1713284 (Refugee)

1713284 (Refugee) [2022] AATA 517 (20 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713284
CASE NUMBER:  1928512
COUNTRY OF REFERENCE:                   Peru
MEMBER:Luke Hardy
DATE:20 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the three applicants protection visas.
In the matter of case number 1928512 only, the Tribunal finds that [the daughter] is the subject of a duplicate application and that her application is invalid.

Statement made on 20 January 2022 at 10:31am
CATCHWORDS
REFUGEE – protection visa – Peru – imputed political opinion – husband’s work as law court administrator – involvement in proceedings against corrupt political organisations and individuals – death threats – particular social group – family members of people who acted against or have information against corrupt police – credibility – vague and inconsistent claims and evidence about job description and responsibilities, and about threats – no claim for protection made in other countries visited – delay in applying for protection – applied after failing English language test for skills visa – returned to home country with no harm – – child has lived in Australia most of her life – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1), 5J(1)(a), 36(2)(a),(aa), (2A), (2B), 65, 424AA, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The three applicants, [the husband], [the wife] and [their daughter], are all citizens of Peru. They originally applied for the visas on 30 March 2016, but the application was found to be invalid for want of payment of the required fee. The applicants lodged a valid application on 8 April 2016. At the time, [the wife] was the de facto partner of [the husband], though they have since separated.
The delegate refused to grant the visas to the three applicants on 26 May 2017. A review application was lodged in this Tribunal for all three and the matter was constituted to me.
The relationship issue has since seen [the wife] seek and obtain a separate review file number for herself and [her daughter]: AAT casefile number 1928512.
[The wife] says she is seeking to be granted full custody of [the daughter]. Meanwhile, [the daughter] still remains included in [her father]’s review application. There arises thus the question as to which application should continue to include her.
I spoke to [the husband] and [the wife] by telephone on 31 August, essentially opening [the husband]’s hearing at which [the wife] was listed as an oral witness, but first trying to establish under which case number the young [daughter] would or should continue as a dependent applicant, as it did not appear logical that she could proceed as the subject of two applications. We made little headway on the day, none in fact, and the matter was adjourned.
On 1 September 2021, separate calls to [the husband] and [the wife] yielded competing reasons why their own respective applications should include [the daughter]. [The husband] said his daughter had not been removed from his application. [The wife] said her daughter is living with her and not [the husband], and should therefore be attached to her application. It has been pointed out to both that [the daughter] cannot have what would amount to duplicate applications and they were both given time to come to some kind of consensus on a way forward in the interests of their daughter.
Over two months later, no progress was been made in the matter of which application should continue to include [the daughter]. This posed a problem for the Tribunal, which is neither the Family Court nor King Solomon.
I raised this issue with all of the applicants on the days of their respective Tribunal hearings: with [the husband] and [the daughter] on 21 December 2021, and with [the wife] at her hearing on 23 December 2021, which [the daughter] also attended. I explained that the common approach in cases of duplicate review applications is to find the second, duplicated inclusion of an applicant invalid. I invited comment on both occasions.
[The wife], at her hearing, helpfully explained that all she really wanted, in seeking a separate file number, was a separate hearing at which she would not need to be seated alongside [the husband]. She appeared here to put aside earlier arguments about custody and her daughter’s domicile. She did not object to [the daughter] remaining included only in the first application: case number 1713284.
After due consideration, I find that [the daughter]’s second application in case number 1928512 is invalid. I am confident that this does not disadvantage any applicant in these matters.
The respective representatives attended the respective hearings by telephone. [The wife] was accompanied by [Ms A] for social support.
Each of the Tribunal hearings was facilitated by interpreters in the Spanish-English medium.
I observed that [the wife] had come to the hearing with what looked like some prepared notes. I invited her to look through them in case there had been something she might have wanted to raise but had not yet been able to raise. She said she had made the notes to help her because medication she was taking made her forgetful. To help her, I gave her until 17 January 2022 to provide further information. She asked for three additional days to complete a post-hearing submission and this was submitted after only one additional day. I have read closely the submission and its attachments, which were sent as Zip files. I have considered if [the wife] might have been prevented by circumstances beyond her control from giving cogent evidence in this matter and I am confident she was not.
I am satisfied that all applicants were given a real opportunity to present their cases.
As the main facts in these cases are generally common facts, I have elected to write my reasons in the one decision record.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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 issues
The main issue in this case is whether, on accepted evidence, any of the three applicants is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision in this matter should be affirmed.
Claims
The main claims in these matters stem from events that [the husband] claims to have experienced, resulting in death threats issued to him and also to [the wife] and [their daughter].
[The husband] claimed to the former Immigration Department that he was born in [Year 1]. He claimed he undertook tertiary studies from [Year 2] to [Year 3]. He claimed he commenced work in 2005 as “reporter” with [Court 1] of [City 1] , [Region 1]. He provided evidence of his testamur having been conferred [in] July 2005.
[The husband] claimed, in the course of his application, that he used to work as a “state solicitor” and “assistant state prosecutor” who was “responsible for the investigation of criminal activities” to the public in the District (or Public) Attorney, or (as he put it at one stage) in [Court 1] in [City 1], [Region 1], in Peru, from 2005 until 2008. He came to Australia in 2008 on a student visa, which he used and extended for study over several years. He claimed to have changed addresses in Peru in the last four months of his time there, moving to [City 2] before coming to Australia. [The husband] claimed that in the course of his work he “presented evidence in court which was used to determine the punishment or penalty [meted upon] political organisations.” He said, “For instance, I know the criminal activity of the current mayor [Mr B] of [City 1] in Peru. He said that as at April 2016 [Mr B] was "under investigation from 2007 until now.”
[The husband] claimed to have “processed” evidence that was given against members of a political party called the American Popular Revolutionary Alliance (APRA). He claimed he faced harm from, or at the behest of, [Mr B], due the knowledge he had of [Mr B]’s criminal activities.
[The husband] claimed he received death threats against himself and his family. He repeated that he and they faced this harm because of his knowledge of [Mr B]’s crimes. He thus indicated that he had knowledge that set him apart from other people in Peru. He went further and said that he was a “key witness” against [Mr B].
[The husband] said he could not relocate within Peru because he was well-known in corrupt government circles in Peru.
I note that in the family’s original protection application, [the husband] claimed he had never sought the protection of any other state (see answers to Q.74 and Q.79 at folio 65 of Department file [number] file 2).
[The husband] submitted some material with the original, invalid March 2016 application. That material is before me. There are birth and other certificates but the material speaking relevantly to [the husband]’s substantive claims includes a printout of a [March] 2016 Internet news article in Spanish, apparently about ongoing cases against [Mr B], copies of [the husband]’s qualification as a lawyer [in] July 2005 and copies of three payslips, in English translation, pertaining to [the husband]’s employment by [Court 1] of [Region 1] in [City 1] as a “court reporter.”
I note from information in the original, invalid March 2016 application that [the husband] remained in Australia for over eight years before lodging a protection visa application. [The wife] and [the daughter] had been here about seven years. Although [the husband] claimed that if he returned to Peru, [Mr B] would kill him and his family, he evidently returned to [City 1] for a month in mid-late 2015. At Q.71 in the original, invalid March 2016 application (verso f.89 of [file number] file 1), which he signed as a true statement of his claims, [the husband] said that the return visit to Peru was for the purpose of “holidays with family.”
In both applications, the invalid and the valid one, [the husband] claimed that he had previously been an unsuccessful applicant for a subclass [temporary] work visa who failed his IELTS test on 4 June or July 2015.
A the time [the husband] lodged the first, invalid application, the bridging visa associated with his status as an applicant for a [temporary] visa was due to expire (31 March 2016).
[The wife] and [the daughter] made similar claims in their application forms about having been included in death threats against [the husband]. Asked to give details about what happened to her and her daughter, [the wife] said they received “threats.” She did not provide any information about attempts to carry out or demonstrate the seriousness of the threats. She said that she and her daughter had to move from place to place to hide from the threats. She provided five addresses at which she claimed to have resided between 2006 and 2009 when she and her daughter came to Australia.
[The daughter] was only [age] when she arrived in Australia. Her position in this case is unique in that she is the subject of a number of the claims, but was too young when she left Peru for her now to remember anything that may have happened there. She effectively a dependent applicant in respect of those claims. Some evidence, such as school reports, was submitted on her behalf to the Department arguing that Australia’s is the only society she has ever known.
Evidence submitted to the Tribunal prior to hearing
[The husband] and [the daughter]
[The husband] submitted a number of documents to the Tribunal in August 2021.
The first of these is a statement from [the husband] himself, saying that he worked in the position of “prosecutor” and “investigator” in the [City 1] court specialising in corruption and “high complexity” organised crime in 2006 and 2007. [The husband] claimed that during those years, [Mr B] was charged with ordering specific extrajudicial killings during his time as a police officer. [The husband] claimed he was personally in charge of investigating [Mr B] and building the state’s case against him. He said that he started to receive death threats in in December 2006 when the matter against [Mr B] was put before [a specific court section] He said he started receiving telephone calls at that time warning him to cease all activity in the case(s) against [Mr B] or face death along with his family.
[The husband] made substantial new claims in this statement which, as noted, was not presented until August 2021: he claimed that a dead dog was left in front of his house in December 2006, that thugs attacked [the wife] and their daughter at home in January 2007 and that someone shot bullets into his house in March 2007; all these were hitherto undisclosed claims to the effect that people had acted upon the alleged threats before [the husband] left Peru in early 2008.
[The husband] went on to claim that he received some protection from the state in September 2007 which was discontinued when he was later removed from the investigation and ceased working for the court. He claimed that [Mr B]’s people were still able to call him and threaten no matter how often he changed his mobile telephone number, even after he essentially did what they had demanded by ceasing to work on the state’s prosecution of [Mr B].
[The husband] claimed he did not seek protection In Australia because, from his point of view, his was not a political case and he was not being persecuted for political reasons. He said he decided then to apply to travel to Australia as a student.
The second document submitted in August 2021 is an undated statement from a friend/colleague of [the husband]’s called [Mr C]. In his statement, [Mr C] claims he was a witness to the threats against [the husband] while they worked together for the [City 1] [Court 1]. He said that [the husband] used to be a State Solicitor (or Public Attorney, perhaps) in the office of the Public Prosecutor, which appears to indicate that he did not regard [the husband] as having himself been a prosecutor, as suggested in [the husband]’s own statement. He said that in 2007 [the husband]’s family “feared reprisals” from various commanders, colonels and captains in the [Region 1] area. He said that in 2006 and 2007 [Mr B] was being investigated for his role in ordering death squads to kill a number of alleged local criminals.
The statement lacks details and specifics and provides no information as to how, when or in what particular circumstances [Mr C] made or was able to make independent observations as to what specifically happened to [the husband].
The third document submitted by [the husband] is apparently the English version of a Spanish-language original unseen by the Tribunal. It purports to be 4 December 2014 statement from a police officer stationed in [District 1], which is a district of [City 2]. In the statement, it is asserted that [the husband] had come to that police station [in] May 2007 to report that he and his family were receiving death threats in the region of [Region 1] (approximately [number] kilometres and [number] hours by car away) from “the self-titled ‘Death Squadron’ for the reason that he works at the [City 1] [court], the same court that is investigating extrajudicial killings in the region of [Region 1].”
Interestingly, the statement says that [the husband] reported having no idea who the perpetrators of the death threats were, at least up to the time of his reporting to the police station, but suspected they might be members of the death squads then being investigated by the state at the time he reported. The report says [the husband] undertook to inform the police as soon as he could if he were to find out who the perpetrators might be. This information, taken as a whole, does not appear to sit with [the husband]’s own evidence about having been as good as told that his adversaries were acting for or on behalf of [Mr B] by the end of 2006.
[The wife]

[The wife] tabled at her hearing some photographic evidence of apparent bullet holes in a wall near a doorway. This material had not previously been presented in support of the present applications.
[The daughter]
[The daughter] tabled evidence of a high standard of educational performance and social growth throughout her young life in Australia.
Evidence given at, and since, the Tribunal hearings.
[The husband] told me that his job title in the [City 1] court was “Public Prosecutor.” According to material he subsequently submitted to me, this is a close translation of the Spanish term Procurador Pùblico. Similar material submitted by [the husband] after the hearing indicates that the title “Court Reporter” which appears in his payslips is a standard translation of the Spanish term Reportero Judicial.
[The husband] told me that there were only two public prosecutors in [City 1] when he was working there and that they both were responsible to the Senior Prosecutor. He said that the Senior Prosecutor was appointed by the government of the day and that the two Public Prosecutors were employed as public servants in the state’s or region’s judicial branch. He said he lost his job when the Senior Prosecutor was replaced by an incoming, newly elected state or regional government. He said his role was taken up by “a lady” and that he did not know what had become of her in the post because he left Peru. He did say that people continued in the roles that he and his colleagues vacated.
[The husband] said that the Senior Prosecutor had no more than two staff: himself and the other Public Prosecutor. When I asked him to describe the role of a Public Prosecutor, he said he used to process claims and suits for the court. Material he later submitted to me[1] indicates that this seemed to be the duty of “judges [or justices] of [the] peace, clerks, or permanent court reporters.” The same document also discusses how “clerks or court reporters” in Peruvian courts traditionally “could aspire only to being justices of the peace.” In any event, I put to [the husband] that whereas there seemed to be a discrepancy between the terms Public Prosecutor and Court Reporter, he had only provided evidence of having occupied the position of Court Reporter. In response, he indicated that he used to present state evidence directly to the court.
[1] “Organization of American States,” Inter-American Commission on Human Rights, Chapter II: Administration of Justice and Rule of Law, B. The Civilian Jurisdiction: Judicial reform, paragraph 19 (specifically referring to Peru).
I asked [the husband] why he did not apply for protection in Australia in the eight years or so that he spent here before returning to Peru. In reply, he said he fled death when he left Peru and, knowing he could have sought protection in other countries, he came here. I put to him again that he did not seek protection here during his first eight years in Australia. In reply, he said he did not do so because he felt embarrassed, throughout those eight years, to make statements against Peru. He said he was too ashamed. This was a substantially different explanation from the one he gave in the statement submitted in August 2021. (See paragraph 42 above.)
I asked [the husband] about the countries in which he transited during the his two flights to Australia and one flight back to Peru. He said he twice flew from [Country 1] via [Country 2] to Sydney. He said that on the flight back to Peru he transited in [Country 3]. I asked him if he had considered or tried seeking asylum in any of those countries and he said he had felt it better to be as far as possible from Peru.
I asked [the husband] if he had ever presented any asylum claims to any country other than Australia and he said he had made an application to [Country 4]. He said he wrote to the [Country 4] Embassy in Lima I 2008 and without success. This information contradicted what he said in his valid protection visa application. (see paragraph 31 above.)
I asked [the husband] if he had told the [Country 4] authorities in 2008 what his problems in Peru were at that time and he said he did. I queried how and why he told the [Country 4 people] in writing what he had just told me he felt too ashamed to tell Australian authorities. In reply, he said had “of course” described his problems because he had been wanting to leave Peru. This did not strike me as a satisfactory explanation for the difference between his purportedly candid approach to the [Country 4 people] and his long delay in disclosing his protection claims in Australia.
I noted that [the husband] did not lodge his family’s protection visa applications until after he had visited Peru in 2015. I asked him why he went back to Peru in circumstances where, as he claimed in 2016, he would face death if he tried to do so over what he had done and known prior to 2008. In reply, [the husband] said he went back to Peru in 2015 to collect evidence to support an intended protection visa application in Australia, the one he successfully lodged in April 2016. I asked him to tell me what evidence he gathered physically in Peru to bring back to Australia, and he said that he gathered documentary evidence of the court process (presumably against [Mr B]), copies of legal files and copies of court files showing his name, presumably, as a participant in proceedings. I put to him that this evidence, had it been presented, which it never was, might only be evidence of his professional experience, rather than evidence of persecution, or of a real chance of the same. I asked him what else he might have gathered to bring back here, and he referred to statements and letters from people linked to the court who knew about the threats he had received. I observed that he would not have needed to risk physically entering Peru in order to gather any of that material if he had these friends in the courts in Peru who might more easily have sent material to him here. I also observed that none of the material described by [the husband] as material he physically gathered during his 2015 visit to Peru was ever submitted along with either of the 2016 protection visa applications, either the invalid one or the valid. I note that attached to the invalid application one finds the three payslips and the translation of the [July] 2005 law degree testamur but none of this material could reasonably be described as evidence of participation in the case against [Mr B] or of the alleged threats that ensued. Also, both the testamur and the payslips would both have been in the property of [the husband] from the time of their being issued; it is not plausibly argued why he would have needed to attend courts physically in [City 1] to obtain them so that he could bring them to Australia. Finally, there is the Spanish-language article apparently discussing [Mr B]: as noted, that is dated 28 March 2016 and therefore could not have been located during a visit to Peru in 2015.
I asked [the husband] if, in fact, he visited Peru in 2015 for any additional or other reasons, such as to catch up socially with his family. In response he appeared to digress, saying that he had had a lot of other duties in his court job until it ceased in 2007. Again, I asked [the husband] if had attended to any family matters during his 2015 visit to Peru and he said he did not. He emphatically denied going back to Peru to visit his family. This information contradicts what he said in his first protection visa application, and I shall return to this issue below.
[The husband] said his parents are retired and now live in [an] environment where they have not been harmed. He said that when [Mr B]’s people found out he had left Peru they stopped threatening his family. He provided no insights to the Tribunal into how he could possibly have known what [Mr B] and his people thought or decided in relation to how to treat his parents. He also said that [Mr B]’s desire for revenge died away once he, [the husband], had left Peru.
[The husband] mentioned that the case against [Mr B] did proceed after his own departure from the case in late 2007. He referred to [Mr B] having been convicted in recent years in the matter of his use of death squads and sentenced to around 30 years imprisonment. In these circumstances, it was hard to see how [the husband] was confident that [Mr B] and his people ceased to seek revenge simply because he, [the husband], was no longer in Peru. In response, [the husband] again digressed: he said that one of the death squad members, whose name was [Mr D], was arrested and remanded in 2019 but died in custody. [The husband] said that officer [D] had agreed to turn state witness and was then found dead. He said [Mr B] had him killed. I asked him how he had come to this conclusion and he said he had deduced this because [Mr B] would have benefitted from officer [D]’s death. This struck me as bald speculation.
[The husband] mentioned another Peruvian: a journalist called [Ms E] who he said was threatened for a published exposé about Peru’s death squads in 2016 and who sought exile in another country. His claims about [Ms E] are supported in an article from [deleted].[2]
[2] [Reference deleted]
Although the cases against [Mr B] and cronies proceeded over several years to conviction, [the husband] did not provide any evidence of any other lawyer, attorney, judge or court officer being harmed or threatened in or since 2006-7.
[The husband] told me he had heard that [Mr B] is currently in hiding, apparently to avoid surrendering to a term in jail. Under the protocols of s.424AA of the Act, I put to [the husband] that I had information that subject to comments or responses he might give would be a reason or part of a reason for refusing his protection visa application. The information was in fact two items of information: one, I had not been able to find any evidence of court officials in [City 1] having, to date, been targets of death squads; and two, [Mr B] died of complications due to the Covid-19 virus [in] April 2021. The potential relevance of these items of information was that he might not be facing the harm in Peru he claims to fear. I asked [the husband] if he wished to comment or respond immediately or if he wanted to request more time; he opted to comment or respond immediately.
[The husband] said he did not know that [Mr B] had died. He said that this might make it appear that his own problems had disappeared whereas, he said, they had not. He went on to ask, “Why is it then that the police officer ([Mr D]) is dead?” I was surprised that [the husband] had not kept up to date with news about [Mr B], particularly in the lead-up to hearings in August and December 2021. He had mentioned having heard that [Mr B] was “hiding” at some stage but this information was unsupported.
Regarding all the prosecutors and their staff who had acted on behalf of the state in the decade and more since 2006, [the husband] said that no-one could act against [Mr B] during his time as mayor of [City 1]. There were plenty of years since 2006, I note, when [Mr B] was not mayor of [City 1] and yet [the husband] claims to be the only state legal officer, up to the time of [Mr B]’s death, to have been threatened by him for pursuing him in the courts.
Following the Tribunal hearing I wrote to [the husband] advising him, under the protocols of s.424A, that there was information before that, subject to comments or responses he might give would be a reason or part of a reason for refusing his protection visa application:
The particulars of the information are:
·You, [the husband], originally made an application for a protection visa that was declared invalid due to insufficient [funds] to pay the lodgement fee. The contents of that invalid application are nevertheless a signed statement of claims that you have made. In that application, you declared at question 71 that the reason for your return visit to Peru in August-September 2015 was “HOLIDAYS WITH FAMILY.” You also said, “FOR RELATIVES.” You did not mention going back there to gather evidence in support of a protection visa application.
·However, at the Tribunal hearing on 21 December 2021, you said that the only reason you returned to Peru in 2015 was to gather evidentiary material for your subsequent protection visa application, including evidence of the process of the 2007 trial of [Mr B], legal files, court files showing your name, letters and statements from people you know who could attest to your having been threatened in connection with the 2007 trial.
·When the Tribunal asked you if you visited Peru in 2015 for any other reasons, such as to spend social time with family members there, you essentially denied that you did and digressed, seemingly preferring to talk about your duties in the court.
·You did not answer question 71 in your subsequent valid application as requested, and an inference may be drawn that you avoided doing so.
This information is relevant to the review because it appears inconsistent, potentially calling into question your overall reliability in this matter.
·Meanwhile, neither of your 2016 protection visa applications, the invalid or the valid one, included any relevant, substantive information except for a printout of a news article about [Mr B] located on the Internet, which you would not have needed to travel to Peru to obtain, and three payslips indicating that you worked for [Court 1] in [City 1] as a “court reporter” rather than as a “prosecutor” or “attorney” as has elsewhere been claimed.
This information is relevant to the review because it does not appear to support your claim about having gathered material to submit with your 2016 protection visa application.
·The role of court reporter in Peru is evidently much more junior than the role of “public prosecutor.” Two websites located by the Tribunal indicate that the work of court reporters is generally clerical and stenographic, helping parties with transcripts, etc.: “Peru court reporters … work efficiently and accurately ... to deliver transcripts to you quickly and in the format you require to optimize your pretrial preparation, allowing you to focus on the case’s important details.” (See and
·The evidence before the Tribunal incites that the role of a “court reporter” in Peruvian courts is entirely neutral. No evidence before the Tribunal suggests that a “court reporter” in Peru would be in any way involved with investigation and prosecuting. Whereas you told the Tribunal at the hearing on 21 December 2021 that your immediate supervisor was the “senior prosecutor,” it appears on the evidence to be very unlikely that a “court reporter” would report directly to a “senior prosecutor.”
·The trial of [Mr B] did not commence before the offence he was alleged to have committed. The date of the offence, being the extrajudicial killing of four alleged criminals, was in October 2007. You claim that [Mr B] sent people to threaten you once the prosecutor’s investigation of these murders commenced. This would appear to have been in, or after, October 2007. However, the purported police report describing a complaint made by you to police says that you complained of these threats on 27 May 2007, which was before the October 2007 killings occurred, and therefore before the investigations into those killings could have commenced.
This information is relevant to the review because it suggests you did not occupy the role in the justice system that you claimed, whereas you claim that it was the significance of your role in the prosecution of [Mr B] that caused you and your family to be threatened. The information suggests that you gave greatly exaggerated your roe in the court system to enhance your claim to a protection visa.
If the Tribunal relies on the information above in making its decision, it may conclude that you are not a reliable witness in this matter and find that you are not entitled to a protection visa. Accordingly, your daughter and her mother may also not be entitled to protection visas.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 18 January 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
[The husband] responded on 13 January 2022, but the response was incomplete because some of the material was in untranslated Spanish. Through his representative, he undertook on 14 January 2022 to have that material translated in a day or so and I received an English translation on 18 January 2022.
[The husband]’s statement in response comprises three points relating to this issue of the return trip in 2015 and four points relating to his job title and job description in the [City 1] court.
In relation to my concerns about the return visit in 2015, [the husband] made vague remarks about a “margin of error” in the interpreting at the Tribunal hearing. He went on to say that it was true that he went to Peru to gather evidence to bring back to Australia to support an asylum application. Elsewise, he answered the concern with questions as to why he would spend so little time in Peru if he had gone there to visit his family, and why he would have gone there for a social visit without also taking [the wife] and their daughter. [The husband] said the Tribunal’s concern about his reasons for visiting Peru in 2015 had no legal logic; I have given this some thought, but am confident they do.
[The husband] claimed that when he decided to return to Peru in 2015, he needed to let the Department know because he was at the time subject to a [temporary] work visa. He said he did not want to tell the Department at the time that he was returning briefly to Peru to gather evidence for a protection visa application as he feared that he might not be allowed back into Australia. I have considered this explanation, about what a person in that situation might have said to the Department if intending to depart temporarily during the tenure of a temporary working visa, but it did not appear satisfactorily to explain why [the husband] said it, later, in his asylum application, particularly if it was not true.
[The husband] seemed to misunderstand my point about not answering Q.71 in the second, valid protection visa application. He spoke about something that he said happened during the 52^nd minute of the Tribunal hearing, when he appeared not to answer a question but in fact did not initially understand it, but eventually did so.
Regarding his job title and job description in [City 1], [the husband] made, as noted above, four points. I should first state, in a little detail, that the two Internet links that I provided to him discuss the role of Court Reporters in Peru as something like impartial justices of the peace and as clerks who help to collate litigants’ documents to assist in the smooth conduct of proceedings.
[The husband] said that his role in the [City 1] court was “not a Public Prosecutor but a Peruvian State Attorney in defense of the rights of citizens.” He said his function was “to investigate and present the necessary evidence before the judiciary as a civil part of the proceedings [and to] participate in the judicial processes … our function [being as] lawyers in defense of the rights of each citizen.” He said, “In other words, just as we defend, we also denounce before the Judiciary and through the prosecutor's office, cases such as: abuses of power, corruption, crimes of high complexity among others.” Here he seemed to be contradicting his oral evidence at the Tribunal hearing about his job title having been “Public Prosecutor” directly responsible to the “Senior Prosecutor.” He also appeared to be contradicting the evidence he had given in his August 2021 statement.

[The husband] asked how I could not understand specifically what his role had been as a state official, although I maintain that the information he has provided over time has at least had the appearance of being inconsistent.
In his third point on the question of job title and job description, [the husband] appeared once more to be saying that he functioned, not as a court reporter, but as a “Peruvian State Persecutor [who] fulfills [the role] of reporter [of] crimes that have been committed … with the same level [of authority] that [an] attorney [has to] send the complaints to the Public Attorney, so that this completes [the] diffuse path in which the Judicial Power allows the Public Prosecutor to participate in the hearings as a civil part of the processes at the level of any procedural stage. It is not what you interpret as if my function has been unimportant and not linked to the public career of the Peruvian Justice regime.”
[The husband] expressed the opinion that the description I had given of the role and duties of a Court Reporter suggested his role was no more than that of a “translator or extrajudicial arbitrator.” He went on to say, “ Excuse me, judge, you are very uninformed of the position I held.”
[The husband] went on to attach Internet hyperlinks to material that in some instances I have referred to earlier in this record. The material relates to relevant job titles and job descriptions: this includes the document describing “court reporters” as clerks or justices of the peace, which, I note, also discusses their opportunities for preferment for higher duties in the court system. For convenience, these are those links, the Spanish-language documents coming with automatically linked English translations:
>
[The husband] also submitted a recent human rights report on Peru and a December 2021 translation of a transcript of a video news item about the 2019 conviction of the late [Mr B], with a discussion of his various crimes.
[The daughter]
I gave [the daughter] an opportunity to speak about her situation at the 21 December 2021 hearing. She indicated that she could not herself remember any potentially relevant events in Peru. She had apparently witnessed some aspects of the disintegration in her parents’ domestic relationship but gave her the option of not having to discuss that topic to save her from the stress of doing so because I accepted that the breakdown had occurred.
[The daughter] spoke to and presented documents about her integration as a child growing up for twelve years in Australia with very little Spanish language, as claimed, and no personal familiarity with Peru.
[The wife]
[The wife’s] position remains that she and her daughter continue to be subjects of death threats issued by or on behalf of [Mr B].
As noted, at the beginning of the hearing , [the wife] tabled photographs of the bullet holes; she said these were shot into her house on 20 or 21 January 2008. She was later to say through her representative that there were two shootings upon her house: “Bullets were fired into [the wife]’s residence on two occasions. One of these shootings occurred in 2007, when [the wife] was in hiding in [City 2].” [The wife] did state in the first, invalid application that she was residing in [City 2] from January 2008. Meanwhile, she said in the first application that she had not lived in [City 1] since December 2005. In any event, the alleged 2007 shooting could not have happened while [the wife] was living in [City 2]. The evidence is at least somewhat confused.
[The wife’s] representative advised that [the wife] had received a video from a witness regarding the damage inflicted on the family house, saying that it was in Spanish and would require a translated transcription. I received a copy of the video and its translated transcription on 18 January 2022. The video features a man in civilian clothing with a clinical paper mask covering his mouth and nose, saying:
I, [Mr F], holder of National Identity [No.], hereby swear
that [the wife] took shelter at this place because she and her
family had been receiving life threats by unidentified subjects in the city of [City 1] in
2007 and 2008.
[Mr F] is described thus in the submission received on 18 January 2022: “a police officer investigating paramilitary activity, [who] came to [the wife]’s temporary residence and spoke to her about the shooting on approximately four occasions.”
The video appears to have been made recently and I have duly considered it.
[The wife] said she was still scared of [Mr B] and his ten-member death squad. I put to her that independent country information indicates that the authorities in Peru have been effective at prosecuting and dismantling death squads. In reply, she said, “Yes.” She said this had been happening throughout Peru. I put t her that this seemed to be evidence of effective state protection from death squads in Peru and she said that one corrupt police officer who had been linked to the death squads turned state witness and “was killed.” She appeared here to be talking about the man elsewhere identified as [Mr D]. She said he died in 2019.
I put to [the wife] that I could not yet see how this alleged criminal turned informer had much if anything in common with her or [the husband]. In reply, she said that none of these people had tried or convicted. I put to her that [number] such people had been convicted including [Mr B] in 2019.[3] [The wife] said that [Mr B] had nevertheless threatened a lot of people including a female journalist who she named as “[Ms G – a similar name to Ms E]” but was probably [Ms E], as identified in her subsequent post-hearing submission and also in the evidence of [the husband], who had to flee Peru.
[3] [Reference deleted]
Under the protocols of s.424AA of the Act, I put to [the wife] that I had information before me that, subject to comments or responses she might give, would be a reason or part of a reason for refusing her protection visa application. The information was in fact two items of information: one, that the authorities had doggedly pursued [Mr B] and others over several years of prosecutions and acquittals until at last his conviction along with [number] others in September 2019; and two, that [Mr B] died of complications due to the Covid-19 virus [in] April 2021. The potential relevance of these items of information was that she might not be facing the harm in Peru she claims to fear. I asked [the wife] if she wished to comment or respond immediately or if she wanted to request more time; she opted to comment or respond immediately.
[The wife] said that notwithstanding [Mr B] was convicted and sentenced he was allowed to remain in the community pending further court deliberations. She said that corruption is endemic in Peru from the President down. She said that she was happy to be in Australia where she could forget the “nightmare.” She added that her daughter is happy and safe here and knows nothing of Peru, which is why she never wants to return. She did not directly comment on or respond at the hearing to the information about [Mr B] having died. However, in her post-hearing submission she did say, through her representative, that “the threat of abuse of police power has not left Peru.”
I asked [the wife] about the long delay in Australia before there was any protection visa application. In reply, she said the delay occurred because [the husband] was studying and because the family suffered due to the language barrier. She said they had also had no money. I asked her to explain what particular circumstances had changed and how to cause [the husband] and herself to lodge an application when they did. In reply, she did not mention to state of their [temporary] visa, but did say that applying for protection was the only way to continue staying in Australia. I asked her if she could be more specific about what had changed and she referred to the issue described by [the husband] in both protection visa application forms: the fact that he had failed an IELTS test.
I asked [the wife] about [the husband]’s return visit to Peru prior to lodging the protection visa applications. She said he had to go back to Peru to gather evidence to present in this matter. I asked her if he had gone back to Peru for a social visit with his family. In reply, she said, “No.”
Under the protocols of s.424AA of the Act, I put to [the wife] that I had information before me that, subject to comments or responses she might give, would be a reason or part of a reason for refusing her protection visa application. The information was a statement [the husband] had made in the first, invalid protection, giving reasons for his visit to Peru in 2015: “about holidays with family.” The potential relevance of these items of information was that this information appeared to contradict her current assertion and potentially indicate that [the husband] had not been afraid to re-enter Peru at the time for any potentially significant reason. I asked [the wife] if she wished to comment or respond immediately or if she wanted to request more time; she opted to comment or respond immediately.
[The wife] said that [the husband] had felt he needed to say what he said because, at the time he was seeking to leave Australia and re-enter, he could not mention the protection issue. She said that their migration agent at the time said that saying what he said was the only way to get clearance to leave temporarily. I put to [the wife] that there would have been no need to repeat this purported deception in the application for a protection visa the following year, and that she appeared to be saying that untruthful information was provided in the protection visa application. In reply, [the wife] said that [the husband] went back to Peru when he did in fear of his life. Further, she said that had he wanted to visit his parents socially he would have spent more time away. She said it takes two weeks to travel to Peru. I put to her that what she was saying is not true because flights from Sydney to Peru can be completed within two days or less.
[The wife] then said that [the husband] went back to Peru because he needed personally to collect evidence for their intended protection visa applications. I asked her to tell me what information he had in fact collected on that trip and she said she did not know. I put to her that the Department received no substantive evidence of [the husband]’s claimed involvement in the [Mr B] prosecution or any other particular court case. I reminded her that the first application, the invalid one, mainly included some personal documents and certificates, and some payslips identifying [the husband] as a “Court Reporter.” To make the matter clearer, I put to her that the family’s original protection visa applications contained no supporting evidence of the problems they claimed to have faced. There had not even been any reference to the bullet holes, let alone photographs of them.
[The wife] said, “I’m not lying here.” She went on to say that the Department never asked for supporting evidence.
[The wife] referred to the reasons for her separation from [the husband], being that there had been an AVO in a matter of domestic violence some years back. She said, however, that [the husband] is the father of her daughter and that she respected that.
I gave [the wife’s] representative an opportunity towards the end of the hearing to make closing comments or raise any issues we might have missed or dealt with insufficiently. In response, the representative said there was a concern that if [the wife] and her daughter were required to return to Peru there might be a dispute with [the husband]’s family, namely his parents, over where and with whom the daughter should live. Not raising any concerns about relevance, I nevertheless asked if this might not be merely bald speculation, and the representative said that there has been no contact with [the husband]’s family in Peru who may not even know that the parents in these cases have separated. The representative went on to suggest that there would be no state protection in Peru for a woman who had suffered domestic violence in Australia.
[The wife] concluded saying that a return to Peru would be a return to the unknown at least as far as her daughter is concerned. She said her daughter has stopped speaking Spanish. She said men rape women in Peru She said there is corruption and danger there.
[The wife’s] post-hearing submissions include what purports to be an English Translation of what would logically be a Spanish-language Court verdict, in this instance described as a sentencing ruling in the case of [Mr B] and the other [number] accused of extrajudicial murders. A reading of the document discloses that it is an acquittal. The document features a case [number], which appears to be the correct case number for the matter concerning [Mr B] and the other [number] defendants, but that in itself does not establish the authenticity of the document before me, as the number was published in the Internet article that the applicants submitted with their first protection visa application, and it also appears in the 2019 [City 1] court judgment referred to in footnote 3 above, and that document is freely available on the Internet. The counsel assisting the court, described in the document as “State Attorneys” include two names, one of them being [the husband]. The date of this “sentencing” (or acquittal) is [December] 2007. The applicants’ own evidence, dating back to the original applications, however, is that [the husband] was taken off the case, lost his job and left Peru whilst the first trial in the case against [Mr B] was still on foot and “under investigation.” (See Q.90 at f.58 of [file number], file 2). In this light, it is hard to see how [the husband] was still in the country during [Mr B]’s first acquittal or would have remained a party at the time of that verdict. There is no other material before me to support the indication in this English-language document that [Mr B] was acquitted in any Court case in 2007.
The post-hearing submission also includes what purports to be an English translation of [an] August 2007 Spanish-language news article about [Ms E] and the “[City 1] judiciary” having been the subjects of death threats due to their investigations of alleged involvement of Peruvian national police in “death squads.” The implication in submitting this article as that [the husband] was a member of the [City 1] judiciary. No evidence has been put before me that any of these threats were acted upon with regard to any person other than [the husband].

100. Another article in [the wife’s] submission relates to allegedly “trigger happy” having arbitrarily shot a suspect to death in 2006.
101. [The wife] submitted the following document, purporting to be an English translation of a 2014 Spanish-language document (not submitted); the translation is identified as “Annex B”:
In the register of police reports of the [Suburb 1] Peruvian National Police Station there is a report recorded under No. [number], which literally reads as follows:
First Sergeant [named], CIP No. [number], reports that: On 19FEB2008 at 12:35, the following person attended this police station: [the wife] ([age]), born in [Suburb 2], [City 2], partnered, who completed secondary education, homeowner, holder of National Identity No. [number], temporarily residing at [Address, Suburb 1], informing that she is married to lawyer [the husband] ([age]), with whom she has [a daughter] ([age]) and stated that since her husband had to go into hiding as a consequence of the threats he had been receiving from the alleged paramilitary group “Escuadrón de la Muerte” (“Death Squad”), the said subjects begun to threaten her and her young child. As a consequence, they had to abandon the city of [City 1] and reside in various addresses in the capital seeking their own safety and averting life threats against her, her partner and her young daughter. She also stated that the reason for these threats is that her spouse is employed at [Court 1] of [City 1], who are overseeing an investigation into extrajudicial executions that took place in this city. Signed: The Reporting Person. – Signed: The Informant. Resolution:Recorded.
[Suburb 1], 04 December 2014

102. According to this document, [the wife] is said to have reported that the case against [Mr B] and others was still on foot as at February 2008. This makes it harder to see how they could have been acquitted [in] December 2007 as the purported “sentence” ruling, discussed above, states.
103. [The wife’s] representative made the following narrative submissions (footnote references omitted here):
[The wife] has a well-founded fear of persecution within the meaning of the Act due to her membership of a particular social group comprising family members of people who acted against or have information against corrupt police.
We submit that if removed from Australia and returned to Peru, there is a real risk that [the wife] will suffer significant harm from the paramilitary group Escuardón de la Muerte (“Death Squad”), namely:
·being subjected to cruel or inhuman treatment or punishment;
·being subjected to degrading treatment or punishment; and/or
·being arbitrarily deprived of her life.

There are no effective protection measures available to [the wife] in Peru ...
… At the Interview, the Member raised concerns that [the husband], [the wife]’s former partner, returned to Peru after coming to Australia and before making a claim for protection. [The wife] reiterates that [the husband] returned to Peru to obtain evidence in support of his protection claims. [The husband] was required to appear in person to obtain this evidence from the courts and was unable to obtain the evidence through an agent. [The wife] instructs that [the husband] was in hiding throughout his stay in Peru and left the country after only a short period. Due to the long term domestic violence suffered by [the wife] and breakdown of her relationship with [the husband] she unfortunately does not have access to the evidence obtained by [the husband] on his trip.
The Member also raised concerns that the individuals who previously targeted [the wife] and her daughter are no longer active and would no longer be interested in her. [The wife] instructs that both the corrupt police officials and the paramilitary group Escuardón de la Muerte are still active and at large. [The wife]’s siblings have left Peru due to the threats against her and her parents have been forced to go into hiding …
[The wife] submits she faces serious harm from paramilitary violence in Peru. In his role as State Attorney for [City 1] in [Court 1], [the wife]’s former partner [the husband] attempted to prosecute former police officers for a series of criminal charges in 2007. [The husband] is clearly identified as Counsel for the State ...

In her statement dated 14 December 2021, [the wife] recounts threats against [the husband] and herself due to [the husband]’s involvement in the investigation against former [position] of the Police, [Mr B], and his associates in the court case. These threats were believed to be from the paramilitary group Escuardón de la Muerte.
[The wife] was told that she and her daughter would be killed if [the husband] did not stop his investigations. [The wife] and her family moved to the remote area of [location] in the [District 1] region of Peru to hide from the paramilitary group Escuardón de la Muerte. Annex B indicates that [the wife] reported these incidences of threats to the Peruvian police in [District 1].
Bullets were fired into [the wife]’s residence on two occasions. One of these shootings occurred in 2007, when [the wife] was in hiding in [City 2]. [Mr F], a police officer investigating paramilitary activity, came to [the wife]’s temporary residence and spoke to her about the shooting on approximately four occasions. Annex C consists of a video together with a translated transcript in which [Mr F] confirms that [the wife] was in hiding in [City 2] in 2007 and 2008 due to death threats she received in [City 1].
Police violence and brutality in [City 1] is a serious concern impacting upon the lives of targeted victims such as [the wife] and her daughter. Since the July 2007 enactment of Legislative Decree 982 in Peru, ‘which declares police officers “who in the performance of their duty cause injury or death” unimpeachable’ has resulted in the death and harassment of individuals, predominately in [City 1]. In 2007, [Ms E], [journalist] with [a named newspaper], had received threats following a series of reports published in [2007] which revealed ‘the possible involvement of Peruvian National Police (PNP) officers in a ‘death squad’ blamed for the extrajudicial executions of at least [number] people.’ This report noted that the opening of investigations against these death squads by government officials, such as [the wife]’s partner [the husband], sparked the number of threats being made to public officials, journalists, and judicial officers associated with the investigations.
While Decree 982 was repealed by Decree 1186, which establishes that any use of force by police to achieve a lawful law enforcement purpose must be proportionate to the threat. The OHCHR noted that the enactment of Decree 1182 has not resulted in judicial action against Death Squad police, stating that ‘investigations and judicial proceeding against police and armed forces have as yet not resulted in any criminal charges.’ However, in 2020, the Peruvian Congress enacted the Police Protection Act, Law No 31012 which revoked the proportion provisions of Decree 1182. Human Rights Watch expresses extreme concern at the enactment of this stating that:
‘the new law on police use of force is a recipe for abuse and impunity, instead of building a police force that is professional, effective, and accountable for abuses, Peru’s Congress is sending the message that police can get away with using excessive force, which could cause serious injuries or death.’

Evidently, the threat of abuse of police power has not left Peru. This is particularly troublesome for people with profiles of interest against the Peruvian police, such as [the wife] and her daughter. It is these threats that caused [the wife] and her family to flee Peru for Australia. [The wife] submits that she fears for herself and her daughter should they be forced to return to Peru due to their profile with the police and paramilitary groups ...
Further and alternatively, we submit that [the wife] satisfies the criterion for a protection visa under s 36(2)(aa) of the Act. We submit that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal from Australia to Peru, there is a real risk that she will suffer significant harm, namely:
·arbitrary deprivation of life;
·torture;
·cruel and inhuman treatment or punishment; or
·degrading treatment or punishment.

In particular, the real risk of significant harm against [the wife] may emerge as a necessary and reasonable consequence of her membership of the particular social group referred to [above].
The real risk of significant harm is not one faced by the population of Peru generally, and is faced by [the wife] personally …
[The wife] cannot obtain protection from the State such that there would not be a real risk that she would suffer significant harm …
In our submission, [the wife] is not otherwise excluded from being owed protection obligations by the operation of s5J(1)(c) or s36(2B)(a) of the Act.
We submit that there is no area in Peru where [the wife] would not face a real risk of significant harm. [The wife] reasonably fears that if she were to relocate within Peru, word of her whereabouts would get back to the groups targeting her partner, as both the police and paramilitary groups operate throughout Peru.
If the Member considers that there is an area of the country where there would not be a real risk that [the wife] would suffer significant harm (a contention we reject), we submit that it would not be reasonable for her to relocate to such an area. [The wife]’s gender, imputed profile from her partner, and status as a separated woman with ineffective family protection, long history of domestic violence against her including violence sanctioned by her ex-partner’s family, are all factors that militate against her being able to make a livelihood for herself elsewhere in Peru.

Findings in relation to s.36(2)(a) of the Act
104. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
105. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[6] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]
[6] 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
[7] Sun v MIBP [2016] FCAFC 52 at [69].
[The husband]
106. I accept that [the husband] was conferred a graduate law degree in Peru [in] July 2005 In this light, I find it very hard to accept that he would have worked or acted in the role of Public Prosecutor in 2006 or 2007 having completed only a graduate degree that was conferred in 2005 and given how little, or what brief, professional experience he had by the end of 2007.
107. I accept that [the husband] was employed as a “Court Reporter” in 2005 and 2006, as his three payslips say. No material before me supports claims to the effect that in 2005 or 2006, or for that matter in 2007, [the husband] had the job or acting duties of “Public Prosecutor” or “State Attorney.” I find that [the husband]’s arguments to the effect that the title “Court Reporter” only refers to one of the key activities of a prosecutor in laying out the state’s case in and before the Court, are all obfuscations, aimed at making a “Court Reporter” sound more high-powered than independent evidence suggests.
108. [The husband] has addressed my concerns about the difference between a “court reporter” and a “prosecutor” in various ways, alternately suggesting that I might be relying on misleading information, including defective interpretation and translations, or just ignorant or close-minded in my consideration of terminologies and/or of the particular jurisdiction in [Region 1].
109. On the evidence overall, I do not accept that the role of “Court Reporter” was any more high-powered or high-level than a clerk with the document-witnessing powers of a justice of the peace. In particular, I do not accept that in his job, actual or acting, [the husband] was directly under a Senior Prosecutor or that there was, while he worked for the [City 1] [Court 1], only one other person with his level of responsibility who was also directly responsible to the Senior Prosecutor.
110. Whereas I have seen independent information about the journalist [Ms E] and “members of the [City 1] judiciary” having received death threats I do not accept on the evidence before me that [the husband] was a member of the [City 1] judiciary, even though he worked for the court as a “Court Reporter.”
111. To sum up, I find with great confidence that [the husband] has greatly exaggerated his significance, profile and prestige in the work of the [City 1] [Court 1] in order to strengthen his claims about having been individually targeted by a death squad.
112. From the beginning, [the husband] has claimed that he and his family were directly targeted and threatened by [a Mr B]-directed death squad because of some elite knowledge he had accrued in the position he held in the [City 1] court. He claimed he was a “key witness” in the trial of [Mr B]. He also claimed he “presented evidence in court which was used to determine the punishment and penalty of political organisations.” These claims are greatly dependent on [the husband]’s claims to have had a much higher profile and range of powers and responsibilities than I accept, on the evidence, he would have ever had. In any event, none of the evidence before me satisfies me that from 2005 to 2008 (or since) [the husband] acquired or held any potentially significant knowledge about [Mr B] or Peru’s death squads.
113. [The husband], supported by [the wife], claims that their home was shot at by one of the death squads in order to coerce [the husband] into removing himself from the case against [Mr B]. In this light, I find it hard to accept that any such attack occurred in 2008, as claimed, since [the husband] claims he had already ceased to work in the court by the end of 2007.
114. My doubts about the evidence of the bullet-strafing incident or incidents are increased because there are no references to such treatment in either of the original protection visa applications, valid or invalid. Similarly the claims about the dead dog and the attack on [the wife] and [the daughter] while they were at home were not made in the original applications. None of these claims or the photographic material or reports intended to support them was presented until August 2021. The claims in the original applications are about “blackmail,” the fear of “being blackmailed” the fear of being “assassinated” and it may be argued that these things broadly encompass the specific harm more recently described. However, I find it very hard to accept that something as concrete and exemplary as bullet-strafing one’s family home in March 2007, or attacking one’s partner and child in the home in January 2007 or the placing of a dead dog at in front of the home was never raised in the original protection visa applications.
115. [The husband] argues that the undated statement from his colleague [Mr C] and the purported police officer statement of 4 December 2014 support his claims that these attacks actually occurred. To be sure, the 4 December 2014 statement says that [the husband] had attended a police station on 27 May 2007 to report that he and his family were receiving death threats in the region of [Region 1], but that’s all it says. It is vague in circumstances where one would reasonably expect the most immediate manifestation(s) of harm to have been reported and recorded. The police statement is also not contemporaneous and no information accompanying this document, not even the attestation of the translator indicating that it is a translation of another document seen by that translator, gives me any confidence in its authority. The statement from the colleague [Mr C] is also vague and does not provide any detail as to how it might even have the authority of being an independent statement of facts. I give neither of these statements any weight in this matter.
116. I give some weight to the fact that [the husband] could not name one single other individual working in the [City 1] court who ever received a death threat, even though the investigation and prosecution of [Mr B] and death squads in the region of [Region 1] must logically have involved many people. For example, neither he nor his contemporary [Mr C] suggest that [Mr C] was ever targeted.
117. I give some weight in this matter to [the husband]’s behaviour after arriving in Australia in 2008. He did not approach the matter of seeking protection here with any expedition, and he has given inconsistent evidence as to why he did not. He has also given inconsistent evidence about whether he ever sought asylum from any other country or its embassy. Over about eight years, he behaved in Australia like a person who wanted to equip himself with sufficient skills to migrate here on skills grounds. He did not apply for asylum until after he failed to meet a key component (his IELTS test) towards the fulfilling of criteria for what’s commonly called a skills visa. I give some weight to the long delay that passed before the applicants brought their protection claims to light.
118. Furthermore, [the husband]’s behaviour in returning to Peru in 2015 is not consistent with his claimed fear of being harmed in the event of returning there because he claimed that nowhere in the country was safe for him due to corrupt authorities being easily able to locate him, and there would arguably be nowhere easier for police and security personnel to monitor than an international airport. I give this concern some cumulative weight.
119. [The husband] has given inconsistent evidence about why he went back to Peru in 2015. He clearly said in his first protection visa application that he went there for “holidays with family” and attested in that application to be telling the truth in every regard. Confronted with the position that such a purpose of travel did not appear congruous with a genuine fear of being persecuted in Peru, [the husband] said he felt obliged to repeat in his protection visa application in 2016 something he had told the Department prior to his travel to Peru in 2015, something that he now said was entirely false. This is not a discrepancy about a marginal issue; it goes to the heart of fear of being persecuted. All this casts doubt on [the husband]’s overall credibility.
120. The specific inconsistency, it will be recalled, arose because [the husband] told me his trip to Peru had nothing at all to do with seeing or spending time his family, but only ever to do with physically gathering evidence from the [City 1] court that he could not have obtained remotely, so that he could submit it in support of an intended protection visa application. One thing that might add substance to this position would be the attachment to either or both of the original protection visa applications, or the later direct submission to the Department, of documents in the possession of the [City 1] court, but no such documents were ever submitted to the Department at any time. As noted, there were payslips and a testamur, but the former would have become [the husband]’s own personal property from the moment he originally received them, as would have been the testamur which, in any event, was issued to him by a university and not a court. On the evidence before me, I do not believe that [the husband] visited Peru in 2015 with even the partial or joint intention of physically gathering evidence in support of an intended protection visa application. I find that this weighs against him as far as his overall credibility in this matter is concerned.
121. As noted, I was surprised that [the husband], who has placed some emphasis on the direct and ruthless agency of [Mr B] in the harm he claims to face, was not up-to-date at the 21 December 2021 hearing with the fact that [Mr B] had died in April. I understand that Australia is a long way from Peru, but anyone generally interested in what [Mr B] might recently be up to, and using the Internet to help ascertain, for example, whether he was still in hiding or had been taken into jail to serve his sentence, could easily find the news find the news of his death in the eight months since it occurred. The impression I have on the evidence before me is that [the husband] has no such genuine significant interest, and I have given this some cumulative weight.
122. [The husband] told me that [Mr B] does not need to be alive for members of the death squads to continue to intend to harm him, but weighing up all the facts he has presented to me, I do not accept that there have ever been any threats made to [the husband] about harming him or his family. Also, I find [the husband]’s claim about threats against him and his family having been dropped or put into some kind of obeyance only on condition that he remain outside of Peru to be far-fetched and fanciful.
123. My overall finding in relation to [the husband]’s claims is that they are unreliable. For this reason, I do not accept that he had any significant knowledge, or profile in the eyes, of death squads, corrupt officials APRA members and supporters, and the like, prior to or concurrent with the investigation and prosecution of [Mr B] and his co-accused.
124. I acknowledge that [the wife’s] claims and evidence is generally consistent with [the husband]’s, but I find [the husband]’s evidence so thoroughgoingly unreliable that the evidence of [the wife], even at its best, does not help him.
125. In any event, [the wife’s] evidence has many of the deficiencies of [the husband]’s own. Supporting statements, whether written or delivered orally to camera, are neither contemporaneous or detailed, and no material has been presented to help argue that they have any independent authority. In the case of the purported [December] 2007 Court acquittal of [Mr B] and [number] others, there is no material linking the translation with any court-authorised original, notwithstanding that a possibly correct case number appears in the English text; hence there is insufficient evidence of its authority. Also in the matter of the purported acquittal, no further information has been presented to support the position that there was any actual acquittal of [Mr B] and the other [number] in December of 2007, so soon as the investigation of their October 2007 offences had commenced; rather, the 2016 protection visa application indicates that the matter was still on foot, or “under investigation” when, in 2008, [the husband] left Peru for Australia. Finally, on [the husband]’s own evidence, particularly the information in the original protection visa application forms about his age professional experience and only being a couple of years out of law school, it is hard to conceive how he could have been one of two actual or even acting “Counsel” assisting the [City 1] [Court 1] before or up to the time of a purported acquittal in December 2007. The existence of this purported acquittal ruling does not help overcome the deficiencies in [the husband]’s evidence. I give it no weight.

126. As I do not accept that [the husband] is a reliable witness in this matter, I give no weight in this matter to the claims made by [the wife] about changes of address between 2006 and 2009 when she and her daughter came to Australia. They may well have changed addresses, particularly after [the husband] departed Peru, but I give no weight to the claimed reasons for those moves.
127. I do not accept that [the husband]’s parents live an unremarkable life thanks to the death squads being satisfied that he has left Peru, as he claimed at the 21 December 2021 hearing. This is because I do not accept [the husband]’s claims about the death threats.
128. I give no weight to [the wife’s] claims insofar as they appear consistent with [the husband]’s, as I do not regard him as a reliable witness in this matter.
129. Ultimately, I am not satisfied on the evidence before me that the three applicants face a real chance of being persecuted in Peru in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. Their claimed fear of being persecuted in Peru is not well founded. They are not refugees.
130. For the reasons given above, I am not satisfied that any of the applicants satisfies the criterion set out in s 36(2)(a) of the Act.
Findings in relation to s.36(2)(aa) of the Act
131. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
132. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
133. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
134. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
135. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
136. Accepting that the applicants are nationals of Peru, I find that Peru is the receiving country in this matter.
137. Essentially, the applicants’ complementary protection claims rely on the same facts as their refugee claims which have failed due to lack of credibility and for not meeting the “real chance” test. In view of my findings of fact, above, those claims must also fail here.
138. Additional claims have been made in relation to the mental and psychological toll, on both [the wife] and [the daughter], in the event of being removed to Peru. In relation to these claims, I find that the claims” relating to rape and abuse of women are baldly speculative and do not meet the “real risk” test, which imposes the same standard as the “real chance” test. The claims about a potential custody dispute with [the wife’s] in-laws, as it were, are also baldly speculative and fail to meet the same test. Having regard to the clams about [the daughter] being tantamount to a foreigner in Peru, and a vulnerable one at that, I am not satisfied on the evidence before me that there would be an intention to inflict significant harm on her, and I also consider the claims baldly speculative, and hence they do not meet the “real risk” test.
139. There are other claims in this case about letting [the daughter] remain in Australia because it is the only society she has ever known, because she has been here twelve of her [age] years, because she is developing well here socially and educationally and because of the detriment she would suffer starting over in what is tantamount to a foreign country. Associated with these claims are social and professional recommendations to the effect that she would benefit psychologically and emotionally, and that Australia would benefit socially and economically, from her being allowed to stay here. These claims do not involve significant harm as exhaustively defined in the Migration Act; they are, rather, humanitarian claims that are outside of the powers of the Tribunal to determine.
140. Having considered all of the evidence before me in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of any of the three applicants being removed from Australia to Peru, there is a real risk that they will suffer significant harm.
141. Accordingly, I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
142. There is no suggestion that either 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, they do not satisfy the criterion in s.36(2).
S.417 request
143. The applicants have asked that, in the event of a negative outcome in this case, the case of [the daughter] in particular be referred to the Minister for intervention on grounds of compassionate circumstances regarding her age, and in the case of [the wife] in particular on grounds of her health and psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
DECISION
144. The Tribunal affirms the decision not to grant the three applicants protection visas.
145. In the matter of case number 1928512 only, the Tribunal finds that [the daughter] is the subject of a duplicate application and that her application is invalid.
Luke Hardy
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 517

20 January 2022

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Immigration

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Statutory Interpretation

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