1704065 (Refugee)

1704065 (Refugee) [2021] AATA 1390 (16 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704065
COUNTRY OF REFERENCE:                   India
MEMBER:David McCulloch
DATE:16 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 March 2021 at 9:02am
CATCHWORDS
REFUGEE – protection visa – India – fear of harm from ex-wife’s family – threats from father-in-law – false cases lodged against the applicant – credibility concerns – delay in seeking protection – lack of documentary evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 February 2017 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 India, applied for the visa on 11 January 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 11 March 2021 at 9:30am. The Tribunal was assisted through the use of an interpreter in the Punjabi and English languages.
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. The Tribunal has before it the DFAT Country Information Report – India, 10 December 2020.
THE CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant arrived in Australia [in] March 2009 as a dependent visa holder on his wife’s, [Ms A]’s, TU 572 student visa. The applicant was granted a further TU 572 dependent student visa on 4 August 2011. The applicant departed Australia [in] March 2013 and returned [later in] March 2013. On 12 July 2013, the Department was advised that the applicant’s relationship with [Ms A] had ended. The applicant applied for a TU 572 student visa as the primary applicant on 10 September 2013, and the application was refused on 21 November 2013. The applicant applied to the Tribunal for review of the decision, and the Tribunal affirmed the decision on 24 September 2014. The applicant applied for ministerial intervention, which was not referred on 26 November 2015. The applicant applied for a protection visa on 11 January 2016.
The following information is apparent from the application for protection forms. The applicant was born on [date] in [Village 1], [District 1], Punjab, India. The applicant is a Sikh of Punjabi ethnicity who speaks, reads, and writes both Hindi and English. The applicant states that he is divorced but lists no dates. The applicant’s father, mother, and brother reside in India and the applicant is in contact with them by telephone. The applicant lists no addresses in India nor any travel history. The applicant states that he attended Year [level] at [School 1], [District 2] from April 1999 until April 2000. The applicant worked as a farmer in [Village 2] from April 2000 until March 2009. The applicant then worked as a casual labourer in Australia from April 2009 until November 2014, and has been unemployed since.
In the application forms, the applicant claims that he left India with his wife. The relationship deteriorated due to his wife’s extramarital affairs. When the applicant objected, his wife’s parents lodged a complaint against him in India. The applicant claims that his wife’s parents are ‘money mighty and politically sound’, and have a big say with the state government and police authorities. The applicant claims that his wife’s parents have lodged a police complaint against him, and he is now wanted by the police, and so he fears being killed, gaoled, and tortured by the state police. The applicant claims that, if he returns to India, he will be killed by his in-laws who have muscle, political, and financial power. The applicant claims that the state police are corrupt, and his in-laws have plenty of money to buy corrupt police.
The applicant claims that he would be unable to relocate in India as he would be arrested at the airport, as the police have issued warrants against him as a wanted person under the dowry act. The applicant states that he could not move to any part of the country, as copies of the warrant will be at all of the airports in India. The applicant claims that he will be tortured by the Punjabi police, who are well-known for killing innocent people. The applicant claims that the police are corrupt and follow the commands of rich people, but the applicant is from a poor family and cannot buy his protection.
The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):
I [the applicant] son of [Mr B] resident of [Address 1] Punjab do hereby solemnly affirm and declare as under :-
That I was married to [Ms A] resident of [Address 2] Punjab.
That due to some domestic problems, there remains minor disputes between us. She is now residing with her parents.
That being I am settled in abroad, I have to proceed back to abroad,
That my father in law [Mr C] is threatening to me due to disputes between with my wife [Ms A],
That in case any damage/loss happened to my property of to me or any member of my family then the said [Mr C] will be held responsible.
That I further declare that in case of any incident to my family member or property, then the said [Mr C] will be held responsible for this.
Hearing, credibility, findings, and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or 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 cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of India and accordingly his claims will be assessed against India.
The Tribunal has numerous and considerable credibility concerns with the applicant’s claims.
In the hearing, the applicant indicated that when he returned to India in March 2013 he did so alone, without his wife, and the visit was to see his family. He indicated that at this point in time the relationship with his wife was satisfactory. However, it was very soon upon his return to Australia that the relationship broke down because his wife was seeing someone else. The applicant indicated that it was his wife who initiated the separation and that the applicant wanted to continue in the relationship. The applicant indicated that his wife left the joint home. A divorce was facilitated. The applicant indicated that subsequently to his wife leaving he has not had contact with her and did not know whether she was in India or Australia. The applicant indicated that his wife had remarried.
The Tribunal explored with the applicant in the hearing with multiple questions the basis on which he feared harm in India from the family of his ex-wife. The applicant indicated that his father-in-law was in the police and a member of the BJP political party and connected with senior politicians. Despite multiple questions, the applicant did not respond as to whether his father-in-law held a position in the BJP other than as an ordinary member.
The Tribunal asked the applicant on multiple occasions in the hearing to articulate more specific reasons for fearing harm, apart from an assumption that harm may come to him because his father-in-law was in the police and politically connected, but on each occasion the applicant repeated that the harm was a product of his father-in-law belonging to the police and being politically connected. The applicant did not provide any more specific reasons as to how or why he was at risk of harm from his ex-wife’s family.
After pursuing this question in the hearing for some time, the Tribunal asked the applicant if he had suffered any specific threats from his father-in-law. The applicant was vague and uncertain in response before indicating that there were threats by the father-in-law to his family in India that the applicant would be harmed. The Tribunal sought to explore when these threats had been made. The applicant indicated that they had been made eight to nine months ago, namely sometime in 2020.
The Tribunal put to the applicant that a written statement provided as part of the protection visa application in 2016 indicated that he had received threats from his father-in-law at that point in time. The applicant then changed his evidence in the hearing to indicate that threats to his family had been made by his father-in-law at the time of the relationship breakup in the first half of 2013.
The Tribunal asked the applicant if there was anything relevant that happened apart from threats from his father-in-law and his father-in-law being in the police and politically connected that indicated a risk of harm from his ex-wife’s family. The applicant in response said that there was nothing else.
The Tribunal then put to the applicant his claims that in 2016 false legal cases had been lodged against the applicant as a result of the dispute. In response, the applicant indicated that, yes it was the case that false cases had been lodged. The Tribunal indicated to the applicant that it found it difficult to accept that the applicant was being truthful given his prior response that there had been no other further adverse conduct or acts that were relevant.
The applicant repeated that false cases had been lodged.
Considering the above outlined evidence in the hearing, the Tribunal has very considerable credibility concerns that threats were made by the applicant’s father-in-law to his family to harm the applicant or that false cases had been lodged against the applicant. If this were true, the Tribunal considers that the applicant would have made reference to these matters in response to multiple open ended questions as to the basis on which he feared harm from his ex-wife’s family in India due to the relationship breakup. As it is, the applicant simply repeated that the risk was based on his father-in-law being in the police and politically connected. It was only when the applicant was reminded of prior claims that there had been threats and false cases that he then indicated that these matters were correct.
The failure of the applicant to initially indicate threats or false cases in the context of multiple open-ended questions being asked is considerably undermining of the applicant’s credibility.
Credibility concerns are reinforced by the applicant initially indicating in the Tribunal hearing that the threats from his father-in-law only started in 2020 but then changing his evidence to say that there were threats in 2013, only when reminded of earlier evidence at the time of the protection visa application in 2016 that threats from the father-in-law had been made.
Credibility concerns are buttressed by the fact that when the Tribunal explored with the applicant the reason for his delay in applying for the protection visa from when the threats were made in 2013 until January 2016, the applicant then indicated that the delay was because the application was only made soon after threats from the father-in-law were made. The Tribunal noted to the applicant in the hearing that this was inconsistent with his changed evidence in the hearing that there were in fact threats from the father-in-law in 2013.
In response, the applicant indicated that threats developed in a gradual and incremental way. The Tribunal is not satisfied with this explanation. The shifting in the applicant’s evidence and the delay in applying for the protection visa, in the Tribunal’s view, is a product of the underlying untruth of core claims.
There are also credibility concerns in relation to inconsistencies in the applicant’s evidence as to the whereabouts of his ex-wife after the relationship ended. In the hearing, the applicant indicated that he did not know if his ex-wife was in Australia or India. He indicated this in response to multiple questions. The Tribunal put to the applicant that his written claims lodged as part of the protection visa application in 2016 indicated that his wife was living with her parents in India. The Tribunal noted that this was inconsistent with evidence in the hearing that he did not know if his wife was in India or Australia. In response, the applicant indicated that it was correct that his wife returned to India, but the applicant did not know where she was subsequently.
The Tribunal is not satisfied that the applicant would not have initially indicated to the Tribunal in response to its questions as to his wife’s whereabouts that his wife had returned to India. This is undermining of the applicant’s credibility.
In relation to claimed false legal cases against the applicant, the Tribunal asked the applicant if there were court documents that would corroborate such cases. In response the applicant indicated that he did not have such information with him. The Tribunal noted to the applicant that it might have expected that if there were legal cases against the applicant that there would be documentary court evidence of this which he would have thought to have had his family in India provide. In response, the applicant indicated that he ‘forgot’. The fact of no corroborative evidence of legal cases against the applicant reinforces more direct and significant credibility concerns.
In relation to delay in applying for the protection visa, the Tribunal further put to the applicant that his applying for the protection visa after, in 2013, unsuccessfully applying for his own student visa, seeking a review through the Migration Review Tribunal and then, after that unsuccessful review, seeking Ministerial intervention, could cause the Tribunal to consider that the application for the protection visa was a last attempt to remain in Australia rather than suggesting the underlying truth of the protection claims. In response, the applicant indicated that what he was saying was true.
The delay in applying for the protection visa in the context of the other visa applied for and the review and intervention process is undermining of the truthfulness of the applicant’s claims.
The spurious basis of underlying claims is reinforced by the fact that the applicant did not make the effort to attend the interview with the delegate as part of the initial consideration as to whether the applicant met protection criteria. In the hearing, the applicant indicated that he forgot to attend the interview. As put to the applicant in the hearing, the Tribunal struggles to accept that if the applicant had genuine fears of returning to his home country and had made an application for a protection visa that he would not have assiduously taken all steps to prosecute his claim, including attending the interview with the Department to discuss his claims, a crucial and important part of the process.

Credibility concerns are also reinforced by the implausibility that, in a situation in which, as the applicant has claimed, his wife was the initiator of the decision to end the relationship, and had subsequently remarried, the applicant would be caused serious or significant harm by his ex-wife’s family by way of retribution. The applicant wasn’t able in the hearing to articulate cogent reasons in terms of his behaviour in the relationship to justify the claimed retribution by his wife’s family.
Considering all of these matters and credibility issues cumulatively, the Tribunal is not satisfied that the applicant is a credible or truthful witness. The Tribunal is not satisfied that the applicant’s ex-wife’s family have a concerted desire to cause harm to the applicant as a result of the breakup of the relationship. The Tribunal is not satisfied that there have been threats issued by the applicant’s ex-wife’s family that indicate that the applicant will be harmed. The Tribunal is not satisfied that false legal cases have been lodged against the applicant in retribution for the breakup. The Tribunal is not satisfied that the applicant’s ex-wife’s family in India have any intention to cause the applicant serious or significant harm. The Tribunal is not satisfied that there are outstanding legal cases against the applicant in India which have created any interest in the applicant from Indian police or other authorities, or that police or authorities in India would have any reason to detain, question or otherwise harm the applicant.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm in India for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason 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 India, there is a real risk of him suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…

[2021] AATA 1390

16 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction