1602555 (Refugee)

1602555 (Refugee) [2016] AATA 3811 (9 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602555
COUNTRY OF REFERENCE:                  China
MEMBER:Lesley Hunt
DATE:9 May 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 May 2016 at 1:07pm

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] February 2016 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 China, applied for the visa [in] September 2015. The delegate refused to grant the visa on the basis that the applicant did not face a real chance of serious harm or a real risk of significant harm in China.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Issues
The issue in this case is whether the applicant has a real chance of serious harm or a real risk of significant harm because of his political opinion and his research and criticism of a [senior officer] in China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant arrived in Australia [in] May 2014 as the holder of a passport issued in his name by the Government of the People’s Republic of China (China) and entered Australia as the holder of a Class TX subclass 771 transit visa. The applicant was detained [in] September 2015 and held in [a] Centre. He applied for protection [in] September 2015.
Country of Nationality
The applicant states that sometime after his entry to Australia he lost his passport. In the decision record, the delegate states that on the basis of departmental records she is satisfied with regard to the applicant’s claimed identity and nationality and that the applicant is not precluded from Australia’s protection by s.91W(2). There is no evidence before the Tribunal to indicate that this is not the case; nor is there evidence to indicate that the applicant has the right to enter and reside in any country other than China. The Tribunal finds accordingly that the applicant is a national of China for the purpose of s.36(2)(a) and China is the applicant’s receiving country for the purpose of s.36(2)(aa). The Tribunal has assessed his claims against China accordingly.
Claims for protection
The applicant’s claims for protection are set out in his departmental file [number] which the Tribunal has before it. No additional claims were submitted with the review application. The applicant appeared at a hearing with the Tribunal on 5 May 2016. His claims were generally consistent with the claims he outlined in his initial application for protection and in his interview with the delegate held [in] December 2015.
The applicant states he was involved in an accident in 2005 and suffered [injury] which has affected his memory and personality. He clarified at the hearing that his memory is still affected however his capacity to provide evidence and present arguments in support of his application is not impaired. The Tribunal has taken this into consideration in assessing the applicant’s claims.
The following is a summary of the applicant’s claims.
He was born in [year] in [City 1], Hebei, China. He lived with his parents in [City 1] for most of his life; however in the couple of years prior to coming to Australia he sometimes rented an apartment nearby. He also spent approximately one month in [City 2] in mid-2014 and just prior to that approximately one month in [another city]. The applicant travelled to [Country 1] in 2012; [country] in 2013; [Country 2] in 2013 and [Country 1] in 2014. The applicant was not formally employed in China because of the effects of the [accident]; however he worked [in] a private capacity. His parents financed his overseas holidays.
Sometime in 2010 the applicant made a video ridiculing the dictatorship and likening Mao Zedong to Adolf Hitler and Joseph Stalin. His parents showed the video to a few friends [near] their home. Two policemen took his parents to the police station and interrogated them. The police were subordinates of [a senior officer] [Mr A] of the [Public] Security Bureau in Hebei Province. After a humiliating interrogation the applicant’s parents were released without charge and no further action was taken against them. The applicant’s parents did not tell the police that their son created the video. The video was not published. The applicant confirmed at the hearing that his name was not ever associated with the video.
Sometime later [Mr A]’s [child] was involved in [an] accident. [He/she] [tried] to leave the scene of the accident. [Details deleted]. There was a lot of media coverage of the incident for some time until the government banned further media coverage. [Mr A]’s [child] was eventually convicted in a court of law and sentenced to [number] years imprisonment and the payment of compensation to the victims’ families.
The applicant was angry about the situation and about corruption and did some research about [Mr A]. He found out that [Mr A] and his wife had a lot of money and owned a lot of properties. He took photographs of some of these properties. He went to one of the unit blocks were [Mr A] and his wife owned and rented units and spoke to people there. He pretended to be interested in buying a unit and told the people he spoke to that he was keen to know the sorts of people who lived there before he committed to buying. In this way he found out things about [Mr A]. The applicant obtained a lot of information from [someone] at this apartment block. However the [person] started to ask the applicant for money so he stopped going there. The applicant also tried to investigate [Mr A]’s bank accounts. He did this research around the end of 2010 and the beginning of 2011.
After a period of time the applicant started to think he was being followed. This happened when he was at the [City 1] train station and in [other cities]. The applicant believes it was [Mr A]’s henchmen who were following him. He thought they must have identified him from security cameras at the apartment block where he did his research on [Mr A]. Also when they followed him they had video cameras.
The applicant states he was assaulted by [number] men in [one city] when he was on his way to meet [someone]. They swore at him and used foul language. They hit him on the left side of his head. He managed to escape and get into a taxi. At the hearing the Tribunal asked the applicant if it was possible that this could have been a random attack or attempted robbery. He responded that it was [Mr A]’s henchmen because they said they were attacking him because he was challenging their boss, [Mr A]. Also he recognised one of the men as someone who had followed him at the train station previously. The applicant stated that he thought the assault occurred early in 2014. He clarified that this was the only time he was physically attacked. The applicant clarified that he was followed three times. One of the men followed him on all three occasions and another of the men followed him twice.
The applicant stated at the hearing that he obtained a lot of information indicating that [Mr A] was corrupt and had accumulated a lot of wealth unlawfully. He stated that he published an article in an on-line internet forum about [Mr A]’s corruption and wealth. The applicant clarified that he did not put his name to the article and he published it from an internet café and he used false identification at the internet café. The applicant clarified that this was the only time he published anything. He stated that he has subsequently destroyed all the information he compiled on [Mr A], he deleted the on-line article, and he deleted his on-line forum account. He stated that he was careful so that he could not be identified with the information in any way. However he is concerned because he believes they have captured his face on the security camera at the apartment block where he did his research and he believes the men videoed him when they were following him.
The applicant stated that he tried to disguise his [appearance] but they followed him anyway. The applicant stated that he tried relocating away from [City 1] to [cities] and other places but they always found him and followed him.
The applicant clarified at the hearing that he was no longer concerned about the video he made which caused his parents to be interrogated by police. He confirmed that his parents have not been questioned further by police and he is certain that his parents did not give his name to the police and he is not connected in any way with the video. He confirmed to the Tribunal that he is no longer worried about the video; however he is still concerned [Mr A] is after him and will harm him if he returns to China.
The applicant clarified that he obtained his passport in [2013] without any difficulty. His passport was issued by the Hebei police department. The applicant clarified that he had no difficulty exiting and re-entering China on all his overseas travels. The applicant stated that it is not the government that he fears. He fears [Mr A] as he operates outside the law.
The Tribunal put to the applicant it was difficult to accept that [Mr A]’s men would have followed him in 2012 and 2014 given that he undertook the research in 2010 and 2011. It was difficult to accept that these people would be able to find him and identify him in [City 1] [and other cities] because these are very heavily populated places. The applicant stated that he believes they were always following him and this is why they were able to locate him in those places. He stated that he believes they do not know his name but they know his face. The Tribunal put to the applicant that this was difficult to accept because if they were constantly following him it is reasonable to assume he would have noticed them more than the three occasions he claims to have seen them following him. It is also difficult to accept they would follow him for three or four years given that he had stopped compiling research on [Mr A] in 2011.
The Tribunal put to the applicant that it is now 2016; five years after he compiled the information about [Mr A]. On his own evidence [Mr A] and his henchmen do not know the applicant’s name. He has destroyed all the information he compiled about [Mr A]. The applicant’s name has never been linked to any published information about [Mr A] and his corrupt activities. For these reasons it is difficult to accept that the applicant faces a real chance of serious harm or a real risk of significant harm in China arising from his claims. The applicant responded that he spotted the henchmen just before he came to Australia in April 2014. He fears that if he shows up in China again [Mr A]’s henchmen will harass him again and will harm him.
At the beginning of the hearing the Tribunal asked the applicant about his arrival in Australia on a transit visa. The applicant stated that he knew the visa allowed him to be in Australia for about three days. He stayed longer than the three days because his travel agent messed up his onward ticket to [Country 2]. It was a ticket on paper but he was not able to take the flight.
The Tribunal asked the applicant why he remained in Australia for one and a half years before applying for protection. The Tribunal put to the applicant that this delay could be an indication that he did not have a genuine fear of harm in China. The applicant responded that his intention was always to go to [Country 2] and live there [and] live peacefully. It was never his intention to live in Australia. He clarified that he was homeless in [Australia]. He stated that he went to the Immigration Department sometime in 2015 and asked the people at Immigration to send him to [country] because he was finding it too cold in Australia. They told him they could not do this as he did not have any identification. They took his fingerprints and let him go. They detained him a few months later, early in September 2015. He told them he could not go back to China and he was advised about applying for the protection visa.
FINDINGS AND REASONS
The applicant’s claims for protection have been consistent throughout the processing of his application. The Tribunal found the applicant to be a credible witness in that the applicant genuinely believes his claims and has been consistent in giving his evidence. The Tribunal finds that the applicant has a subjective fear of being harmed in China; however for the following reasons the Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in China.
The Tribunal accepts that the applicant made a video in which he criticised Mao Zedong and that this resulted in the applicant’s parents being interrogated and humiliated by police in [City 1]. The Tribunal also accepts the applicant’s evidence that he has not been associated with this video in any way and the video has not been published. The Tribunal notes that the applicant no longer fears being harmed as a result of the making of this video. The Tribunal finds that the applicant does not have a subjective fear of harm arising from this claim and it follows that he does not have a well-founded fear of persecution arising from this claim.
The Tribunal accepts that the applicant was angered by the actions of [Mr A]’s [child] and by [Mr A]’s accumulation of wealth and property. The Tribunal notes the independent sources of information which confirm the applicant’s claims regarding [Mr A]’s position as [a senior officer] of the [City 1] Public Security Bureau; his [child]’s involvement in [an] accident; his [child]’s conviction and sentencing in 2011 and the government’s attempts to control media coverage[1].
[1] [Information deleted].
The Tribunal accepts that the applicant compiled information about [Mr A] and his wife and their accumulated wealth and property and that he published an article about this in an on-line forum. The Tribunal also accepts that the applicant was careful to ensure that he could not be identified in any way with the article; that he subsequently deleted it and destroyed the information he had compiled on [Mr A] and his wife. The Tribunal notes that since publishing the on-line article the applicant has been issued with a passport in his name by the relevant authorities in Hebei and has exited and re-entered China a number of times without any difficulties. The Tribunal is satisfied that the applicant is not perceived as having an anti-Chinese government political opinion. The Tribunal is satisfied that the applicant does not face a real chance of serious harm in China as a result of the publication of this article on-line.
As put to the applicant at the hearing, the Tribunal has difficulty accepting that he was assaulted and followed by [Mr A]’s henchmen as claimed. The Tribunal accepts that the applicant holds genuine fears in this regard however the Tribunal does not accept as plausible or credible that [Mr A]’s men would follow the applicant in 2011, 2012 and 2014 and assault the applicant. The Tribunal bases this finding on the fact that the information on [Mr A] compiled by the applicant was researched at the end of 2010 and beginning of 2011. The information was published once only on-line and the applicant is clear that his name could not be associated with the on-line article. The applicant is definite that he was very careful to prevent his name from being associated with the article.
The applicant states that he bases his fear on the fact that there are security cameras in the unit block where he questioned people about the occupants and owners of the units and asked about [Mr A] and his wife and he believes the people following him also had cameras. In the Tribunal’s view it is implausible that the applicant would be identified by his image / appearance in heavily populated areas in [the cities] where he claims he saw the same people following him. The Tribunal put this to the applicant at the hearing and his response was that he spotted them in a shopping centre that he regularly attended and they may have known that he regularly went to this shopping centre. He also stated that the men must have been following him continuously and this is why he spotted them in three different cities over the three or four years from when he did his research and when he departed China. He also stated that the men who assaulted him in 2014 were very abusive and told him that he should not challenge [Mr A].

The Tribunal does not accept as credible that the men who assaulted him would say this to him in [City 2] in 2014 based on the possibility that his face was caught on security cameras when he was asking questions about [Mr A] and his wife and their property at the end of 2010 and early 2011 – three years earlier in [City 1], 150 kilometres from [City 2]. The Tribunal does not accept as plausible the applicant’s claim that the men must have been following him continually and this is why he spotted them in three different cities over a period of three to four years. The Tribunal finds the applicant’s claims in this regard are not credible. The Tribunal also does not accept as credible the applicant’s claim that he spotted [Mr A]’s men again just before he came to Australia in April 2014. In the Tribunal’s view it is reasonable to assume that the applicant’s actions in undertaking the research and his own heartfelt criticism of [Mr A] and corruption have caused him to fear reprisal by [Mr A]. Given that five years have passed since the applicant compiled the information about [Mr A], and the applicant no longer has any information that would discredit [Mr A], and that nothing adverse has happened to [Mr A] as a result of the applicant’s research, and the applicant’s evidence that he does not think [Mr A] knows the applicant’s name, the Tribunal finds that the applicant does not face a real chance of serious harm from [Mr A] and/or men acting on his behalf in the reasonably foreseeable future in China.
After assessing all the evidence and considering the applicant’s claims individually and cumulatively, the Tribunal is satisfied that the applicant does not face a real chance of serious harm in China because of his political opinion and because of his research and criticism of [a senior officer], [Mr A]. It follows that his fears of persecution in this regard are not well-founded.
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). In so doing the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[2] Given the Tribunal’s findings above, that the applicant does not face a real chance of serious harm in China, the Tribunal is satisfied that the applicant does not face a real risk.
[2] MIAC v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal is therefore satisfied that the applicant is not 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.
Lesley Hunt
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.
…

[2016] AATA 3811

9 May 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal