2402507 (Refugee)

2402507 (Refugee) [2024] AATA 4303 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402507
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Frank Russo
DATE:8 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 8 April 2024 at 5:17pm
CATCHWORDS
REFUGEE – protection visa – Tonga – political opinion and freedom of speech, economic conditions, natural disasters and climate change – brief claims, no further evidence and consent to decision without hearing – country information – 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
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Tonga, applied for the visas on 29 October 2023. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants are persons in respect of whom Australia has protection obligations.
The first named applicant (the applicant) is a [Age]-year-old Tongan national. The second named applicant is the applicant’s spouse, a [Age]-year-old Tongan national.
The issues in this case are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act in Tonga and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Tonga, there is a real risk that they will suffer significant harm, and also whether either 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 s.36(2)(aa) of the Act and who holds a Protection visa.
On 12 March 2024, the Tribunal wrote to the applicants advising that it had considered all the papers relating to their application for review, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at an in-person hearing at 1:00pm on 9 May 2024. The applicants were advised that if they did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice.
On 3 April 2024 the applicants advised the Tribunal by email that they did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. The applicants did so by providing a completed response to the hearing invitation, which was signed by the applicant. The response from the applicants was also accompanied by a letter signed by both applicants, which confirmed the applicants would not be attending the hearing as they have a young child, whose birth they are in the process of registering. They claimed that they would be unable to make arrangements for their child. The letter also contained additional submissions. The letter also requested that the application for review not be dismissed, but a decision be made on the evidence before the Tribunal. This matter has therefore been determined on the evidence available to the Tribunal. The applicants were advised by the Tribunal by letter on 3 April 2024 that the Tribunal had cancelled the hearing and would proceed to make a decision on the papers.
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
As noted above, the issues in this case are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act in Tonga and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Tonga, there is a real risk that they will suffer significant harm, and also whether either 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 s.36(2)(aa) of the Act and who holds a Protection visa.
In support of their application for review, the applicants provided the Tribunal with copies of the delegate’s reasons for decision and notice of the decision from the Department. On 3 April 2024 the applicants provided a response to the hearing invitation, which indicated that the applicants would not be attending the hearing, as well as a letter explaining their reasons for not attending the hearing and containing additional submissions. The Tribunal has had regard to this information.
The Tribunal also has a copy of the Department file and has had regard to the documents on that file, which include a system-generated copy of the applicants’ protection visa application. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about Tonga.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims made in Protection visa application
In their Protection visa application, the applicant claims that he left Tonga because of the following:
a.His political opinion of the government;
b.To flee economic crisis;
c.In search of better economic stability;
d.Freedom of speech and expression; and
e.To flee climate change and rising sea levels.
In response to the question whether he experienced harm in his country, the applicant stated yes. He claimed that this involved ‘Psychological, mental, verbal and economic harm and effects.’
He claimed that he did not seek help within his country because of ‘Fear’, but did not provide any other details. He claimed that he did not move or try to move to another part of the country because there was nowhere to go within the small islands. He claimed that if he returns to Tonga, he will suffer the same harm as before, but did not otherwise provide any details.
The second named applicant declared that she was not making any claims for protection of her own.
Departmental interview and delegate’s decision
There is nothing in the Department file or delegate’s decision to indicate that the applicants were invited to attend a Protection visa interview. The delegate made a decision based on the applicants’ written claims. The delegate’s decision advises that on 6 November 2023 the applicants were sent acknowledgement of a valid visa application, which advised that the applicants could provide additional information relating to her claims and how to provide this. The letter also informed the applicants that the Department could make a decision on their application without another opportunity for them to present any further information. The applicants did not provide the Department with additional information about their claims. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act. The delegate found that the second named applicant did not satisfy these provisions and is not a member of the same family unit as a non-citizen who holds a protection visa, and therefore did not satisfy the criterion in s.36(2) of the Act.
Claims contained in written submission to the Tribunal
In their written submission dated 3 April 2024, the applicants state that they wanted to share the following further information with the Tribunal about their claims:
a.In January 2022 there was a volcanic eruption that his [Town], where they are from. This was followed by a tsunami;
b.The natural disasters have led to a serious economic crisis. The agricultural and fisheries sectors have suffered substantial damage, including damage to crops and livestock;
c.This affected 80 per cent of the population, damaged infrastructure and clean water;
d.The King of Tonga has made changes, including firing two cabinet portfolios. The news noted that this ‘could take Tonga back to dark ages’;
e.There is political stress between Tonga and the USA due to deals that Tonga is making with China; and
f.The overall situation is still very bad since the natural disaster.
As these written submissions have been signed by both applicants and are expressed in a general manner, rather than stated to apply to both applicants, I have addressed these claims as applying to both applicants.
Analysis, findings and reasons
Neither the electronic Department file provided to the Tribunal, nor the Tribunal file, contain copies of the applicants’ passports. The Department file contains details of an identification test conducted by the Department on the applicants on 14 December 2023. This indicates that the applicants provided personal identifiers and biometric checks were recorded in the Departmet’s ICSE database. The delegate’s decision indicates that both applicants provided the Department with uncertified copies of their Tongan passports.
The Tribunal is satisfied on the basis of this information, that the applicants are citizens of Tonga. It has assessed them against that country for determining both whether they have a well-founded fear of persecution for the purposes of s.36(2)(a) of the Act and the purposes of determining their ‘receiving country’ for the purposes of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal has significant concerns about the applicants’ claims. The applicants did not attend the hearing to give oral evidence. They have also provided no further information in support of their claims, other than a brief written submission on 3 April 2024, which merely makes a number of assertions.
Findings regarding claims about political opinion and freedom of speech
The applicants claim that the applicant left Tonga because of his political opinion of the government and because of freedom of speech and expression. The Tribunal finds these claims to be vague and general and lacking in detail or any supporting evidence. There is insufficient evidence for the Tribunal to be satisfied that either of the applicants has experienced actual harm in the past or that they would face any harm on the basis of these claims upon return to Tonga. The written claims set out in the Protection visa application are brief and, without further detail, amount to mere assertions. If an applicant chooses not to attend a hearing, the Tribunal has only the information contained in the material before it from which to make its decision.
The applicants have provided no details to indicate that either applicant has been politically active or has expressed any opposition to the Tongan government’s policies in the past. The applicants have also not provided any details of harm experienced by either applicant other than the very general statement that the applicant suffered ‘Psychological, mental, verbal and economic harm and effects.’ There is no information as to who the perpetrators of such harm were or any details of the actual harm inflicted, such as particular events.
The written submission provided to the Tribunal does not provide further information about these claims other than very generic claims that the King has fired two of the cabinet portfolio members and that there is political stress between Tonga and the USA as a result of deals that Tonga is making with China. There is no information to indicate that either of the applicants would experience persecution or any harm as a result of either of these claims.
Country information indicates that Tonga is a constitutional monarchy[1] and parliamentary elections are held every three years.[2] Tonga’s Constitution guarantees freedom of the press and a variety of news outlets operate independently, including online.[3] The country information indicates that there are no major constraints on the ability of Tongans to discuss politics or other topics in person or on social media, although in August 2019, it was reported that Tongan police were considering laying treason charges against people insulting the royal family on Facebook.[4] Non-government organisations have not reported harassment or other restrictions by authorities in civil society and human rights defenders.[5] Tonga’s Constitution protects freedom of assembly. While demonstrations are rare, they generally remain peaceful. Safeguards against arbitrary arrest and detention are said to be respected by the authorities.[6]
[1] DFAT, Tonga country brief, Accessed 8 April 2024.
[2] Human rights in the Pacific: a situational analysis 2020, United Nations Human Rights Office if the High Commissioner & Pacific Community.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
The available country information indicates that the applicants would, within reason, be able to express their views with respect to the government of Tonga or its policies without being subject to any harm. This includes expressing views on social media. The country information also indicates that there are safeguards against arbitrary arrest and detention.
Had the applicants decided to accept the invitation to attend the hearing, the Tribunal would have discussed with them, their views with respect to the Tongan government’s policies and their claims regarding restrictions on freedom of speech. The Tribunal also has insufficient information, in the absence of hearing evidence from the applicants, as to what they will do if they return to Tonga. Had the applicants chosen to attend a hearing, I would have discussed with them whether they intend to express their views upon return to Tonga and why they believe this would bring them to the attention of the authorities or result in any harm, particularly given the country information.
There is no evidence before the Tribunal to indicate that either of the applicants has been politically active or vocal about issues relating to the Tongan government or its policies, and I do not accept that they were of any interest to the Tongan authorities because of their political opinion prior to departing Tonga. There is also no evidence to indicate that since arriving in Australia they have been politically active or vocal. I am not satisfied that the Tongan government or authorities have developed any adverse interest in the applicant since their arrival in Australia, nor do I accept that the applicants would be politically active in the future or that this would result in any risk of harm to them.
Findings regarding economic claims
The applicants claim in their visa application that the applicant left Tonga to flee economic crisis and to search for better economic stability. The applicants did not provide any details of their own experiences in Tonga in their written submission to the Tribunal, but instead gave general information about the natural disasters of January 2022 having led to a serious economic crisis, which has affected the agricultural and fisheries industries, that infrastructure and clean water were damaged, and that the overall situation is still very bad since the natural disasters.

DFAT advises that Tonga has a small open economy which is vulnerable to external shocks, and which faced an economic contraction due to COVID-19, although the worst impacts on vulnerable communities were minimised with overseas donor support.[7] DFAT also advises that the economy is heavily reliant on remittances from Tongans working overseas, with the main sources of remittances being from the USA, then New Zealand and Australia.[8] Foreign development assistance in the form of loans, grants and direct aid is also an important component of the economy.[9] Construction and infrastructure projects are sources of growth and agriculture is the leading productive sector.[10] DFAT advises that despite its economic challenges, Tonga remains one of the best performers in the Pacific in terms of progress against Millennium Development Goals.[11]
[7] DFAT, Tonga country brief, Accessed 8 April 2024.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
The applicants’ claims regarding their economic situation suffer from the same issues as their claims regarding political opinion. These claims are vague and lack any detail as to any harm experienced in the past, as well as any detail as to the harm they fear upon return to Tonga. While I accept that the applicants will have greater economic opportunities in Australia, there is no evidence that they were unable to make a living in Tonga or that they would experience a level of harm sufficient to meet the requirements for either the refugee condition or complementary protection. There is no convincing information to indicate that the applicants would be denied the capacity to earn a livelihood of any kind, such that it would threaten their capacity to subsist. There is also insufficient evidence to indicate that they would experience significant economic hardship that would threaten their capacity to subsist.
Findings regarding natural disasters and climate change
In their visa application, the applicants claim that the applicant left Tonga to escape rising sea levels and climate change. In their written submission to the Tribunal, the applicants claim that the volcanic eruption and tsunami of 2022 have resulted in serious economic crisis, affected 80 per cent of the population, damaged infrastructure and clean water and the overall situation is still bad since these disasters.
DFAT’s Smartraveller advice for Tonga,[12] which was last updated on 31 October 2023, provides the following information regarding volcanoes in a section relating to climate and natural disasters:
Home Reef Volcano began erupting on 10 September. The volcano activity poses low risk to residents of Vava’u and Ha’apai Island groups. Mariners are advised to stay at least 5kms from the volcano.
Parts of Tonga are severely impacted by and recovering from the Hunga Tonga-Hunga Ha'apai volcanic eruption and tsunami which flooded parts of Tongatapu and other nearby islands in January 2022. Work continues to improve communications in the outer islands, including the Vava'u and Ha'apai groups. Further explosive eruptions could occur in the area.
[12] Accessed 8 April 2024.
DFAT indicates that Australia and Tonga are working together to support a vision for a prosperous and stable Tonga, including a commitment to economic recovery, following the 2022 Hunga Tonga-Hunga Ha’apai volcanic eruption and tsunami, as well as the impact of the COVID-19 pandemic and global inflationary pressures.[13] This includes work to build critical infrastructure, to support economic reform and to facilitate skills development and labour mobility.
[13] Accessed 8 April 2024.
I accept that Tonga’s exposure to natural disasters, as well as to rising sea levels, is naturally occurring, and that Tonga is particularly exposed to natural disasters. However, there is no evidence that either applicant experienced targeted serious harm, or significant harm, on this basis while living in Tonga, nor that any such harm is the result of any persecution or actions of the government, authorities or any individuals.
Do the applicants have a well-founded fear of persecution if they return to Tonga?
I have not accepted that either applicant ha expressed their opinions about the government in the past or experienced any harm as a result of such activity. There is also no information to indicate that the applicants would express such opinions in the future, not that this would result in any harm or persecution. Given the applicants’ unsubstantiated assertions about lack of freedom of speech, I prefer to accept the country information, which does not support the applicants’ claims regarding harm on this basis.
I have also not accepted the applicants’ claims regarding their economic situation in Tonga and find their claims in this regard to be equally general and lacking any substantive detail or support.
I have accepted that Tonga’s exposure to natural disasters, climate change and rising sea levels is naturally occurring, and that Tonga is particularly exposed. However, there is no evidence that either applicant experienced targeted serious harm, or significant harm, on this basis while living in Tonga or that they would experience any targeted harm on return to Tonga.
The definition of ‘refugee’ under s.5H(1) of the Act, requires that, in a case where a person has a nationality, that they are outside the country of their nationality, and owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country. The definition of a ‘well-founded fear of persecution’ requires that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (s.5J(1)(a)). The persecution must also involve systematic and discriminatory conduct (s.5J(4)(c)). Persecution implies an element of motivation on the part of those who persecute in order to inflict harm. I do not accept that the applicants’ claims regarding climate change, natural disaster or rising sea levels involve a well-founded fear of persecution for any Convention related reason. In addition, the applicants have not identified an agent who would be responsible for persecution. There is also no evidence to indicate that the harm the applicants claim to fear involves systematic and discriminatory conduct, but rather that the claimed harm applies to the population of Tonga as a whole. There is no evidence before the Tribunal that either of the applicants are at any risk of targeted serious harm (or of significant harm) on this basis on return to Tonga.
In view of the above findings and the lack of detail contained in the applicants’ claims, the Tribunal is not satisfied that any of the applicants faces a real chance of serious harm because of their religion, race, nationality, political opinion, or membership of a particular social group in Tonga. Having considered all of the applicants’ claims, individually and cumulatively, and all of the evidence, I find there is no real chance that any of the applicants will suffer serious harm amounting to persecution from anyone for any reason, on return to Tonga, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In view of the above findings, I am not satisfied that there is a real risk that the applicants will suffer significant harm for any of the reasons claimed if they return to Tonga now or in the reasonably foreseeable future. The Tribunal has not accepted that the applicants will experience any harm on the basis of their political opinions. There is insufficient evidence to indicate that they would experience serious harm, as defined by s.36(2A) of the Act, on the basis of their economic claims or their claims relating to natural disasters, climate change or rising sea levels.
Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that any of the applicants will be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to torture or cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they returns to Tonga now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Tonga, there is a real risk that they will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicants do not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Frank Russo
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 4303

8 April 2024

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