2402870 (Refugee)

2402870 (Refugee) [2024] AATA 3231 (23 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402870
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 8:04am
CATCHWORDS
REFUGEE – protection visa – Tonga – political opinion – freedom speech and expression – economic hardship – effects of climate change – volcanic eruption and tsunami – insufficient information before the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (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 dependant.
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 5 February 2024 (‘Delegate’s Decision’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act). The application for review was lodged on 19 February 2024 (“Review Application”) and attached a copy of the Delegate's Decision. The applicant was not represented in respect of the review.
The applicant claims to be a citizen of Tonga. He lodged a Protection Visa application on 11 January 2024 (‘PVA’). He claims that he left Tonga because of his political opinion, to have freedom of expression, for economic stability and because of the effects of climate change and rising sea levels; he experienced mental, verbal and economic harm in Tonga; and he fears retaliation and the same harm as before if he returns to Tonga. In his Review Application he added that his livelihood in Tonga was impacted by the volcanic eruption and tsunami.
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’s claims before the Department were contained entirely in his PVA. There, he stated that he was born in [City 1], Tonga in [year]. He holds a Tongan passport issued [in] 2021 and expiring [in] 2031. He speaks, reads and writes in the Tongan and English languages. He is of Tongan ethnicity and the Christian faith. Both his parents are Tongan citizens. He lived at one address in [City 1] from June 2000 to June 2021. He identifies no employment in Tonga and indicates that he occupied his time and supported himself financially through farming. His only stated employment is as a seasonal worker in Australia [from] June 2021 [until] January 2024 for an organisation in [Suburb 1], Queensland.
The PVA indicates that the applicant last departed Tonga in June 2021 using his Tongan passport. He departed legally and arrived in Sydney, Australia, on the same date. Other than his journey to Australia, he identifies no other travel outside Tonga.
His PVA indicates he has never married. However, it identifies the applicant having a fiancé living in Australia.
Regarding his reasons for seeking Australia’s protection, his PVA states that he left Tonga because of his “political opinion of government”; his search for better economic stability; to flee climate change and rising sea levels; to flee economic hardship; and for freedom of speech and expression. He claims he experienced harm in Tonga which he identifies as “psychological, mental, verbal and economic harm and effects”. He did not seek help within Tonga due to fear of retaliation. He did not try to relocate in Tonga because there is nowhere to go in Tonga’s small islands. There is also no support. He fears that if he returns to Tonga, he will suffer the same harm as before. He does not believe the Tongan authorities could or would protect him because they do not have the resources.
The applicant was not interviewed before the Delegate’s Decision was made. However, the PVA informed the applicant that he should provide all his 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 12 January 2024 the Department sent the applicant a letter acknowledging his PVA and advising him that he may provide additional information in support of his claims, and details of how to do this. The correspondence informed the applicant that a decision on his application could be made without another opportunity being given for him to present further information. No additional information appears to have been provided by the applicant in support of his claims.
Delegate’s Decision
In finding that the applicant is not a person in respect of whom Australia owes protection obligations, the delegate was not satisfied that the applicant faces a real chance of serious or significant harm in Tonga. Relevant to the refugee criterion, the delegate noted that the applicant has not provided details of his political views, how they were expressed or any harm he experienced. The delegate also referred to country information regarding political and press freedom in Tonga. The delegate was not satisfied, on the available information, that the applicant faced a real chance of serious harm in Tonga in connection with political opinion. Regarding the claims of economic hardship and the effects of 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. For those reasons, the delegate was not satisfied that the applicant was a refugee. Regarding complementary protection, the delegate relied on country information to conclude 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 his Review Application the applicant stated, in relation to the Delegate’s Decision, that the information he provided was not given much consideration. That is why he would like the Tribunal to review the PVA refusal and “take into account the information given.” He added that getting work in Tonga is hard; if there is no job “we have our family plantation as a means or a way of (income) supporting the family by selling our crops and things we have planted” ; but the volcanic eruption and tsunami have taken a huge toll on him and his family, causing them stress and heartache and wiping out their family plantation; they could not start again because the applicant “grabbed the opportunity to come here and help my family out financially”. He states that resources in Tonga are very limited; the Tongan government has no means or systems to help families in need.
Hearing Scheduled for 21 May 2024
On 4 April 2024 the Tribunal wrote to the applicant seeking feedback on whether he has any family members in Australia with an application before the Tribunal; and whether he wants any such application to be heard together with his own. By email dated 7 April 2024 the applicant stated “yes, I would like to combine appeal with case number 2406828 [named individual] (Wife)”.
On receiving consent from the related review applicant in case number 2406828, 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 his case (“Hearing Invitation”). The Hearing Invitation noted that the hearing will be combined with related case 2406828. The hearing was scheduled for 21 May 2024 at 2 PM.
By email dated 20 May 2024, the applicant informed the Tribunal that “we are not able to attend the hearing. We base our appeal on the information provided in our original application for protection visa”. The subject of the email referred to current matter number 2402870.
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
There is no passport on the Department or Tribunal file to confirm the applicant’s identity or nationality. However, the Delegate’s Decision notes the applicant’s Australian immigration history, including grants of 5 subclass GG-408 visas. The applicant is also recorded in the Delegate’s Decision to have attended a biometrics interview on 23 January 2024, where his digital photograph and fingerprints were taken. The Delegate’s Decision notes the absence of any evidence that the applicant has provided a false identity to the Department. On the basis of the applicant’s immigration history and his participation in the Department’s biometric processes, I accept that the applicant is a Tongan national and that his identity is as claimed. Accordingly, Tonga is the receiving country against which his 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 20 May 2024 stated that he 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 and tsunami 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 his PVA, the applicant did not submit any supporting documentation regarding any aspect of his claims to the Department. Nor did he submit supporting documentation regarding his 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. He gave no explanation for this, and provided no additional evidence to support his 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. While the applicant claims that he fears, in the reasonably foreseeable future, the same harm as before in Tonga, it is not apparent, on the information, what, if any, harm he suffered in Tonga in the past, when such harm was suffered, or why. The information provided gives no indication of what the applicant’s political opinion is or was. It gives no indication of what, if any, specific problems he experienced in the past or feared in the future in relation to political opinion. He 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 him in the reasonably foreseeable future. He 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 his risks of harm in Tonga in the reasonably foreseeable future. In relation to the claims in his PVA that he left Tonga to search for economic stability, to flee climate change, rising sea levels and economic hardship, he provided no details of how these factors impacted him in Tonga in the past, nor or how they might impact him in the reasonably foreseeable future. His claims and evidence did not suggest in any way that any harm he faced or fears in relation to economic instability, climate change, rising sea levels and/or economic hardship in Tonga was, is or would be, in the reasonably foreseeable future, motivated by any reason set out in section 5J(1)(a) of the Act, nor intentionally inflicted on him by any person or entity.
In his Review Application the applicant claims that getting work in Tonga is hard; if there is no job “we have our family plantation as a means or a way of (income) supporting the family by selling our crops and things we have planted”; but the volcanic eruption and tsunami have taken a huge toll on him and his family, causing them stress and heartache and wiping out their family plantation; they could not start again because the applicant “grabbed the opportunity to come here and help my family out financially”. He states that resources in Tonga are very limited; the Tongan government has no means or systems to help families in need. While I accept that Tonga experienced a volcanic eruption and tsunami in December 2021 and January 2022, any ongoing impact of this on the applicant’s family and 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 his family’s plantation in Tonga. The evidence he has given in relation to these claims lacks detail, including in respect of the current circumstances of the applicant’s family remaining 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 himself in in the reasonably foreseeable future in Tonga following around 3 years of the applicant working in Australia.
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 his risks of future harm in Tonga. Had the applicant availed himself 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 with the applicant, in detail, his overall circumstances including his background, family, education, past employment, savings and support in Tonga. It would have explored the circumstances of his family and any other support networks he might have in Tonga now and in the reasonably foreseeable future. It would have had the benefit of speaking directly to the applicant to obtain his immediate responses to questions arising in respect of his claims and evidence.
In the context of the applicant’s demonstrated ability to communicate with the Tribunal by email to indicate his preference for a combined hearing and to decline the invitation to appear at a hearing, the applicant’s failure to submit any additional detail or supporting information regarding his substantive protection claims compounds the Tribunal’s concerns regarding the credibility of the applicant’s claims to have ever feared a real chance of serious harm in Tonga.
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 him in Tonga in the reasonably foreseeable future.
Regarding his claims to have left Tonga to search for economic stability, to flee climate change, rising sea levels and economic hardship, I do not accept that the applicant’s experiences of these things, or what he 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 information before me, that any economic instability, climate change impacts including rising sea levels, and/or economic hardship the applicant faces a real chance of in Tonga, rises to the level of serious harm as contemplated by the relevant law, even when considered cumulatively.
Regarding his claims that jobs are hard to find and that his family plantation has been destroyed by a volcanic eruption and tsunami in Tonga, I do not accept, based on the evidence before me, that the applicant’s family plantation has in fact been destroyed, nor that he faces hardship amounting to serious harm in Tonga in the reasonably foreseeable future in connection with the volcanic eruption and tsunami.
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 he will be arbitrarily deprived of his 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 that he left Tonga for economic stability, to flee 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 he 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 instability, climate change, rising sea levels or economic hardship 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 his life or that the death penalty will be carried out on him. 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 instability, climate change, rising sea levels and economic hardship the applicant may face in Tonga would not be intentionally inflicted on him by anyone.
On the evidence before me, 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 3231

23 May 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies