2401578 (Refugee)

2401578 (Refugee) [2024] AATA 2393 (29 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2401578

COUNTRY OF REFERENCE: Timor-Leste
MEMBER:Samira Kamandi
DATE:29 April 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 April 2024 at 10:03am

CATCHWORDS
REFUGEE – protection visa – Timor-Leste – economic conditions – employment – court attendance document – family dispute – legal proceedings – member of a martial arts group – delay in applying for protection – 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) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a national of Timor-Leste. He arrived in Australia [in] January 2023 as a holder of a Temporary Work (International Relations) (Subclass 403) visa. On 22 December 2023, the applicant applied for a protection visa. On 31 January 2024 a delegate of the Minister for Home Affairs refused to grant the applicant’s protection visa under s 65 of the Migration Act 1958 (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
The applicant’s protection visa application indicates that he applied for protection in Australia because there were no proper jobs in Timor-Leste for the applicant to earn money and support his family. His parents borrowed money to pay for medical expenses and school fees and the applicant has to pay it back. There is still conflict in Timor-Leste and that is why there are no jobs. The applicant did not face any harm in the past and requests to remain in Australia to earn money to pay back the borrowed money. The government cannot help with the applicant’s personal debt issues and he is unsure of his ability to relocate within the country.
The delegate’s decision
The applicant was not interviewed by the delegate in relation to his claims. The delegate found that the applicant’s claim that he cannot find a stable job to support his family and repay his debt, did not relate to any reasons under s 5J(1)(a) of the Act and that there was no information that the applicant would be subjected to harm on return to Timor-Leste for these reasons. The delegate was not satisfied that the applicant faced a real chance of serious harm or was at a real risk of significant harm if returned to Timor-Leste. The delegate refused the applicant’s protection visa application on 31 January 2024.
Review application
The applicant lodged a review application with the Tribunal on 1 February 2024. The applicant provided the Tribunal with a copy of the delegate’s decision.
On 27 February 2024, the applicant was invited to attend a hearing on 28 March 2024. On 12 March 2024, the applicant responded and indicated that he would be attending the scheduled hearing. The applicant confirmed that he did not intend to rely on any document at the hearing and did not provide the Tribunal with any documents or further information regarding his claims for protection or otherwise.
On 28 March 2024, the applicant attended the hearing. The hearing was held in person at the Tribunal’s Perth Registry. The applicant was not represented. The hearing was held with the assistance of an interpreter in the Tetum and English languages. The applicant and the interpreter confirmed that they understood each other and there were no issues raised regarding the communication between the applicant and the interpreter at the hearing. I am satisfied that the applicant had a real and meaningful opportunity to present his claims and evidence and to respond to issues raised at the hearing. Where relevant, the applicant’s evidence given at the hearing is discussed below.
At the commencement of the hearing, the applicant indicated that he wished to rely on a document which he said was from the public prosecution’s office requiring him to go to court. The letter was not translated to English. The applicant was given a week to provide the Tribunal with an English translation of the document, which he emailed to the Tribunal on 4 April 2024. I have considered this document in assessing the applicant’s claims for protection.
At the commencement of the hearing, I explained the purpose of the hearing and the criteria for the grant of a protection visa which are outlined below. I also explained that I was not bound by the findings of the delegate and that I will be assessing the evidence and information before me, including the applicant’s evidence given at the hearing, in determining his review application. I indicated that all aspects of the applicant’s claims were an issue before me and that he should not assume that anything that was accepted by the delegate will also be accepted by me. I further expressed that I will be discussing any concerns or issues that I may have with his claims or evidence with the applicant to allow him to understand the issues and provide his responses and any further information that he wished for me to take into consideration. The applicant expressed his understanding of these matters and indicated that he had no questions in this regard.
CRITERIA FOR A PROTECTION VISA
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). 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–5LA, 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.
Issue to be determined
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Timor-Leste for reasons of his race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste there is a real risk that he will suffer significant harm.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Findings and reasons
For the following reasons, I have decided to affirm the decision under review.
Country of reference
The applicant has consistently claimed to be a citizen of Timor-Leste. He provided a copy of the biodata page of his Timor-Leste passport and driver’s licence. The delegate did not refer to nor identify any issues regarding the applicant’s identity or nationality. I accept that the applicant is a national of Timor-Leste, and that Timor-Leste is the receiving country for the purposes of this assessment.
Protection visa application
At the hearing, the applicant said that his friends in Australia told him about a person in Melbourne who would be able to help him to stay in Australia. He rang the person and paid him AUD250 via bank transfer. The applicant said that the person did not ask him about his issues in Timor-Leste and was told that all he had to do was to wait and he would have a visa to use. The applicant said that he never read or signed the application and was unaware of what was included in it.
I referred to the claims included in the applicant’s protection visa application, and the applicant confirmed that all the claims were incorrect. He confirmed that his parents did not borrow money, that he did not face financial problems, nor did he come to Australia to work to repay the borrowed money.
I accept the applicant’s evidence in this regard and find that the claims made in his protection visa application do not relate to his circumstances in Timor-Leste and that he does not rely on those claims for the purposes of this review.
Claims for protection
At the hearing, the applicant’s evidence was that he lived with a woman from 2019 to 2021 at his parents’ family home. They were not married but had a child together in 2019, a daughter born on [date]. The child remains with the woman, and they reside at her parents’ home in the same village as the applicant’s family in Timor-Leste.
At the hearing, the applicant claimed that the reason he applied for a protection visa was because he wanted to save himself due to problems that he had with a woman who he had a relationship with. He said that the woman made a complaint about him to the police and the public prosecutor, which remains unresolved, and that her brothers attempted to harm him when he was in Timor-Leste.
I accept that the applicant was in a relationship with the mother of his child and that they are no longer together. I accept that his daughter remains with the woman with her family and that they reside in the applicant’s village, where his parents and siblings also remain. As discussed below, I have significant concerns about the applicant’s claim that he departed Timor-Leste for the reasons claimed, in that the woman made complaints to the police or the public prosecutor, that there is an outstanding matter in this regard, or that he was in the past or will in the future be harmed by the woman’s family members.
As discussed below, apart from the very vague nature of his evidence presented at the hearing, I also consider the applicant’s delay in lodging his protection visa application, his lack of engagement with the process of lodging his protection visa application, and his failure to raise these claims earlier or at the very least after the refusal of his protection visa application in January 2024, or as part of his review application shortly after, to detract from the credibility of these claims raised at the hearing and to undermine his claim that has a genuine fear for his safety if returned to Timor-Leste.
The applicant arrived in Australia [in] January 2023 as a holder of a Temporary Work (International Relations) (Subclass 403) visa. At the hearing, the applicant stated that his visa was valid for a year. The applicant waited until 22 December 2023, almost a year after his arrival in Australia and days prior to the expiry of his visa to apply for a protection visa. As expressed at the hearing, the lengthy delay in lodging his protection visa application, given that he claims that the events prior to his departure caused him to fear for his safety, causes me concerns about the genuineness of his claimed fear. While I acknowledge that the applicant held a valid visa until January 2024 and that his failure to lodge a protection visa application while holding a valid visa is not determinative of the issue that he did not have a genuine fear for his safety if returned to Timor-Leste, given my concerns discussed below, I consider that the delay in lodging his protection visa application is a matter that detracts from the credibility of his claims raised at the hearing.
As expressed at the hearing, the applicant’s lack of engagement with his protection visa application to ensure his claimed fear of harm if returned to Timor-Leste was put forward, also causes me concerns about the genuineness of his claimed fear and the credibility of his claims. It is reasonable to expect that given that the applicant had a very short period left on his visa and was facing being returned to Timor-Leste, that he would have engaged with the process of lodging his protection visa application or at the very least discussed his fears of returning to the country with the person assisting him in lodging his protection visa application.
In addition, while I accept that the applicant was not provided with a copy of his protection visa application and was unaware of what was included in his protection visa application, his protection visa was refused in January 2024. He was notified of that decision which he provided to the Tribunal. As discussed at the hearing, the applicant had an opportunity to present his claims and evidence raised at the hearing, after the refusal of his protection visa application. His failure to do so suggests that he was not too concerned that his reasons for not wanting to return to Timor-Leste were not part of his protection visa application process and, in my view, further detracts from the credibility of claims or that he has a genuine fear for his safety if returned to Timor-Leste. Furthermore, the applicant was invited to attend the hearing before the Tribunal a month prior to the scheduled hearing date. While he responded to the hearing invitation, he did not provide any details or information about events which he discussed at the hearing. I consider the applicant’s failure to provide some details of his claims raised at the hearing, to also detract from the credibility of his claims.
In addition to the above, I found the applicant’s evidence at the hearing very problematic. He presented his evidence in a vague manner and aspects of his evidence were confusing and difficult to follow. As set out below, despite many attempts to illicit information and obtain clarification to alleviate my concerns, those concerns were not overcome.
In discussing the problems that the applicant faced due to his relationship with the woman, the applicant said that the woman was with another man and came to him and forced him to live with her. She was terrible to his parents and after leaving the applicant’s parents’ home, she reported the applicant to the police. When asked what was the issue that she reported to the police, the applicant said that she had said that he was at fault and that his parents forced her out of the house. When asked when that was, the applicant said that he could not recall the date, but it was in 2022 and that the police decided that the woman should return and live with the applicant. The applicant said that he accepted the decision, but the woman distanced herself and did not return to the applicant. The applicant also made references to the woman not returning with the child, not giving the child a bath, and that he waited for 2 months but she did not return.
The applicant claimed that after the woman and their child did not return, he started a new relationship in August 2022 which ended in November 2022. He said that the mother of his child found out about the new relationship and made a complaint to the public prosecutor. When asked about the nature of the complaint, the applicant said that she alleged that he hit and kicked her, which was not true. He conveyed this to the public prosecutor and was told that he had to go through the process. The applicant said that the woman did not show up at the first phase of the process and they had to wait for the next phase to resolve the matter. When asked if the matter had been resolved, while the applicant responded in the positive, he also said that 3 days after coming to Australia, he received a letter indicating that the matter needed to be resolved but he was in Australia. When asked if he had a copy of that letter, the applicant said that the letter was delivered to his mother saying that he had to go to court and that his mother only showed it to him and did not send the letter to him in Australia. When asked about the status of the matter, the applicant did not provide a direct response and referred to the woman wearing black clothes and telling their child that her father is dead and that his mother informed him of this.
Regarding the harm that he faced while in Timor-Leste, the applicant referred to the woman’s older brothers wanting to harm him and that they started to look for the applicant after he separated from the woman sometime in 2022. When asked again, the applicant referred to an incident when he was chased by the woman’s brothers. When asked to give details, the applicant said that it was [in] September 2022. He was on his way home on a motorbike and was chased by her brothers. He took the shortcut, and they were unable to catch him. Once he got to his neighbourhood, there were people there and they left. When asked if he reported the matter to the police, the applicant responded in the negative and said that he would have if they had laid a hand on him. When asked about the reason for the chase, the applicant said that they thought he was at fault. When asked if there were any other incidents, the applicant vaguely referred to ‘they’ who were looking for him, had a plan to hit him but did not lay a hand on him, and said that they would get him next time.
In response to my observation that the applicant remained at his village from September 2022 until his departure for Australia in January 2023, and that he was not harmed in that period, the applicant said that ‘thanks to the grace of God’ they did not do anything. When asked if his family members, who remain in his village and are known to the woman and her family, had been approached or harmed after the applicant’s departure from the country, the applicant responded in the negative.
I found the applicant’s evidence about the complaints and that the woman’s family members were after him not credible. Apart from the very vague nature of the applicant’s evidence as set out above, I also consider that if the woman’s family members were intending to harm the applicant, they would have had many opportunities to do so in the months after the applicant’s separation from the woman as the applicant remained in his family home known to the woman and her family. The applicant’s evidence that his family members remaining in his village have not been approached or faced any issues further informs my conclusion that the applicant’s evidence that the woman’s family are after him is not credible.

The applicant also claimed that he was a member of the martial arts group called ‘[Group 1]’ since 2014 and that he joined the group because he was influenced by friends at school. He said that because he was with the [Group 1] organisation and her family were with [Group 2], they didn’t like each other. The applicant then said that they were taking advantage of the situation to harm him and wanted him to be imprisoned. When referred to his evidence that they had only chased him once and came to his house, which is in the village that the woman and her family reside in, on one occasion and never harmed him, the applicant referred to their sister telling them to hit the applicant and that they had bad intentions. When asked how was it that the woman’s family members, who belonged to a rival group, allowed her to get involved with the applicant and reside with him at his family home, the applicant said that at the time her family were unaware that he was a member of the [Group 1] organisation and that when they found out they did not like it. When asked when that was, the applicant said when the woman was pregnant. As noted above, the applicant’s evidence is that they had a child in [specified year] and that they resided at his family home between 2019 and 2021. The applicant’s evidence suggests that the woman’s family found out that he was a member of the [Group 1] martial arts organisation sometime in 2018 and that they allowed her to remain and reside with the applicant until 2021 without causing the applicant any issues.
When reference to the applicant’s evidence that after the woman made a complaint with the police in 2021 and the police decided for them to get back together and for the woman to return to the applicant’s home, I asked the applicant about her family’s reaction to this decision. The applicant did not address the issue and said that he accepted the decision and that he was told to go to her house to talk to her and that his mother told him that if he went he would be harmed. I noted that this was different to what the applicant had said earlier, in that he waited for the woman for 2 months and she did not return, and that he did not mention having to go to the woman’s house to talk to her. The applicant said that earlier he did not talk about everything. I do not accept this explanation and note that the applicant expressly stated that the woman was to return after the police decision for them to live together, that she was to bring the child, and that she distanced herself and did not return in the 2 months after the decision. I consider that if the applicant was asked to talk to the woman during this time and did not do so due to concerns for his safety, that he would have made mention of this.
Regarding the applicant’s claim that the woman and her family wanted him to be imprisoned, with reference to the applicant’s evidence that the woman, after making a complaint with the police, did not cooperate with the process, I asked if they wanted him to go to prison why did they not cooperate with the process. The applicant then introduced further details that at the time they did not attend and that they were both summoned, and that while he reported, she did not come to the police. He further said that the police called her, and she said that she did not wish to come.
On the day of the hearing, the applicant emailed the Tribunal with a copy of an undated document claimed to be from the public prosecution office requiring the applicant to go to court. The details, such as the applicant’s name and the date, are handwritten. The typed ‘11 Jullu’ is crossed out and ‘11-11-22’, is inserted.
As the document was not translated to English, I asked the applicant to tell me what the letter was about, where it was from, and what it required him to do. The applicant said that the letter was from the scientific investigation of the national police and that the public prosecutor required him to appear before the court to resolve the issue. When asked if the letter referred to the issue or the complainant, the applicant responded in the negative and said that ‘they’ don’t name the complainant. I expressed to the applicant that unless he provides me with an accredited English translation, I would be unable to give the document much weight. He was given time to provide the Tribunal with an English translation of the document.
After the hearing, the applicant provided the Tribunal with a translated copy of the document. As indicated by the applicant at the hearing, while the document notes the applicant as the ‘suspect’ it does not name the complainant nor any details of the issue or matter requiring the applicant to attend the public prosecutor’s office. The document indicates that the applicant is to appear at the public prosecutor’s office to provide a declaration on [a day in] September 2022. As noted above the untranslated document indicates the date as ‘11-11-22’. As discussed with the applicant at the hearing, given that the document does not include details, such as the name of the complainant nor outlines the issue that resulted in the request for him to appear before the court, it does not establish his claim. In addition, I have concern about the authenticity of this document and together with my concerns discussed above, I do not accept that the applicant has an outstanding matter before the police, or the public prosecutor as claimed. While the applicant claimed that 3 days after his arrival in Australia, his mother showed him a letter from the authorities regarding the case, he said that he did not obtain a copy of the letter. Given that the applicant claims that he brought the letter requiring him to attend the public prosecutor’s office in September 2022, I consider that if there was a follow-up letter issued soon after his departure that he would have obtained a copy of that letter for the purposes of his protection visa application. The applicant’s failure to do so further undermines his claims.
Overall, on the applicant’s evidence and given my concerns discussed above, while I accept that the applicant was in a relationship with a woman in Timor-Leste, has a child who remains with the mother and resides at the village where the applicant is from, I do not accept that the applicant is wanted by the authorities with regard to a pending case or unresolved complaint or that the woman’s family members have attempted to harm the applicant in the past, have been looking for him after his departure from Timor-Leste, or that he is of any adverse interest to the authorities or the woman’s family.
Regarding his membership of the [Group 1] martial arts organisation, I asked the applicant about his role and activities with the group. He said that as a member of the group he helped other members like brothers and confirmed that he was not involved in any fighting or violence nor came to the attention of the authorities. When asked about the authorities’ views or actions against the martial arts group, the applicant said that he did not know anything. With reference to country information[1] that in September 2013 the government banned all martial arts clubs following gang violence and initiated a zero tolerance approach against those practising martial arts due to violence and fighting between rival groups, the applicant was asked how he joined the group in 2014. The applicant said that was not the case and that the government only banned martial arts groups in 2024. I then referred to country information[2] that reported that more recently, on 10 November 2023, the government again suspended activities of martial arts groups for 6 months following incidents of violence. The applicant said that it was in 2023 or 2024 that martial arts groups were banned due to the presidential election. On the applicant’s evidence and limited knowledge of the problems caused by martial arts groups and his very vague evidence about his involvement with the martial arts group, I do not accept that he was a member of the ‘[Group 1]’ organisation as claimed or that he faced issues at the hands of the woman’s family because they were part of a rival group. I am of the view that the applicant tied martial arts group rivalries to his claimed circumstances to bolster his profile and to add weight to his claimed problems while in Timor-Leste.
[1] Department of Home Affairs, “Timor-Leste – Crime – Law enforcement”, Standard Q&A Report, 25 November 2022, 20221110115234; US Department of State, “Country Reports on Human Rights Practices for 2022 – Timor-Leste”, 20 March 2023, 20230322103352; Associated Press, “East Timor band Martial Arts clubs as gangs wreak havoc on island”, 23 September 2013.
[2] Department of Foreign Affairs and Trade, “smarttraveller – Timor-Leste Travel Advice and safety” 5 December 2023.
Conclusion
Considering the applicant’s circumstances as a whole and in light of what I have accepted of his claims, I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.
The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet s 36(2)(a).
The Federal Court[3] has held that the ‘real risk’ test imposes the same standards as the ‘real chance’ test. Given my findings and reasons set out above, I am also not satisfied that the applicant faces a real risk of significant harm if returned to Timor-Leste.
[3] MIAC v SZQRB (2013) 210 FCR 505.
I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste, there is a real risk that he would suffer significant harm for any reason. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The applicant has not claimed and there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Samira Kamandi
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 2393

29 April 2024

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