2428893 (Refugee)

2428893 (Refugee) [2024] AATA 4436 (3 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Victoria Lenton
CASE NUMBER: 2428893

COUNTRY OF REFERENCE: United Kingdom
MEMBER:Rosa Gagliardi
DATE:3 October 2024
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 October 2024 at 8:02am
CATCHWORDS
REFUGEE – protection visa – United Kingdom – particular social group – elderly and unwell single male without family support – balance of family residing in Australia – Australian citizen wife deceased – child with multiple disabilities – medical conditions – access to welfare and health systems – lower life expectancy – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 August 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 United Kingdom (a matter the Tribunal accepts) applied for the visa on 23 July 2024. The delegate refused to grant the visa on the basis that it was considered that the applicant would have access to an appropriate welfare and health system in the United Kingdom and that he did not have a well-founded fear of persecution for any reason under s.5J(1).
The applicant was invited to a hearing to have been held on 1 October 2024. The Tribunal received advice from the applicant’s representative that the applicant wished the Tribunal to proceed to decision on the basis of the information before it and that the applicant did not wish to appear before the Tribunal. The Tribunal was advised that the applicant wished to seek Ministerial Intervention given the state of his health and based on other compassionate considerations regarding his circumstances. The applicant has provided the Tribunal with a copy of the Departmental decision to enable it to progress to decision without the applicant attending a hearing.
The applicant was 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.
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
The issue in this case is whether the applicant meets the criteria for a refugee as specified under s.5J(1) or whether he meets the complementary protection criteria.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is currently in immigration detention. He has been in Australia since 1972 as he married an Australian citizen wife, who passed away 35 years ago. He was then in a de facto relationship with an Australian citizen for thirty-one years before they separated in 2022.
All the applicant’s friends and family reside in Australia, and he has no affective ties in the United Kingdom. The applicant has [specified children] and grandchildren. The applicant is also on good terms with his former de-facto partner. These familial connections provide the applicant with active support. In Scotland his birth area, he only has an elderly aunt who is living in an aged care facility.
The applicant is [age] years of age and worked consistently since his arrival in Australia until his retirement in 2012 and has worked as a volunteer for a couple of years at [Agency 1], NSW.
[In] August 2022, he was charged with breaching his bail condition which specified that he was not permitted to move house without appropriate notification. The applicant has stated that he did not know he was subject of such a bail condition and does not know why ‘breach of bail’ is listed twice on his criminal history.
[In] August 2022, he was charged with an offence of twice intentionally sexually touching a child over the age of ten but under the age of sixteen. He was upset and did not know why he had done this. He was imprisoned and placed under camera surveillance to ensure he did not commit suicide.
[In] February 2023 he was charged with two offences of intentionally sexually touching a child over the age of ten but under the age of sixteen. He originally pleaded guilty because he thought he did not do anything. He later pleaded guilty so that nobody would have to go to court. In addition, they told him that if he pleaded guilty, one of the offences would be dropped and he was subsequently only charged with one offence.
The applicant has felt remorse and shame for his offending and understands that his wrongdoing has had negative impacts on the victims. Since his offending the applicant has seen a psychologist due to his offending and has been assessed as low risk of re-offending.
It is strongly argued that there are other compelling reasons the applicant should not be removed offshore. This is because [one] son has many disabilities and has lived with the applicant for his entire life. His son relies on him for everything including with his daily activities. His son works for an employer that employs people with disabilities. His son is registered, with the help of the applicant’s daughter, with the National Disability Insurance Scheme (NDIS). The applicant has not told this son he is at risk of returning to the UK. His other children are aware of his situation and are distressed at the thought of their father returning to Scotland on his own.
The applicant’s health is poor as he is suffering from multiple medical conditions (evidence submitted) including [conditions specified]. It is argued that the applicant is not fit to travel on a plane to return to the UK as a result of these multiple health issues.
The applicant has fears he will not be able to take care of himself in the UK. In Australia he relied on the Aged Pension and only receives a minor sum in Scotland due to work he had done prior to coming to Australia. His health issues compound his concerns about being able to afford care to treat his medical problems. The applicant has private health insurance in Australia but is not aware as to whether he will be eligible for public or private health insurance in Scotland.
Reasons the applicant claimed at time of application he cannot return to the United Kingdom
Asked to provide reasons why the applicant could not return to his home country, the applicant wrote that as per “D v UK (no other citation provided) the removal of the applicant would significantly lower his life expectancy and subject him to severe physical and mental pain and suffering. He will have no family ties or other moral or social support upon return”.
The applicant declared he had not experienced harm in his home country. When he was asked what the applicant thought would happen to him if he was returned to that country, he repeated his claims that as per D v UK, the removal would lower his life expectancy and subject him to severe physical and mental pain and suffering. The applicant expressed the view he would be harmed or mistreated in the United Kingdom. Asked to detail the harm he would experience the applicant wrote again that his removal would significantly lower his life expectancy and he would be subjected to severe physical and mental pain and suffering.
FINDINGS AND REASONS
The Department ultimately found that the applicant’s claims did not amount to him fearing persecution for reasons of his race, religion, nationality, membership of a particular social group or political or imputed political opinion as required by s.5J(1). The Tribunal is, however, prepared to contemplate that the applicant’s circumstances could mean he belongs to a member of the particular social group – “elderly and unwell single male without family support”.
The world economy and that of the United Kingdom
The Departmental decision refers to the global economy undergoing the most severe economic downturn of modern times as a result of the COVID-19 pandemic and other international factors.[1] In terms of more contemporary economic data, in its report of July 2024, the International Monetary Fund has written:
Global growth is projected to be in line with the April 2024 World Economic Outlook (WEO) forecast, at 3.2 percent in 2024 and 3.3 percent in 2025. However, varied momentum in activity at the turn of the year has somewhat narrowed the output divergence across economies as cyclical factors wane and activity becomes better aligned with its potential. Services price inflation is holding up progress on disinflation, which is complicating monetary policy normalization. Upside risks to inflation have thus increased, raising the prospect of higher-for-even-longer interest rates, in the context of escalating trade tensions and increased policy uncertainty. To manage these risks and preserve growth, the policy mix should be sequenced carefully to achieve price stability and replenish diminished buffers.[2]
[1] ‘Global economy will take $12tn hit from coronavirus, says IMF’, The Guardian, 24 June 2020, Global economy will take $12tn hit from coronavirus, says IMF | International Monetary Fund (IMF) | The Guardian.
[2] ‘World Economic Outlook Update, the Global Economy in a Sticky Spot’, July 2024, World Economic Outlook Update, July 2024: The Global Economy in a Sticky Spot (imf.org).
In terms of the United Kingdom, in 2022 it was reported that it had a gross domestic product (GDP) of $3.07 trillion for a population of more than 67 million[3]. The United Kingdom has the sixth-largest economy after the U.S., China, Japan, Germany, and India. Further, its quality of life is generally considered high, and the economy is quite diversified. The sectors that contribute most to the UK’s GDP are services, manufacturing, construction, and tourism.[4] In terms of COVID-19 and its effect on the UK’s economy:
The U.K. is noteworthy for its dramatic policy response to the COVID-19 pandemic. After initially announcing the intention to pursue a strategy of protecting the vulnerable while building herd immunity, the U.K. government radically shifted course based on the results of highly publicized model projections from the Imperial College of London…

[3] ‘The Economy of the United Kingdom’, Vanessa Page, Updated 11 August 2023, Investopedia, The Economy of the United Kingdom (investopedia.com).
[4] Ibid.
[5] Ibid.
U.K. GDP experienced a record 20.4% decline in the second quarter of 2020 and fell by 22.1% over the first half of 2020. Amidst the highly restrictive government measures in response to the pandemic, these declines were particularly prevalent in sectors most exposed to government restrictions, including services, production, and construction. The larger economic decline in the U.K. relative to other countries reflects not just the restrictions imposed but the long period of the lockdown.[5]
The OECD stated in September 2024 in its latest economic survey:
Economic growth is resuming, but challenges remain. Gradual ﬁscal consolidation is required over the short term to support the return of inﬂation to target and rebuild ﬁscal space, following substantial support during the pandemic and the energy crisis. Growing spending needs due to ageing and investment necessary to support the green transition call for tax reforms to strengthen revenues. Supply-side reforms are needed to sustain growth, including by providing businesses with certainty regarding taxation and land use planning to boost investment, and by strengthening work incentives to reduce economic inactivity. The United Kingdom is a front runner in the progress to reach net zero by 2050, but more effort is needed to accelerate emission reductions in residential housing, including a clear long-term strategy, pricing signals, regulatory timelines, and ﬁnancial support to stimulate the market for decarbonised heating solutions.[6]
[6] ‘United Kingdom Economic Snapshot. Latest Economic Survey of the United Kingdom (September 2024), United Kingdom Economic Snapshot | OECD.
Hence, whilst the UK’s economy is the sixth largest in the world, is diversified and offers opportunities in a range of sectors, the Tribunal has to consider that the applicant is [age] years of age and given his multiple health issues is not likely to find a well-paid job to support himself on return to the UK. The applicant’s disabled son would not be able to assist his father and the applicant will need additional resources to take care of himself in the UK. It is unclear also whether his daughter and other son are in a position to provide the applicant with some financial support to ensure his daily and medical needs are met. The Tribunal therefore has to make an assessment about whether the welfare environment and health systems can sustain the applicant on his return to the UK.
The welfare and health systems in the United Kingdom
The Department for Work and Pensions (DPW) has reported that in 2024 to 2025 the UK is forecast to spend £315.8 billion on the social security system. This includes DWP benefit expenditure, Tax credits and Child Benefit, and Northern Ireland Social Security.[7] The DWP also states that the benefits system covers a range of payments made by various departments and agencies and include several different circumstances:
[7] ‘Guidance and methodology: Benefit expenditure and caseload tables’, Department for Work & Pensions, GOV.UK, Guidance and methodology: Benefit expenditure and caseload tables - GOV.UK ( system provides financial support in a number of different circumstances, including:
·     old age
·     disability
·     unemployment
·     caring
·     maternity
·     low income
Entitlement can be based on:
·     having made (or being credited with) sufficient National Insurance contributions (contributory benefits)
·     having a low income (income-related benefits)
·     meeting certain other criteria, such as having a disability, or responsibility for children.
In some cases entitlement can be based on a combination of these factors.
Entitlement covers not only whether someone receives a benefit, but also how much is received. For some benefits there are specific amounts people can receive. For other benefits the amounts received can vary depending on circumstances.
Those that are entitled to claim include individuals that reside in GB, and for some benefits those that live overseas, dependent on meeting other qualifying criteria.[8]
[8] Ibid.
While the Tribunal acknowledges that there are challenges for persons on low incomes in the UK, there is a safety net in terms of Universal Credit which is a payment to help with living costs and is paid monthly or twice a month for people living in Scotland.[9] There is also a Housing Benefit to assist persons on a low income to pay rent but this benefit is being replaced by the Universal Credit.[10] Other benefits include the warm home discount scheme and the national concessionary fuel scheme.[11] Support might also be obtained from the local council, “the Household Support Fund” helps if people are struggling to afford energy and water bills, food and essential items, and other benefits received will not be affected by any such support from the local council.[12]
[9] ‘Benefits and financial support if you’re on a low income’, GOV.UK, Benefits and financial support if you're on a low income - GOV.UK ( Ibid.
[11] Ibid.
[12] Ibid.

Other entitlements include grants for the physically disabled and age-related needs.[13] Persons on low incomes may also be able to get free National Health Service (NHS) prescriptions, dental treatment, eye tests and help with other NHS costs. Age, income, and whether people have a medical condition are determinants of whether the applicant would be able to access these particular benefits. Prescription prepayment certificates (PPCs) from the NHS may also make prescriptions cheaper.[14] The applicant might also be able to get a home visit from a Department for Work and Pensions officer to help with claiming benefits and the Personal Independence Payment (PIP) can help with extra living costs if a person has a long-term physical or mental health condition or disability and difficulty doing everyday tasks or getting around because of their condition. Assistance can involve help with preparing food, eating and drinking, managing medicines or treatments, washing and bathing, dressing and undressing, managing money, socialising and being around other people.[15]

Health care system in the United Kingdom – the National Health Service – a Publicly Funded health care system

[13] Ibid.

[14] Ibid.

[15] Ibid.

Hospital treatment is free of charge for people who are ordinarily resident in the UK. This does not depend on nationality, payment of UK taxes, National Insurance contributions, being registered with a GP, having an NHS number, or owning property in the UK.[16] Access is universal. The majority of UK residents rely on the NHS for health care and traditionally few people choose to purchase voluntary private health insurance. In 2016 only an estimated 10.5 percent of the UK population had taken out private health insurance.[17]
[16] ‘1946 National Health Service Act’, UK Parliament, 1946 National Health Service Act - UK Parliament.
[17] ‘International Health Care System Profiles. England’, 5 June 2020, The Commonwealth Fund, England | International Health Care System Profiles | Commonwealth Fund.
The Tribunal has no doubt that in returning to the UK the applicant will face some economic challenges. He may also need assistance to access the relevant GOV.UK websites (as set out in the footnotes of this decision) to see his entitlements and this is a matter that his children may be able to assist him with from Australia. The additional pension he receives from the UK will assist top up any benefits he receives, particularly as it seems that the majority are not conditional on having no other source of income. It would also be critical for the applicant to investigate the Personal Independence Payment (PIP) to see what assistance he can be provided at home if his care needs are such that independent living is difficult for him.
Having assessed the information before it, together with that provided in the Departmental decision, the Tribunal is satisfied that the applicant on return to the UK would not face serious harm on account of being a member of the particular social group – “elderly and unwell single male without family support”. The Tribunal is not satisfied that because of his membership of such a particular social group the applicant will: face a threat to his life or liberty; significant physical harassment; significant ill-treatment; significant economic hardship that threatens the applicant’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; or the denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. Nor does the Tribunal have evidence that because of the applicant’s membership of the particular social group, “elderly and unwell single male without family support”, the state or non-state actors would target the applicant for any reason.
There is no evidence before the Tribunal that the applicant would suffer serious harm for any other reason pursuant to s.5J(1) of the Act.
For the reasons given, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criteria
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal has also considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the UK, there is a real risk he will suffer significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution.
Because the Tribunal has not accepted the applicant’s claims he will face serious harm on return to the UK, the Tribunal also finds it is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm due to any particular characteristic held by him such as his age and health or that he would be targeted by the government or any other official or unofficial body, or individual actors to deprive him of access to services such that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Ministerial intervention
The applicant is ably represented by his migration agent and accordingly will be advised about the need to meet the Ministerial Intervention Guidelines.
The Department highlighted that the applicant had not submitted medical evidence that he was unfit to fly to the UK due to his medical conditions, for example. The Tribunal also does not have before it any recent mental health assessment which would point to any effects of removal from his family may have on the applicant. The applicant has been on suicide watch indicating he carries a serious risk of self-harm.
Moreover, the Tribunal has not seen evidence regarding the applicant’s son’s disability and the level of care the applicant is providing him. Nor is there information before the Tribunal regarding the applicant’s life expectancy and evidence of being at a low risk of re-offending.
It is not unexpected that the Tribunal is not privy to such material as meeting the refugee criteria involves a completely different set of criteria. However, the information enumerated may be of assistance in putting forward a case for Ministerial Intervention.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
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 4436

3 October 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice