1714452 (Refugee)

1714452 (Refugee) [2022] AATA 5082 (12 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714452
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Tania Flood
DATE:12 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 December 2022 at 10:22am
CATCHWORDS
REFUGEE – protection visa – Tonga – fear of harm from economic hardship – land dispute with cousins and brothers now essentially resolved – country information – prevailing economic and employment conditions – no evidence provided to support claim of depression – marriage to former protection visa holder now Australian permanent resident and primary care of grandchild – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), (aa), 65, 417
Migration Regulations 1994 (Cth), 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 5 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Tonga, applied for the visa on 19 May 2016. The visa was refused on the basis that the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Tonga now or in the reasonably foreseeable future for the reasons claimed.
The applicant appeared before the Tribunal on 9 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Tonga for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial grounds for believing that as a necessary or foreseeable consequence of him being removed from Australia to Tonga there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a Protection visa the applicant is a [Age 1]-year-old Tongan male from [Island 1]. He was married in Australia on [Date]. He has a brother residing in Australia and a sister residing in [Country 1].
His claims for protection are that he will become homeless and suffer financial hardship and isolation if he returns to Tonga because he has no family to help him. His parents have passed away and he has no other family in Tonga.
He fears the verbal and physical violence his parents experienced from other villagers who tried to kick them out of their house will happen to him. Returning to Tonga will bring back bad memories of that time.
In a submission made by his representative on 6 May 2016 it is declared that the applicant is married to an Australian citizen and the main purpose of the application is to enable a request for Ministerial intervention.
Notwithstanding the above, in a statutory declaration made by the applicant on 6 May 2016 it is claimed that:
He fears arbitrary deprivation of his life and degrading treatment in Tonga.
As a [Age 2]-year-old man married to an Australian citizen he will never get the protection and care that he is receiving in Australia.
He suffers from depression.
Tribunal Hearing
On 9 December 2022 the applicant appeared before the Tribunal to give evidence in support of his case. He was accompanied by his wife who also spoke on his behalf. During the hearing the Tribunal discussed with the applicant his background in Tonga and his claimed fears of returning to Tonga. His testimony is summarised in the below findings and reasons.
FINDINGS AND REASONS
Attached to the Department’s file is a copy of the applicant’s Kingdom of Tonga passport. Based on this information, and in the absence of any information to the contrary, the Tribunal accepts the applicant is a national of Tonga.
Issues relating to his family’s land and property
During the hearing the applicant stated that there is nothing for him to return to in Tonga. He said his parents passed away in 2011 and 2013 and unlike his older and younger brother who each inherited a parcel of his father’s land, he received nothing. He said his brothers would not agree to him growing crops on their land should he return home and that it would be difficult for him to find other work in Tonga.
The applicant gave a confused account of his family’s landownership during the hearing but ultimately it was established that prior to his parent’s death they learnt that the land on which their family house was located in [a] village on [Island 1] while he was growing up in fact belonged to his uncle. He said that when his uncle died his children chased his family out of their home to reclaim their father’s land. He said his family moved to another piece of land which his father owned in the same village and that the land which his brothers inherited from his father is farmland located outside the village.
The applicant stated that his two brothers in Tonga are currently living in [Village]. When asked if there are any ongoing problems between his brothers and his uncle’s children he said that his cousins have also tried to chase his brothers off their farmland despite that it is not theirs. When asked why he indicated that they want more land to raise pigs. Despite this he agreed that his brothers are continuing to live in [Village] and are still farming on their respective pieces of land.
The applicant gave little explanation as to why he was not included in the sharing of his father’s land other than to say it must have been his father’s wish that his older and younger brothers be given an equal share. That said, the applicant claimed to have been living and working in [Island 2] for about 15 years prior to his departure from Tonga in 2012 and this dissociation from the land might account in part for this exclusion.
The applicant did not state that he fears any serious or significant harm from his cousins or other local persons in respect of land title issues and his evidence did not suggest to the Tribunal that he feels aggrieved with his brothers or has any intention of making a claim for his father’s land. In fact, he stated that if required to return to Tonga he would return to [Island 2] where he previously lived for many years to look for work.
The Tribunal has no reason to doubt the applicant’s testimony in this respect and accepts the claims made in respect of his family’s land. Relevantly, the applicant’s brothers remain living in [Village] despite that there might be some friction between them and other family members over land use. In any event, the Tribunal is satisfied the applicant is not planning to return to live in [Village] where he would have no access to land for farming, and that if required to return to Tonga he would rather resettle and find other employment in [Island 2].
Given the above circumstances the Tribunal can see no reason why the applicant would be the target of any harm, including verbal or physical violence, from either members of his extended family or local community for reasons pertaining to land ownership or access to farming land in his [village] even if he was to return there from time to time to visit his family or indeed anywhere in Tonga.
The Tribunal in not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Tonga now or in the reasonably foreseeable future for reasons related to land ownership.
Homelessness and financial hardship
As noted above, the applicant stated that he lived in [Island 2] for 15 years and he said that he performed [job task] work for about 7 of those years. Other than this he said he engaged in food cropping for subsistence. He claimed that it would be very difficult for him to find employment in [Island 2] now and that this would cause him hardship.
During the hearing the Tribunal discussed with the applicant country information which indicates that extended family networks are a source of support among Tongans and that in times of crisis the extended family network acts to protect people[1]. The applicant indicated at the outset of the hearing that he has one brother living in [Country 2], two sisters living in [Country 1] and one brother who has long been resident in Australia. The Tribunal indicated that in light of the country information referred to it might conclude that his siblings abroad will provide him with some initial financial support while he looks to re-establish himself in [Island 2]. The applicant responded that even when his parents were still alive his brother in [Country 2] rarely provided them with any financial assistance. He said his siblings have their own families and it would be hard for any of them to support him in Tonga. While he acknowledged his wife has family in [Island 2] he claims not to know them well as he met and married his wife in Australia. The Tribunal found the applicant’s evidence to be genuine and while it is not persuaded he would be left entirely without support from his family abroad it acknowledges this support might be minimal.
[1] Millennium Development Goals Final Report 2015 Tonga, Government of Tonga, 1 September 2015
A July 2021 Asian Development Bank fact sheet on Tonga states that Tonga is a small island economy with the challenges of geographic isolation, limited human and financial resources, a small domestic market, and high costs of doing business. The country relies significantly on official development assistance and overseas remittances, increasing its vulnerability to external shocks.[2] The Department of Foreign Affairs and Trade’s current Tonga Country Brief includes an economic overview which states that Tonga has faced an economic contraction due to COVID-19, but with donor support, has minimised some of the worst impacts on vulnerable communities. The brief further states that the economy is heavily reliant on remittances from Tongans working overseas as well as foreign aid.[3]
[2] Asian Development Bank Member Fact Sheet, Tonga, ADB, 26 July 2021
[3] Tonga Country Brief, Australian Government Department of Foreign Affairs and Trade
An April 2021 ADB statistical report stated Tonga’s 2020 unemployment rate as 4.4% and 2019 unemployment rates as 3.7 % for females and 2.6% for males.[4] A May 2021 Pacific Community report expected unemployment in Pacific Island Countries and Territories due to COVID-19 to continue to be as high in 2021 as in 2020.[5] The most recent Tonga Labour Force Survey (TLFS), conducted in 2018 stated the total population as 99,600 and the working-age population – ‘the population aged 15 years and above’ as 63,189, 52.3 per cent of which was in the rural part of Tongatapu Island Division, 26.2 per cent in the urban part of Tongatapu and 21.5 per cent in the other Island Divisions. The labour force – ‘persons aged 15 years and above who were either employed (in paid employment, self-employed and unpaid family workers) or unemployed (without work and available for work) – was 29,504.[6]
[4] Basic Statistics 2021, Statistics and Data Innovation Unit, ADB, 28 April 2021
[5] Changes in Consumer Prices in Selected Pacific Island Countries and Territories in 2020, Lal N, Statistics for Development Division, Pacific Community (SPC), May 2021
[6] Tonga Labour Force Survey (TLFS) 2018) Analytical Report, Tonga Statistics Department, Government of Tonga.
The TLFS report further states that by economic sector, manufacturing accounted for the largest share of employment, corresponding to 20.4 per cent. About 19.8 per cent were employed in agriculture, forestry and fishing, followed by 9.0 per cent in administrative and support service activities and 8.6 per cent in construction. The largest sector of employment for men was agriculture, forestry and fishing (33.8 per cent). The informal sector accounted for 46.8 percent of total employment, 52.9 per cent of male employment and 39.0 per cent of female employment. From a total working-age population of 63,189 about 52,544 persons (83.2 per cent) reported being engaged in some form of subsistence production, with women accounting for 55.5 per cent and men for 44.5 per cent. More than half of all those engaged in own-use production work (50.9 per cent) were based in Tongatapu Rural.
Having considered the above information, the Tribunal accepts that formal employment opportunities in Tonga are likely lacking and that this drives migration of Tongans overseas. The Tribunal accepts the applicant may initially experience some difficulties finding employment in the formal sector however he remains of working age and was able to secure stable employment in [Island 2] in the past. In any event, there is nothing before the Tribunal to conclude that any difficulties he might face in this regard would be for any of the reasons outlined in s.5J(1)(a) of the Act. In the Tribunal’s view, and as discussed with the applicant during the hearing, the feared economic hardship he may encounter would be due to the prevailing economic and employment situation in the country. Nor is there evidence to support that any of the difficulties the applicant might endure would be for reason of actions intentionally inflicted upon him with a view to harming him. Accordingly, the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Tonga for reason of economic hardship.
Isolation
The applicant has lived outside of his country for some ten years now and based on his evidence he has few close familial contacts in Tonga. The Tribunal accepts, based on his wife’s evidence, that she would be reluctant to return to Tonga with him given her claimed past history of domestic violence at the hands of her ex-husband. The Tribunal accepts he will not get the protection and care in Tonga that he is currently receiving from his wife in Australia.
However, the Tribunal notes, contrary to the information contained in the application for a Protection visa, that the applicant has two brothers living in [Island 1] and as found above it does not consider he would be at risk of any serious or significant harm should he return there to visit his family from time to time. There is no evidence before the Tribunal to support that the applicant would be shunned by his family members in [Island 1] particularly as he has expressed no intention to infringe upon their land. While it is acknowledged the applicant states in his statutory declaration dated 6 May 2016 that he suffers from depression he has presented no medical evidence to support that any health problems he has will be exacerbated or would make him particularly vulnerable should he be required to return to Tonga alone. The Tribunal accepts the applicant may experience some social isolation, at least initially, and that he will miss the care and support of his wife should he be required to return to Tonga but based on the available evidence it is not satisfied that this will amount to serious or significant harm.
For completion, the Tribunal put it to the applicant that based on the information before it, it is difficult to conclude he would be arbitrarily deprived of life and/or subjected to degrading treatment in Tonga, as is claimed in his statutory declaration dated 6 May 2016. The applicant repeated his abovementioned testimony that his brothers won’t accept him co-farming on their land and it will be hard for him to survive in Tonga. For the same reasons expressed above, the Tribunal does not accept that the applicant satisfies the criteria for a finding that he will suffer significant harm, including being arbitrarily deprived of life or subjected to degrading treatment on return to Tonga, for reason of him finding it difficult to obtain employment or for any other reason.
The applicant did not claim to fear returning to Tonga for any other reasons.
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). For the same reasons already articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Tonga there is a real risk that he will suffer significant harm. Accordingly, 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).
Recommendation for consideration of Ministerial intervention
The Tribunal notes that under s.417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so. The Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with care and compassion’ where an individual’s situation involves ‘unique and exceptional’ circumstances, which are said to include:
- Compassionate circumstances regarding the applicant’s age and/or health and/or psychological state such that failure to recognise them would result in irreparable harm and continuing hardship to the applicant.
- Strong compassionate circumstances such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or permanent resident should the applicant leave the country.
The applicant has resided continuously in Australia for ten years and has been married to an Australian permanent resident for [Number] years. His wife was formerly granted a Protection visa after she fled domestic violence in Tonga and she indicated to the Tribunal that she cannot return to Tonga with the applicant because she still fears harm there for this reason. During the hearing she and the applicant testified that following the breakdown of her son’s relationship they have assumed primary care of their grandchild. The applicant’s wife testified that she and her family are dependent on the financial and emotional support of the applicant and she was demonstrably emotionally fraught about the prospect of being separated from her husband in the event he is required to return to Tonga.
Given the length of time the applicant has resided in Australia, his close emotional connections and links to an Australian permanent resident and her family, his advancing age and limited personal ties in Tonga, the Tribunal considers the circumstances warrant that it recommends to the Department that it conducts an assessment of the applicant’s circumstances, including a consideration of the matters raised above and, accordingly, provides an appropriate submission to the Minister for his consideration.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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 5082

12 December 2022

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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