2403619 (Refugee)

2403619 (Refugee) [2024] AATA 2987 (23 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2403619

COUNTRY OF REFERENCE: Vanuatu
MEMBER:David James
DATE:23 April 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 April 2024 at 11:46am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – particular social group – victim of loan shark – fear of detention – property vandalised – physical assault – threatened legal action – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 411, 426, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 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 claims to be a citizen of the Republic of Vanuatu (Vanuatu), applied for the visa on 11 December 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 28 February 2024. The applicant provided a copy of the delegate’s decision with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant did not appear before the Tribunal on 23 April 2024, to give evidence and present arguments.
The applicant was not represented in relation to the review.
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.
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 when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vanuatu they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents from the Department’s file and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application lodged on 11 December 2023, and the annexed copy of the applicant’s bio data page of his Vanuatu passport;
- The applicant’s application for review of 28 February 2024, and the annexed Decision Record of 12 February 2024; and
·The administrative and movement records of the Department relating to the applicant.
Claims for protection
The applicant in his visa application, made the following claims for protection (as summarised) that:
·He went guarantor in a car loan for a friend and seven months later he received a letter of demand from the bank in which they demanded the payment of $[amount] from the applicant further stating that if such payment was not made, they would take legal action against the applicant;
·He also found out that his friend had also borrowed money from a loan shark in his name without his knowledge and that his friend had escaped after not repaying the debt to the loan shark. The loan shark often called the applicant about the loan and threatened the applicant and his family. He tried to say that he was not the borrower, but the loan shark did not listen and vandalised the applicant’s car;
·He locked himself in his house and did not go to work as he was assaulted when he went out from his home and was in a state of fear. He was too scared to report this to the police as he felt it would not be good for his family to do so. Eventually he sold his car and paid off the bank and the loan shark and then escaped to Australia; and
·He does not want to return to Vanuatu as he fears he will continue to face threats over these past debts.
Department interview
The applicant was not offered an interview with the Department.
Delegates decision
The delegate’s decision of 12 February 2024 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims did not relate to any of the reasons in s 5J(1)(a) of the Act. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act, because the applicant could obtain protection, from an authority of Vanuatu.
Invitation to attend hearing
On 25 March 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 23 April 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 16 April 2024, the Tribunal sent a SMS Hearing Reminder to the applicant’s mobile telephone [number] (the mobile number which the applicant had provided to the Tribunal in his application for the review). The message read:
Reminder – Your AAT hearing is on 23/04/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
Review hearing - 23 April 2024
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
On the morning of the scheduled hearing, the Tribunal telephoned the applicant’s mobile [number] at 9:32 am and in a conversation with the applicant, he informed the Tribunal Officer that he was in [City 1] and was unable to attend the Tribunal. After the Tribunal Officer informed the applicant that he had been notified of the date of the hearing of his application, but that he had not responded to the hearing notice indicating that he could not attend, he was then asked whether he could proceed via telephone or through a video conference via Microsoft Teams. The applicant told the Tribunal Officer that he could proceed via telephone. The Tribunal Officer then informed the applicant that they would disconnect the call to the applicant and ring him back in ‘Teams’ and commence his hearing. The Tribunal then called the applicant’s mobile number in ‘Teams’ at 9:35 am and again at 9:36 am at which time the applicant’s phone picked up the call but the call was then immediately terminated by the receiver by hanging up. The Tribunal then further called the applicant’s mobile number at 9:45 am and again at 10:00 am and on both calls the call was not answered and diverted to voicemail where an automated message indicated that: “you have reached the mailbox of [number]”.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with the invitation sent via email to their nominated address as identified above at paragraph 20. Additionally, the Tribunal notes that a separate SMS hearing reminder was also sent to the applicant’s nominated mobile telephone number, as is outlined above at paragraph 21.
As noted above, the Tribunal also contacted the applicant on the morning of the scheduled hearing by telephoning his mobile telephone number and explaining to him that he had a scheduled review hearing listed to commence at 9:30 am that morning at the Brisbane Registry of the Tribunal. The Tribunal finds that the evasive nature of the applicant’s responses to the Tribunal’s telephone calls on the morning of the scheduled review hearing and his failure to contact the Tribunal on the date of his scheduled hearing are not consistent with the applicant having any intention of cooperating with the Tribunal and/or attending a hearing before the Tribunal to give evidence and make arguments on the review.
In the circumstances of this matter, as has been outlined above, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Country Information
The United States Department of State in their 2022 Country Reports on Human Rights Practices: Vanuatu, reported in the Executive Summary that:
Vanuatu is a multiparty parliamentary democracy with a freely elected government. Observers considered the October 13 parliamentary election generally free and fair. Parliament elected Ishmael Kalsakau as prime minister. The president is head of state. On July 23, parliament elected Nikenike Vurobaravu president.
The Vanuatu Police Force maintains internal security. The Vanuatu Mobile Force, a paramilitary police unit, is responsible for external security but is part of the police force and has a domestic law enforcement role. Both agencies report to the Ministry of Internal Affairs. Civilian authorities maintained effective control over the security forces. Members of the security forces were not reported to have committed abuses.[1]
Under the heading of ‘Arbitrary Arrest or Detention’:
The constitution prohibits arbitrary arrest and detention and provides for the right Page 2 of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements.[2]
And under the headings of ‘Denial of Fair Public Trial’:
The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality.
The constitution provides for the right to a fair and public trial, and an independent judiciary generally enforced this right…
There is an independent and impartial judiciary for civil matters, including for human rights violations. The government, including police, generally complied with court decisions on human rights violations. Reports continued that police sometimes did not promptly enforce court orders related to domestic violence.[3]
[1] ‘2022 Country reports on Human Rights Practices: Vanuatu’, US Department of State, Executive Summary at p1.
[2] Ibid, at pp 2 and 3.
[3] Ibid at pp 3 and 4.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to his protection visa application, the applicant claims to be citizen of Vanuatu and provided a copy of his Vanuatu passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Vanuatu. Vanuatu is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[4] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish, or assist in establishing, the claim.[5] This is consistent with the established proposition that it is for the applicant to make his or her own case.[6]
[4] Section 5AAA of the Act.
[5] Ibid (with effect from 14 April 2015).
[6] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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 remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[7] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[8]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[7] Fox v Percy (2003) 214 CLR 118
[8] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[9] A similar approach is taken in the Department’s Refugee Law Guidelines[10] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[11] which both provide useful guidance for this Tribunal.
[9] SZLVZ v MIAC [2008] FCA 1816 at [25].
[10] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[11] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal notes for the reasons that are outlined below, that the applicant claims lack any detailed description of the facts as to the identification of his friend, dates as to when matters occurred and the production of relevant documentation.
Additionally, the Tribunal notes that notwithstanding the applicant having had his application for the visa refused by the Department, as has been outlined above, the applicant chose not to attend a hearing where he could have given evidence and made arguments. In that regard, the Tribunal notes that if the applicant had attended a hearing, the Tribunal would have been able to ask the applicant questions and that he would have been given an opportunity to provide further information and/or evidence as to the facts of his matter.
Loans to bank and loan sharks
The applicant claims that he does not want to return to Vanuatu as he fears he will continue to face threats over past debts. He claims that he went guarantor in a car loan for a friend and seven months later received a letter of demand from the bank threatening legal action if he did not make a payment of $[amount].
The applicant further claims that he found out that his friend had also borrowed money from a loan shark in his name and without his knowledge. He claims the loan shark would often call him about the loan threaten the applicant and his family and vandalised his car. He claims that he locked himself in his house and did not go to work as he was assaulted when he went out from his home. He further claims he was too scared to report this matter to the police and he felt it was not good for his family to do so. He further claims that he eventually sold his car and paid off the bank and the loan shark and then escaped to Australia.
The Tribunal, first, notes that the applicant’s claims are vague and lack any specific description of the facts relied upon in support of his claims. In that regard, the Tribunal notes that the applicant has not identified his friend who purportedly obtained a car loan from the bank and further funds from a loan shark. He has also not identified the dates of any of these events the bank; the money lender; or provided any documentation as to these loans, their conditions; or the letters of demand he purportedly received from the bank. Additionally, the applicant has not provided any information and/or evidence as to when he repaid these loans or provided any documentation in support of these repayments. Further he has not explained why he would be at risk of harm from these lenders given he has repaid these loans.
Second, on the information before it, and notwithstanding the limited description of the facts provided by the applicant. The Tribunal finds that the applicant’s claims that he was threatened by loan sharks, and with legal action by the bank, because he had gone guarantor for his friend’s car loan and also because his friend borrowed money in his name from a loan shark do not relate to any of the reasons outlined in s 5J(1)(a) of the Act.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was in the reasonably foreseeable future to return to Vanuatu on account of the debts he had in Vanuatu.
The Tribunal finds in this regard, that the applicant’s fears are not well-founded.
Complementary protection
The Tribunal has also considered whether the applicant’s claims would amount to him facing a real risk of ‘significant harm’ as defined by s 36(2A) of the Act, from the people he owed money to in Vanuatu, which, has on his own claims been repaid. With reference to the country information as has been outlined above at paragraph 27, the Tribunal finds that the applicant could obtain, from an authority of Vanuatu, protection such that there would not be a real risk that he would suffer ‘significant harm’ as defined in s 36(2A) of the Act.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons provided 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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, and that he could obtain, from an authority of Vanuatu, protection such that there would not be a real risk that he would suffer ‘significant harm’ as defined in s 36(2A) of the Act, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Vanuatu.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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 2987

23 April 2024

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