1513626 (Refugee)

1513626 (Refugee) [2017] AATA 1674 (6 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1513626
COUNTRY OF REFERENCE:                  Indonesia
MEMBER:David McCulloch
DATE:6 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 September 2017 at 1:22pm

CATCHWORDS
Refugee – Protection visa – Indonesia – Imputed political opinion – Detained after attendance at demonstration – Assaulted government official – Delay in protection application – Credibility – Inconsistent information
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 dependant.
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 Immigration [in] September 2015 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Indonesia, applied for the visa [in] April 2014.
The applicant appeared before the Tribunal on 30 August 2017. Communication was assisted with the use of an interpreter in the Indonesian language.
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 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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. The Tribunal has before it DFAT Country Report, Indonesia, 9 June 2015, a copy of which was given to the applicant in the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The decision of the delegate indicates that the applicant was issued a [temporary] visa [in] March 2014. [In] March 2014 the applicant was issued a [different temporary] visa. The applicant arrived in Australia [in] April 2014. The application for the Protection visa was lodged [in] April 2015.
The applicant did not attend the interview with the delegate that had been arranged.
The application forms for the Protection visa indicate the following in relation to the applicant. The applicant was born on [date] in [Location 1], Indonesia. The applicant speaks reads and writes Indonesian and English. The applicant has never been married. The applicant indicates that he has travelled to other countries other than Australia in the past 30 years but does not provide details. The applicant indicates an address lived at in Bali from 1985 until March 2015. The applicant lists both parents living in Bali. The applicant completed high school in [year]. He attended university in Denpasar from June [year] until June [year] where he completed a [course].
From January 2007 until June 2010 the applicant worked as [Occupation 1] in a hotel in Bali. From September 2011 until September 2012 the applicant worked as [the same occupation] in a hotel in [Country 1]. From October 2012 until March 2014 the applicant worked at the same hotel he had previously worked in Bali, again as [Occupation 1].
In his claims for protection and the applicant indicates that in June [year] he graduated from university. His parents asked a government officer to find a better job for the applicant. That officer asked the applicant’s parents for money. His parents gave him money many times that they could not afford. This made the applicant angry. The applicant found the government officer and hit him in the face and kicked him many times. The officer threatened the applicant with jail.
In August 2011 the applicant went to [Country 1] for one year. On return, the applicant attended demonstrations against the government. In December 2012 the applicant was arrested and detained for one day because he attended a demonstration. In January 2014 the applicant was arrested and detained for one day because he attended a demonstration. The applicant came to Australia in April 2014 to avoid further persecution. The applicant indicates that if he returns to Indonesia he will be arrested.
Hearing, credibility, findings and assessment
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Indonesia and accordingly his claims will be assessed against Indonesia.
The Tribunal has the following concerns as to whether the applicant faces persecution in Indonesia is at a real risk of significant harm, for the reasons claimed.
Firstly, the failure by the applicant to suffer any difficulties in Indonesia following his claims of assaulting a government official in 2011 suggests that the applicant does not face a real chance of serious or significant harm on return to Indonesia because of this incident.
In the hearing the applicant repeated his written claims that he assaulted this official who was being paid money by his parents to seek to secure a better job for the applicant, but did not follow through in achieving this.
The Tribunal put to the applicant that there is no evidence of the applicant facing any subsequent difficulty as a result of this incident in 2011 which suggests that this incident would not be a cause for current concern given that it had happened six years ago. In response, the applicant indicated that this person did not find him when he was in Bali from October 2012. The Tribunal put to the applicant that this might suggest that this person would not find him if he returned to Bali now. The applicant then said that this person lives near where he lives.
As put to the applicant in the hearing, if there was a risk of the applicant being harmed by this person or arrested as a result of him assaulting the government officer, the Tribunal considers that this would have happened at some time between the incident in 2011 and the applicant leaving Indonesia in November 2013. (This date of final departure from Australia is discussed and clarified further below).
In particular, if there was a risk of the applicant being arrested, the Tribunal is confident that this would have happened immediately after the incident, noting that this person was a government official and would likely have had more influence to secure police action than an ordinary person. There is no suggestion that the applicant changed his address to avoid repercussions of this incident. As this government official was dealing with the applicant’s parents, the Tribunal considers that he would have been aware of the applicant’s residence.
The Tribunal is not persuaded that there is a risk to the applicant from this person in the event that this person lives near the applicant, given the lack of any past difficulties.
For the purpose of this decision only, the Tribunal is prepared to accept that the applicant did assault this person as claimed. However, for the reasons given the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to Indonesia as a result of this incident, either as payback from the person who he assaulted or because the applicant might be arrested. This conclusion is reinforced by the second and third issues below.
Secondly, the claims of the applicant fearing persecution or significant harm based on being detained in protests or as a result of assaulting a government official are not consistent with the applicant travelling to [Country 2] in June 2013 and returning to Indonesia, when the applicant would have had the option to seek protection in [Country 2].
The applicant confirmed in the hearing, information apparent from his passport, that he travelled to [Country 2] in June 2013. The applicant indicated that this was for interviews in relation to working [in Industry 1]. The Tribunal noted to the applicant that, at that point in time, he claims to have been detained in 2012 following a protest (which is one basis of his current fear in returning) and he had claimed a fear from the government official who he assaulted. The Tribunal put to the applicant that his return to Indonesia and failure to seek protection in [Country 2] appeared inconsistent with claims of him facing a real chance of serious or significant harm for the reasons claimed. In response, the applicant indicated that his preference was to live in Australia.
The Tribunal is not satisfied that if the applicant feared persecution or was at a real risk of significant harm that he would have felt the luxury to decide between immediate protection in [Country 2] or waiting to seek protection in a preferred destination, Australia, at an indeterminate future period, after returning to Indonesia, where he would have put himself at risk.
This visit to [Country 2] and his return to Indonesia are inconsistent with the applicant facing a real chance of serious or significant harm for the reasons claimed.
Thirdly, the delay by the applicant of over a year following arrival in Australia before claiming protection is not consistent with the applicant having a fear as claimed of returning to Indonesia. In response to this issue in the hearing, the applicant had no comment.
The failure by the applicant to explain the delay reinforces the Tribunal’s concern that the delay is undermining of the truth of the applicant’s claims and him fearing, and facing, a real chance of serious or significant harm for the reasons claimed.
Fourthly, the applicant has been inconsistent as to the timing of the second protest. The application forms for the Protection visa indicate that the second protest at which the applicant was detained happened in January 2014.
In the Tribunal hearing, in response to questions from the Tribunal, the applicant indicated that he had been working [in Industry 1] six months before arriving in Australia in April 2014. The applicant agreed that this meant that he had left Indonesia for the last time in about November 2013. The Tribunal noted that the application form for the Protection visa indicated that the applicant had been working in a hotel in Bali up until March 2014 which seemed inconsistent with him leaving to work [in Industry 1] in November 2013. The applicant indicated that this must be a mistake in the year noted on the form and that he had been working at this hotel up until March 2013 (not 2014).
The Tribunal asked the applicant in the hearing as to the date on which the second protest occurred. The applicant indicated that it happened in around August 2013. The Tribunal noted to the applicant that this was inconsistent with the written claims that it occurred in January 2014. The applicant indicated that a friend helped him fill in the application form and that this must be a mistake with the year provided. The Tribunal noted to the applicant that, even if it was meant that this protest happened in January 2013 instead of January 2014, there would still be a significant inconsistency given that the applicant had now claimed that the protest happened in August 2013, with a difference of many months.
The inconsistency in dates as to when the second protest occurred creates credibility concerns for the Tribunal in relation to the truth of the applicant’s claims.
Fifthly, independent information before the Tribunal does not support claims that peaceful protesters in Indonesia are subject to harm by authorities on a systematic or widespread basis. The Tribunal discussed with the applicant information in the DFAT report on Indonesia, a copy of which was provided to the applicant. The Tribunal notes that, in relation to political opinion, the report indicates that Indonesia has a robust media and civil society with a strong record of direct and fair elections, and constitutionally protected freedom of association assembly and expression.[1] The Tribunal noted in particular to the applicant that there was freedom of association and assembly in Indonesia. While the Tribunal noted the plausibility of protesters, without permits, or being violent at protests, might encounter difficulties from authorites, this information did not support the position that an ordinary protester would face a real chance of serious or significant harm. The applicant indicated that he had no response.
[1] DFAT Country Report, Indonesia, 9 June 2015, para 3.49
Before assessing these five credibility concerns the Tribunal details further evidence provided by the applicant at the hearing concerning the protests at which he claims that he was detained.
In the hearing the applicant indicated that he is not a supporter of any political party as such. The protests in which he claims to have engaged related to specific local issues.
The applicant indicated that the first protest in 2012 occurred in [Location 1] concerning alleged corrupt behaviour of a local leader. The applicant indicated that it was organised by a youth group which he did not know the name of. The applicant indicated that he was at the front of the protest and there was a phalanx of police who detained those at the front. He said that he was taken to the police station by truck. He indicated that he was questioned as to who the organisers of the protest were. He indicated that he stayed in the police station overnight and was released the next day without charge. The applicant indicated that some of the others who were detained were slapped, but he was not.
The applicant indicated that the August 2013 protest occurred in Denpasar. He said that it concerned land reclamation. He indicated that there were thousands of protesters. Again, the applicant indicated that he was detained, questioned and released the next day.
The cumulative impact of the five issues above cause the Tribunal credibility concerns in relation to the applicant’s claims, and to not be satisfied that the applicant fears or faces a real chance of serious or significant harm for the reasons claimed.
As indicated, the Tribunal is prepared to accept, for the purpose of this decision, that the applicant assaulted a government official, but for the reasons indicated does not consider that this incident would lead to a real chance of the applicant facing serious or significant harm on return to Indonesia.
The Tribunal is not satisfied that the applicant participated in a protest in August 2013 (or January 2014, based on initial claims) in which he was detained, given the inconsistency as to the date on which this incident occurred. The Tribunal is not persuaded that the inconsistency is a product of a mistake by the person helping the applicant filling in the application form. The Tribunal is not persuaded that the applicant, or the person helping him, would be confused as to whether the incident occurred only a few months or nine months prior to arriving in Australia.
For the purpose of this decision only, the Tribunal is prepared to accept that the applicant participated in a protest in 2012 in which he was detained temporarily by police. The Tribunal acknowledges that it is plausible that in some situations protesters may be subject to action by authorities, particularly if they protest without approval or act violently. On his own claims, the applicant was released after a fairly short period in detention and was not charged. He was not harmed in detention.
The Tribunal is not satisfied that such an incident demonstrates a real chance of serious or significant harm to the applicant based on future participation in protests or based on being targeted in a previous protest. Independent information before the Tribunal does not support the position that individuals engaging in peaceful protests suffer frequent or widespead difficulties from authorities in Indonesia. The failure by the applicant to seek the protection of [Country 2] government in June 2013 and the significant delay in applying for a Protection visa in Australia undermines claims by the applicant that he truly fears harm on return to Indonesia based on past or future protests and being detained.

The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on past participation in protests in Indonesia or being detained in such protests, or on the basis of any future participation in protests, or otherwise due to the expression of his political opinion.
The applicant referred in the hearing to more general concerns based on instability in Indonesia and corruption. As indicated to the applicant in hearing, harm on such grounds would not be for a refugee criterion reason. As indicated to the applicant in the hearing, in relation to the complementary protection criterion, any harm on such grounds would be a risk faced by the population of the country generally, and not faced by the applicant personally. On that basis such harm is excluded by s.36(2B)(c). In any event, the second and third concerns outlined above relating to the failure of the applicant to seek protection in [Country 2] and the delay in applying for protection in Australia result in the Tribunal finding that the applicant does not have a fear of returning to Indonesia on these grounds and nor is there a real chance of the applicant facing serious or significant harm for these reasons. That view is reinforced by the information in the DFAT report which indicates that, despite challenges, Indonesia is a robust democracy with a functioning economy. The Tribunal acknowledges that there is significant corruption in Indonesia. However, whilst the Tribunal accepts that the applicant would be subject to low level corruption as part of everyday life, the Tribunal is not satisfied that this would constitute either serious or significant harm.
The Tribunal is therefore not satisfied that the applicant faces persecution or is at a real risk of significant harm based on political or economic instability in Indonesia or corruption.
In summary, in relation to the refugee criterion, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason, for any of the reasons claimed, or for any other reasons.
In summary, in relation to the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm for the reasons claimed, or for any other reasons.
For the reasons given 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).
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 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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 1674

6 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction