2403261 (Refugee)

2403261 (Refugee) [2024] AATA 2876 (11 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2403261
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Mia Bailey
DATE:11 July 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 July 2024 at 8:38am
CATCHWORDS
REFUGEE – protection visa – East Timor – conflict between martial arts groups – kicked, punched and pushed, and friend killed – house ruined and burnt, and applicant and uncle stabbed – unable to find work – mental health – inconsistent claims and evidence – not a group member, but friend of group members – passage of time – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (aa), (2A), 56, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 (delegate) on 23 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 3 October 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 10 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages. The applicant’s 2 older brothers attended the hearing as support persons.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act.
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[1]
For the following reasons, I have concluded that the decision under review should be affirmed.
Background and receiving country
The applicant, a [Age]-year-old male, arrived in Australia [in] March 2023 on a Temporary Work (International Relations) (subclass 403) visa under the Pacific Australia Labour Mobility (PALM) scheme.
The applicant provided a copy of the biodata page of his East Timor passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of East Timor and there is no information before me to the contrary. I find that the applicant is a citizen of East Timor, and that East Timor is his receiving country for the purposes of assessing his claims for protection.
Evidence before the delegate
According to his protection visa application, he was born in [Town] and resided in Dili. His ethnicity is recorded as Timorese and religion as Catholic. He has never married. No details are provided of his family members. He has never studied or been employed.
Regarding his protection claims, he stated that he left East Timor to protect himself from ‘all types of suffering and torture’. He was kicked, punched and pushed. He sought help but no one helped him. He fears returning to East Timor because they will probably make him suffer by beating him and yelling at him. They may kill him because some people get killed by ‘other Martial Arts’ which is based on ‘fundamental violence’. He could not move to another part of the country because he does not have ‘power attorney to move or relocate’.
As outlined in the delegate’s refusal decision, on 22 November 2023 the Department wrote to the applicant under s 56 of the Act inviting him to provide additional information regarding his protection claims. In response, the applicant submitted a one-page letter (s 56 response). Relevant details are summarised below:
i.On [Day 1] February 2022 a problem occurred between 2 martial arts groups – his group, ‘Organization Arte Ritual 77’ (Group 77) and ‘PSHT’. This took place at his friend’s birthday party in [Suburb], Dili. Members of PSHT came to the party uninvited; they were drunk, threw glasses and plates and made a mess.
ii.His group called the police but they were not able to stop them. They continued making a mess and stabbed and killed one of his friends. That person’s sister then stabbed a PSHT member. This caused the problem to become worse and PSHT concentrated on fighting and destroying his group (Group 77).
iii.On [Date 2] February 2022 PSHT came to his house, ‘ruined’ his house, stabbed him and his father and burnt the house. They survived by running away and ‘hiding somewhere else’. Since then, PSHT has ‘always come to find [his] Group’ to hurt and kill them.
iv.He cannot return to East Timor because PSHT burnt his house, stabbed him, pushed him to the floor and always came to destroy his group. This affected his mental health and drove him to ‘big depression’. He almost killed himself because of this situation.
v.This year, the confrontation between PSHT and his group (Group 77) has worsened. Reference is made to a [social media] link containing a news broadcast from 31 November 2023 relating to rivalry between martial arts groups in East Timor.
The applicant was not invited to attend an interview with the Department. The delegate found the applicant’s claims to lack detail and to be unsupported by any documentary evidence. The delegate did not accept any of the applicant’s claims as credible.
Evidence before the Tribunal
The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of his review application. He submitted no further supporting evidence prior to the hearing.
At the hearing, the applicant was asked about the preparation of his protection visa application and s 56 response. He stated that he and some friends wrote these documents; his friends helped to give him ‘some ideas’. He stated that he did not really know what was in the application. However, when asked to clarify whether he had read the content of the application, he stated yes.
He confirmed that he was born and lived in [Town] until 2012. At that time, he moved to Dili with his older brothers. His uncle, aunt and nephews also live in Dili. He has not lived in any other part of East Timor. His father is a subsistence farmer in [Town]. His mother passed away when he was young and his father has remarried. He has [brothers and sisters]. [Some] brothers are currently living in Australia under the PALM scheme. [Other] siblings live with his father in [Town].
He completed high school in Dili in [Year]. He was unable to find work after completing school. His family supported him until he came to Australia under the PALM scheme.
Asked why he left East Timor in March 2023, he stated that he took the opportunity to work in Australia. Asked whether anything was happening in East Timor that caused him to leave, he responded that he ‘had problems’, ‘people didn’t like them’, and he does not want to go back. When asked for further details of the problems he had experienced, he stated that he went to a party, his friend killed someone, ‘they smashed his house’, and ‘they’ will beat him up if he returns. He clarified that ‘they’ are members of PSHT.
Asked when he attended the party, he responded vaguely and did not provide any date or timeframe. When asked to clarify the approximate timing, he referred to the party taking place in 2018. In response to further questioning about this incident, he stated that his friend is from Group 77 and killed a person from PSHT during the party. People from PSHT physically attacked him and tried to kill him but he ran away. Regarding his personal involvement Group 77, he clarified that he was not a member and had no direct involvement with the group, but he sometimes went out with members of the group.
Asked whether anything else happened prior to his departure for Australia, he responded that it was ‘happening all the time’. They damaged his house and always came looking for him at his house. They punched and kicked him. Asked why PSHT was targeting him if he was not part of Group 77, he responded that his friend from Group 77 ran away, so they looked for the ones who didn’t run away.
Asked when his house was damaged, he responded that because he was always home and not in hiding, they came to his house ‘all the time’. Regarding the nature of the damage to the house, he stated that there was no major damage; they slammed the door and took things from inside.
Asked whether any of his family members were harmed, he stated that his father was harmed. I raised with the applicant that earlier in the hearing he stated that his father resided in [Town]. He responded that he has another ‘father’ in Dili; he clarified this to be his uncle. He confirmed that his uncle had no involvement with Group 77. When asked why his uncle would be harmed by PSHT if he had no involvement with Group 77, he stated that they don’t know who the father or the son is and just beat up whoever is in the house.
I raised with the applicant that there are a number of significant inconsistencies between his oral evidence to the Tribunal and his written claims to the Department. In his written evidence he stated that he was part of Group 77. He referred to the party at which there was conflict between PSHT and Group 77 taking place on [Day 1] February 2022, rather than in 2018. He stated that at this party a PSHT member killed his friend. He stated that 10 days later – on [Day 2] February 2022 – PSHT burnt and ruined his house and stabbed him and his father. This caused him and his father to go into hiding. Asked whether he wished to make any comment in response to these inconsistencies, he stated that these things occurred because of MAGs.
I explained to the applicant that in addition I have concerns as to why PSHT would target him over an approximately 5-year period (since 2018) if he was not a member of Group 77 and how he managed to avoid more serious harm if they were intent on killing him. He responded that he was not a member of Group 77 but he was with them at the party. The others ran away but he remained in Dili so PSHT targeted him and wanted to kill him. Asked why he did not leave Dili and return to his family in [Town] if he was genuinely fearful of being killed, he responded that he has a ‘simple family’ and, as the ‘older brother’ he had to remain in Dili and look after his siblings, which he clarified to be his nephews.
I discussed with the applicant that, while I had not made up my mind, I have concerns about the credibility of his claims regarding PSHT. Asked whether there was anything else he wished to tell me, including any other reason he cannot return to East Timor, he stated that there is no work in East Timor. He would rather die in Australia than return to all the conflicts (which he clarified to refer to his issues with PSHT) and asked the Australian government to protect him.
I discussed with the applicant the concepts of persecution, serious harm and significant harm and explained that economic claims, such as lack of job opportunities, do not generally satisfy the refugee or complementary protection criteria. He indicated that he understood.
Findings and assessment
Findings of fact
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[2] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[2] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
The applicant claims to fear harm from martial arts group, PSHT, due to his imputed association with Group 77. In his written claims, the applicant refers to Group 77 as ‘my’ group, indicating that he was a member of or had some direct involvement with this group. In his oral evidence, he stated that he had no direct involvement with this group; his only connection was being friends with members of Group 77. While I have some concerns with this inconsistency, I have not given it any significant weight. I accept his oral evidence that he was not a member of Group 77. Considering the country information discussed below, I accept as plausible that he had friends who were involved with Group 77.
Martial and ritual arts groups (MARGs) can be found across East Timor and have complex histories dating back to the Indonesian occupation. Membership of MARGs has increased in recent years and is largely tied to kinship networks and village communities. Conflicts between MAGs usually occur at the community level, where groups from opposing communities clash in an effort to defend their territory or resolve disputes.[5]
[5] Pawelz, J, Security, Violence, and outlawed martial arts groups in Timor-Leste, May 2015, p.131; Alves, J, Martial and ritual arts groups in the formation of political parties in Timor-Leste, Dialogos Volume 7, 17 November 2022; Small Arms Survey, Number 2, Groups, gangs, and armed violence in Timor-Leste, April 2009; Fundasaun Mahein, Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy, 27 September 2022
‘Persaudaraan Setia Hati Terate’ or ‘PSHT’ is the largest and most influential martial arts group and claims to have 35,000 members. PSHT members comprise all ages, both genders and all classes of society. While PSHT is mainly a legitimate sporting organisation, its members are also mobilised by politicians and organised crime.[6]
[6] Pawelz, J, Security, Violence, and outlawed martial arts groups in Timor-Leste, May 2015, p.131; Alves, J, Martial and ritual arts groups in the formation of political parties in Timor-Leste, Dialogos Volume 7, 17 November 2022; Small Arms Survey, Number 2, Groups, gangs, and armed violence in Timor-Leste, April 2009; Fundasaun Mahein, Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy, 27 September 2022
Group 77 (or ‘Seven-Seven’) is a clandestine group, also known as a kakalok (magic or mystical) or isin kanek (wound) group, which formed under the Indonesian occupation and remains active. Members of the group can be distinguished by a series of 7 scars running vertically up their arms. Members believe they are given magical powers through inserting a potion under their skin making them invincible, and even invisible to enemies. While members of Group 77 claim to maintain East Timorese cultural traditions and perform a certain type of martial arts training, they are best known for control of gambling, protection rackets and providing security for brothels, for which they often violently compete with PSHT. Only some sections of the group are involved in criminal activities.[7]
[7] Scambary J N, When the personal is political: The dynamics of communal conflict in East Timor 2000 – 2013, August 2014, ANU Open Research Repository
However, I have significant concerns with the applicant’s claims to have been targeted by PSHT following his attendance at a party with members of Group 77. As detailed below, there are various inconsistencies, omissions, and implausible aspects in his account. I acknowledge that not all such issues are significant and do not necessarily lead to an adverse credibility finding. However, having regard to the overall consistency and coherence of his account and the nature and extent of these concerns, I am satisfied that in totality they significantly undermine the credibility of his claims.
As discussed with the applicant and detailed below, there are significant inconsistencies between the applicant’s written claims to the Department and his oral evidence to the Tribunal. He was given the opportunity to comment on these inconsistencies but did not provide any response that reasonably explains the discrepancies.
In his written claims he specifically refers to the party taking place on [Day 1] February 2022 whereas before the Tribunal he referred generally to 2018. While I acknowledge that it may be difficult for applicants to recall exact dates, I have concerns that the s 56 response refers to a specific day in February 2022 whereas at hearing the applicant referred generally to 2018. Given the significant events that are claimed to have taken place at this party and afterwards, I would expect him to be able to recall the correct year.
In his written claims he specifically refers to PSHT members coming to his house on [Day 2] February 2022, setting fire to the house which was ‘ruined’ and stabbing him and his father. This caused him and his father to run away and go into hiding ‘somewhere else’. Before the Tribunal he stated that PSHT came all the time to his house because he remained at home and was not in hiding. They did not cause any major damage to the house but slammed doors and took some belongings. While I accept the applicant’s explanation that the reference to ‘father’ is to his uncle who resides in Dili, he has provided no explanation for the remaining inconsistencies which I consider to be significant.

The applicant claims that PSHT was targeting him in the period between the party in 2018 and his departure for Australia in March 2023 and wanted to kill him. I do not accept this to be plausible given the applicant’s evidence to the Tribunal that he remained in his house in Dili and PSHT knew where he lived and came to the house ‘all the time’. I consider that if PSHT genuinely wished to kill or seriously harm the applicant during this period, they had the opportunity to do so. I also have concerns as to why, if PSHT was genuinely seeking to harm or kill the applicant, he remained in his house in Dili and did not return to his family home in [Town]. I do not find the applicant’s explanation to the Tribunal, that he had to remain in Dili to look after his nephews, to address my concerns. According to his evidence, his uncle and aunt resided in Dili, with his nephews.
Considering the above, I do not accept that the applicant attended a party with members of Group 77 at which there was a conflict with PSHT. I do not accept that the applicant was targeted or harmed by PSHT, including his house being damaged, due to any imputed association with Group 77 or for any other reason. I do not accept that the applicant’s uncle was stabbed by PSHT. It follows that I do not accept that the applicant went into hiding to avoid harm from PSHT or experienced any mental health issues due to these incidents.
Refugee and complementary protection assessment
Based on the applicant’s residence in Dili since 2012 and the presence in Dili of his extended family, I find that to be his place of likely return or ‘home area’. Considering my findings above, I find that there is not a real chance that the applicant will be harmed by PSHT if he returns to Dili. In his written claims the applicant has referred generally to fearing harm in East Timor due to conflicts between martial arts gangs. Based on the country information above, I accept that there are conflicts between MARGs. However, the applicant is not a member of any martial or ritual arts group and, other than the claims discussed above which I have not accepted, has not raised any claims to have experienced harm from MARGs. In his accepted circumstances, I find the chance that he would face harm from MARGs in the reasonably foreseeable future to be remote.
I find that the applicant does not have a well-founded fear of persecution from MARGs and is not a refugee as defined in s 5H(1) of the Act. I have therefore considered whether the applicant engages complementary protection as outlined in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to East Timor, he will suffer significant harm.
The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[8] For the same reasons discussed above, I find that there is not a real risk that the applicant will suffer significant harm from PSHT or any other MARG as a consequence of his removal to East Timor.
[8] MIAC v SZQRB [2013] FCAFC 33
The applicant has raised claims relating to lack of job opportunities and general economic hardship if he were to return to East Timor. I find this to not be for any of the reasons in
s 5J(1)(a) of the Act and to therefore not satisfy the refugee definition. For the purposes of the complementary protection criterion, ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
I find the applicant’s fear of not being able to obtain work in East Timor to not amount to any of the types of significant harm defined in s 36(2A). The definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. Any economic disadvantage that the applicant may experience as a consequence of his return to East Timor would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions.
The applicant has not claimed to fear harm for any other reason if he returns to East Timor and I find that no other protection claims arise on the accepted facts.
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). 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.
Mia Bailey
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2876

11 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness