To apply for 866 protection or refugee visa, you must satisfy the definition of a “refugee”. To be a refugee, (1) you must fear persecution in your home country; (2) the persecution that you feared must be for reasons of your race, religion, nationality, membership of a particular social group or political opinion (commonly known as the Convention grounds); (3) your fear of persecution must be well-founded; and (4) you must have fled your home country because of your well-founded fear. If your claim does not fall under the Convention or s. 36(2)(a) grounds, your claim may fall under s. 36(2)(aa) or the Complementary ground as Australia has non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under the ICCPR and CAT, Australia agreed not to return a person to a receiving country where they would be subjected to the death penalty, arbitrarily deprived of their life or subjected to torture or cruel, inhuman or degrading treatment or punishment.
To satisfy the 866 protection or refugee visa criteria for a Convention (s. 36(2)(a)) reason, you must be owed protection obligations by Australia because you are a refugee. That is, you are unable or unwilling to avail yourself of the protection of your home country or your former habitual residence because of your well-found fear of persecution for 1 of the reasons set out in s. 5J(1), that is, 1 of the 5 Convention reasons.
So, to satisfy 1 of the 866 protection or refugee visa criteria your fear of persecution will have to be “well-founded” if there is a “real chance” that you will suffer the feared persecution if returned to your home country or former habitual residence. You should be aware that persecution must relate to all areas of your home country (s. 5J(1)(c)). A real-chance is a prospect that is not “remote” or “far-fetched” but it does not require a likelihood of persecution on the balance of probabilities (Chan v MIEA (1989) 169 CLR 379; CGA15 v Minister for Home Affairs (2019) 26 FCR 362). There are certain exceptions provided by s. 5J(3), that is, if you could take reasonable steps to modify your behaviour so as to avoid a real chance of persecution unless the modification, among other things, relates to fundamental, innate or immutable characteristics.
Whether you are able to rely on s. 36(2)(aa) or the Complementary ground, you must convince the Department or AAT that there is/are substantial grounds for believing that there is a real risk that you will suffer significant harm (as defined in s. 36(2A) and subject to matters in s. 36(2B) and (2C)) and as a necessary and foreseeable consequence of you returning to your home country. What this mean is that the Department or AAT must be satisfied that (1) there must be substantive grounds for believing (2) that, as a necessary and foreseeable consequence of you being removed from Australia to a receiving country, (3) there is a real risk that you will suffer significant harm.
You should note that significant harm is defined in s. 36(2A) and it include the death penalty carried out in countries which have not abolished it (SZDCD v MIBP  FCA 326). Torture is defined to mean an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for specific identified purposes including intimidating or coercing a person (s. 5(1)). Cruel or inhuman treatment or punishment means an act or omission by which, among other things, severe pain or suffering, whether physical or mental, is intentionally inflicted on a person or 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. Degrading treatment or punishment refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.
Changing or modifying behaviour
If you fear being harmed because of certain behaviour that is not accepted in your home country, do you have to change or modify that behaviour to avoid the harm? For example, in DQU16 v Minister of Home Affairs  HCA 10, DQU10 is an Iraqi who fled Iraq because he had sold alcohol previously (as a private alcohol seller). Selling of alcohol is banned and drinking of alcohol is considered “un-Islamic” or “immoral behaviour”. While it was accepted that Iraqi Sunni and Shiite extremists have in the past attacked liquor shops with impunity, but the decision maker did not accept that DQU16 was ever harmed by anyone for selling alcohol. Hence, he did not face a real chance of harm now or in the foreseeable future.
The decision maker also considered DQU10’s claim that because the sale of alcohol is forbidden by Islamic law, he will not be forgiven on his return to Iraq even if he were to cease this conduct (selling alcohol). DQU10 further said that there would not be an option for him to return to Iraq and not sell alcohol, but when asked whether it is an option for him to stop selling alcohol after finding out that the Shia militia were interested in him, DQU10 said he had decided to quit selling because he would be concerned for his own safety and the safety of his family. The decision maker considered that (pursuant to s. 5J(3)) DQU10 could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution by ceasing to sell alcohol on return. There was no country info indicating that persons who had previously sold alcohol are targeted once they have stopped.
Modifying behaviour & Appellant S392/2002 v MIMA (2003) 216 CLR 473
In Appellant S395, he was an openly gay person in Bangladesh but conducted himself discreetly. The Court said that it does not matter if S395 lives discreetly if he is returned to his home country. The Court further said that the principle for which S395 stands is that “a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby avoid a real chance of persecution”.
Appellant S395 is the leading authority that a person who would otherwise be entitled to protection under s. 36(2)(a) will not, and should not, lose that protection if it can be shown that the person would or could avoid persecute by sacrificing a protected attribute under the Convention (MIBP v SZSCA (2014) 254 CLR 317).
Modifying behaviour & Convention reasons (s. 36(2)(a))
In DQU10’s case, the decision maker concluded that he satisfied the protection visa criterion in s. 36(2)(a) on the basis that being a “seller of alcohol” constitutes “membership of a particular social group” for the purposes of the definition of “refugee” in s. 5H and the reasons listed in s. 5J(1). However, DQU10’s feared persecution by reason of being an alcohol seller was not a manifestation of a Convention characteristic, that is, it was not a fear faced because of his membership of a particular social group under s. 5J(1).
Modifying behaviour & Complementary protection claims
The principle in Appellant S395 does not apply to complementary or s. 36(2)(aa) protection claims because s. 36(2)(a) and s. 36(2)(aa) are different. Whether a person has a well-founded fear of persecution under s. 36(2)(a) is a fundamental different inquiry to the question is s. 36(2)(aa). The Convention grounds seek to define when a protection or refugee visa will be granted to a person seeking refuge. The Complementary grounds is whether a person can be returned to a particular country (DQU10 at 18).
Also, the harm suffered or feared are different between Convention grounds and Complementary. The s. 36(2)(aa) harm is not formulated by reference to a person’s inherent or immutable beliefs, attributes, characteristics or membership of a particular group. Section 36(2)(aa) harm does not involve finding a nexus between the harm feared and those beliefs, attributes or characteristics or membership of a particular group. It only requires an assessment of the “necessary and foreseeable consequence(s)” of being returned to a receiving country. This includes a person who already received the death penalty, no modification of behaviour could avoid the risk of significant harm.
Nothing in s. 36(2)(aa) requires the decision maker to consider why the 866 protection or refugee visa applicant would modify their behaviour. This is because the underlying motivation of the applicant is not required to be considered under s. 36(2)(aa).
So, Appellant S395 is not applicable to Complementary or s. 36(2)(aa) protection claims. Hence, a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid persecution (other than those listed in s. 5J(2)(a) to (c) such as identify, disability, race, ethnicity, religious beliefs, sexual orientation, etc).
In DQU10’s case, the decision maker found DQU10 did not face “a real risk of harm” in Iraq because he would not work as an alcohol seller upon his return to Iraq. Therefore, DQU10 did not face “a real risk of harm” in Iraq on that basis, that is, there was not a real risk that he would suffer significant harm of a kind listed in s. 36(2A).
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.