1713671 (Refugee)

1713671 (Refugee) [2020] AATA 5377 (9 November 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713671
COUNTRY OF REFERENCE:                   Philippines
MEMBER:Rodger Shanahan
DATE OF DECISION:  9 November 2020
DATE CORRIGENDUM
SIGNED:9 December 2020
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
In paragraph 47, the country of reference ‘Malaysia’ should be replaced with ‘Philippines’.

Rodger Shanahan
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1713671

COUNTRY OF REFERENCE: Philippines
MEMBER:Rodger Shanahan
DATE:9 November 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 November 2020 at 1:23pm

CATCHWORDS
REFUGEE – protection visa – Philippines – particular social group – security agency leader – assassination attempt from unknown people – attack on home – shooting of a neighbour – delay in applying for protection – temporary visa expired – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Philippines, applied for the visa on 4 November 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed that he was the [Position 1] of [Agency 1] from 2008 until he left the Philippines. During this time he was also recruited by the [Security Organisation 1] to be a confidential agent. He was also a member of [another named agency].
In February 2011 he survived an assassination attempt from unknown people and therefore didn’t know where he would be safe in the Philippines. He knew he wouldn’t be safe and tried to get a visitor’s visa to Australia which he did in May 2011 and arrived in Australia in August 2011.
He didn’t know who to seek protection from in the Philippines and tried to move to another region, but he never felt safe. He thinks the people behind the assassination attempt work all over the country.
AAT Hearing
The applicant was told about the presence of a s 438 certificate in which an accusation was made that the applicant and his family recruited people from their village in the Philippines to work in Australia. The member did not believe that it was pertinent to his claim to fear serious harm so would not be taken into account.
The applicant claimed that if he returned to the Philippines, he didn’t know who would harm him but last January his house was shot at. Asked what harm he feared would happen to him, he claimed that he didn’t know what would happen to him but his house had been shot at four times already. Asked why he believed that he was being targeted, he claimed that perhaps he was a [Agency 1] [Position 1] some years previously and they may be envious of him.
He claimed that he came to Australia because he used to ride a motorbike in the Philippines and he was shot at. Asked when it was, he said it was a long time ago but before he came to Australia. It was put to him that the Tribunal assumed he would have refreshed his memory prior to the hearing and was asked for a more accurate time. He claimed it happened a long time ago and he was old. Asked how old he was he said he was [age] – the member told him that he was [older age] so [the first age] wasn’t old and that if someone had shot at the member, the member would have recalled with a pretty good idea of when the incident occurred.
He was again asked when it occurred, and he claimed that it was perhaps 2010 but couldn’t recall the month. Asked to confirm this, he said he wasn’t sure but was just before he came to Australia. Asked if he was saying he couldn’t recall what year he was shot, he said he recalled at the time but a long time had passed. Asked if anything else had occurred, he said a neighbour had been killed (before he came to Australia – he was asked when and said it may have been 2010). Asked if he mentioned the neighbour’s death before, he claimed that he may have mentioned it at his DIBP interview but a long time had passed. He confirmed that he believed he had mentioned it at interview.
He also said that he woke up one morning and a wreath had been placed on the stairs with a note saying ‘You will be next’. Asked when this occurred, he claimed it was also the same time his neighbour was killed – in 2010. Asked to confirm that this was what the note said, he claimed that it said ‘You will now be next’.
Asked about the incident when he was shot, he claimed that he was going to town for duty with [Agency 1] as a volunteer during times of calamity. He reached the top of the road and a following motorcycle shot at him and he fell into a canal and couldn’t remember anything after that. Asked where the attackers were and how many there were, he claimed he wasn’t sure about how many but they were following him and they shot at him and he fell into the canal.
He reported to the police but they said they didn’t get any evidence. Asked what part of the government that [Agency 1] belonged to, he claimed that it was a private entity supporting. It was put to him that he had an ID card and he claimed that he attached it to his application. It was put to him that the ID said [Agency 1] was part of the Armed Forces of the Philippines (AFP).
He said it was organised by [an occupation 1] but they did it through the local army camp where they recruited local [positions] for the villages. He wasn’t paid but was issued an ID by the AFP. Asked if he reported the shooting to the AFP, he claimed only at the village level. Asked to confirm that he reported it to the police and the AFP, he claimed that he feared so he didn’t report it higher than the village.
Asked if he had any evidence of the wreath or the shooting, he claimed that he didn’t. When he was shot at, his cell phone got lost in the canal. Asked to confirm that he felt in fear of his life when he was shot at, he confirmed this was correct. Asked why he came to Australia, he claimed he was fearful of his safety and came to escape from the people who may kill him.
Asked when he received his Australian visa, he said that he couldn’t remember as he was forgetful. Asked if he travelled as soon as he received his visa, he claimed that he didn’t as he had a business that he couldn’t leave. He had to complete his business before he left. Asked what he meant by this, he claimed that he had [items] to deliver. It was put to him that if his life was in danger surely losing some money over [these items] would have been much less of a worry. He claimed that he didn’t do his duties, just completed his [items] and delivered them.
Asked if he applied for protection once he arrived in Australia, he claimed it took some time as he didn’t know the process. Asked how much time it took – weeks or months, he claimed that it was about four years. Asked why it took so long if he claimed he feared for his life when he arrived in Australia, he claimed that he didn’t know the process until he met a friend and then applied. Asked what he had done himself to find out the necessary process, such as visiting the immigration department or using their interpreters to enquire, he claimed that he only talked to his friend who accompanied him to immigration.
He applied for a visa that was good for 28 days then applied for protection. Asked when he applied for the 28-day visa, he claimed that the protection visa was on the 17^th. He couldn’t remember the month. Asked what year it was he claimed the protection visa was 2017. He was asked again why he himself did nothing about applying for protection in the years prior and he claimed he had no knowledge of the system as he wasn’t educated.
Asked about his claim that his house was shot at four times, he said he had some pictures and the daughter was willing to accept a call if the Tribunal wished to call her. He was told he needed to put her on his acceptance form as a witness if he wished for her to be called. He said it was out of his mind when replying to the Tribunal. He was afraid as all his daughters were in the house now.
The shots were fired in January. Asked why someone would be firing shots at the house given he hadn’t been there for nine years and he said he didn’t know. It was put to him that he appeared not to know who was after him or why. He said he didn’t know why anyone would be trying to harm him as he was a quiet person. Asked if his daughters had reported the shooting to the police and said they had. Asked if he had copies of the police reports, he claimed that he didn’t as he only had reports from the village council about his shooting. He said the Tribunal could call his daughter and he was told that it was up to him to provide the evidence.
Asked how long there was between him being shot at and the wreath, he claimed that it was only a few days. Asked what he did after he was shot at, he claimed that he didn’t even recall going home but he did. He stayed there until he came to Australia.
He was advised about s 424AA and it was put to him that during his DIBP interview he said the note on the wreath said ‘We will bury you’ whereas he had said today that it said ‘You are next’ which was an inconsistency that may go to issues of his credibility. He claimed that he couldn’t remember exactly as he was very forgetful but they meant the same.
It was also put to him that he told DIBP that after he was shot at he changed the place where he lived before coming to Australia, yet at hearing he claimed that he went back home and stayed there until he came to Australia. The inconsistencies between these answers could go to issues of his credibility. He claimed that he was still attending to his business at home and would return there from some time to time but apologised for this as he was forgetful now. Asked if he had any medical evidence that he was forgetful, he claimed that he couldn’t get tested because of his situation (he was working to spend money to his family but now he may have the chance to have spare money to spend on a medical check-up).
It was also put to him under s 424 AA that in his DIBP interview he had denied on two occasions whether he had applied for visas for other countries but denied this until it was pointed out to him that he had been fingerprinted as part of his application for a [Country 1] visa. He claimed that he applied for a business trade exhibition visa for [Country 1] but the application was denied. Asked if he noted this on his Australian tourist or protection visa applications, he claimed that he mentioned this in the interview but said no on the form because he had applied for a business trip.
Also under s 424AA he had claimed that the shooting incident occurred in February 2011, today he said he couldn’t recall but believed it was 2010. He waited more than two months after getting his tourist visa before coming to Australia, he stayed in Australia as an unlawful non-citizen for four years without applying for protection. The Tribunal’s concern was that he came here for economic reasons and there were no problems for him in the Philippines and the claim was fabricated. His actions did not appear to be those of someone fearing serious harm in the Philippines.
He claimed that he couldn’t do anything for himself until he met someone who could help him with applying for protection. He had tried to be legalised here and wanted to apply for a tax file number so he could begin paying tax.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a tourist visa [in] August 2011 that was valid until [September] 2011. He then remained an unlawful non-citizen until he applied for a protection visa ion 4 November 2015. I have sighted a copy of his passport and accept that the Philippines is the applicant’s country of nationality.
The Tribunal exercised its discretion to hold the hearing via Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by this means, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant is [an age] year-old, married male. He claimed that he feared being harmed by unknown assailants if he returned to the Philippines because he was a [Position 1] of [Agency 1].
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.
Attack in Philippines
I accept that the applicant may have had some connection with [Agency 1] and the [Security Organisation 1] at some stage. I note however that the [Security Organisation 1] ID card he provided was only valid until [April] 2009. And when he was asked who [Agency 1] belonged to, he claimed that it was a private entity. Yet his [Agency 1] ID card was issued by the AFP. I do not accept that any role he may have had with either organisation has caused him to be of any adverse interest to any party.
I do not accept that the applicant was ever attacked by gunmen while the applicant was on a motorbike. At hearing he was vague about the date of the attack, originally saying only that it was a long time ago before he came to Australia, then after being pressed that it was perhaps in 2010 but that he couldn’t remember the month. In his protection visa application he claimed that it occurred in February 2011.
It is reasonable to believe that such an important event would be remembered by the applicant to a much greater degree than he was able. I do not accept that his memory was failing because of age (he was virtually the same age as the member) or for any medical reason as no medical evidence was tendered to support such a claim.
His actions following the alleged attack are either internally inconsistent or inconsistent with the fear he claimed. He stated that he was in fear for his life after the attack and in his DIBP interview that he changed the place where he lived before he came to Australia. Yet at hearing he went home and stayed there until he came to Australia. I do not accept his vague claim that he meant he was attending to business at home and would return there from time to time as this was not what he said on either occasion.
He also waited for nearly two months after getting his tourist visa to come to Australia before leaving the Philippines and waited nearly four years after arriving in Australia before he applied for protection (after having been an illegal non-citizen nearly all that time). I do not accept that he had to wait to find someone to help him apply for protection given that he appears to not even enquired with any immigration authorities or migration agents to start the process. His actions of staying illegally for those four years are also indicative of a person seeking economic benefit rather than physical security.
I also do not accept that any wreath was laid at his house with a threatening note. In his DIBP interview he claimed that the note said ‘We will bury you’, yet at hearing he claimed that the note said ‘You will be next’. I do not accept that they essentially meant the same thing, as the issue is his credibility and the recall of the wording was sufficiently different to raise serious doubts as the to the veracity of this claim.
Other Issues
I do not accept that a neighbour was shot and killed in 2010, given the applicant never mentioned it in his protection visa application. He claimed that he thought he mentioned it at the DIBP interview but provided no evidence in support of this. I also do not accept that the applicant’s house was shot at four times in January 2020.

He could not give a reason why his house would be targeted more than nine years after he had last lived in it. I have taken into account two letters written by his daughters post-hearing but I lend them little weight. Not only are they not objective witnesses, but they speak of a single gunshot fired in late 2019 which is inconsistent with the applicant’s own testimony. I also note that none of the photos of the early incidents that he claimed to possess were provided post-hearing.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5J reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever shot at on his motorcycle, ever had a wreath left at his house, or that the house has ever been shot at, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims.
I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 5377

9 November 2020

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Immigration

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