2402868 (Refugee)

2402868 (Refugee) [2024] AATA 4005 (23 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402868
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Suhad Dutra
DATE:23 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 May 2024 at 9:28am
CATCHWORDS
REFUGEE – protection visa – Tonga – political opinion and economic and environmental conditions – home and plantation damaged by volcanic eruption – application combined with husband’s separate application – consent to decision without hearing – brief and undetailed claims – no claims of past harm or future fear of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 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 2 February 2024 (‘Delegate’s Decision’) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The application for review was lodged on 19 February 2024 (“Review Application”) and included a copy of the Delegate's Decision[1]. The applicant was not represented before the Department or in respect of the review.
[1] The Delegate’s Decision was submitted by the applicant via email on 7 April 2024
The applicant claims to be a citizen of Tonga. She lodged a Protection Visa application on 20 November 2023 (‘PVA’). She claims that she left Tonga because of her political opinions, for freedom of speech/expression, for economic stability, to flee climate change and rising sea levels; and to flee economic crisis. She claims she experienced psychological, mental, verbal and economic harm in Tonga. She fears that she will suffer the same harm as before if she returns to Tonga. In her Review Application she added that her livelihood in Tonga was impacted by a volcanic eruption and she has no home there.
The delegate refused to grant the Protection visa, finding that the applicant was not a person in respect of whom Australia owed protection obligations.
ISSUES FOR DETERMINATION
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. This requires the Tribunal to make findings regarding the credibility of the applicant’s claimed circumstances. Based on what the Tribunal accepts of the applicant’s circumstances, the Tribunal must determine whether the applicant meets the ‘refugee’ criterion and, if not, the ‘complementary protection’ grounds. The criteria and relevant law for a protection visa are attached.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Claims and Evidence Before the Department
The applicant detailed her claims to the Department in the PVA. There, she sought Australia’s protection on the basis that she cannot return to Tonga. She said she left Tonga because of her political opinions, to flee economic crisis, in search of economic stability, for freedom of speech and expression, and to flee climate change and rising sea levels. She refers to past harm she experienced being “psychological, mental, verbal and economic harm and effects”. She did not try to relocate within Tonga because there is nowhere to go. She would have nowhere to go and no support at all if she tries to relocate in Tonga. She fears that if she returns to Tonga she will “suffer the same as before”. She states that the authorities of Tonga do not have the resources to protect her.
The applicant was not interviewed before the Delegate’s Decision was made. However, the PVA informed the applicant that she should provide all her claims for protection and all documentation and evidence relied upon; and that a decision could be made on the information provided in the PVA.
On 23 November 2023 the Department sent the applicant a letter acknowledging her PVA and advising that she may provide additional information in support of her claims, and details of how to do this. The correspondence informed the applicant that a decision on her application could be made without another opportunity being given for her to present further information. No additional information appears to have been provided by the applicant in support of her claims.
Delegate’s Decision
In finding that the applicant is not a person in respect of whom Australia has protection obligations, in relation to the applicant’s claims regarding economic hardship and climate change the delegate found that any harm feared or faced was not for reasons set out in section 5J (1)(a) of the Act. Regarding political opinion and free speech, the delegate referred to country information and the lack of detail in the applicant’s claims regarding any political opinions she holds. On those bases the delegate was not satisfied that the applicant faced a real chance of serious harm in Tonga for any of the reasons claimed or identifiable. In relation to complementary protection, the delegate noted that the applicant has not claimed, nor does it arise on the evidence, that she will be arbitrarily deprived of her life or that the death penalty will be carried out on her. The delegate also found no evidence of there being any perpetrator holding an intention to inflict torture and/or cruel or inhuman treatment or punishment and/or degrading treatment or punishment on the applicant in Tonga in the past or in the reasonably foreseeable future. The delegate found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Tonga, there is a real risk that the applicant will suffer significant harm for any of the reasons claimed or identifiable.
Claims and Evidence Before the Tribunal
In her Review Application the applicant stated that she is seeking review of the Delegate’s Decision because she believes the delegate overlooked information she provided. Her home back in Tonga was badly damaged by the volcanic eruption. Returning to Tonga means there is no home. Jobs are very hard to get. Because of the volcanic eruption her family plantations are ruined, meaning everything has to be uprooted so new plants can grow. This could take months. This impacts her family’s only source of income. Resources in Tonga are very limited. Help from the government is “next to nothing”, as there is not a well-established system there like there is in Australia to support families. She has nothing to go back to in Tonga.
Hearing Scheduled for 21 May 2024
On 4 April 2024 the Tribunal wrote to the applicant seeking feedback on whether she has any family members in Australia with an application before the Tribunal; and whether she wants any such application to be heard together with her own. By email dated 7 April 2024 the applicant stated “Yes, I would like to combine appeal with case number 2402870 [Mr A] (Husband).”
On receiving consent from the related review applicant in case number 2402870, by email dated 8 April 2024 the applicant was notified that the Tribunal has considered the material before it but is unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it to give evidence and present arguments relating to any issues arising in her case (“Hearing Invitation”). The Hearing Invitation noted that the hearing will be combined with related case 2402870. The hearing was scheduled for 21 May 2024 at 2 PM.
By email dated 21 May 2024, the applicant informed the Tribunal that “I apologise that I am not able to attend the hearing. I base my appeal on the information provided in my original application for protection visa.” The subject of the email referred to current matter number 2402868.
On the basis of the above, the Tribunal has proceeded to make a decision on the evidence available to it, without an oral hearing.
CONSIDERATION OF CLAIMS AND EVIDNCE
Nationality
The applicant’s identity and Tongan nationality is confirmed in the Tongan passport biodata page submitted to the Department. That document identifies the applicant as a Tongan nationality whose Tongan passport was issued in [2019] in Nuku’alofa, Tonga. I consider this to be reliable evidence. I find that the applicant is a Tongan national and that her identity is as claimed. Accordingly, Tonga is the receiving country against which her protection claims have been assessed.
Protection Claims
The applicant’s protection claims were set out in the PVA and the Review Application, detailed above. While the applicant’s email to the Tribunal dated 21 May 2024 stated that she wished to base the review on the “original application for protection visa”, I have considered, below, the claims made and arising in the PVA and the Review Application. I note that the Review Application, as detailed above, includes claims regarding the impact of the Tongan volcanic eruption which were not included in the PVA.
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. 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 & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70.)
The detail of the applicant’s claims is set out in earlier paragraphs of this decision. Despite being invited by the Department to provide additional detail, documentation and/or supporting evidence regarding the protection claims made in her PVA, the applicant did not submit any supporting documentation regarding any aspect of her claims to the Department. Nor did she submit supporting documentation regarding her substantive protection claims to the Tribunal. Despite being notified, in the Hearing Invitation, that the Tribunal has considered the material before it but is unable to make a favourable decision on that information alone, the applicant declined the opportunity to appear before the Tribunal to give evidence and present arguments at a hearing. She gave no explanation for this, and provided no additional evidence to support her protection claims.
The Tribunal has significant concerns regarding the applicant’s claims. Firstly, they are brief, they lack detail, contain many gaps and give no timeline of any relevant events. They rely entirely on written, untested, general assertions contained in the PVA and Review Application. How the PVA and Review Application were prepared and how accurately they reflect the applicant’s circumstances cannot be gleaned from the information at hand. In relation to her claims regarding political opinion and freedom of speech/expression, she gives no indication of what her political opinions are. Nor does she specify what, if any, problems she experienced in the past or fears in the future in relation to political opinion. She referred generally to leaving Tonga for reasons including “freedom speech and expression”, but gave no further details or insights into how, if at all, these general concepts give rise to a real chance of serious harm to her in the reasonably foreseeable future. She referred to experiencing psychological, mental, verbal and economic harm and effects in Tonga, but did not explain what this means, what it comprised of, when it was experienced, the motivations behind it, or how, if at all, it informs her risks of harm in Tonga in the reasonably foreseeable future. In relation to the claims in her PVA that she left Tonga to seek economic stability, to flee economic crisis and to flee climate change and rising sea levels, she provided no details of how these factors impacted her in Tonga in the past, nor how they might impact her in the reasonably foreseeable future. Her claims and evidence do not suggest in any way that any harm she faced or fears in relation to economic instability, economic crisis, economic hardship, climate change or rising sea levels was, is, or would in the reasonably foreseeable future, be motivated by any reason set out in section 5J(1)(a) of the Act, nor intentionally inflicted on her by anyone.
In her Review Application the applicant claims that getting work in Tonga is hard; because of the volcanic eruption her family plantations are ruined, meaning everything had to be uprooted so new plants could grow; this could take months; this impacts her family’s only source of income; resources in Tonga are very limited; help from the government is “next to nothing”, as there is not a well-established system there like there is in Australia to support families; she has nothing to go back to in Tonga. I am mindful that Tonga experienced a large volcanic eruption and tsunami in December 2021 and January 2022[2]. However, any ongoing impact of this on the applicant and/or her family and/or their livelihood now or in the reasonably foreseeable future in Tonga is not ascertainable on the evidence advanced. The applicant has given no supporting evidence regarding the extent of any damage to her family’s plantation in Tonga. The evidence she has given in relation to these claims lacks detail, including in respect of the current circumstances of her family in Tonga, where they live, how they live, how they are financially supported, what work they do. It is not apparent, on the evidence before me, what family and other support the applicant may have in Tonga now or in the reasonably foreseeable future, nor can the Tribunal speculate about these matters or other matters relevant to the situation the applicant may find herself in in the reasonably foreseeable future in Tonga following her time in Australia.
[2] How the Tonga volcano eruption from 2022 may affect Australia's weather for up to eight years - ABC News, abc.net.au, 16 February 2023
The above are examples only of gaps in information which make it difficult for the Tribunal to reach a state of satisfaction regarding the credibility of the applicant’s claims and/or her risks of future harm in Tonga. Had the applicant availed herself of the opportunity to appear at the hearing to give evidence and present arguments, the Tribunal would have explored the above with the applicant. It would have explored, in detail, her overall circumstances including her background, family, education, past employment, savings and support in Tonga. It would have explored the circumstances of her family and any other support networks she might have in Tonga now and in the reasonably foreseeable future. It would have had the benefit of speaking directly to the applicant under oath or affirmation to obtain her immediate responses to questions arising in respect of her claims and evidence.
On the available evidence I am not satisfied that the applicant has ever had a profile giving rise to a real chance of serious harm in Tonga, including for any actual or imputed political opinion. On the evidence before me, I do not accept that the applicant has any actual or imputed political opinions giving rise to a real chance of serious harm to her in Tonga in the reasonably foreseeable future.
Regarding her claims regarding economic stability, economic crisis, economic hardship, climate change and rising sea levels, I do not accept that the applicant’s experiences of these things, or what she faces in relation to them in Tonga in the reasonably foreseeable future, is influenced in any way by race, religion, nationality, particular social group or political opinion. I therefore find, in relation to those claims, that section 5J(1)(a) is not met. Nor am I satisfied on the evidence before me, that any economic hardship or impacts of climate change and/or rising sea levels the applicant faces a real chance of in Tonga in the reasonably foreseeable future, rises to the level of serious harm as contemplated by the relevant law, even when considered cumulatively.
Regarding her claims that work is hard to find and that her family plantation has been ruined by a volcanic eruption in Tonga, I do not accept, based on the evidence before me, that the applicant’s family plantation has in fact been destroyed or that it suffered a level of damage which precludes the applicant and her family earning a livelihood. Nor do I accept, on the evidence before me, that the applicant faces hardship amounting to serious harm in Tonga in the reasonably foreseeable future in connection with the volcanic eruption.
On the evidence before me, I am not satisfied that the applicant faces a real chance of serious harm in Tonga in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence.
Findings on the Refugee Criterion
A refugee is a person who is found to have a well-founded fear of persecution in their country of reference. A fear is well-founded if there is a factual or objective basis for that fear or if there is a ‘real chance’ of it occurring. A real chance is a substantial, as distinct from a remote chance or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
As reasoned above, I am not satisfied that the applicant faces a real chance of serious harm in Tonga in the reasonably foreseeable future for any identifiable reason. I am not satisfied that the applicant faces a well-founded fear of persecution in Tonga under section 5J of the Act. It follows that I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Findings on Complementary Protection
Having found that the applicant does not meet the refugee criterion, I have considered whether on the evidence before me, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Tonga. The threshold for assessing “real risk” is the same as for assessing “real chance”.
As reasoned above, I have found that the applicant does not face a real chance of serious harm in Tonga for any of the reasons identifiable on the evidence. Based on the same factual analysis and findings together with the reasoning below, 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 Tonga, that there is a real risk she will be arbitrarily deprived of her life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Regarding the applicant’s claims regarding economic stability/crisis/hardship and climate change/rising sea levels and economic hardship, as reasoned above, I have not accepted that the applicant’s experiences of these things, or what she faces in relation to them in Tonga in the reasonably foreseeable future, is influenced in any way by race, religion, nationality, particular social group or political opinion. I have found, above, that section 5J(1)(a) is not met.

To the extent that the applicant faces some level of economic hardship and some impacts of climate change and rising sea levels in Tonga in the reasonably foreseeable future, there is no suggestion on the evidence that these factors, even cumulatively, give rise to a real risk of the applicant being arbitrarily deprived of her life or that the death penalty will be carried out on her. In relation to torture; and/or to cruel or inhuman treatment or punishment; and/or to degrading treatment or punishment, each of those forms of significant harm requires the harm to be intentionally inflicted. On the evidence before me I find that any economic hardship and/or impacts of climate change and rising sea levels the applicant faces a real chance of in Tonga in the reasonably foreseeable future would not be intentionally inflicted on her by anyone.
On the evidence before me and the reasoning above, I do not accept that the applicant faces a real risk of significant harm in Tonga for any of the reasons claimed or identifiable.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a), I have considered the alternative criterion in section 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in section 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Suhad Dutra
Member
ATTACHMENT -
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.
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 4005

23 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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