1711503 (Refugee)

1711503 (Refugee) [2020] AATA 4843 (6 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711503
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Mara Moustafine
DATE:6 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 November 2020 at 11:33am
CATCHWORDS
REFUGEE – protection visa – Lebanon – fear of ex-wife’s family – honour-related violence – issue of ‘mouakhar’ (Islamic dowry) – claims unsubstantiated and speculative – complementary protection – political unrest – explosion at the port in Beirut – economic and financial crisis – COVID-19 pandemic – unique or exceptional circumstances – Australian-citizen wife and daughter – guidelines for Ministerial intervention – ‘inappropriate to refer’ category – partner visa refused previously in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 19 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of Lebanon and is [age] years old. He first arrived in Australia as a holder of a Student visa [in] March 2011. On 18 July 2013 he applied for a Partner visa which was refused on 17 November 2014. He lodged a review application on 23 December 2014 but withdrew the review application on 22 March 2016 and applied for a protection visa on 31 March 2016.
Evidence before the Department
According to his Protection visa application form, the applicant was born in [location], Akkar in [year] and was living in Tripoli, North Lebanon before coming to Australia. He is Lebanese by ethnicity and a Sunni Muslim. He reads, writes and speaks Arabic and English. He completed a [Qualification 1] in Lebanon, then studied tertiary courses in Australia and has owned a [shop] since August 2013. His parents, [and number of siblings] live in Lebanon and [number of siblings] live in Australia. He stated that he was married [from] July 2013 [to] September 2015. Supporting documents provided included certified copies of his passport pages showing his biodata, entry and exit stamps and copy of his original Australian student visa.
The applicant’s protection claims, as outlined in his application were that he had been subjected to family violence and ongoing threats to his personal safety by the family of his estranged wife, an Australian of Lebanese descent, seeking revenge for what they perceived as the dishonour he brought on the family by leaving her. They threatened to have him physically harmed after he returned to Lebanon. Honour-related crimes were prevalent in their Sunni Muslim culture and religion, which demanded revenge on a person who was perceived to have harmed another person or family reputation. Fearing for his safety in Lebanon, he had no option but to apply for a protection visa.
The applicant stated that he had not been subjected to physical harm in Lebanon as the threats had been made in Australia. However, he did not have the same level of protection in Lebanon as in Australia, especially as the Lebanese authorities were generally hesitant to intervene in honour or family related crimes. The lack of legal protection combined with the general state of lawlessness and corruption made him vulnerable to being physically harmed in Lebanon. Relocation to another part of Lebanon was not a viable or practical option as he could not rely on the adequate protection of the Lebanese authorities throughout the country. Supporting documents relating to alleged domestic violence incidents with his ex-partner in Australia were also provided.
On 19 May 2017, a delegate of the Minister for Immigration and Boarder Protection refused to grant the applicant a Protection visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.
Evidence before the Tribunal
On 30 May 2017, the applicant applied to the Tribunal for a review of the Department’s decision. He provided a copy of the decision to the Tribunal for the purpose of the review and is taken to be on notice of its findings and reasons.
On 22 June 2020 the applicant wrote to the Tribunal stating that he hoped the Tribunal would be able to decide in his favour due to the current COVID-19 pandemic which prevented him from leaving Australia and applying for a partner visa from offshore.
In summary, the letter, which was accompanied by supporting documents, stated that:
a.‘As to my fear of harm as previously mentioned I openly say that I fixed the problem with my ex parents-in-law and I already paid them $2000 and another $8000 will be met this year in December 2020 to solve the issue of ‘mouakhar’ to my ex-wife (Islamic dowry)’.
b.If the Tribunal was unable to recognise his subjective well-founded fear of harm in the current circumstances he asked that it recognise his compelling and exceptional circumstances and assist him not to leave Australia as he was, among other things, the spouse of an Australian citizen since 2018, the father of [an age] year old Australian citizen child and owner of an Australian business since 2013.
c.If he has to return to Lebanon, he would be at risk of serious harm in the face of the severe economic and financial crisis in Lebanon, the consequent anti-government protests and political unrest; as well as the health risk of COVID-19.
d.If he has to leave Australia for an unknown period he would suffer severe economic hardships as he would have to be away from his business, for whose operation he was responsible. He would also suffer extreme hardship in being separated from his wife and daughter.
e.He understands that, as he has had a partner visa refused previously in Australia, he is not entitled to lodge another partner visa application onshore without the recommendation of the Tribunal and without recognition of his fear of violence, political conflicts and economic collapse in Lebanon.
On 20 October 2020, the Tribunal wrote to the applicant inviting him to give oral evidence and present arguments relating to the issues arising in his case at a video hearing conducted by Microsoft Teams on 4 November 2020. The applicant accepted the Tribunal’s invitation on the same day.
On 26 October 2020, the applicant’s wife submitted a statement of support outlining the family’s personal circumstances, including that she was expecting a second child in 2021 and emphasising the adverse impact on her life and that of her family if her husband had to depart Australia.
The hearing
The applicant appeared before the Tribunal by Microsoft Teams video conference on 4 November 2020 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
At the start of the hearing, the applicant confirmed that all the information in his application form was true and correct and that he did not wish to make any changes or to add anything. The Tribunal discussed with the applicant his background in Lebanon, his current circumstances and why he fears returning there. Where relevant to his protection claims, the applicant’s evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
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.
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.
Credibility
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Analysis, Findings and Reasons
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In a discussion of his background, the applicant told the Tribunal that his parents and [number of] married sisters were living in Tripoli, Lebanon, [number of] sisters were in Australia and [number of] brother in [Country 1]. Since arriving in Australia as a student, he had completed a [Qualification 2] in 2018 and now owned [a company in a related industry] as well as a [shop].
The applicant confirmed that he never experienced harm in Lebanon while he was living there prior to coming to Australia.
With regard to his fear of returning to Lebanon now, the applicant told the Tribunal at hearing that he still feared harm from his ex-wife’s family in Lebanon because of their perception that he had disgraced the family by divorcing her. This represented a shift from his written statement submitted in June 2020 in which the only mention he made of such fears was his assertion that: ‘As to my fear of harm as previously mentioned I openly say that I fixed the problem with my ex parents-in-law’. When the Tribunal asked about this shift in his evidence, the applicant responded that he had only fixed the problem with his ex-wife’s father, to whom he paid the money, not with his ex-wife or her mother as her parents had now divorced. He said he had not spoken to his ex-wife or her mother since 2015, although he knew that his ex-wife had remarried.
When asked who he considered might harm him in Lebanon, the applicant said he could not be sure what his ex-wife’s uncles on her mother’s side, who were Shia and well-connected in Lebanon, might do to him if he returned there. He claimed that around 2014 when he divorced his ex-wife, they had threatened to harm him if he returned to Lebanon and in 2015 his father was called and given the same message in Lebanon. The applicant stated that in tribal laws of revenge, time made no difference, and that one of the Shia uncles might kill or stab him if he returned to Lebanon. When asked where this might happen, he said perhaps at the airport or somewhere else, although he said he had no evidence of the threats, had never met the uncles and did not know where they lived in Lebanon.
As discussed with the applicant, the Tribunal finds his claim that he will be harmed by his ex-wife’s family in Lebanon is unsubstantiated and speculative. It also considers disingenuous his explanation of the shift in his evidence between his written statement and at hearing. In view of this, the Tribunal is not satisfied that the applicant has a well-founded fear of harm in Lebanon at the hands of his ex-wife family, as claimed, or for any other reason.
In his written evidence and at hearing the applicant stated that he also feared returning to Lebanon because of political unrest, including protests and the recent explosion at the port in Beirut, the severe economic and financial crisis as well as the spread of the COVID-19 in a country with inadequate health facilities. The Tribunal has considered these claims in the context of the complementary protection criterion. As discussed with the applicant, as these are factors faced by the population generally and not by him personally, they cannot be considered as a real risk of significant harm to him under complementary protection (see s.36(2B)(c) in Attachment).
The Tribunal accepts that the separation from his wife and daughter, even temporarily, and the lack of access to Australian-standard medical and other services as a result of his removal from Australia may cause the applicant hardship and suffering. As discussed with the applicant, however, as these hardships would arise from the act of his removal from Australia, the country where he is seeking protection, rather than any actions in Lebanon, it will not meet the definitions of ‘significant harm’ in s 36(2A). Moreover, as the hardship and suffering is the consequence of his removal, it cannot be said to be intentionally inflicted on him, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1) [1].
[1] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–-[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58] and WZARI v MIMAC [2013] FCA 788 at [31]–[32].
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm if he returns to Lebanon now or in the reasonably foreseeable future at the hands of his ex-wife’s family or for any other reason. Nor does the Tribunal accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he would suffer significant harm.
The Tribunal accepts that the applicant has been living in Australia since 2012, has an Australian-born wife and daughter, has succeeded in his studies and built up a business. It also accepts that the applicant does not wish to leave Australia and be parted from his family in order to apply for a partner visa offshore. However, as discussed with the applicant, these are not grounds on which Australia owes him protection under either the refugee or complementary protection criterion.
CONCLUSIONS
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).
REFERRAL TO THE MINISTER
In his written statement and evidence at hearing, the applicant requested that, if the Tribunal was unable to recognise his well-founded fear of harm, it should recognise his compelling and exceptional circumstances and assist him not to leave Australia. At the hearing the applicant indicated that, in these circumstances, he would be making an application for Ministerial intervention and requested the Tribunal’s make such a referral.
Section 417 of the Act confers on the Minister a non-compellable, personal discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The current guidelines for Ministerial intervention are set out on the Department's website: They provide examples of the types of unique and exceptional circumstances that can be brought to the Minister's attention, as well as a list of factors relating to cases where it would be inappropriate to refer them to the Minister.
The Tribunal has considered the applicant’s request that the Tribunal refer this matter for consideration of Ministerial intervention under s.417 so that he might be allowed to make a Partner visa application onshore rather than having to leave Australia and return to Lebanon for an indefinite period to make an offshore partner application, leaving behind his dependent Australian wife and baby daughter.

Having carefully considered the relevant guidelines, the Tribunal has concluded that it would be inappropriate for it to refer the applicant’s case for Ministerial intervention. While the Tribunal accepts that it would cause the applicant and his wife and daughter hardship and distress to be separated for an unknown period of time (which might be lengthy due to the current global travel restrictions caused by the COVID19 pandemic), the Ministerial guidelines specifically state:
‘If you have been refused a Partner visa already while in Australia, the Minister has indicated that it is inappropriate to consider your case under the public interest powers. The Minister expects us to finalise such requests without further processing.’
Given the clear indication in the Ministerial Guidelines above that the applicant’s case falls within the ‘inappropriate to refer’ category, the Tribunal considers it would be inappropriate and futile for it to refer this matter to the Minister for consideration of the exercise of his discretionary powers under s.417 of the Act.
However, it remains open to the applicant to make such a request directly to the Minister himself if he believes that his case meets the guidelines for Ministerial intervention or otherwise raises strong compassionate or compelling circumstances.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mara Moustafine
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.
…

[2020] AATA 4843

6 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction