2403740 (Refugee)

2403740 (Refugee) [2024] AATA 3628 (21 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2403740

COUNTRY OF REFERENCE: Solomon Islands
MEMBER:Don Smyth
DATE:21 May 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 May 2024 at 5:38pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – political opinion – political violence – reporting corruption – physical assault – fear of killing – plans to work in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
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
BACKGROUND

The applicant claims to be a citizen of Solomon Islands and has provided a copy of the bio data page of his Solomon Islands passport. I accept that he is a Solomon Islands national.
According to information provided in his application for a protection visa, the applicant was born in Honiara in [specified year].
The applicant applied for a protection visa on 16 October 2023. On 6 February 2024 a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
According to information provided in the protection visa application, the applicant lived at an address in [Location 1], Honiara from [birth] to [October] 2021.
The applicant indicated that he had never married.
The applicant referred to employment in Australia, but indicated that he had been unemployed from 31 May 2023 to 16 October 2023, and that he was living with friends and had been supported by them. The application stated that he had been unemployed from [year] to [October] 2021. He had been a subsistence farmer in Solomon Islands and had financially supported himself by selling farm crops in the markets in Solomon Islands.
The applicant described his ethnic group as Melanesian and his religion as Christian.
The applicant indicated that he had arrived in Australia [in] October 2021 and that he held a Subclass 403 visa.
The protection visa application form included written claims. In summary, the application stated that the applicant was seeking protection because he wanted to be protected from continuous attacks and harm from the opposition political candidate’s supporters. He had been attacked several times and almost got killed by them. He had always been assaulted, harmed and tortured by the supporters of the opposition candidates. He had almost died in one of the assaults. The application stated that the applicant had been continuously assaulted, tortured, harmed and almost killed. He had been continuously attacked and harmed by the opposition political candidate’s supporters in the Solomon Islands after losing the elections. He became the victim of the attacks and harm because he was the campaign manager for his winning candidate. He had reported the losing candidates for corruption and rigging of elections which cost him his loss in the elections. The application stated this was why his supporters wanted to kill him.
The application stated that the applicant did not seek help because the candidate had a network of people who kept an eye on his movements. It referred to being threatened that he would be harmed and killed if he saw the authorities. It was claimed that the applicant moved to Malaita province for his safety and tried to hide there but was located and found by the supporters of the losing candidate. They assaulted, tortured and harmed him again when they found him there trying to hide. Because of this incident, he was afraid to find another safe place to hide in the Solomon Islands. They would still locate him and would kill him and hide him because no one would protect him.
The application claimed that the applicant would be harmed and tortured but this time to the extreme of being killed. It referred to the opposition candidate's image and reputation in politics having been tarnished due to the applicant’s exposing him. It stated that this person was very bitter and had been continuously threatening the applicant through friends who relayed the messages to him. The applicant would be assaulted, harmed, tortured and killed by the supporters of the losing candidate. He would not be protected. The application referred to Solomon Islands having laws and organisations that were recently established but stated that it did not have the resources and safe places for the applicant to go and hide and get protection. It had not been effective in protecting people like him who were victims of such incidents and the success rate of protection of victims in the Solomon Islands had been ‘very low or zero in percentage’. Reference was made to having ‘no confidence in the authorities or organizations even the protection laws in the Solomon Islands’.
It was claimed that the applicant could not relocate because he had moved to Malaita for his safety and tried to hide there but was found by the supporters of the losing candidate and assaulted, tortured and harmed. Because of this, he was very afraid to find another safe place to hide in the Solomon Islands. They would still locate him and might kill him and hide him because no one would protect him. The application stated that the Solomon Islands was a very small country and the laws and organisations could not protect the applicant and guarantee his safety because their success rate was very low or zero.
The applicant attached to his application a pay slip, apparently related to employment in Australia.
On 6 February 2024, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate noted that, on 14 December 2023, the applicant had been sent correspondence inviting him to provide additional information about his claims under s 56 of the Act. The delegate recorded that the applicant had not provided additional information in relation to their claims. The delegate found that the applicant’s claims were not credible. The delegate was not satisfied that the applicant was a refugee as defined in s 5H(1) of the Act. Nor was the delegate satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Solomon Islands, there was a real risk that the applicant would suffer significant harm as defined in s36(2A) of the Act.
Review Application
The applicant attached a copy of the delegate’s decision to the review application.
He made the following statement in his review application:
I wish to appeal to the Australia Appeals Tribunal because my Protection claims are genuine but I failed to provide evidence due to difficulties in reaching out to the Solomon Islands to obtain the documents Also, I was on a substantive visa 403 when I applied for the protection visa But I forgot to notify the Immigration Department to make my Subclass 866 visa active so I wish the AAT to look into my claims and appeals
The applicant attended a Tribunal hearing on 13 May 2024. While it is not necessary to set this out in full, I have had regard to all of the applicant’s evidence at hearing. The applicant’s evidence at the hearing is summarised below.
The applicant confirmed at the hearing that he did not have any additional documents to provide. He confirmed that he did not require an interpreter and was confident to communicate in English.
At the hearing, the applicant provided information about his background and circumstances in Solomon Islands. In summary, he gave evidence to the effect that he was born in Honiara in [year]. He indicated that he had been living in [Location 1] in Honiara before he came to Australia and that he had lived there from 2004 until October 2021. He described [Location 1] as being a little bit rural, and a small area or town, like a suburb. He indicated that it was about [time] from the centre of Honiara by car if there was no traffic. The applicant indicated that he had been living at [Location 1] with his parents and that they were continuing to live there. He indicated that they rented a house. He said that his father was from Malaita Province and his mother was from [a different] Province, and indicated that they moved to Honiara before he was born. He gave evidence to the effect that his parents had retired in [year range]. His mother had been [an occupation 1] and his father [an occupation 2]. The applicant indicated that he had [number and ages of siblings], [who] were living with his parents. He said that he worked and supported them. He indicated that [another sibling] had passed away in 2008. He gave evidence to the effect that his [siblings] did not work but indicated that they sold [products] in front of the house. The applicant described having contact with his family in Solomon Islands.
The applicant indicated that he was single. He gave evidence to the effect that he graduated from high school in [year] and that he finished [grade]. He indicated that he had worked as [an occupation 3] from [year] until October 2021. He said that they had a car and he just [di his occupation] to support his family. He indicated that he sometimes also went and did casual jobs in the ports for the [specified employers], like labour work unloading cargo. He gave evidence to the effect that they would call him if they needed labour. He and some of his friends would go and work casually for money. The applicant gave evidence to the effect that he had come to Australia on a subclass 403 visa in October 2021. He described having worked at [named] Farms in [Town 1], [duties specified]. He indicated that he was now working for a [business] in [Town 2].
When asked about whether he remembered when he made his protection visa application, the applicant gave evidence to the effect that a person applied for them. He referred to a guy coming to [Town 1] before his subclass 403 visa expired. He gave evidence to the effect that he and two of his friends paid this person money and asked this person to help them. He said that when they worked at the farm they did not get extended. They still wanted to work and their visa had nearly expired. Three of them paid a person and he said he would do a visa for them. He said it would come with work rights. The applicant gave evidence to the effect that he had said that he wanted a visa with work rights so he could work anywhere, and the person said to pay him and he could do it. They paid him. The person said to leave it to him and he would apply for them. The applicant said that the 3 of them did not know what sort of visa it was for. He indicated that they asked the person to apply for a working visa. They still wanted to work in Australia to help their families. The applicant indicated that the person applied for the visa. The applicant referred to a refusal in February and indicated that all 3 of them got refused. He described how he and his friends called and texted the person. He referred to the person not wanting to answer and saying ‘leave it to me’. The applicant referred to checking on VEVO and to an expiry date of 28 days so it would expire in March. He gave evidence to the effect that he called and texted the person who said to leave it to him. He indicated that 2 of his friends just left it to him to wait for him until their visa expired. They kept calling and texting and he would not answer. He said they texted and the person said, ‘It’s all right. I’ll deal with it.’ He indicated that they kept waiting and that they could not access their VEVO.
The applicant stated that he looked at theirs and said it looked like this guy must be scamming them. He again indicated that the person did not want to answer when they texted and called. He gave evidence to the effect that he asked his other friend to help him and he appealed the decision. The applicant said that he was still working. He received an email from the Tribunal so he came. He said that at that time they did not know what kind of visa the guy applied for. He indicated that the person put his own story. He said he would do it so he was the one creating the story. The applicant indicated that the person doing the protection visa application made up the story, not him. He thought the person had applied for a good visa, a working visa, but he applied for that visa. He said that they tried to call the person to ask about that but he turned off his phone. The applicant stated that he just wanted to tell the truth.
I asked the applicant whether he understood that the application was for a protection visa and I could only look at whether he met the requirements for that visa. The applicant replied in the affirmative. He said he just wanted to come and tell the truth. He did not want to come and lie. He indicated that some friends had advised him not to go to the hearing but said he thought he wanted to do the right thing. He was a law-abiding person. He just wanted to come and tell the truth. He did not want to come and lie. The applicant stated that he wanted to stay here legally and work to help his family.
I sought to confirm with the applicant that the claims in his protection visa application had been made up by another person. The applicant said that he did all that. The applicant thought he applied for a good visa but he applied for that one. He made a problem for the applicant. The applicant said that he thought he applied for a good visa, that he could work.
I asked the applicant whether there were any reasons he feared going back to Solomon Islands. The applicant said he wanted to stay and work in Australia. He did not want to go back. He said he came to tell the truth.
I raised with the applicant claims made in his protection visa application as set out at pages 12 to 13 of the protection visa application form. The applicant confirmed that all the claims were made up by the person who made the application. He said it was not true. He confirmed that none of the claims were true and that they did not represent his true circumstances. He confirmed that he had not been involved in politics or reporting people for corruption or rigging of elections. The applicant indicated that the person made up all of that. He said none of it was true. He just wanted the person to do him a good visa to stay and work legally. The applicant confirmed that he had not been assaulted, harmed, tortured or attacked. He indicated that the person made it all up. He had not sought the protection of the authorities or to relocate in Solomon Islands. The applicant gave evidence to the effect that he paid the person. He thought he applied so he could stay with a working visa but he applied for that visa. The applicant said it was not true. He said that he could not lie. He did not want to tell lies. I put to the applicant that, from what he had told me, it might not seem that he had a fear of being harmed. The applicant agreed. He said he just wanted to come and tell the truth. I put to the applicant that it might not seem that there was any reason he feared going back to Solomon Islands, and that he wanted to stay and work in Australia. I explained to the applicant that I could only look at whether he met the requirements for the visa (which I discussed with him at the hearing). I raised with the applicant that, based on what he was telling me at the hearing, I might have some doubt that he met the criteria for the visa. I indicated that I could only look at whether he met the criteria for this visa. The applicant indicated that he still wanted to work in Australia and help his family.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
As outlined above, the applicant’s protection visa application set out claims related to political activity in particular. However, at the hearing the applicant gave evidence to the effect that another person prepared the protection visa application and that this person put his own story and was the one creating the story. He confirmed that the claims in the application were all made up by the person who made the application. He confirmed that none of the claims were true and that they did not represent his true circumstances. I accept that the claims in the protection visa application do not reflect claims that the applicant wishes to make and that they do not reflect his true circumstances. I accept that someone else prepared the application. I find that these claims do not represent the truth or the applicant’s true circumstances. The applicant was open at the hearing in indicating that the claims in the protection visa application were not true.

In these circumstances, I do not accept that the events described in the claims in the applicant’s protection visa application occurred. I do not accept that the applicant was in any way involved in any of the events described in the protection visa application, or that he has been in any way harmed, threatened, assaulted, tortured or attacked as claimed in the application. I do not accept that he was in any way involved in political activity. As noted above, the applicant confirmed at the hearing that he had not been involved in politics or reporting people for corruption and rigging of elections. I do not accept that the applicant was a campaign manager for a candidate or was involved in politics or that he reported another candidate or candidates for matters such as corruption or rigging of elections. I do not accept that he was harmed, threatened, assaulted, tortured, attacked or almost killed as claimed in the application, or that there was a network of people keeping an eye on his movements. The applicant confirmed at the hearing that he had not been assaulted, harmed, tortured or attacked. I do not accept that he moved to another place, and was found and assaulted, tortured and harmed. The applicant confirmed at the hearing that he had not sought the protection of the authorities or to relocate in Solomon Islands.
I do not accept that the events described in the protection visa application form occurred and am not satisfied that there is a real chance that the applicant would be persecuted based on the matters raised in the protection visa application. Nor do these matters give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Solomon Islands, there is a real risk that he will suffer significant harm.
I note that, when asked at the hearing about whether there were any reasons he feared going back to Solomon Islands, the applicant stated that he wanted to stay and work in Australia, and that he did not want to go back. I accept that the applicant wants to stay and work in Australia and that he does not want to go back. I note that s 5J(1)(a) of the Act requires that the person fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. As discussed above, at the hearing the applicant effectively abandoned the claims in his protection visa application, indicating that they were not true and did not represent his true circumstances. He did not express a fear of being persecuted for any of the reasons in s 5J(1)(a). On the evidence before me, I am not satisfied that the applicant fears being persecuted for any of the reasons mentioned in s 5J(1)(a). Nor am I satisfied that there is a real chance that the applicant would be persecuted for any of the reasons mentioned in s 5J(1)(a). In all the circumstances, I am not satisfied that he has a well-founded fear of persecution. I am not satisfied that he is a refugee as defined in s 5H(1).
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A) of the Act: s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
As noted above, the applicant has effectively abandoned the claims made in his protection visa application, indicating that they are not true and do not represent his true circumstances. I do not accept that those matters give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Solomon Islands, there is a real risk that he will suffer significant harm. At hearing, the applicant did not advance any claims with respect to there being a real risk that he will suffer any form of ‘significant harm’ as defined by s 36(2A). I have carefully considered all of the information before me. However, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Solomon Islands, there is a real risk that he will suffer significant harm.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Don Smyth
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 3628

21 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction