1706165 (Refugee)

1706165 (Refugee) [2021] AATA 1935 (6 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706165
COUNTRY OF REFERENCE:                   Egypt
MEMBER:Gabrielle Cullen
DATE:6 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(b) of the Migration Act, on the basis of membership of the same family unit as their son, [Mr A] who satisfies s.36(2)(a).

Statement made on 06 May 2021 at 11:24am
CATCHWORDS
REFUGEE – protection visa – Egypt – religion –Coptic Christians – applicants’ adult son satisfies s.36(2)(a) – members of the same family unit – dependent child – mildly cognitively impaired – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 65
Migration Regulations 1994, rr 1.03,1.12
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 17 March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant is a [age]-year-old male citizen of Egypt and his wife is an [age]-year-old female citizen of Egypt. They arrived in Australia with their son, [Mr A] [in] June 2015 on tourist visas to visit their other son and daughter who are Australian citizens. The evidence indicates [Mr A] is [age] years and has mild cognitive impairment. While [Mr A] applied with his parents, as he made separate and confidential claims, these have been considered in a separate decision, case file number 2104905.
The applicants claim to fear return from Muslim extremists as they are Coptic Christians. The first named applicant claims to have been physical harassed and threatened with kidnapping and death due to his religion. The second named applicant, the spouse of the first named applicant refers to the first named applicant’s claims as reason for fearing return. Their son, the applicant in 2104905, also relies on the claims of his parents.
The applicants arrived in Australia [in] May 2015 [on] tourist visas granted on 22 February 2015. The first named applicant previously visited Australia on four occasions in 1998, 2003/4, 2006 and 2009/10 on visitor visas. The second named applicant previously travelled to Australia on three previous occasions with the first named applicant. The applicants previously applied prior to 2015 to travel to Australia on the Offshore Refugee and Humanitarian program but were refused.[1] Together with their son, [Mr A] (2104905), the applicants applied for a protection visa on 5 June 2015.
[1] As outlined in the Department decision attached to the Application for Review
On 4 May 2016 the applicants, together with their son were interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
In two separate decisions both dated 17 March 2017, one for the first and second named applicants and one for their son, [Mr A], the delegate refused to grant the visas on the basis that the applicants could obtain state protection as Coptic Christians and would not face a real chance of serious harm or real risk of significant harm as the Muslim Brotherhood has been outlawed and crushed by the Sisi Government.
The applicants applied for review of the Department decision on 27 March 2017 and attached the decision of the Department.
The first named appeared before the Tribunal on 21 April 2021 to give evidence and present arguments. The applicant’s son, [Mr A] also appeared before the Tribunal on this day. The applicant and his son were assisted with an interpreter in the Arab/Egyptian and English languages. The second named applicant elected not to give evidence. The applicants’ representative attended the hearing.
On 6 May 2021 the Tribunal in case number 2104905 found that [Mr A], the applicants’ adult son satisfies s.36(2)(a) of the Migration Act.
The issue to be considered in this case is as follows.
·Are the applicants’ members of the same family unit as their son, [Mr A] and therefore meet s.36(2)(b)?
CRITERIA FOR A PROTECTION VISA
The relevant criteria are outlined in an attachment at the end of this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.
·The applicants’ protection visa applications of 5 June 2015, the first named applicant’s attached statement, as well as identity documents and their marriage certificate.
·Oral evidence of the applicants provided at the Department interview held on 4 May 2016 and the evidence of the first named applicant at the Tribunal hearing held on 21 April 2021.
·Oral evidence of their son, [Mr A] provided at the Department interview held on 4 May 2016 and Tribunal hearing held on 21 April 2021.
·Translation of a Psychological Report issued by [Dr B] from the Psychiatry Centre [of a] Hospital dated 20 March 2011 indicating the applicants’ son, [Mr A], has mild mental retardation
·Certificate from the Coptic Orthodox [Church] [dated] 24 July 2014 stating that the applicant is a member of the church’s financial committee and is authorised to undertake deposit or withdrawal transactions for the church.
·Certificate from the Coptic Orthodox [Church] [by] the priest, [noting] the applicant is one of the church board members and is in charge of the church’s financial affairs.
·Certificate from the Coptic Orthodox [Decree] to form the board of [the Church] with the applicant’s name included as member of the financial committee dated [in] January 2014 and signed by Pope Tawadros II, Pope of Alexandria and Patriarch of the See of St. Mark.
·Statement & Affirmation dated 7 May 2015 from the Egyptian Centre for Human Rights.
·Egyptian Contract Final Sale of the applicants’ apartment dated 7 May 2015.
·Medical Report from [Dr C] from [named] Medical Centre dated 31 March 2021 stating that the applicant is suffering from a condition in his eyes which there is no treatment for, bilateral hearing loss, renal failure, arthritis, hypertension and early Alzheimer disease.
·Applicant’s Medication Summary as at 31 March 2021.
·Submission from the applicants’ representative dated 19 April 2021 noting that due to the above conditions, the applicant will have difficulty in the Tribunal hearing due to his hearing loss, and his early Alzheimer’s disease. She requests the Tribunal Member to kindly ask the interpreter to speak very loudly to the applicant when interpreting the questions asked by the Tribunal, as his hearing ability is severely affected and for the Tribunal Member to take into account the applicant’s diagnosis of early Alzheimer’s disease as he is finding it difficult to remember dates and specific details of events.
·Medical Report from [Dr C] from [named] Medical Centre, dated 1 March 2021 indicating the second named applicant had a stroke, is bed ridden with movement only in a wheelchair.
·Medical Report from [a] Hospital dated 31 December 2020 indicating the second named applicant needs 24-hour care and can only mobilise with the assistance of 2 people. It refers to her being admitted under the aged care team due to multiple falls and acute decline in mobility.
·Information outlined in the decision of the applicant’s son, [Mr A] (2104905) including medical evidence from Australia and Egypt that he suffers mild retardation.
·DFAT DFAT Country Report Egypt dated 17 June 2019.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
The Applicant’s Claims
In a statement attached to his protection visa application dated 5 June 2015 the applicant claims that in 1950 he was residing in Mallawy Locality, Menia Governorate where he rented a store. He claims that life was smooth and secure until extremist groups started appearing towards the end of the 1970s and early 1980s.He claims the extremists imposed royalties on ‘fortunate Coptic residents who possessed stores.’ And some people were paying them due to the fierce threats and intimidation and others were refusing. He claims that those who refused were exposed to being murdered. As a result of their persisting threats, the applicant states that he fled his home in June 1989 and moved to [Cairo].
He claims in 1990, the applicant bought a store and sold [product]. His son helped him run the store but immigrated to Australia in 1991. The applicant’s other son ([Mr A]) is mentally disabled and could not assist the applicant in running the store. As such, the applicant sold the store.
He claims that in 1992, he became a member of the Church Committee [where] he was responsible for financial issues and collecting donations. His office had to be secured as extremists from the Muslim Brotherhood and the Salafists often plundered church raised money.
He claims he was well known in the area and was often subject to threats and harassment from the extremists from a nearby mosque who demanded money, but he refused to meet their demands. The applicant was called names including ‘dirty Christian’, ‘Infidel’ and ‘cursed’.
In January 2011, he claims that the extremism increased to a point where it was no longer safe. Numerous attacks on the church occurred including ransacking and stealing of money. After the revolution threats from the Muslim Brotherhood towards the applicant increased and they promised to kill him. He claims they were cursing him and physically harassing him.
In 2012, the applicant claims that he was on his way to church when 2 people on a motorbike sped right towards him hitting him with the footrest of the motorbike which caused his [body part] to bleed, made him dizzy, and rendered him unable to move. The applicant claims that the motorcyclists purposefully came for him. Passers-by took him to the doctor, and he received the necessary treatment before being ordered by the doctor to rest at home for many days. The injury left a scar on his [body part].
Due to the increase in danger and violence from 2011 onwards, the applicant’s daughter in Australia lodged two offshore protection visas. These were both refused.
He claims that his wife was constantly harassed when she walked in the street. As he refused to pay the extremists money, he and his family were targeted. After the papal decree in January 2014, attacks on his family became more aggressive and he was threatened with ‘revenge’. He and his wife would be harassed on the street through cursing, throwing stones and spitting. The applicant’s mentally disabled son was also subject to harassment, beatings and humiliation, and robbery by people gathering near the mosque. His son was scared to the point that he refused to leave the house.
He claims that in January 2015, just before the Coptic Christmas, his son left home for church and did not return for more than 6 hours after the time he was expected to be back home. When he returned, he was in a bad condition (wounded) in fear and terror and refused to speak. His clothes were torn and it looked like he was beaten.
In February 2015, the applicant claims he was in danger of kidnapping. He was going to the train station to visit one of the [churches]. He saw two bearded men inside a van who were looking at him closely. They got out of the van and opened the sliding door. He realised what could happen if he got closer to them, so he quickly changed his direction and went escaped.
Many times, he contemplated where to escape to but realised that the extremists have followers in all areas of Egypt. This made him realise he had to leave Egypt.
The applicant applied for a visitor visa to Australia to escape the danger in Egypt. When he received the visa, he intended to sell his flat so that he could afford airline tickets for himself, his wife and his son. The extremists heard about the open home and visited his flat. They claimed that the applicant was hiding weapons for the church therefore started to search the flat. They broke the applicant’s furniture, pushed the applicant by man handling him and they also threatened him. They stole his wife’s gold and money. When there was a lot noise in the flat, his neighbours came to his rescue and forced the intruders out.
The applicant approached the Egyptian Centre for Human Rights who went to see ‘everything’. They reported it to the police but received no assistance as the police were under attack themselves. They sold the house with the ‘cheapest possible price’ and fled to the applicant’s daughter’s house [until] May 2015 before leaving for Australia.
Upon arrival the applicant sought the assistance of a solicitor who spoke with the applicant’s son twice. The solicitor informed the applicant that his son had his own claims, but the applicant is unaware of what his son and the solicitor discussed
The applicant fears returning to Egypt for safety reasons. He claims that since he sold his flat, he would have nowhere to go if he was forced to return.
The applicants reiterated their claims for protection at their Department interview held on 4 May 2016.
At the Tribunal hearing held on 21 April 2021 the applicant provided the following evidence as to their son, [Mr A], being a member of the same family unit.
·[Mr A] has mild retardation. The representative referred to reports confirming this from Egypt and Australia which are outlined in [Mr A]’s case – 2104905.
·[Mr A] has never worked as he is unable to due to his cognitive impairment.
·He was born with cognitive impairment.
·He had limited schooling.
·He is not married or dependent on anyone else.
·He has always lived with the applicants and currently lives with them
·They have always financially and emotionally supported [Mr A], although presently they are assisted with money from Centrelink.
When questioned at the hearing, [Mr A] confirmed the above and that he is financially and emotionally dependent on the applicants.
The applicant was also asked questions as to the difficulties facing Copts in Egypt which are outlined in the decision relating to [Mr A]’s case.
He confirmed that he has hearing loss and sometimes mind confusion, and that his wife is incapacitated although he looks after her.
Are the applicants’ members of the family unit of their son and therefore meet s.36(2)(b)?
At the time the applicants applied for the visa, the definition of member of the family unit was set out in r.1.12 of the Migration Regulations 1994 as including a dependent child of the family head (r.1.12(1)(b)). The family registration document from the Egyptian Ministry of Interior indicates that [Mr A] is the son of the applicants as does a translation of his birth certificate. The Tribunal is therefore satisfied that [Mr A] is the child of the applicants.
Dependent child has the meaning in r.1.03, and means the child or step-child of the person (other than a child who is engaged to be married or has spouse or defacto partner) who either has not turned 18, or has turned 18 and is dependent on the person or incapacitated for work due to the total or partial loss of his or her bodily functions.
The evidence indicates that [Mr A] has turned 18 and is mildly cognitively impaired w. The evidence indicates he has always lived with his parents, the applicants, and currently does. There is no information before the Tribunal that would show she he is engaged to be married or has a spouse of defacto partner. While it is questionable due to his mental diagnosis that he is incapacitated for work there is no evidence before the Tribunal as to this, the remaining question is therefore whether he is dependent on his parents. The term “dependent”, as it was at the time the applicants applied for the visas, is defined in r.1.05A. As set out in r.1.05A(2), a person is dependent on another person if he or she is wholly or substantially reliant on the other person for financial, psychological or physical support.
The definition in r.1.05A(1) requires this to be for a substantial period immediately before the time it is necessary to establish whether the first person is dependent on the other person.
[Mr A] is mildly cognitively impaired, has never worked and has limited schooling[2]. He has always lived with his parents who have provided for him. The evidence from the applicants supported by independent medical evidence indicates he is financially, emotionally and psychologically dependent on his parents, the applicants and has been since his birth. The Tribunal finds that [Mr A] is wholly or substantially reliant on the other person for financial, psychological or physical support. It finds he is a member of the family unit of the applicants.
[2] For medical evidence see 2104905.
The definition of ‘member of the same family unit’ is set out in s.5(1) of the Act and states that one person is the member of the same family unit as another if either is a ‘member of the family unit’ or each is a ‘member of the family unit’ of a third person. The Tribunal finds that the applicants are members of the same family unit as their son, [Mr A].
CONCLUSION
The applicants are members of the same family unit of [Mr A], who is a person who satisfies s.36(2)(a)[3].
[3] See decision 2104905
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(b) of the Migration Act.
Gabrielle Cullen
Member

ATTACHMENT - 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.
Member of the same family unit
Subsections 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 of the same class as that applied for by the applicant. 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 is defined in r.1.12 of the Regulations.
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 1935

6 May 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies