1516953 (Refugee)

1516953 (Refugee) [2017] AATA 1500 (14 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516953
COUNTRY OF REFERENCE:                  Laos, Peoples Democratic Rep
MEMBER:Roslyn Smidt
DATE:14 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 August 2017 at 10:48am

CATCHWORDS
Refugee – Protection visa – Laos – Social group – Victim of domestic violence – Credibility issues – Changing nature of evidence – Fraudulent documents
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 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 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] November 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who is a citizen of Laos, Peoples Democratic Rep applied for the visa [in] April 2015.
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.
BACKGROUND
The applicant is a [age] woman from Vientiane in Laos. She completed attended school for [number] years, including [number] years at high school. She left school in [year] and worked for two years. She married in 2002 and has [children]. Her husband and children remain in Laos. She worked [in] a private company from 2000 until 2002, but had not worked outside the home since that time.
The applicant has two brothers. One migrated to Australia about 18 years ago after marrying an Australian. The other remains in Lao. He completed an [tertiary course] and works in his field in Vientiane. He lives with the applicant’s parents who also remain in Vientiane. Her father manages a [shop]. Her mother worked as [occupation] at [a] Hospital until she retired about a year ago.
MIGRATION HISTORY
[In] December 2014 applied for a visa to visit her brother in Australia. In the application she stated that she was employed in [a] company called the [name] Company. In support of her application she provided a reference which stated that she had been employed by the company since 2009 and indicated that he father was [in a certain role at] the Company.
The applicant arrived in Australia [in] January 2015. Her visa was valid until [date] April 2015. She applied for protection [in] April 2015.
SUBMISSIONS TO THE DEPARTMENT OF IMMIGRATION
In her written submissions to the Department the applicant claimed that she had suffered sustained abuse from her husband and his family following her marriage. She said that they treated her like a slave and that children also suffered abuse when they tried to protect her. She claimed that she had sought protection from the police and other officials, but they were unwilling to assist her. For the safety of her children she did not attempt to move to another part of the country and in any event she would not be able to find a job and survive if she had relocated in Laos.
In support of these claims the applicant provided a translation of a hand written report dated [in] January 2013 which states the applicant had been verbally, mentally and physically abused by her husband, who is named as [name]. It states the abuse was so bad that the applicant left him and went to live with relatives [in] May 2014, but returned home when he begged for forgiveness. However, the abuse continued and [in] October 2014 she left again and went to live with her parents. She also provided an untranslated medical certificate.
The applicant attended an interview with the delegate [in] October 2015. When asked about her employment in Laos she said that she had worked as a general hand carrying out tasks [at] a company owned by a [a man of a certain ethnicity]. She was unable to say how many people were employed at the company. The delegate noted that she had stated in her [temporary] visa application that she had worked for the [name] Company before coming to Australia and that her father [was in a certain role in] the company. She confirmed that this was correct.
The applicant said that she had lived with her husband and his parents in Laos and that her children continued to live at this home.
The applicant said that since her marriage her husband had been verbally and physically violent towards her. She said that her children had also been victims of violence when they came between her and her husband and tried to protect her. She confirmed that she had been beaten [in] May 2014 and gone to the local hospital for treatment as set out in the documents she had provided. When asked if she had complained to the police about the assaults she said that she had not registered a complaint and added that police complaints were sent to [an] Office which would try to seek reconciliation of the couple.
The delegate noted that the applicant’s husband name was not correctly recorded on the document from the [Office]. The applicant said that [name] was his nickname. The delegate observed that it seemed unlikely to have occurred in a legal document. She concluded that the document was fraudulent.
The delegate advised the applicant of country information which suggests that the government in Laos provides some support to victims of domestic violence. The applicant said that these matters were handled by the local community chief and she did not believe that the authorities would protect her.
The applicant accepted that the applicant might have been a victim of domestic violence, but found that she could obtain state protection if she returned to Laos.
SUBMISSIONS TO THE TRIBUNAL
The applicant provided a second translation of the report dated [in] January 2013. It lacks some of the information in the earlier translation but adds that her husband had gone to conciliation. She also provided a translation of the medical report which states that she had gone to [a] Hospital [in] May 2014. It states that she was examined and was normal but had [injuries] on her body.
The applicant attended a hearing of the Tribunal on 10 August 2017.
The applicant confirmed that she had completed the equivalent of year [grade] after which she went to work at a [company]. She looked after [a certain area]. She left after about a year to get married and had not held another paid job before coming to Australia. Her father worked at the same company during that time, but left the job some years ago and now manages a [shop].
Later in the hearing I noted that the applicant had claimed in her [temporary] visa that she had worked [at] [name] Company immediately before coming to Australia and also stated that her father was [in a certain role in] the company. She said that her Australian brother had prepared her [temporary] visa application and he had obtained a fraudulent reference regarding her employment, but she had had no knowledge of this at the time. I noted that she had confirmed that the information regarding her employment was correct when she was interviewed by the delegate. She said that prior to her interview her lawyer had shown her the documents relating to her application and told her to repeat the information they contained during the interview. I observed that she would have been told by the delegate to tell the truth and the fact that she had chosen not to do so did not reflect well on her credibility. She said that she had just done what she was advised to do.
The applicant confirmed that her children were living with her husband and his parents. She said that her husband was not often at home during the day and his parents were the main carers of her children. She said that she spoke to her children every day and occasionally spoke to her husband about issues relating to their care.
The applicant said that her parents lived about a 20 minute drive from the home she shared with her husband. When asked about her relationship with her parents she said that she used to see them she would see them about 3 times a month, but they did not have a good relationship because she did not want them to know about the problems she was experiencing with her husband. When asked to confirm that her parents were not aware of her problems she said that they knew that she and her husband squabbled and added that they had learned more about her problems about 6 months before she left Laos.
The applicant confirmed that she had arrived in Australia in January 2015. She said that she had wanted to escape the problems with her husband. When asked she said that her brother had been unaware that she was having problems with her husband before she arrived in Australia. She said that she had told him about the problems when he went to visit Laos in 2016. I asked what reason she had given to her brother for her decision to remain in Australia and seek protection. She said that she had told him she did not want to be near her husband. I observed that this appeared to be at odds with her earlier evidence that her brother had not become aware of these problems until 2016. She said that her brother had visited her in Laos in November 2015 and during that visit he decided to help her. I noted that she was already in Australia in November 2015. She said that he had visited towards the end of 2014.
I observed that the applicant appeared to have changed her evidence regarding when her brother found out about her problems with her husband and asked if she wished to comment. She said that her brother had come to Laos before she came to Australia and she had told him about her problems so he applied for a visa for her to visit Australia. When she arrived in Australia he asked if she wanted to stay and find a job and then he found a solicitor and she applied to remain in Australia.
I asked the applicant about the problems she had faced with her husband. She said that for about three years prior to her departure from Laos they quarrelled, mostly about money. When asked to confirm that she had not experienced significant problems with her husband before that time she said that they had had quarrels like most couples, but there were also some physical assaults in the last three years. When asked why the situation had changed she said she had been pregnant at the time and her husband was the only one earning an income. I asked her to tell me about the worst problem she had faced during that time. She said that she and her husband had quarrelled and he had come home late drunk and sometimes he assaulted her. I asked if she would provide more specific information about the frequency and nature of these problems. She said that she had been subjected to verbal and physical abuse in front of her children and other people all the time and added that he came home late two or three times a week and assault her. She said that her parents-in-law had spoken to him and told him that he should behave better, but things did not change.
Later in the hearing I noted that the applicant had previously claimed that her parents-in-law had supported her husband and had also ill-treated her, which was at odds with her current evidence that they had tried to prevent him from behaving badly. She said that they had tried to mediate and added that they did not intervene when she and her husband quarrelled and while they spoke to their son about his behaviour he did not change and ultimately they would support him. She confirmed that her parents-in-law had not ill-treated her.
I asked the applicant if her children had also been subjected to violence. She said that on one occasion her daughter had been struck when she came between her and her husband. She was not sure whether her husband had intended to harm her and this was the only occasion on which either or her children was harmed. Later in the hearing I noted that in her submissions to the Department she had indicated that both her children had been subjected to violence more than once. The applicant said that there had only been one incident.
I noted that the applicant had left her children in the care of husband which appeared to indicate that she was not concerned that he would harm them. She said that her parents-in-law cared for the children and they had limited contact with their father as he came home late. I asked the applicant if she had spoken to anyone outside her family about her problems with her husband. She said that she had only spoken to her parents and her parents-in-law. She said that she had spoken to her parents every time there was a serious problem. I asked if she had ever needed medical treatment as a result of the assaults by her husband. She said that she had been bruised after a fight and she had gone to the hospital and the police. I observed that this was at odds with her evidence that she had not spoken to anyone outside her family about her problems. She responded that she had sought medical assistance and gone to the police when the situation was very serious and she wanted a divorce.
The applicant said these serious incidents had occurred once or twice in about 2011 or 2012. During this time she went to the hospital where her mother worked once or twice. She was treated and sent home. She said that she had also gone to stay with her [relative] for a few days following one of these incidents and spent a few days with her mother on another occasion. On both occasions her husband persuaded her to return. When asked what would have happened if she had refused to go with her husband she said that it would not have been possible for her to remain with her [relative] or mother and she was concerned that her husband would harass them. She said that she had been very angry about the treatment she was receiving from her husband and had gone to the police, but they had told her it was a family matter and she should seek mediation through the village committee first. During this mediation her husband said that he would change, but he did not.
I observed that according to the applicant’s evidence these incidents occurred about 3 years before she came to Australia. She confirmed that this was correct and also confirmed that she had not gone to the police or sought medical treatment from anyone following this time.
I observed that it appeared that the applicant’s situation had improved after 2012. She said that this was not correct. She said that she had continued to face problems, but she stopped reporting them to anyone as it was of no use. When asked to confirm that she had not sought help from anyone outside her family after about 2012 the applicant said that she had gone to the village administration who had warned her husband about his behaviour, but he had not improve. She initially said that she had only reported her problems to the village committee twice, but later said that she had gone three times and that the last visit was about three or four months before she came to Australia. She said that she should have been able to obtain a divorce after the third warning but this had not occurred. She also said that she had never applied for a divorce. She said that if she had been granted a divorce she said that she would have found a way to live independently with her children and avoid problems with her husband.
I observed that the applicant appeared to have changed her evidence regarding when she faced problems and when she reported these events to people outside her family. She said that she had reported her problems to the village committee whenever they occurred.
I noted that the translation of the report from her village committee stated that events it recorded had been report [in] January 2013, but referred to events which occurred in May and October 2014. I observed that while it was perhaps possible that the 2013 date was a simple error, the report indicated that she had sought medical treatment and gone to live with relatives twice in 2014 which was at odds with her current evidence that these events had occurred in 2011 or 2012. She responded that she could not remember exactly when the events occurred. I advised her that while I acknowledged that it was not uncommon for people to be confused about dates, I had great difficulty accepting that she would have been unable to recall whether these events occurred less than a year before she left Laos or some three years earlier.
I noted that the medical certificate which the applicant had provided in support of her claims stated that she had been treated at [a] Hospital in May 2014, which was at odds with her evidence that she had not sought medical evidence after about 2012. She said that her mother had obtained this certificate after she arrived in Australia and she was not sure why it contained this information, but perhaps it was because her mother could not remember the dates or because she was trying to help.
CONSIDERATION OF CLAIMS

After considering all of the relevant evidence, I find that the applicant is not truthful or a credible witness.
In the first place, as she agreed at the hearing, the documents she provided regarding her employment when applying for a [temporary] visa were fraudulent. I acknowledge that people fleeing dangerous situations will resort to such measures in order to escape and would not have been concerned if this were the only problem with her claims. However, when questioned by the delegate rather than explaining that the documents were false, she maintained that they were genuine and contained accurate information. This does not reflect well on her credibility.
Secondly, as demonstrated by the examples set out below she provided inconsistent evidence to the Department and the Tribunal on a number of important issues.
At the hearing she initially claimed that her brother had been unaware of her problems prior to her visit to Australia; then said he had known about her situation prior to assisting her to obtain a visa. She initially stated that she had avoided telling her parents about her situation, then said they were aware of the severity of her problems about six 6 months before she left Laos; then said that she spoke to them whenever she faced serious problems and that she had gone to stay with them after a serious incident in 2011 or 2012. She initially stated that she had not spoken to anyone outside her family about her problems after about 2012, but later said that she had reported her problems to the village committee on at least two or three occasions after this time.
In her submissions to the Department the applicant indicated that both of her children had been victims of violence more than once; at the hearing she said only her daughter had suffered in this way and only on one occasion. In her submissions to the Department she said that her parents-in-laws had ill-treated her. At the hearing she said that this had not occurred. She initially said that they had spoken to their son about his behaviour, but when I pointed out that this was at odds with her earlier statement attempted to modify her evidence.
In addition, medical certificate from [a] Hospital states that she was treated for injuries to her body [in] May 2014 and the report from the village committee states that she reported an assault [in] May 2014 and that she had gone to stay with relatives following this and again in October 2014. This is at odds with her evidence during the hearing when she indicated that she gone to stay with relatives in 2011 or 2012 but not since and had not sought medical assistance after 2012. The applicant was unable to provide a coherent or plausible explanation for these discrepancies, stating that she could not recall the dates very well. While I acknowledge that applicants are frequently unable to recall precise dates, I do not accept that the applicant would have been unable to recall whether these events occurred in the year prior to her departure from Laos or two or three years earlier.
I note that the report from the village committee is hand written and could have been prepared by anyone. Furthermore, I note that the applicant indicated that the medical certificate was not a genuine document, but obtained or manufacture by her mother who was confused about dates or trying to help. I find both of these documents to be fraudulent and I have given them no weight.
Some of the inconsistencies inconsistences in the applicant evidence were relatively minor and considered in isolation would not have caused me to disbelieve her claims, other are more serious and I find the overall pattern of her evidence a clear indication that she has not provided a truthful account of her circumstances in Laos or her reasons for not wishing to return there. After considering all of the relevant evidence I am not satisfied that she was a victim of domestic violence in Laos or that she fears returning to her homeland because she faces a real chance of suffering serious or significant harm as a result of domestic violence by her husband.
After considering all of the relevant evidence, I am not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the refugee criteria or that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Laos there is a real risk that she will suffer significant harm.
CONCLUSION
For the reasons given above, 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). 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.
Roslyn Smidt
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 1500

14 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing