1711630 (Refugee)

1711630 (Refugee) [2022] AATA 3645 (29 August 2022)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Diab
CASE NUMBER:  1711630
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Roslyn Smidt
DATE:29 August 2022
DATE OF CORRIGENDUM:  4 October 2022
PLACE OF DECISION:  Sydney

The word “Pakistan” in paragraph 15 should be replaced with the “the Philippines” and the words “keep moving around” at the end of paragraph 23 should be deleted.
Statement made on 4 October 2022 at 11:25 AM
Roslyn Smidt
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Simon Diab
CASE NUMBER: 1711630

COUNTRY OF REFERENCE: Philippines
MEMBER:Roslyn Smidt
DATE:29 August 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 August 2022 at 4:24 PM

CATCHWORDS
REFUGEE – protection visa – Philippines – political opinion – New People’s Army – lengthy stay in Australia – detention – delay in applying for protection – passport renewal – access to medical care – employment – 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 25 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Philippines, applied for the visa on 25 May 2017.
The applicant appeared before the Tribunal on 18 and 29 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicant was represented in relation to the review.
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 applicant is [an age]-year-old Christian man. He resided in Davao City on Mindanao Island until his departure for Australia. He completed an associate degree in [subject] in [year] and worked at a variety of jobs in the city following that.
The applicant has three siblings; one resides in Australia, another remains in the Philippines. The whereabout of the third is unknown.
The applicant travelled to Australia in August 1999 to visit his sister. His visitor visa ceased on 11 January 2000. He remained in Australia unlawfully until he applied for protection on 31 March 2015.
Evidence provided to the Department
During an interview with the delegate the applicant was asked why he had not applied for protection until fifteen years after arriving in Australia. He said that could not afford to engage solicitor.
In written and oral submissions, the applicant stated that in 1986 he and three friends were detained for two days by the military on suspicion of involvement with the communist New People’s Army. He was beaten and threatened while in detention. Following this the NPA attempted to recruit him. He told the recruiter he was not interested, and they did not contact him again. During his interview he was not sure what would happen to him if he returned to the Philippines, but he feared that he would be targeted by these people again. The delegate observed that he had remained in Pakistan for many years after these events and that his ability to obtain a passport in 2015 suggested that he was no of adverse interest to the authorities in in the Philippines. He said that he did not have a record in the Philippines and was not sure whether he had any issues with the authorities in the Philippines. The delegate also observed that it seemed unlikely that the NPA would wish to recruit him due to his age and medical problems. He said that he was not sure whether they still wanted to recruit him.
The delegate found that the applicant’s continued residence in Davao for thirteen years after the incidents in the mid-1980s indicated that he did not genuinely fear that he would be harmed by the authorities or the NPA in the Philippines. She also noted evidence that the NPA had been largely pushed out of populated areas.
In his initial application the applicant said that he feared Muslims. During his interview the delegate asked him to explain this fear. He said that he had not been targeted by Muslims, but he had a general fear of Islamic terrorists because people were being killed.
The delegate accepted that the applicant had a subjective fear of harm from Islamic extremists but found that he feared generalised violence and not harm for any of the reasons in section 5J(1)(a) of the Act or significant harm as defined in the Act. She also noted evidence from the US Department of State which stated that extremist groups continued to be a problem in the southern islands of the Philippines sustained pressure from the authorities meant that they had been removed from populated areas restricting their access to the general population.
The applicant said that he could not return to the Philippines because he had significant health issues related to his [conditions specified] which needed ongoing treatment. He provided a number of medical reports mostly dated 2017. He said he was afraid he would not get treatment in the Philippines, that he might die and that he would not be able to find employment or subsist in the Philippines due to his health problems. The delegate advised him of country information which indicated that the Philippines had a comprehensive universal healthcare system called “Philhealth” that would be able to address his medical conditions. The applicant said that he was not aware of this system and he not sure if this would affect his decision to seek protection in Australia.
In her decision the delegate noted that there was no suggestion that the applicant’s access to medical care in the Philippines would be denied or restricted for any of the reasons in 5J(1)(a) or that any problems he might face related to his health issues amounted to amounted to significant harm. She also noted evidence which suggested that the government had introduced a universal health care program, had an extensive social insurance program which offered assistance to residents who were facing financial difficulties, including due to sickness and offered long term assistance, including medical services, to citizens who return from overseas.
Evidence provided to the Tribunal
A copy of the delegate’s decision was provided to the Tribunal. No written submissions were received or supporting documents were received.
At the hearing I briefly explained the criteria for grant of a protection visa. I noted that his application referred to two relatively minor incidents which occurred long before he left the Philippines and that he did not appear to have had any further problems during the time he remained in the Philippines. I also noted that he had not applied for protection until some 15 years after he arrived in Australia. I observed that it appeared that he wished to remain in Australia to continue to receiving treatment or care for his medical problems, which was not covered by the criteria for grant of a protection visa. I asked him to explain the nature of the harm he feared he might experience if he returned to the Philippines.
The applicant said that his parents were deceased, only one of his siblings remained in the Philippines and she did not live in the same area. I asked if he had any other fears. He said that the Philippines was ruined. I advised him that I accepted that it would be difficult for him to return to the Philippines if he lacked support, but I was still unclear who would seek to harm him if he returned and why they would wish to do so. He said that he had to run away because some people were after him and he had heard of some deaths in the area. When he asked for clarification, he said that after he was detained by the military he went to Davao Bohol where he had some relatives. I asked how long he remained in Bohol. He said that he had kept moving around. He said that he had not had any problems after moving to Bohol. keep moving around.
I reminded the applicant that protection was granted to people who were at risk of future harm. I observed that he was only briefly detained and had not faced any further problems during the more than ten years he remained in the Philippines after 1985 which suggested that he was not of continuing interest to the authorities. He said that it had been a long time since his problems, Davao had been infected with NPA members and was dangerous when he left. I advised him that it was my understanding that this was no longer the case. I also observed that he did not appear to have lived in Davao for over ten years before he left. He said that he had lived in Davao and but there would be nobody to support him if he returned and he had no money. Later in the hearing he added that it was currently very dangerous in Mindanao. I asked him to clarify why he would be at risk of serious harm because of this. He did not respond. I also observed that even if he was at risk of serious or significant harm in the Philippines it appeared that he could avoid these problems by living elsewhere. He declined to comment.
I asked the applicant why he had remained in Australia for fifteen years before applying for protection. He said that he had come to Australia to avoid problems in the Philippines, but he had no information on how to apply and no idea where to go for help until someone he met at the hospital in about 2015 gave him some advice. I advised him that I had some difficulty accepting this. I observed that migration and protection issues were frequently discussed in Australia and it was my understanding that many people in the Filipino would have been aware of what to do. I also noted that he had relatives in Australia who could perhaps have helped him. He said that he had no idea about such matters and it was only when someone at a hospital gave him advise the he was able to lodge an application.
I invited the applicant to a follow up hearing on 29 August 2022 to seek clarification regarding his claims in relation to his medical health problems. I asked if he feared that he would face harm on return to the Philippines for reasons related to his medical issues. He said that he feared harm from insurgents. I advised him that it was my understanding that, as pointed out in the delegate’s decision, medical care was available in the Philippines and that I was not aware of any evidence which suggested that he would be denied care available to others for any reason. He said that he also understood that medical care was available in the Philippines and his fears related to his earlier claims, not to problems caused by his medical issues.
CONSIDERATION OF CLAIMS AND EVIDENCE
By way of context, the New People’s Army is the armed wing of the Communist Party in the Philippines which has been engaged in an ongoing insurgency against the government of the Philippines for many years. According to DFAT the group August 2021 report continues to have a strong presence in Eastern Mindanao and also has a significant presence in rural areas elsewhere in the country. A recent International Crisis Group[1] report dated 13 May 2022 observed that the military has significantly weakened the NPA insurgency in recent years. A recent report from the Philippine’s government[2] states that the there is only one NPA until remaining in the Davao region. While caution should be used when referring to official reports, this strongly suggests that the NPA presence in the area has been significantly reduced in recent times.
[1] The Philippines Votes the Marcos Dynasty Back into Power, International Crisis Group 13 May 2022 ://
[2] One remaining NPA group ‘hitches’ Davao’s insurgency free status, 6 July 2022. >
For the purposes of this decision, I accept that the applicant was briefly detained and questioned about his involvement with the NPA in Davao City in about 1985 and that he was required to sign a paper of some kind prior on release.
The applicant’s evidence regarding what happened in the period immediately after this somewhat unclear. At the hearing he initially claimed that he fled to Bohol and appeared to suggest that he remained there until he left the country, but he later indicated that he had mostly lived in Davao. On reviewing his evidence after the hearing, while it is possible that he spent some time in Bohol in the mid-1980’s, it is clear that he resided in Davao City for most if not all of the period from the mid-1980s until his departure for Australia.
In any event, the brevity of his detention in the mid-1980s suggests he was not of much interest to the authorities in the mid-1980s. Furthermore, the lack of any further problems with the authorities during the next fourteen years he remained in Davao clearly indicates that he was not seriously suspected of involvement with the NPA. And there is no suggestion that he joined or sympathised with the group or that he has been involved in activities supportive of the group at any time. In these circumstances, I am not satisfied that he faces a real chance of experiencing serious or significant harm on return to the Philippines because of his brief detention in the Philippines over thirty years ago or because the authorities would suspect him of involvement with the NPA.
I accept that someone from the NPA approached the applicant and suggested that he join the group shortly after he was detained in the mid-1980s. However, he was not approached again during the many years he remained in the Philippines and there is no suggestion he was threaten or harmed by anyone from the NPA at any time. There is nothing in the evidence which suggests that the NPA would seek to recruit him if he returned to the Philippines within the reasonably foreseeable future, particularly as he is now nearly [age] years old and suffers from a number of significant health issues. Nor is there anything in the evidence before me which suggests that the NPA would seek to harm him for any reason. In these circumstances, I am not satisfied that he faces a real chance of experiencing serious or significant harm on return to the Philippines because he refused to join the NPA in the mid-1980s or for any other reasons linked to the presence of the NPA in Davao City.
The applicant claims that he might be at risk of harm from Muslim groups in the Philippines. When asked about his fears at the hearing the applicant said that the situation in Mindanao was dangerous. When asked for more information indicated that he had nothing to add.
According to the DFAT Country Information Report on the Philippines dated 23 August 2021, Muslims comprise an estimated 6 to 11 percent of the population of the Philippines. Most of them reside in five provinces in Western Mindanao that make up the Bangsamoro Autonomous Region of Muslim Mindanao (BARMM). It is clear from the evidence that Mindanao has a history of conflict related to Islamic separatism and the presence of extremist groups in the area. Incidents of violence in the Autonomous Region of Muslim Mindanao increased after 2011 and peaked in about 2016. The government responded by declaring martial law in some areas which lasted until 2019. The violence has declined since then, although low intensity conflict continues in central and western Mindanao.
There is no suggestion that the applicant faced threats or harm from Muslim groups prior to his departure from the Philippines. It is clear from his evidence that he fears he may be victim of the general violence involving Muslims. Davao City where he resided is on the eastern side of Mindanao. The Muslim population is located mainly on the west of the island and most of the violence involving Muslims occurred in that area. There is nothing in the evidence before me which suggests that non-Muslims living outside the Muslim areas in Mindanao generally face a real chance of experiencing serious or significant harm from Muslim groups. Nor is there anything in the evidence which suggests that the applicant would be at greater risk of harm than other non-Muslims in the area. In these circumstances, I am not satisfied that there is a real chance that he would face serious or significant harm from Muslim groups or individuals if he returned to the Philippines within the reasonably foreseeable future.

The applicant said that he could not returned to the Philippines because it has been “ruined”. It is not clear what he meant by this as he failed to provide a further explanation. It is certainly true that there have been violent incidents, human rights abuses and other problems in the Philippines in recent years. However, there is nothing in the evidence currently before me which suggests that there is a real chance that the applicant would face problems because of this. I am therefore not satisfied that he faces a real chance of suffering serious or significant harm if he returns to the Philippines because the Philippines had been “ruined”.
The applicant said that he could not return to the Philippines because he had no money and no support and he would not be able to work in the Philippines because he had a number of health problems. He said that he needed to remain in Australia to continue treatment for his health issues.
As pointed at the hearing, a desire to remain in Australia to continue to receive medical treatment, is not relevant consideration in relation to a protection visa application. And while I accept that the applicant may have little or no family support if he returns to the Philippines and may have difficulty finding employment due to his age and health problems, there is nothing in the evidence before me which suggests that he would be denied access to employment or health care for any reason or that he would be treated differently to other citizens of the Philippines with similar issues in relation to employment or that his problems finding employment would constitute significant harm. As pointed out in the delegate’s decision, there are government health and social welfare programs which he could access for assistance.
Conclusions
After considering the applicant's claims individually and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm for any of the reason if he returns to the Philippines now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution in the Philippines for any of the reasons set out in s.5J(1).
After considering the applicant's claims individually and cumulatively, I am not satisfied that the applicant faces a real risk of suffering significant harm on return to the Philippines for any reason. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, there is a real risk that he will suffer significant harm.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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 3645

29 August 2022

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