2402654 (Refugee)

2402654 (Refugee) [2024] AATA 3205 (5 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402654
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Frances Simmons
DATE OF DECISION:  5 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 July 2024 at 2:24pm
CATCHWORDS
REFUGEE – Protection Visa – Vanuatu – has not experienced harm in Vanuatu in the past – absconding from the PALM scheme – not satisfied the applicant has a real chance of suffering serious or significant harm – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of Vanuatu. He arrived in Australia on [date] September 2022 as the holder of a Temporary Work (International relations) (Subclass 403) visa, which enabled him to participate in the Pacific Australia Labour Mobility (PALM) scheme. He applied for the protection visa on 8 November 2023. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Tribunal invited the applicant to a hearing on 29 April 2024. The applicant contacted the Tribunal on 26 April 2024 and stated he wanted to attend the hearing by telephone. The Tribunal attempted to contact the applicant by telephone to arrange for a video hearing on 29 April 2024, but these attempts were unsuccessful.
Given the circumstances, the Tribunal decided to invite the applicant to a further hearing on 20 May 2024. The applicant appeared before the Tribunal via video conference on 20 May 2024 to give evidence and present arguments. The applicant gave evidence with the assistance of an interpreter in the Bislama and English languages.
Evidence before the Department
According to the information contained in his application for a protection visa, the applicant left Vanuatu ‘to save myself from the big group of community and the local government’. In response to the question have you experienced harm in the past?’ his protection visa application records ‘yes’ and provides the following details:
I was forced to withdraw my support to my government. Local NGO group unnecessarily questioned me and harassed me.
According to the protection visa application, the applicant sought help from the police but instead of helping him, they ‘tortured me’. A reference is made to ‘support to the national government’. It is unclear what this reference means. The applicant tried to move within Vanuatu, but it was hard to do so, ‘probably because of the ruling party’.
According to the protection visa application, if the applicant returns to Vanuatu he will ‘definitely be put behind bars by the State government’ because he is ‘taken as a challenge by the government and opposition party’. The application states:
The authorities are harassing me and the people of my community so there is no question of going to them to seek help. They will not protect me at all.
The applicant’s protection visa application was also accompanied by a short supporting statement that claimed that the applicant fears harm in ‘Solomon Island’ as a result of a land dispute involving local politicians.
The applicant was not invited to an interview with the delegate. The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as provided for by s 36(2)(a) or s 36(2)(aa) of the Act.
Evidence before the Tribunal
The applicant appeared before the Tribunal via video on 20 May 2024 and gave evidence in the Bislama language. The applicant was unrepresented in respect of the review. The Tribunal explained the refugee criterion and the complementary protection criterion to the applicant. The Tribunal questioned the applicant about his background and his claims for protection. The applicant told the Tribunal that he paid a person to make a protection visa application and he did not have a copy of his protection visa application. He did not maintain the claims he made in his protection visa application.
Where relevant his evidence at the hearing is considered below in the findings and reasons. The applicant was provided with seven days to submit any further evidence to the Tribunal in relation to his claims that he would face imprisonment in Vanuatu because he disengaged from the PALM scheme. No further evidence was provided to the Tribunal.
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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection obligations as a refugee or otherwise entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Findings and reasons
The Tribunal finds the applicant is a citizen of Vanuatu. The applicant has provided a copy of the biodata page of his passport issued in his name by the Republic of Vanuatu with his protection visa application. The Tribunal is satisfied that Vanuatu is the receiving country and has assessed the applicant’s claims against Vanuatu.
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This, in turn, requires the Tribunal to assess whether the applicant’s claims are credible. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal prefers the applicant’s oral evidence at the Tribunal hearing, which it found to be credible, to the information provided in his protection visa application. The Tribunal accepts the applicant’s oral evidence that he paid a person to lodge his protection visa application and he did not know what claims were made on his behalf.
Based on the applicant’s oral evidence at the hearing, the Tribunal makes the following findings of fact:
a.The applicant is a [age]-year-old man who was born [in] Vanuatu. He completed [a grade] at high school. He is unmarried. He has a child with a woman he met while staying in [City 1] before coming to Australia. He speaks Bislama. While his protection visa application states he speaks, reads and writes the English language at the hearing he clarified he can understand some spoken English but he does not understand much written English.
b.The applicant arrived in Australia in September 2022 under the PALM scheme. Previously, he worked as a [occupation] in Vanuatu. Before he travelled to Australia, he lived in his village [in] the northern part of Vanuatu. Immediately before he travelled to Australia, he lived in [City 1] for three months working in a [shop].
c.The applicant left the PALM scheme because of his concerns about the pay and conditions.
d.The applicant is currently supporting himself working on farms in regional New South Wales. He sends some of the money he earns in Australia to Vanuatu to support his family. He has two brothers and one sister. His sister and one of his brothers are still at school and he pays their school fees. He also sends money to support his infant child.
e.The applicant has never been arrested or detained in Vanuatu or experienced any difficulties with the authorities in Vanuatu.
f.The applicant has never been involved in political activity in Vanuatu.
g.The applicant did not fill out the protection visa application himself and he did not know what information was contained in his protection visa application. He was not given a copy of his protection visa application. The written claims in his protection visa application were invented by a third party and do not record events that he experienced or fears that he holds.
Is there a real chance the applicant will face harm if he returns to Vanuatu for the reasons claimed in his protection visa application?
At the hearing the Tribunal questioned the applicant about why he left Vanuatu, whether he had experienced harm in Vanuatu in the past, and whether he believed he would be harmed or mistreated if he returned to Vanuatu. The applicant told the Tribunal life is difficult. He is the eldest in the family and, since his parents divorced, he has taken care of his siblings and pays for the school fees. No one is helping him. Asked whether he had ever been harmed in Vanuatu, he said he had a fight in a club once but other than that there was nothing. The Tribunal accepts the applicant’s oral evidence that, other than an isolated incident where he was involved in a fight at a club, he has not experienced harm in Vanuatu in the past.
The applicant told the Tribunal he did not fear that he would face harm if he returned to Vanuatu. However, later in the hearing he raised concerns about the consequences he would face in Vanuatu for leaving the PALM scheme. These concerns are discussed at para [26]-[37] below. The Tribunal accepts the applicant’s oral evidence that he has never been detained or arrested by the authorities in Vanuatu nor had any difficulties with the authorities in Vanuatu. The Tribunal accepts the applicant’s oral evidence that, contrary to the claims made in his protection visa application, he has not been involved in any political activity in Vanuatu. Accordingly, the Tribunal rejects the claims he will be imprisoned because he is ‘taken as a challenge by the government and opposition party’.
The Tribunal accepts the applicant’s evidence that he paid someone to apply for a protection visa because he wanted to remain in Australia to work. The Tribunal accepts that he did not know what claims were made in his protection visa application as he was not given a copy of the application form. The Tribunal provided the applicant with a summary of the claims made in his protection visa application, noting his evidence to the Tribunal was that he had not experienced harm in Vanuatu in the past and he did not believe that he would face serious harm or significant harm if he returned to Vanuatu.
When the Tribunal put to the applicant that it appeared the claims made in his protection visa application were not true, the applicant acknowledged that he did not know what claims had been made on his behalf. He did not maintain any of the claims made before the Department in his protection visa application and the accompanying statement. As noted above, he gave clear evidence was he was not involved in any political activity in Vanuatu, did not have any difficulties with the authorities, and – other than an isolated incident at a club – has not experienced harm in Vanuatu in the past. Accordingly, the Tribunal does not accept that there is a real chance that the applicant will face harm for any of the reasons claimed in his protection visa application. The Tribunal does not accept that the applicant has experienced harm in Vanuatu in the past for any of the reasons claimed before the Department. The Tribunal does not accept that the applicant left Vanuatu to escape political persecution. The Tribunal finds, based on the evidence before it, that there is no real chance that the applicant will face serious harm or significant harm if he returns to Vanuatu for any of the reasons claimed in his protection visa application.
Is there a real chance the applicant will face harm in Vanuatu due to absconding from the PALM scheme?
The Tribunal explored with the applicant whether there were any other reasons that he believed he would face harm if he returned to Vanuatu. The applicant explained that he was supposed to go back after his temporary work visa expired but after the twin cyclones struck Vanuatu he decided to remain in Australia to earn money to repair his house and his sister’s house, both of which were damaged by the cyclone. He wanted a visa to stay in Australia and earn money to repair the houses and he only knew about the 866 visa. He explained because he left the PALM program he would not be able to return to Australia from Vanuatu to work.
The Tribunal acknowledged that there were two cyclones in Vanuatu in 2023 and that he wanted to stay in Australia to support his family financially.[3] The Tribunal explained the refugee and the complementary protection criteria. The Tribunal put to the applicant it was not clear how any economic hardship he would face if he were to return to Vanuatu would amount to serious harm for the purpose of the refugee criteria or significant harm for the purpose of the complementary protection criteria. The applicant did not claim there was a real chance he would face serious harm, or a real risk he would face significant harm, for reasons of economic hardship.
[3] Australia’s response to the Vanuatu twin cyclones | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
The only issue the applicant raised at the hearing about returning to Vanuatu related to the consequences of his decision to leave the PALM scheme.
By way of background, the PALM scheme is a temporary migration program to address unskilled, low-skilled and semi-skilled labour shortages across rural and regional Australia, and nationally for agriculture and select agriculture-related food product manufacturing sectors.[4] Under the scheme, which took effect in April 2022 and merges the previous Seasonal Worker Program and Pacific Labour Scheme, individuals from Pacific Island nations, including Vanuatu, work in Australia in the agricultural and select food manufacturing sectors on a temporary basis.
[4]< >
The applicant told the Tribunal that he did not earn the money he should have while working full time on the PALM scheme for six months. He left the PALM program because of poor pay – he could not support his family. He wanted to stay in Australia so he could earn the money and support his family. The applicant tried to speak to the High Commission of Vanuatu and the agent who sent him to Australia about the pay but there was no response, so he left the PALM program. The applicant has not had any contact with the Fair Work Ombudsman (FWO).
At the hearing, the Tribunal explained that it did not have the power to consider whether he was paid in accordance with Australian workplace laws. The Tribunal noted that the FWO could provide information about his rights under Australian workplace laws. The applicant said he would have no problems if he went back to Vanuatu. He wanted a visa to stay longer to work. He told the Tribunal that, in contrast to his experience on the PALM scheme, at his current job he paid tax, was paid superannuation and did not have any problems.
The applicant told the Tribunal that if he returned to Vanuatu he would be unable to return to Australia because he left the PALM scheme and broke the village rules. He then claimed he was afraid he may be put in prison in Vanuatu because he broke the rules. The Tribunal questioned the applicant about the source of his claim that he may be imprisoned because he disengaged from the PALM scheme, the applicant stated he was ‘not sure what would happen’, but he had heard rumours that this would happen to some of the workers that had left the PALM program because they broke the rules between Vanuatu and Australia.
The Tribunal acknowledges reports that PALM scheme workers have left the program because of exploitative working conditions. For example, a 2021 media report quotes the Vanuatuan High Commissioner expressing concerns about the treatment of Vanuatuan citizens working under the PALM scheme.[5] In 2023 changes were made to the PALM scheme, including the introduction of a new Approved Employer Deed of Agreement and the Employer Guidelines in 2023, in an effort to respond to concerns about exploitation.[6] However, as discussed at the hearing, the Tribunal does not have any country information to support the claim he would be put in prison because he left the PALM program or subject to serious harm or significant harm in Vanuatu because he left the PALM program and did not comply with the conditions of his visa.[7]
[5] < >
[7] The Tribunal conducted searches of CISNET and international COI sources such as the European Country of Origin Information Network (ECOI) and general internet searches.

The Tribunal provided the applicant with time after the hearing to provide further information to support his claims that he would face serious harm or significant harm in Vanuatu as a result of leaving the PALM scheme. The applicant did not provide any further information.
The Tribunal does not accept that there is a real chance the applicant will be imprisoned or otherwise subject to serious harm or significant harm because he ‘absconded’ from the PALM scheme. While the applicant may have heard rumours about this possibility, no country information could be located to support this claim. Elsewhere in the hearing the applicant stated he did not fear harm in Vanuatu and would have no problems if he returned. The applicant did not avail himself of an opportunity to provide further information about this claim after the hearing. Given no country information could be located to support the applicant’s claims that he would face imprisonment or sanctions for leaving the PALM program, the Tribunal does not accept that there is a real chance he will be imprisoned or otherwise subject to serious harm or significant harm if he returns to Vanuatu because he disengaged from the PALM program.
The Tribunal accepts that, as a consequence of leaving the PALM scheme and his immigration history in Australia, the applicant may be unable to obtain a temporary visa to return to Australia from Vanuatu. This is consistent with information that the relevant law in Vanuatu, the Seasonal Employment Act 2007, states that a ‘worker who does not comply with his or her obligations under the seasonal employment program may not be allowed to participate again in the seasonal employment program for a period of five years’.[8] The Tribunal does not accept the possible loss of an opportunity to return to Australia amounts to serious harm for the purposes of the refugee criteria or significant harm for the purpose of the complementary protection criteria.
[8] Seasonal Employment Act 2007 (Vanuatu), Government of Vanuatu, 4 February 2008, art 24(2)
The Tribunal finds that the applicant does not face a real chance of serious harm, or a real risk of significant harm, if he returns to Vanuatu now or in the reasonably foreseeable future because he disengaged from the PALM scheme, did not comply with the conditions of his Subclass 403 visa, and applied for a protection visa in Australia.
Refugee criterion
Based on its findings of fact and having considered all the evidence before it, the Tribunal is not satisfied that the applicant has experienced serious harm in the past in Vanuatu or that there is a real chance that the applicant will suffer serious harm for any of the reasons set out in s 5J(1)(a) of the Act if he returns to Vanuatu now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for any reason set out in s 5J(1)(a).
The applicant has not claimed that any economic hardship or difficulties he may experience in Vanuatu would be directed at him for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by s 5J(1)(a). Furthermore, the Tribunal is not satisfied that any economic hardship or difficulties that he may encounter if he returns to Vanuatu will amount to serious harm for the purposes of s 5J(5) of the Act.
The Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee under s 5H(1). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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[9] and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[10]
[9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
[10] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
The applicant has disavowed the claims in his protection visa application. The Tribunal accepts that the applicant would prefer to remain in Australia so that he can earn money to support his family. The applicant did not claim, and, for the avoidance of doubt, the Tribunal does not accept that any economic hardship the applicant may experience if he were to return to Vanuatu would rise to the level of significant harm for the purposes of the complementary protection criteria.
The Tribunal accepts that the applicant disengaged from the PALM program. The Tribunal accepts that if the applicant returns to Vanuatu he may be unable to return to Australia via the PALM scheme and it is possible he may face some degree of societal disapproval for disengaging from the PALM scheme. However, having regard to its findings of fact, the Tribunal does not accept that there is a real risk that the applicant will face significant harm as defined in s 36(2A) and s 5(1) of the Act as a consequence of leaving the PALM scheme. For the reasons set out above, the Tribunal does not accept there is a real risk that the applicant will be imprisoned by the authorities in Vanuatu or otherwise subjected to significant harm because he disengaged with the PALM scheme or for any other reason.
The applicant did not identify any other basis which would enable the Tribunal to conclude that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm.
Having considered all the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm as defined in s 36(2A) and s 5(1) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Frances Simmons
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 3205

5 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice