1616977 (Refugee)

1616977 (Refugee) [2020] AATA 2914 (6 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616977
COUNTRY OF REFERENCE:                   Italy
MEMBER:Nora Lamont
DATE:6 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2020 at 8:42am
CATCHWORDS
REFUGEE – protection visa – Italy – fear of mafia due to assisting friend – delay in applying for protection – third country protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 and Border Protection on 12 October 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 Italy, applied for the visa on 6 July 2016.
The applicant appeared before the Tribunal on 9 May 2019 to give evidence and present arguments. The Tribunal also took evidence via the telephone from [Ms A] a friend in Italy. The applicant was represented during the hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English language.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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 applicant travelled to Australia on a valid Italian passport and states he is a national of Italy. There was some confusion around whether the applicant held dual nationality however he did provide a Notification of Cancellation from [Country 1] Ministry of Interior of his National Identity Card and a certified copy of “Decree no [number]” Carrying Authorization of Loss of [Country 1] Nationality for the applicant. The delegate had no concerns about the applicant’s identity; therefore the Tribunal has assessed the applicant’s claims against Italy as his country of nationality and his receiving country.
Migration History
The applicants migration history is as follows: [1]
[1] [File number] page 120
·[January] 2013: Arrives in Australia on [Visitor] Visa
·9 January 2014: Applies for a [Student] Visa
·13 January 2014: Student visa granted
·16 October 2015: Lodged application for Protection Visa
·20 October 2015: Application for Protection Visa deemed invalid –s91N and 91P (dual nationality)
·19 November 2015: Bridging visa granted on departure grounds
·18 December 2015: Multiple bridging visas issued on departure grounds
·23 March 2016: Request for Ministerial Intervention under s91Q-not referred guidelines not met.
·25 April 2016: Bridging visa expires becomes unlawful
·26 April 2016: Detained under s189 and placed in Immigration detention
·6 July 2016: Lodged valid application for protection visa
·12 July 2016: Bridging visa granted and released into the community
Claims
The applicants claims for protection as summarised by the delegate are as follows: [2]
·He came to Australia on a tourist visa and whilst here he received a letter saying that if he returned to Italy his life would be in danger.
·He helped and gave “someone” shelter in his home to hide him from the Mafioso and dangerous people belonging to a Calabrian gang.
·The gang found out that he had helped the man and now they want him dead.
·He is scared if he returns to Italy they will find him and kill him.
·He tried moving address to hide from the gang.
·There is no state protection and nowhere to safely relocate.
[2] [File number] page 120
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Italy, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Tribunal Hearing
The applicant was [age] years old when he arrived in Italy. His parents had been living in Italy and he remained in [Country 1] with his [relative]. The applicant went to school in Sicily to learn Italian for approximately for 2-3 years. The applicant then did a [Occupation 1] apprenticeship but he didn’t like [an aspect of the job]. He then trained as a [Occupation 2] in Milan and he went back to Sicily and got a job in a [Occupation 2 business] for experience. He worked in different [Occupation 2 businesses] for four years.
After he had the experience in claims he came here to Australia. He arrived on a tourist visa and his visa was expiring so he applied for a student visa. He went to school to learn English and he was working at a [Occupation 2 business] in [location]. He then applied for a protection visa four days before his student visa expired. The Tribunal did discuss with the applicant what happened when he first applied for the protection visa and he still held [Country 1] citizenship. He did forgo his citizenship. The applicant then made a valid application for a protection visa.
The applicant said his friend came to him one day and asked him for help. He asked to stay at his house for a few days and the applicant said he would give him shelter. He said his name was [Mr B] and he met him at the piazza. The applicant asked they played soccer together and watch games together. The applicant did not ask what the problem was nor did his friend tell him. He stayed for twelve days.
After twelve days he just left the house. A couple days later he was finishing work and was in the piazza “they” stopped me and said “where is your friend”. The applicant said he isn’t at my place anymore. They started hitting him and they put a gun to him and said you are a dead man walking. The applicant was vague when asked what they looked like, how old they were. He said there were four of them.
The applicant claimed he was scared. He told his father and he went to the police. The police said they were going to look into the case. The second time the group of men came about ten days later they came to the parking lot of the piazza. The second time they were soft and didn’t punch him. The Tribunal asked why they didn’t go to the house since that is where the applicant said his friend had been staying. The applicant’s dad went to the police they said they were going to investigate. Two weeks later he resigned from his job and spoke to his friend and said he couldn’t stay and he sent him to an agent to get a visa to come to Australia.
The Tribunal asked the applicant how he even knew who these people were-did he know they were the mafia? How did he know they were the mafia? He said he didn’t know if his friend was in the mafia or if they were after him. He said he was a labourer and maybe he just had that job as a cover. The applicant said they were the Calabrese Mafia. The applicant did not provide any documents from the police.
The applicant claims that he received an anonymous letter whilst in Australia.[3] When asked how someone could have got his address he said he didn’t know. The applicant then stated his father died in 2012 and his mother died in 2015. The applicant had earlier stated his father had given him money to come to Australia but his father was already deceased when he came to Australia. The applicant said it was before he died he put some money into his account and that it wasn’t much.
[3] AAT Folio page 21
The applicant said since 2015 he hasn’t heard anything. He used to hear things on what’s app but now he doesn’t. There hasn’t been any letters or threats since 2015. When asked why he did not go back to the police he said that they said they were going to investigate. The Tribunal asked why he didn’t wait to hear from them. He said they just came one time to the house.
The Tribunal asked why he thought it was the mafia. There was no evidence that it was the mafia and that not everyone in Sicily is in the mafia. The applicant said he tried to investigate it and people told him it was the mafia. The applicant said the police said it could be the mafia.
The Tribunal put to the applicant that DFAT says that Italy has a fair judiciary, they respect the rule of law and that he would expect that he would be given state protection.[4] The applicant said that isn’t true that he would not be given protection. He knows because he lived there. The Tribunal asked the applicant if he knew there was mafia in Australia and did he think they couldn’t reach him here. The Tribunal pointed out that the Calabrian mafia had been in Australia since the 1920s. [5] The applicant said they may be here but there are way more in Italy and France.
[4] Italy: Country Overview Country of Origin Information Services Section (COISS) effective from June 2017
[5] >
The Tribunal asked the applicant why his advisor had sent through articles about racism to the Tribunal and what that had to do with his claims as there was nothing in his claims about racism. The applicant said that in 2009 the applicant was with his father and his father was buying cigarettes and he was blamed for taking some money. The Tribunal was asking if he was making a new claim of racism. The applicant said he had experienced a lot of racism in Italy. The applicants representative claims that the applicant was discriminated against due to his skin colour and presented the Tribunal with news articles about racism in Europe and therefore the applicant would find it difficult to secure a job and seek a place of residence.
The applicant claimed in immigration detention that he was put in a room with a criminal and the food was terrible. The Tribunal said that they could not do anything about the situation at immigration detention.
The Tribunal took oral evidence over the phone from a woman called “[Ms A]”. She knew the applicant from Italy and lived nearby. [Ms A] claims she knew that the mafia was after him and that he was a good person. When asked how she knew it was the mafia she said they know who the mafia is and they are bad and dangerous.
The applicant’s representative stated it was bold of the Tribunal to suggest that there was mafia in Australia as he had never heard of it and he had studied the law. The Tribunal would point out that the representative could do a simple internet search to find the origins of the mafia in Australia. The Tribunal found numerous articles and news items related to the mafia in Australia and have cited them below. [6]
Credibility
[6] >
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Delay in applying for protection
The Tribunal considers that the applicant has a level of capability to understand and deal with complex situations, such as considering his visa status in Australia. The applicant arrived on a tourist visa [in] December 2013 and lodged an application for a [Student] visa on 9 January 2014. On 16 October 2015 he lodged his first application for a protection visa. The considerable delay in lodging the protection visa is of serious concern to the Tribunal. The Tribunal considers that had the applicant held a genuine and urgent fear of persecution arising from his circumstances, it considers that the applicant would have sought to lodge a protection visa application much earlier, and the delay leads to consideration that his claims in this regard are not genuine or urgent.
Third Country Protection
During the scheduled hearing, the Tribunal discussed with the applicant whether he would be able to enter and reside, temporarily or permanently, in a third country for purposes of sections 36(3),(4), (5) and (5A).
Italy was a founding member of the EU and adopted the euro as currency on 1 January 1999 and is part of the Schengen agreement which permits free movement of travel, work and living of EU citizens between other countries who are a party to that agreement. The European union (EU) is an economic and political union of 28 countries which allows free movement of goods, capital, services and people between member states. Those stated include, Austria, Belgium, Bulgaria, Croatia, the Republic of Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Greece, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and (formerly) the United Kingdom.
It was discussed as some length with the applicant the implications of s.36(3) of the Act, that Australia is taken not to have protection obligations where a non-citizen has not taken all possible steps to avail him or herself of a right to enter and reside in a third country, such as the UK or Spain, where they would not have protection concerns.
Based on the evidence presently before it, the Tribunal makes no finding as to whether the applicant has “statutory effective protection” outside Italy and within the EU (pursuant to subsections 36(3)-(5A) of the Act, as it has based its finding on the alternative bases arising from s.36(2)(a) and 36(2)(aa).
Findings
The Tribunal has a number of concerns with the applicant’s claims and evidence. The Tribunal does not accept that the applicant is credible. The applicant was vague during the hearing and his story did not rise to the level of fear one would expect that would make him flee the country. Even if the Tribunal accepted the story the applicant only had two small meetings with these men and they were looking for his friend not him. Even if the Tribunal accepted the story that his friend stayed at the house for twelve days then why didn’t the mafia go to the house? Why didn’t they involve his father?
The applicant claims he went to the police yet he has no documentation or investigative report. He said he received a letter in Australia yet it really isn’t a warning from the Mafia it is a letter from someone outside the mafia and the applicant could not himself explain how they would have got his address. The applicant did provide the Tribunal with letters from a priest and his brother. However, the Tribunal has given this little weight. Further, as the applicant arrived in Australia and did not see a sense of urgency in applying for a protection visa the Tribunal has serious concerns with the delay and seeking protection and the claims being made.

The Tribunal does not accept that the applicant has faced harm or discrimination in Italy amounting to serious or significant harm. The applicant did not bring this up in his written claims. It further notes that the applicant has not been denied work based on his ethnicity and prior to coming to Australia was employed. The Tribunal finds that the applicant does not have a well-founded fear of persecution arising from his ethnicity.
Conclusion
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). For the reasons above the Tribunal finds the applicant does not face a real chance of persecution for any reason on return to Italy.
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Italy, there is a real risk that the applicant will suffer significant harm from the Italian authorities, the mafia or for any other reason. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in 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.
Nora Lamont
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

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Citations

1616977 (Refugee) [2020] AATA 2914

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

[2020] AATA 2914

6 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice