2402869 (Refugee)
[2024] AATA 3803
•24 June 2024
2402869 (Refugee) [2024] AATA 3803 (24 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2402869
COUNTRY OF REFERENCE: East Timor
MEMBER:Hollie Kerwin
DATE:24 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 24 June 2024 at 10:29am
CATCHWORDS
REFUGEE – protection visa – economic conditions and family responsibilities – working to support younger siblings – ongoing conflicts between martial arts groups in home area – house burned down and later rebuilt with government support, and applicant hit by stones – 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 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505Any 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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of East Timor applied for the visa on 20 November 2023. The delegate refused to grant the visa on the basis that the applicant’s claims to economic hardship in East Timor and his family responsibilities to his siblings were not for one of the reasons set out in s 5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion). Also, the delegate concluded that the applicant did not meet the complementary protection criteria on the basis that his feared economic hardship did not arise because of the intention of an actor or a perpetrator, and therefore did not fall within any of the defined forms of significant harm under the Act.
The applicant appeared before the Tribunal on 6 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
A further, short, hearing was held on 12 June 2024, which was also conducted with the assistance of an interpreter in the Tetum and English languages. This second hearing was conducted remotely at the applicant’s request because, since the time of the first hearing, he had moved a significant distance from Melbourne, and by telephone in circumstances where the applicant was unable to access the technology for a video hearing.
BACKGROUND
The applicant was born in [Year]. At the first hearing, the applicant explained that he grew up in [Town] in the mountains in [District] of East Timor. He lived with his parents and [younger siblings]. During his high school years, he lived with his uncle in Dili because the school was in Dili. He completed up to the [number] year of senior school. His father died a long time ago, and his mother passed away three months after he arrived in Australia.
In East Timor he has worked selling fish on a roadside stall, fishing, helping drive a minibus, and selling vegetables.
In May 2023, the applicant arrived in Australia as part of the seasonal worker program. In East Timor he currently supports all of his younger siblings who he is in a position as a father for now that his parents have died. His siblings are currently living in the family home in [District]. He keeps in touch with his siblings very regularly.
CLAIMS AND EVIDENCE
Before the delegate
The delegate determined the protection visa application as summarised above at paragraph 2. The delegate did not conduct an interview, and determined the application based on the written claims in the protection visa application. In summary, the claims made in the applicant’s protection visa application are:
a.After his father passed away, he has taken his place as father to his [younger siblings]. They are still young and still students.
b.He wants to work for his siblings’ future.
c.There is not discrimination or violence in East Timor but his reasons for wanting to stay in Australia are all about education and his siblings’ lives.
d.If he returns home, he does not know how he can support his siblings to keep studying based on what he faced in East Timor where he sold vegetables to survive.
e.If he returns, he can guarantee his family will survive but not receive education which means there will be no future for them, which is why he wants to work [in Australia] and help them out.
f.The Government has been trying many ways to help the economic situation but ‘not all the necessary’.
g.His country is democratic and the law protects children but many children do not have access to education. He does not want his siblings to stop their studies and he wants to help them out.
h.He wants to work to help his siblings, which is all he can do for them, and this is why he hopes to get the chance to stay in Australia longer and work with the visa.
Before the Tribunal
First hearing
The applicant attended a hearing before the Tribunal on 6 May 2024. He did not call any witnesses or provide further documentary evidence. In summary, he made the following claims before the Tribunal about the economic conditions and his personal financial future in East Timor:
a.He came to Australia because of economic reasons. In East Timor he and his family were really suffering. Coming to Australia was a good opportunity and his younger siblings are happy.
b.The economic circumstances for people in the rural areas of East Timor are very difficult.
c.His home in East Timor (where all of his siblings also live) is not very good. He would like to stay in Australia for 3 or 4 years more to work in Australia because by then his siblings will have finished their schooling and he will have been able to help them to build a new house.
d.In East Timor he suffered just to be able to eat a bowl of rice. You have to plant rice and crops and then you can sustain the children but ‘when times are tough, they’re really tough’.
e.In East Timor it is very difficult to earn $100 per month. If you don’t work things will be very tough.
f.Some people live well in East Timor but they’re not the same as the many people in his situation who are affected badly by the economic situation.
The applicant also related instances of violence and harm in the past in his home area, specifically that:
a.People belonging to the martial arts groups in his home area get drunk and attack each other, and this always happens on major holidays. These rival gang members have killed each other. The deaths occurred in 2010 and 2018. Later, police came and calmed things down.
b.At the same time as the conflict in which the deaths of the gang members occurred (in 2010 and again in 2018) there was a party with martial arts groups. They attacked each other. The houses of people, including non-gang members, were burnt or damaged in his home area in [Town].
c.In 2010, the applicant’s house was burned down in the context of this martial arts group party and inter group conflict, at the same time as all the other houses in his neighbourhood were burnt. The applicant explained that, in relation to this event, it didn’t matter whether you were in a martial arts group or not. He and his family ran away to the Church. They slept in the Church for a month. Everything from his house was gone because it was damaged by the fire.
d.The government helped the affected families to rebuild their homes providing $2000, corrugated iron, cement, and a sack of rice.
e.His house has not been attacked since. However, in 2018, other houses (including of non-gang members) were badly damaged. Later, the applicant clarified that in 2018 houses were not burnt, rather the martial arts groups smashed other houses in his home area (but not the applicant’s house).
f.There are always minor problems such as people throwing stones at each other resulting in people getting injured. But the only deaths are those that occurred in 2010 and 2018 (of martial arts gang members, referred to above).
g.Police come and calm things down when there is conflict but they can be delayed.
h.The attacks include attacks on people in martial arts groups who haven’t been attending training. In those cases, they beat that person causing injury.
i.Attacks also occur between martial arts groups.
j.You can be targeted because of the neighbourhood you’re from, even if you are not in a martial arts gang.
k.The applicant has only ever experienced one instance of physical harm on account of martial arts gangs which occurred in 2014. In this case, he was riding a motorbike out to a plantation to check on the buffalos. Drunk members of a gang were on the road and told him to stop, but he did not and took off on his motorbike. The people on the road threw stones at him and hit him, injuring him. The applicant explained that his was an example of the drunk people doing things haphazardly and identified that ‘the will tell you to stop, then they’ll kill you’. This issue is, he said, a problem across all neighbourhoods in East Timor.
The Tribunal listed a further hearing in the matter on 12 June 2024. At this hearing, the applicant clarified that:
a.He did not recall mentioning that he was afraid of the way people in businesses or stall look at each other, did not state he was afraid of this and did not explain what he meant by this at the earlier hearing. He clarified that his main concern is about his economic situation and the implications of this for his family if he were to return to East Timor now.
b.He maintains his claims regarding the risk to him from martial arts gangs if he returned to East Timor because of his neighbourhood (raised at the first hearing and identified above) even though he is not in a martial arts gang. Among other things, he also explained further that his neighbourhood is a martial arts gang training area.
Where relevant I refer in more detail to the applicant’s evidence at the first and second hearings under Consideration of Claims and Evidence.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or the complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs to the extent that they are relevant to the decision under consideration.
I confirm there is not a country information assessment for East Timor prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.
Economic and financial hardship claims
After considering the material before me, I am not satisfied that the applicant meets the refugee or complementary protection criteria on account of the economic circumstances he raised as confronting him and his family in East Timor.
I can appreciate, however, that it is the applicant’s genuine wish to enable his and his family’s greater financial security, for his siblings to fully complete their schooling and to build a new house for his family. I also accept that the applicant will face, as he said at the hearing, difficulties presented by the economic conditions in East Timor upon return and that this will have implications for him and his siblings in terms of their access to the greater financial stability that the applicant has been able to provide while working in Australia.
Refugee criteria assessment
In relation to the refugee criteria, I do not consider that the economic and financial hardship that the applicant described are for reasons of his race, nationality, religion, membership of a particular social group or political opinion. Rather, as the applicant confirmed in his evidence to the Tribunal, the issue driving his own financial circumstances and his family’s is the economy (including the wages available and employment options) in general in his home country.
When I raised this as an issue in the review with the applicant at the hearing he did not clarify or assert that it was for any of the essential reasons required under s 5J(1) of the Act. Accordingly, I find that he does not face a well-founded fear of persecution in his home area now or in the reasonably foreseeable future on account of his financial, employment, or economic circumstances in East Timor.
Complementary protection criteria assessment
In relation to the complementary protection criteria, as I explained to the applicant at the hearing, the issue which arises is that in order to engage the complementary protection criteria, the harm that the applicant claims needs to be attributable to an actor.[1] The actor can be unspecified but nonetheless identifiable for the actions they are predicted to take.[2] The applicant did not assert there was.
[1] GLD18 v Minister for Home Affairs, [2020] FCAFC 2 (GLD19), [31], [39]-[40], [46] (Allsop CJ and Moritmer J).
[2] GLD19, [40] (Allsop CJ and Moritmer J).
In this case, however, as set out above the harm claimed by the applicant is attributed (including by him) to the economic conditions in East Timor. The applicant articulates no actor or protagonists of a general posture who will act or omit to act, contributing to his claimed harm. Accordingly, I find that the applicant’s economic and financial hardship claims do not satisfy the complementary protection criteria.
Claims regarding harm from martial arts gangs
Refugee Criteria assessment
After considering the totality of the material before me, I do not consider that the applicant faces a real chance of serious harm on account of martial arts gangs or their activities (including when drunk) in East Timor now or in the reasonably foreseeable future.
I accept:
a.In 2014, the applicant was hit by stones when people from martial arts gangs threw them at him while they were drunk one evening when the applicant went to check on the buffaloes, refused to stop when the martial arts gang members told him to, and road away on his motorbike.
b.In 2010, the applicant’s house was burned down in the context of major conflict between martial arts groups and that all other houses in his neighbourhood were also burnt. Relevantly, I accept that his house was not targeted because he was the member of a martial arts group.
c.In 2018, other houses in the applicant’s neighbourhood (including of non-gang members) were badly damaged. I also accept, as the applicant clarified, that in this instance the houses were not burnt, rather the martial arts groups smashed up these other houses in his home area (but not the applicant’s house).
d.There is ongoing conflict between martial arts gang members in his neighbourhood.
e.The applicant’s neighbourhood is a martial arts training area.
I also find that:
a.The applicant is not a member of a martial arts gang.
b.The applicant’s direct family are not members of any martial arts gangs.
(The applicant identified these matters at the hearings before the Tribunal in his own evidence.)
However, having considered all the material before me I do not consider that there is a real chance of serious harm to the applicant in his neighbourhood.
As the applicant’s own experiences of harm arising from the activities of martial arts gang members indicate, only two events have directly impacted him in the last 14 years. These are: 14 years ago his house was burned down; and 10 years ago stones were thrown at him by gang members who were drunk and after he did not stop when they directed him to, at night, as he attempted to check on some buffalo. I consider it relevant, also, that other people in a similar position to the applicant as non-gang members in his neighbourhood, also experienced significant damage to their homes in the context of gang conflict in 2018. However, even this event was about 6 years ago.
Without minimising the subjective significance of these events for the applicant, the applicant’s evidence indicates that there has been no harm to him from martial arts gangs for at least 10 years and despite his evidence (which I accept) that his home area is a training area for martial arts gang members and that martial arts gangs are present in his neighbourhood and remain in ongoing conflict. This reality as a non-gang member is also consistent with country information that I discussed with the applicant at the second hearing, specifically the analysis in the Timor-Leste Country Security Report published in November 2023 by the United States Overseas Security Advisory Council which recognised the presence in East Timor of ‘community violence involving Martial and Ritual Arts Groups’ that this violence ‘flares up occasionally’ and ‘occurs primarily between rival groups’.[3]
[3] US Overseas Security Advisory Council, Timor Leste Country Security Report (27 November 2023). Accessed online: type="1">
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
In this case, I do not doubt that the applicant possesses a subjective concern about harm to himself if he was to return to East Timor and to his neighbourhood as a result of the martial arts gangs. I am also prepared to accept that the applicant genuinely considers there is a chance of harm to him from association with his neighbourhood. I have also taken into account his responses at the first and second hearings on this issue including regarding his perception and views about the chance of harm to him from martial arts gangs, their volatility and his concerns about people joining gangs, as well as his submission that if he had not driven away on his motorbike, the incident with the gang members on the road in 2014 could or would have been much more serious.
However, on the basis of the combined picture presented in the applicant’s own evidence of his past experiences, especially the absence of harm to the applicant for 10 years and the analysis of the security situation referred to above by OSAC (which, consistently with the applicant’s experiences, locates the violence as occurring primarily between rival martial arts groups) I do not consider there is a real chance of serious harm to the applicant now or in the reasonably foreseeable future on account of marital arts gangs in East Timor. As a non-member of the gang, with no direct family members in any of the gangs, and against the background of the applicant’s own past experiences and the country information referred to above, I consider that the chance of serious harm to the applicant in East Timor now or in the reasonably foreseeable future is remote.
Complementary protection criteria assessment
I also do not consider there is a real risk of significant harm to the applicant on account of martial arts gangs if he was to be returned to East Timor.
Relevantly, s 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Taking into account the applicant’s own experiences of past harm arising from martial arts gangs, as already set out above from paragraphs 31 and 32, as well as the country information also referred to there, I do not consider there is a real risk of significant harm to the applicant (as that term is defined under the Act).
As I also accepted in relation to the refugee criteria, I do not doubt that the applicant possesses a subjective concern about harm to himself if he was to return to East Timor as a result of the martial arts gangs. I am also prepared to accept that the applicant genuinely considers there is a chance of harm to him from association with his neighbourhood. I have also, again, taken into account his responses at the first and second hearings on this issue including regarding his perception and views about the chance of harm to him from martial arts gangs, their volatility and his concerns about people joining gangs, as well as his submission that if he had not driven away on his motorbike, the incident with the gang members on the road in 2014 could or would have been much more serious.
However, I consider that the risk of any of the defined forms of significant harm to the applicant, in his position as a non-member of a martial arts group, where his direct family are not members of martial arts groups, is remote. On the basis of the combined picture presented in the applicant’s own evidence of his past experiences, especially the absence of incident for the applicant for 10 years, and the analysis of the security situation referred to above by OSAC (which, consistently with the applicant’s experiences, locates the violence as occurring primarily between rival martial arts groups) I do not consider there is a real risk of significant harm to the applicant in East Timor.
Other matters to note
During the first hearing, the applicant also provided other information when prompted by the Tribunal about things he feared in East Timor. I note below how I have treated these matters in making my decision. Specifically, the applicant stated during the course of the first hearing that:
a.He is afraid of businesses and the way people look at each other. The Tribunal asked the applicant if he could explain what he meant by this at the second hearing and the applicant said he did not recall raising this issue as a concern, and that he did not state he was afraid of this. I accept the applicant’s clarification that he does not fear harm from businesses, or the way people look at each other (or him), and therefore do not consider he faces a real risk or a real chance of harm on this basis. This is not therefore a basis for the applicant meeting the refugee criteria or the complementary protection criteria.
b.He is afraid to go out at night because there could be someone on the road. In this connection he said that people could be drinking and that people throw stones. He later clarified that the people who he referred to as drinking are members of martial arts groups. As already identified above, I have considered this aspect of the applicant’s claims above in connection with his other claims regarding martial arts groups.
c.If you go to jail who is going to look after your younger siblings? When the Tribunal asked whether there was any reason he thought he might go to jail he answered no, that he’d never done anything wrong. As raised with the applicant at the hearing and as he confirmed, there is no reason to think the applicant might go to jail. Accordingly, any risk or chance of harm arising to him or others from him going to jail is remote. This is therefore not a basis for the applicant meeting the refugee criteria or the complementary protection criteria.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hollie Kerwin
MemberATTACHMENT - 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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