1707840 (Refugee)

1707840 (Refugee) [2022] AATA 569 (1 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707840
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Sean Baker
DATE:1 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 February 2022 at 3:21pm
CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – public servant – military role in workplace – fear of harm by army officers – employment – failure to resume duties after leave – returned asylum seeker – retirement age – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 dependants.
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 7 April 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 18 February 2015. The delegate refused to grant the visa on the basis that the applicant did not engage Australia’s protection obligations pursuant to s 36(2) of the Act.
The applicant appeared before the Tribunal on 20 January 2022 to give evidence and present arguments.
The applicant was not represented by a migration agent or legal practitioner in the review and communicated with the Tribunal in English.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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 issue in this case is whether the applicant will face a real chance of persecution if she is returned to Fiji or whether there is a real risk she will suffer significant harm if removed from Australia to Fiji. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born [on date] in [Town 1], Fiji and is [an age] year old female of Fijian nationality. The applicant claims to be of Fijian ethnicity and of the Assembly of God denomination of the Christian faith.
In her application to the Department the applicant claims to be able to read, write and speak the Fijian and English languages.
The applicant was married to [her husband] [in] August 1992 in Suva Fiji. She has [specified children] and [grandchildren], all of whom are in Fiji. She has cousins in Australia.
In her application the applicant states she keeps in contact with her husband and family on a weekly basis by phone and email.
The applicant completed [grade] schooling in Fiji. While in Fiji she attained a [specified qualifications in specified years].
In her application form the applicant states she was not employed from the time of her birth until [year], she then worked as a cashier and supervisor in a [business] until October 2007 when she commenced work in [a specified agency in] Suva as [an occupation 1]. This position was in the Fijian public service, the applicant claims to have still been employed in this position at the time of application, however this is contradicted by other responses and information given by the applicant as discussed below.
Migration History
The applicant arrived in Australia holding a [Visitor] visa [in] November 2014. On 18 February 2015 she lodged her present protection visa application and was granted an associated Bridging Visa A and has remained lawfully in Australia since.
The applicant claims to have not travelled to any other country in the 30 years prior to lodging the present visa application.
Summary of claims before the delegate
In her written application form the applicant gave answers to the questions about her claims for protection which can be summarised as follows:
·The applicant seeks protection from having to return to Fiji.
·The applicant states she left Fiji because the military were playing an increased role in her workplace and this resulted her feeling victimised.
·The presence of the military defeats the working environment, and that she has to follow orders and do things asked of her, which are not relevant to an office environment This caused her to resign her employment and come to Australia
·The applicant fears returning to Fiji because as she has resigned her employment, she will be unemployed and required to undertake home duties. This would not be satisfactory to the applicant as she feels she still has a lot to give to her family and community and without the financial input of her employment this could affect her family.
·The applicant did not claim to have experienced harm in Fiji.
·The applicant claimed she could not relocate to seek safety elsewhere in Fiji due to as it would be difficult to find a job or seek a transfer in her current employment due to military presence in government services.
·The applicant feared being “harmed and mistreated psychologically” if she returned to Fiji because “they are in control of the country and some of our [agency] departments are being privatised and some of the workers are sent home.”
·The applicant stated she did not think the authorities of Fiji could or would protect her if she returned as the civil service of Fiji was being controlled by the military, people were afraid of losing their jobs and would do as they were told.
·The applicant stated she would not be able to relocate in Fiji as once an individual has a bad relationship with the government it is hard to work.
The applicant provided copies of several documents to support her claims including
·her Fijian marriage certificate, birth certificate and her children’s birth certificates.
·The biometric data page of her Fijian passport
·A letter from [her employer] permitting her to travel to Australia while on leave.
The Tribunal notes that the letter from [her employer] permitted the applicant to travel to Australia between [dates in] October 2014 and [November] 2014. The applicant was to resume her duties [later in] November 2014, if she failed to resume her duties she would have been taken to have resigned her employment.
Movement records show that the applicant was granted her [Visitor] visa to travel to Australia on 10 November 2014 and she subsequently arrived in Australia [in] November 2014, [days] after she was to have resumed her duties.
The applicant was not interviewed by the delegate in relation to her claims, and the applicant did not vary or add to her claims prior to the delegate making their decision on 7 April 2017.
Claims before the Tribunal
The applicant has not made any submission varying or adding to her claims prior to the hearing held on 20 January 2022.
The only documentary evidence supplied to the Tribunal are two letters of support from her employer in Australia. These letters state that the applicant has been a hard working and valued member of their workforce and support her stay in Australia on the basis of her being a valued employee. They do not address the claims of the applicant to fear harm on return.
Claims at the hearing
The applicant described her life in Fiji. Her husband and [children] live in Suva, her husband is retired and lives in their house in [Town 2], Suva. Her [children] are married and have their own children and live with their partners in other suburbs of Suva. The eldest is [an occupation 2] at a [named company].
The applicant gained qualifications in [subject] and worked most recently in Fiji as [an occupation 1], [with specified duties] in the [agency]. In Australia she gained her [qualification 1] and works in the [agency] system here, as above, she is a valued member of the [agency] teams, first at [Agency 1] and more recently [Agency 2].
The applicant travelled to Australia on her annual leave from her job in Fiji. The applicant told me the colleague she had travelled with returned to Fiji but the applicant told her colleague that she would remain here and carry on with her career. She said that she had missed her family, and renting by herself was difficult, but she was proud of her achievements here.
The applicant explained that when she had worked as [an occupation 1], the army officers and other authorities were highly involved in the administration of the [agency], and if they heard you spread rumours they would take you to a camp and mistreat and harm you. She said this what she feared on return. She said she was also afraid that the authorities would be aware she remained here on a protection visa and may detain, question and mistreat her on return.
When asked, she conceded that she had not been harmed herself in Fiji, but she had seen people who had been assaulted by army officers receiving treatment in [another section] of the [agency] at which she worked. This experience meant she feared this would happen to her, because the officers could do anything if you spoke against them. She conceded that no one in her family had experienced harm from the authorities either. When asked who she feared on return she said she had no idea, but she was afraid because she had seen people who had spoken out against the military and had been assaulted because of this. She said she had not ever had difficulties with the authorities that she could think of.
When asked if there was any other basis on which she thought she might be harmed on return she said that the only other harm was that she would not have a job. The rich in Fiji got richer whilst the poor got poorer.
The applicant said that she would not be able to be employed if she returned to Fiji now. She said that once she had resigned from her job at the [agency] she was not able to get another job and it had been [number range] years until she reached the retirement age so she had stayed here to look for a job and work.
She noted however that she had now passed the retirement age of 55. I asked if she was eligible for a pension and she said that your pension came from your super, and she had drawn down her super and repaid her house with that. The applicant said that she would be unable to afford the basics of life if she returned however because her family were all relying on her employment here and she was sending them money every fortnight to live on. I asked if her husband had a pension and she said he also withdrew all his super and, she said, he had gone to his village to visit his parents. I noted that I might consider that, having paid off her house and with her [child] working, that she and her husband would have enough to subsist if she returned as a retired person. She said that at the moment she was the only breadwinner and her [child] lived with [in-laws]. She said she had renovated their house with her Fijian super. She clarified that they owned the house but were paying ground rent. I noted that she would also have Super in Australia which she may be able to access.
I discussed country information with the applicant that indicated that the harassment of those deemed to be political opponents of the government had lessened,[1] that the last election in 2018 was reasonably free and open.[2] I explained that my reading of the country information may indicate to me that the applicant could return to Fiji as a retire, that she would not face a real chance or real risk of harassment or harm from the army officers or any other authorities, and that she could subsist as I had earlier discussed. The applicant said that she knew the situation was somewhat different, and that she wished to remain here.
[1] DFAT Country Information Report Fiji 27 September 2017, 5.7.
[2] Freedom in the World 2021 Fiji.
I noted that Australia was home to many Fijians, and many Fijians travelled to Australia to work or spend extended time here. I noted that because of this and because the protection process was confidential, I may not accept that the authorities would be aware she had sought asylum here, and I might think she could return safely on her Fijian passport without any real risk or real chance of harm at the airport or afterwards. The applicant responded that she loved working in Australia and had achieved much and contributed much and she believed she deserved to stay. I noted that I did not disagree, but I had to assess her claims for protection.
The applicant then asked if the decision could be delayed as she had a three-year loan here. I explained that I could not delay making a decision on those grounds.
Consideration
On the basis of the copy of her Fijian passport before me I accept that the applicant is a national of Fiji which is also her receiving country.
I accept that prior to leaving Fiji in November 2014, the applicant worked as [an occupation 1], but was taken to have resigned when she did not return to Fiji as planned. I accept her evidence that she has now reached the compulsory retirement age of 55 in Fiji. I find therefore that she would return to Fiji as a retired person.
Harm from army officers/authorities
I accept that as [an occupation 1] the applicant witnessed people who had been injured by the army being treated in [another section] of her [agency]. I accept that in 2014 the military had a presence in public institutions such as the [agency] at which the applicant worked, and may have had involvement in the administration of the [agency].
I accept that the applicant travelled to Australia in November 2014 and has not returned to Fiji. I accept that she has worked in a range of positions including most recently as an [occupation 3] at [Agency 2]. She is a conscientious and valued employee.
As I raised with the applicant at the hearing, the situation in Fiji has changed somewhat since she departed in November 2014. Whilst I accept that there is monitoring and harassment of those who oppose the government, the evidence is that this has lessened since the time she was there, and that elections were largely free and fair. I note that neither the applicant nor her family have experienced harm from the authorities. The applicant stated that she is now older than the compulsory retirement age. She will, as I have found above, return to Fiji as a retired person. She will not, therefore, return to her work in the [agency], or to any other work in the formal economy.
These facts lead me to conclude that there is no real chance or real risk the applicant will be harmed by army officers or anyone else even if she expresses her opinions about the government. There is no real chance or real risk that the applicant will be victimised in her former workplace, will have to follow orders from the military there or will be psychologically harmed and mistreated by the military being at her former place of employment, because she has reached the mandatory retirement age and would not return to Fiji as an employee of the [agency] or any other formalised work environment.
Further, the applicant travelled to Australia on her own passport and with a valid visa to Australia. she has stayed longer than the three months her visa was granted for. However, as I expressed to the applicant at the hearing, there are many Fijian nationals in Australia, a sizeable number of them spend many years in Australia before returning to Fiji. The information before me does not support a view that they are of any interest to the Fijian authorities on return. I find that the fact the applicant has applied for protection would not be known to the Fijian authorities, and even if it were, the evidence before me does not support a view that they would have any concerns or would seek to question, detain or harm the applicant on return for this or because she has remained in Australia for many years.
I have also had regard to the letter from her employer which states that her employment will be terminated if she does not return from leave. I have accepted that her employment would have been terminated as per this letter, and in any event as she herself stated she is now above the mandatory retirement age. I do not accept that this process by her employer will, particularly some seven years later, be of any interest or increase the interest of the authorities in the applicant.
I find that the applicant can return to Fiji using her Fijian passport, and will face no difficulties, questioning, detention or harm at the airport or afterwards from the authorities or anyone else because she is a failed asylum seeker, has remained in Australia for years after the expiry of her original visa, had her employment terminated when she did not return from leave or for any connected reason.
Capacity to subsist

The applicant claimed she would be unemployed on return and she felt she still had a lot to give to her family and community. Since the applicant lodged her application she has reached the retirement age and stated, and I accept, that she is now above the mandatory retirement age and would therefore not be returning as an unemployed person but as a retired person. However, as we discussed at the hearing, implicit in her claims is a question of whether the applicant will be able to survive as a retiree on return.
As above I have accepted the applicant is above the retirement age. I accept that her husband is retired and that her [children] are married, the eldest one working at a [specified] company.
I accept that the applicant and her husband may have spent their Fijian superannuation to improve their house. I accept that the applicant’s husband at least has some reliance on the applicant’s work in Australia to maintain his standard of living. I am willing to accept that the applicant has taken out a loan in Australia. However, I do not accept the claim that the applicant and her husband would be unable to subsist if she were to return to Fiji.
I make this finding on the following basis. The applicant, as she conceded, has super from her years of work in Australia. She owns her house (although I am willing to accept they may pay ‘ground rent’ or land tax). The applicant was financially secure enough to spend her Fijian superannuation on renovating the house according to her evidence. Her eldest [child] is employed. The applicant, if she returned to Fiji, would also not have to pay rent in Australia. When I consider these facts in total, I do not accept that the applicant and her husband would be unable to subsist, I find that with the support of her husband and children, with the fact she owns their house, and her superannuation from Australia, even after she has repaid her loan here, the applicant and her husband would be able to subsist. I accept that they may not be able to maintain the financial position they have enjoyed with the applicant working in Australia, but I do not accept that the applicant will suffer serious or significant harm and will be able to subsist if she returns as a retired person.
The applicant was provided with a number of opportunities to make further claims but did not do so.
She did however state that she wished to remain in Australia to continue working here. I accept the references provided which attest to her conscientious and valued working in the Australian [agency] system. However, this cannot form part of my assessment of whether she is owed protection.
Having carefully considered the claims of the applicant individually and cumulatively, I find that there is no real chance the applicant will suffer serious harm including harm or mistreatment from army officers or other authorities or anyone else for her actual or imputed political opinion or her former employment at [an agency] or her status as a failed asylum seeker and overstayer in Australia if she returns to Fiji now or in the reasonably foreseeable future. I find that there is no real chance that the applicant and her husband will be denied or be unable to have the capacity to subsist in Fiji for any reason now or in the reasonably foreseeable future.
Relying on the same reasoning, I find that there is no real risk that the applicant will suffer significant harm from anyone on return to Fiji now or in the reasonably foreseeable future. I find there is no real risk the applicant and her husband will be unable to subsist in Fiji now or in the reasonably foreseeable future.
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).
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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
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.
…

[2022] AATA 569

1 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction