1609240 (Refugee)

1609240 (Refugee) [2018] AATA 4959 (17 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609240
COUNTRY OF REFERENCE:                  Fiji
MEMBER:David McCulloch
DATE:17 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 October 2018 at 1:33pm

CATCHWORDS
REFUGEE – protection visa – Fiji – discrimination in employment – search warrant regarding official – mistreatment by work colleagues – fear of detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2; r 1.12
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 at 169-70
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 (the Minister) on 16 May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 4 June 2015.
The first named applicant (the applicant) appeared before the Tribunal on 15 October 2018. The applicant communicated with the Tribunal in English.
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) of the Act. 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) of the Act, 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 of the Act, 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.
Paragraphs 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression as defined in r.1.12 of the Regulations includes a spouse.
The Tribunal is satisfied on the evidence provided that the second named applicant is the spouse of the applicant and is therefore a member of the same family unit as the applicant. The second named applicant is not making her own claims for protection.
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 (the Department) – 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 (DFAT) 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 – Fiji, 27 September 2017.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on the accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The decision of the delegate indicates that the applicant arrived in Australia [in] March 2015 on a [temporary] visa which had been granted on 3 March 2015 and was valid until [June] 2015. The application for the protection visa was made on 4 June 2015.
The application for the protection visa indicates the following in relation to the applicant. The applicant was born on [date] in [his home town in] [a named] Province, Fiji. The applicant speaks, reads and writes both Fijian and English. The applicant was married [in] 2008. The applicant indicates that his parents [and specified family members] are living in Fiji. The applicant lists many extended relatives living in Australia. The applicant indicates that he calls his parents at least five times per week to check on his children. The applicant lists one address in his father’s village in Fiji from birth until December 1994. The applicant lists another address from December 1994 until March 2015 in Suva, this being the family residence.
In other supporting statements provided to the Department the applicant indicates that he has [number] children in Fiji, [with specified ages], who are living with the applicant’s parents.
The application forms indicate that the applicant finished high school in [year]. [The following year] he attended [a named education institute]. [The following year] the applicant studied [subject] at [another institute] in Suva. [The next year] the applicant obtained a [qualification] in [Subject 1] at an institution in Suva. [Then] the applicant studied and obtained a [related qualification] from [another educational institution] in Suva. From [year] until March 2015 the applicant worked as an [Occupation 1] after commencing as a [junior role] with the [Government Agency 1] in Suva.
The applicant claims protection on the basis that he was required by his employer in his position as an [Occupation 1] to comply with a search warrant to retrieve all documents and emails of the (former) [Official A] and his [assistant] from [Government Agency 1] computers. The applicant feels that he has been marked by superiors and colleagues as being the person who exposed the (former) [Official A]. The applicant’s confidentiality has not been protected. The applicant has been discriminated against by his employer and work colleagues after serving as an [Occupation 1] for [number] years. The applicant indicates that he will be subject to possible detention as a witness to the investigation. The applicant indicated that in Fiji democratic rights are not respected.
The applicant was suddenly told that his [qualification] in [Subject 1] was not recognised by the Government. He was told that his position would be reduced to a temporary relieving [junior role]. The applicant feels scared in raising at work his political opinions in support of the opposition. Colleagues have been terminated for expressing their political views.
The applicant provided a number of documents and supporting statements to the Tribunal. Relevant to his claims are the following. The applicant provided a copy of a search warrant issued by the [named court and agency] dated, [in] 2015, indicating that it is believed that in the [Government Agency 1] there is held the computer and relevant data of the former [Official A], [Mr A] and that of another individual. The warrant authorises searching the premises of the [Government Agency 1] and seizing the items and information.
Provided is an internet media report from [source], dated [in] 2015, indicating that the [named agency] will not comment on whether former [government agency official], [Mr A], will be questioned after the [another official] was charged and produced in court the previous day.
In a written statement the applicant indicates that after he facilitated the release of computer information pursuant to the search warrant, it was revealed that the applicant was the person who facilitated this despite being told that his identity would be confidential. A few days later he was branded a traitor by colleagues and discriminated against by heads of the Ministry for ‘selling out’ [the official]. Family and friends of the (former) [official] started threatening the applicant with anonymous phone calls, and sometimes when they would see the applicant in person.
The Tribunal notes the following from the interview between the delegate and the applicant.
The applicant indicated that he facilitated the release of computer data and data specified in the search warrant dated [in] 2015 on that same date. The applicant indicated that he had started work in the Ministry in [year] and was a temporary [junior role] for one year, after which he became an [Occupation 1] on successive one-year contracts. In January 2015 a move was made to make his position an ‘established post’ and permanent. The position was advertised. The applicant applied for the post and although there were other applicants for the position he was the only person selected for interview. He was interviewed by a panel of three persons.
The applicant was not informed officially of the outcome of the selection process. However, he was informed by a friend who was present in a meeting with the then [Official A] that the applicant was not successful in the post. He was told by this friend that he was to be reinstated to his former position as a [junior role]. The applicant indicated that he did not talk to his boss about this issue. He claims that his failure to get the position was due to his role in providing data and information pursuant to the search warrant. When asked by the delegate how he knew this was the case, he indicated that he just felt this to be the situation. The applicant indicated that individuals at work changed their attitude towards him and started treating him in a less friendly manner.
The applicant indicated that he received one phone call on his mobile phone from an individual who asked him questions about the information he provided as part of the search warrant. This call was anonymous but he thinks it could have been a relative of the former [official, Mr A]. The delegate put to the applicant that his written statement indicates that there were multiple contacts in this respect. The applicant did not explain the discrepancy.
The delegate noted to the applicant that in his written claims he refers to the risk of him being detained. The applicant indicated that he just feels that this could be the case, without providing details as to why he would be detained.
There was discussion with the applicant in hearing as to whether he was making claims of harm on any other grounds. Whilst the applicant did refer to some difficulties generally in the political environment, when pressed further by the delegate, the applicant indicated that he was not claiming harm on political grounds, but based on the issues surrounding his involvement in complying with the search warrant.
The applicant was given a period following the interview with the delegate to provide further information, particularly relating to the [Occupation 1] position he claims was advertised, he applied for and was unsuccessful in relation to. Provided by the applicant in response is a ‘Data Analysis’ provided at the applicant’s request from the [Government Agency 1] of a number of candidates for the position, including details relating to the applicant. The note in the field relating to the applicant indicates that he ‘does not meet [a criterion]. Lacks relevant degree with relevant experience’.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA 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 Fiji and accordingly his claims will be assessed against Fiji.
In the Tribunal hearing, the applicant indicated that his task in obtaining information from the computers relevant to the search warrant was a task related to his job role in [his section] and the applicant himself did not inspect or have regard to the content of any of the documents.
The applicant indicated that the extent of discrimination that he felt after this event was as he recounted to the delegate in the interview. The applicant had indicated that people were not as friendly and would not smile at him; they looked at him differently and did not talk nicely to him.
The applicant in the hearing indicated that he feels that he has not been treated fairly in not being given the permanent position as [Occupation 1] which he had previously held on a temporary basis for a number of years.
The applicant indicated in the hearing that this was the extent of the discrimination that he felt.
The applicant indicated in the hearing that he believes his employment with the [Government Agency 1] has been terminated as he did not return after his leave. He indicated he has not had formal communication to this effect but he assumes it to be the case. The applicant indicated that he would not return to work for the [Government Agency 1] if he returned to Fiji.
The applicant indicated in the hearing that he had received, in the period after fulfilling the search warrant, one phone call from an unidentified individual asking him questions about the information he provided in complying with the search warrant. He speculated that this might have been a relative of [Mr A]. The applicant indicated that he was not threatened in any way in this phone call. In the hearing, the applicant indicated that this was the only specific incident or contact clearly relating to the fulfilling of the search warrant occurring.
The Tribunal pointed out to the applicant that in his written claims he had referred to receiving multiple threatening calls from [Mr A’s] family, as well as encounters in person following complying with the search warrant. The Tribunal put to the applicant in the hearing that these claims would not seem to be true on his own later claims. His evidence to both the Tribunal in the hearing and in the interview with the delegate was that he received only one phone call from an unnamed individual and was not threatened in that call. The applicant agreed in the hearing that his inconsistent written claims were not true.
The Tribunal noted to the applicant in the hearing that he would not be returning to work in the [Government Agency 1] and that, even if there had been some degree of discrimination and mistreatment towards him in this work environment, this would not continue to face him on return to Fiji as he would not continue to work there. In response, the applicant referred to the unfairness in him not obtaining permanency in his position. The Tribunal noted that this is not relevant to the applicant’s future treatment on return to Fiji and, in any event, even if it was to be accepted that there had been some unfairness and mistreatment in his work environment previously, this would not appear to reach a level of serious harm for the purpose of the refugee criterion, or fall within any definition of significant harm for the purpose of the Act.
The Tribunal discussed with the applicant his claim that he may be detained due to his part in fulfilling the search warrant. The Tribunal indicated that this did not seem plausible given that the applicant was undertaking a task as part of his employment and as required legally by the search warrant. In response, the applicant indicated that the matter is still being investigated against [Mr A] and that anything is possible.
The applicant indicated in the hearing that the only basis on which he fears harm in returning to Fiji is due to the difficulties as a result of fulfilling the requirements of the search warrant, subsequent mistreatment by work staff and him failing to be successful in obtaining the position that was advertised for the job which he held on a temporary basis.
The applicant indicated in the hearing that the second named applicant, his wife, had intended to be at the hearing and that he had wanted her to give evidence on his behalf because she was better at explaining the applicant’s concerns.

The second named applicant had not arrived at the Tribunal by the end of the Tribunal hearing, which was an hour after the applicants had been requested to arrive. Given that the second named applicant only intended to provide evidence that the applicant himself was in a position to provide, but arguably more cogently, the Tribunal indicated to the applicant that it was not prepared to wait for the second named applicant to arrive.
Considering all of the evidence, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to Fiji for the reasons claimed.
The Tribunal considers that the applicant has not been truthful in one significant respect. The applicant admitted in the hearing that his written claims for protection, stating that there had been multiple threatening contacts following his fulfilling the terms of the search warrant, were not true.
The Tribunal has doubts as to whether the role of the applicant in fulfilling the search warrant would have caused any serious concern by superiors or fellow employees, given that the applicant was simply doing his job related to his [role], and complying with a legal requirement. However, even if these claims are true, the Tribunal does not consider that they provide any basis for there to be a real chance of serious or significant harm towards the applicant on return to Fiji, as the applicant will not be returning to that work environment.
The Tribunal also does not consider that the applicant faces a real chance of serious or significant harm based on one phone call in early 2015 from an unnamed individual asking the applicant questions about complying with the search warrant. There is no evidence as to who this phone call was from and the applicant gave evidence that no threat was made to him.
The Tribunal does not consider that even if there was some unfairness in the applicant not being successful in obtaining his work role, as advertised, on a permanent basis, that there is any basis on which he faces a real chance of serious or significant harm on return to Fiji. Given that this occurred in the past and the applicant will not return to his previous employer, it would not cause him serious or significant harm in the future.
The Tribunal considers that the applicant’s feeling that there is a chance he could be detained for his role in implementing the search warrant is entirely speculative and highly implausible in the circumstances, and as such, the Tribunal is not satisfied that the applicant would face a real chance of serious or significant harm.
The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for the reasons claimed.
On the Department file is a Certificate and Notification issued under s.438 of the Act certifying that certain documents on the file are not to be disclosed pursuant to various sections of the Act on the basis that the information be contrary to the public interest, because they contain information relating to internal working documents and business affairs. The Tribunal is not satisfied that these reasons provide a basis for public interest immunity and therefore the Tribunal considers that the Certificate and Notification is invalid.
In summary, the Tribunal is not satisfied that there is a well-founded fear by the applicant of being persecuted for a refugee criterion reason as set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk of him facing significant harm.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…

[2018] AATA 4959

17 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice