hit my life, I sought help from relatives and friend who are willing to provide financial aid. Whatever happens I pound insisted want to save my life, but fortunately, I was offered a sponsored job from private company. They provide me with the Worker Visa and work in [occupation 2]. So, I travel to Australia. I feel very depressed for being deceived by an agent who only knows to ask for money. I was annoyed because I was forced to leave my job and my family in the village.
Did you experience harm in that country or other countries?
Yes, The type of harm is the money lander followed gangster to punch my car warning me with violence and started harm my family too. Every of my life I feel trauma when I received a lot of blackmail and keep threaten me. For failing to pay the money I few times on blackmail. My house wall painted with red paint and the mirror window broken because of acts of followers of unlicensed money. I also in followed by them and beat exodus and blackmail like to kill me if i failed to repay all the money. My life always in fear and nightmare.
Did you seek help within your country of countries after this harm?
I didn’t make a police report. I feel nothing will end problems and it will take most long time for the case to be investigate. I didn’t make a police report because Group will be continuing to harm me and warn to fracture my hand if I did it. I am thinking that if I make a police report didn’t mean me and my family will be fully protected.
Did you move, or try to move, to another part of that country or those countries to seek safety?
No I only decided to move to Australia to get Protection and Safety.
What do you think will happen to you if you return to that country or those countries?
I didn’t think to return to that country time, I didn’t want to harm myself with continuing threatened and thins around me.
Do you think that you will be harmed or mistreated if you return to that country or countries?
Yes, From that day I feel several traumata in my life after been threatened by blackmail, destroyed my house, warning me with violence and started to harm my family too. Who can protect my life, my family, and my life in fear.
Do you think the authorities of that country or those countries can and will protect you if you go back?
No, They just advise us to make a police report to get them to investigate
Do you think you would be able to relocate within your country or those countries to an area where you would not be harmed?
I choose Australia because I feel safe and secure here. I believe I will get protection and feel safe here. I found Australia have a good job opportunity and hope my application was successful.
On 4 January 2024, a delegate of the Minister refused the application finding that the applicant is not a person in respect of whom Australia has protection obligations.
Application for review
On 29 January 2024, the applicant lodged an application to the Tribunal seeking a review of the delegate’s decision to refuse her visa. The applicant included a copy of the delegate’s Decision Record.
On 28 February 2024, the Tribunal wrote to the applicant indicating that it had considered the material before it and was unable to make a favourable decision on that information alone. Accordingly the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in her case. The hearing, to be conducted by video, was scheduled for 10 April 2024 at 10.00am.
Because the Tribunal member was not available to conduct the hearing as scheduled, the hearing was rescheduled to 6 May 2024 at 2.00pm.
On 6 May 2024, the applicant appeared before the Tribunal, however, due to technical difficulties, the hearing was adjourned and scheduled to resume on 27 May 2024 at 9.00am.
Evidence at the hearing (6 May 2024)
The applicant told the Tribunal that she received assistance from a woman called ‘[Ms A]’, who completed her visa application and she did not know the reasons for seeking protection that were in the application. The applicant also said that she did not know or understand the reasons given for refusing her application.
The applicant confirmed her visa history, having been granted a Subclass 600 in 2017, travelling twice to Australia to visit family. When she was returning to Samoa [in] January 2020 she was stopped in [Country 1] because of a measles outbreak in her country and was unable to travel to Samoa and she was required to return to Australia. The applicant explained that subsequently she had been granted a Subclass 408 visa to enable her to work in Australia. When this visa ceased she applied for a protection visa.
The applicant said, prior to coming to Australia, she lived with her parents and [siblings] in her father’s family home in [Village], Samoa. The applicant currently lives with her partner in [City]. The applicant confirmed that she had completed her education to Year 13 and has subsequently worked in [job task] in a [workplace 3].
Resumption of the hearing (27 May 2024)
The Tribunal asked the applicant to again clarify the information provided in her protection visa application, noting that the evidence at the first hearing didn’t appear to match the claims in her visa application.
The Tribunal asked the applicant why she had applied for a protection visa. She said that she had applied for a visa earlier and a woman told her about protection visa and sent her some documents. The applicant had not met this woman and didn’t know where she lived saying she could be in either in Queensland or Perth. The woman was known as ‘[Ms A]’ and the applicant paid her $450 to complete the application. The applicant said that she did not submit the application – “[Ms A]’ had submitted it. The applicant confirmed that she did not know what was in the application and she only wanted a visa to enable her to work.
The Tribunal reiterated the criteria to be met for a person to be owed protection obligations by Australia, firstly by outlining the criteria for being considered a refugee. The Tribunal asked the applicant whether she feared returning to Samoa. The applicant said she had no fear of returning to her country and repeated she had asked ‘[Ms A]’ to help her apply for a working visa and didn’t know that the application was for a protection visa.
The Tribunal referred to the claims made in the visa application. The applicant said she had never worked in a [workplace 1] as claimed and had been working in a [workplace 3] before coming to Australia. The applicant had never borrowed money from anyone in Samoa. The applicant had never been harmed for any reason. The applicant agreed that she wanted to stay in Australia to keep working to support her mother but at the moment she is unable to work. The applicant now has a partner in Australia who is a [Country 2] citizen.
The Tribunal asked the applicant whether she would suffer serious harm in Samoa by referring to that definition in the Act. The applicant did not fear for her life or liberty, she would not suffer physical harassment or ill-treatment, be denied access to basic services or the capacity to earn a livelihood. She said that she may suffer some economic hardship because compared to living in Samoa and that she be able to any job in Australia. She would be paid well in Australia compared to what she could earn in Samoa. She wasn’t sure whether she would be able to get work in Samoa.
The Tribunal referred to the criterion to be granted Complementary Protection by Australia and whether there was a risk she would suffer significant harm in any way if she returned to Samoa. The applicant agreed that she would not be arbitrarily deprived of her life, or that the death penalty would be carried out on her, or she would be subject to torture or cruel or inhuman treatment or punishment or suffer degrading treatment or punishment.
The Tribunal suggested on the basis of her evidence it would appear the applicant did not meet the requirements to be granted a protection visa, either as a Refugee or through Complementary Protection and expressed regret for the circumstances in which the applicant finds herself by following the advice of ‘[Ms A]’.
The Tribunal asked the applicant whether there were any other reasons she feared returning to Samoa. The applicant said that she now has a partner in Australia and she wants to stay with him. She said that when she was young she had dreamed of coming to Australia and wanted to work here.
FINDINGS AND REASONS
Does the applicant meet the refugee criterion?
To be considered a refugee pursuant to s 36(2)(a) of the Act, it is necessary that if an applicant is returned to their country, they have a well-founded fear of persecution by reason of their race, religion, nationality, membership of a particular social group (PSG) or political opinion pursuant to s 5J(1)(a) of the Act.
The Tribunal accepts the claims in the visa application do not reflect the true circumstances of the applicant or the reasons she wishes to remain in Australia. The Tribunal accepts the applicant’s evidence that she received assistance in completing the visa application from ‘[Ms A]’, believing she was applying for a working visa. The applicant was not aware that she had applied for a protection visa. The Tribunal accepts the applicant had no knowledge of the content of the application and that ‘[Ms A]’ had submitted the application on her behalf. Specifically, the Tribunal accepts the applicant’s evidence that she has never worked in a resort in the past, she has never borrowed money or been cheated by an agent, and she has never been harmed for any reason in Samoa.

Her evidence is that she does not fear returning to Samoa for any Convention reason. She did however express some concern that she may suffer economic hardship because, whilst she would be able to find employment in Samoa, as she has in the past, she would not be able to earn as much as she has been able to earn in Australia. The applicant also expressed a strong desire to remain in Australia with her partner of three years.
The Tribunal accepts the applicant wishes to remain in Australia because she would have more employment opportunities in Australia and she would be able to earn more than she would in Samoa. The Tribunal accepts that, if she were returned to Samoa, the applicant would be separated from her partner of three years.
However, there is nothing before the Tribunal that would indicate the applicant would be denied the opportunity to work in Samoa or that the separation from her partner would be for any Convention reason. In fact, the applicant’s evidence is that she was employed before she travelled to Australia and was employed in Australia up until her protection visa was lodged. Additionally, the Tribunal considers it would be open to the applicant’s partner to follow her to Samoa.
The Tribunal accepts that the applicant may find it difficult returning to Samoa and potentially being separated from her partner, having spent 4 years in Australia. However, the Tribunal is satisfied that she will be able to resettle in Samoa, with or without her partner, find employment and have the capacity to financially support herself and her mother.
Having regard to the applicant’s claims, the Tribunal is not satisfied the applicant has a well-founded fear of persecution under s 5J of the Act if she returned to Samoa. The Tribunal is therefore not satisfied the applicant is a refugee and is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant meet the complementary protection criterion?
The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Samoa, there is a real risk that she will suffer significant harm such that she meets the complementary criteria under s.36(2)(aa).
Significant harm is defined in s 36(2A). The applicant does not suggest that any harm she may suffer in Samoa could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture, nor is there a suggestion the death penalty will be carried out on her.
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.[2] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J.
[2] [2013] FCAFC 33 (Lander, Bosanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
Having found the applicant does not have a well-founded fear of persecution if she returned to Samoa, it follows the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Samoa, there is a real risk that she will suffer significant harm in any of these ways.
The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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.
Gary Ledson
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 2120

3 June 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction