1715425 (Refugee)

1715425 (Refugee) [2018] AATA 1008 (19 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715425
COUNTRY OF REFERENCE:                  Papua New Guinea
MEMBER:Ann Brandon-Baker
DATE:19 March 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 19 March 2018 at 1:24pm

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Domestic violence victim – Physically and verbally abused by de facto partner – Alleged kidnap attempts of daughter by de facto partner – No well-founded fear of persecution
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 499
Migration Regulations 1994 Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on [date] July 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Papua New Guinea applied for the visas on [date] April 2016. The delegate refused to grant the visas on the basis that the primary applicant was not a person to whom Australia owed protection obligations.
BACKGROUND
The applicant provided the Tribunal with a copy of the delegate’s decision along with her application for review.
The applicant is a citizen of Papua New Guinea born on [date]. The department of immigration has indicated that the applicant’s Papua New Guinea passport is valid and not a bogus document. The Tribunal is equally satisfied that the applicant is a citizen of Papua New Guinea.
The delegate also considered the identity and relationship of the two claimed dependents on the applicant’s application and found that they were members of the same family unit as the applicant and that the documents presented are genuine.
The applicant made the following claims to the delegate:
a.The applicant’s de-facto partner, [Mr A], is the father of her youngest daughter [(a party to this application)].
b.She tried to obtain restraining orders against [Mr A] but he continued to go to her house and hurt and threaten her and was verbally abusive to her in public. [Mr A] was physically, emotionally and mentally abused by [Mr A].
c.The court, police and judicial system are corrupt and she will not receive any justice idn relation to her claims against [Mr A] for child maintenance.
d.[Mr A] got involved with witchcraft to kill the applicant and her children; her children became sick and lost weight.
e.The applicant had to move around constantly in order to avoid [Mr A]
f.She was falsely accused of assault against [Mr A] and spent a night in prison
g.In January 2016 [Mr A] stabbed her [but] did not report it because when she had reported incidents in the past nothing ever happened.
h.She is afraid that [Mr A] may take her daughter away from her if she returns to PNG.
i.She cannot relocate as she would be unable to support herself outside her own area and has no ties or kinship links.
j.The applicant also claims that she may be harmed by other men in the community if she is returned to PNG.
The delegate formed a view that the applicant did not face domestic violence incidents from [Mr A] as she was unable to give any specificity about the alleged incidents. The delegate also noted that despite being granted tourist visas in November 2015, she did not depart PNG until [date] March 2016, a delay of four months.
In two statutory declarations dated [August] 2017, the applicant restated the claims summarised above.
The applicant also provided the Tribunal with the following documents:
a.a letter from [Organisation 1] dated [November] 2017 stating that the applicant and her two children entered their refuge on [date] May 2016 after escaping domestic violence. The letter details that the applicant attended weekly case management meetings over a period of 21 months. It is the view of the service that the applicant and her children suffered and were exposed to severe physical and emotional abuse prior to entering Australia.
b.a further statement from the applicant outlines the use of witchcraft against her and photographs claiming to show that the children had lost weight and their health position was very poor.
c.A statutory declaration from [Mr B] in Papua New Guinea claiming to be the applicant’s brother in-law and stating that he has been living with the applicant’s family since 2008 and is married to her younger sister. [Mr B] states that he and his wife have adopted the applicant’s second born son [because] the applicant couldn’t afford to take care of him. [Mr B] states that it is not safe for the applicant and her children to return.
d.School reports for the applicant’s son [stating] that he is an excellent student.
These documents and all the other evidence on the Tribunal’s and department’s files, along with the oral evidence provided by the applicant at the Tribunal’s hearing have been taken into consideration by the Tribunal in coming to its decision. Where relevant they are discussed in the findings and reasons below.
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 themself 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.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 issue in this case is whether Australia has protection obligations to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CREDIBILITY
The Tribunal's task of fact-finding may involve an assessment of an applicant's credibility. In this context, the Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility.
The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt' (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191] as follows:
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
The Tribunal put to the applicant its concerns about her credibility during the Tribunal hearing and this matter is dealt with in the context of the findings and reasons below.
Tribunal hearing
The applicant’s evidence at the hearing was evasive, incomplete, lacking in relevant detail and frequently implausible. The Tribunal understands that people are nervous at a hearing however the Tribunal was satisfied that the applicant was given a fair hearing and every opportunity to put her evidence, clarify and restate remarks and otherwise respond to the Tribunal’s particularised concerns.
For the following reasons, the Tribunal is not satisfied that the applicant is a person to whom Australia’s protection obligations are owed.
FINDINGS AND REASONS
Well-founded fear of persecution
The applicant claims that she has a well-founded fear of persecution. The Tribunal has considered the applicants claims for reasons of her being a woman who has fled an abusive relationship. An integer of that claim that the Tribunal has also considered is whether the applicant has a well-founded fear of persecution for reasons of being a woman in Papua New Guinea. The applicant claims that she is unable to receive effective protection for herself in Papua New Guinea. The applicant claims that as a necessary and foreseeable consequence of being removed from Australia to Papua New Guinea, there is a real risk that she will be killed.
In considering whether the applicant has a well-founded fear of persecution in PNG, the Tribunal has considered independent country information. There is ample evidence concerning the extent of violence against women in PNG.
Country information available to the Tribunal provides general background support for the applicant's claim to fear violence at the hands of her ex-husband. Among this information is a comprehensive and recent report prepared by Medecins Sans Frontières[1] which states, in part:
In Papua New Guinea, women and children endure shockingly high levels of family violence and sexual violence with rates of abuse estimated to be some of the highest in the world outside a conflict zone.
This is backed up by the experience of Médecins Sans Frontières/Doctors Without Borders (MSF), which has treated 27,993 survivors of family and sexual violence in the country since 2007.
In 2014 and 2015, some 3,056 people sought care for the first time in MSF-run family Support Centres in the capital, Port Moresby, and in Tari, in the Highlands region. Their accounts provide important insights into the patterns of intimate partner violence, family violence and sexual violence in these areas. Their experiences suggest that large numbers of people are suffering grave physical and psychological wounds in the very place they should feel the safest – within their homes and families.
The overwhelming majority – 94 percent – of these patients were female.
Most had been injured by their partners, family or community members, and in more than a quarter of all incidents involving intimate partners, the women had been threatened with death. Nearly all – 97 percent – of those patients had injuries that required treatment. Two in three had been attacked with weapons, including sticks, knives, machetes and blunt instruments.
[1] “Return to Abuser: Gaps and a failure to protect survivors of family and sexual violence in Papua New Guinea”, Medecins Sans Frontieres, March 2016.
Other reporting[2] supports a conclusion that rates of domestic violence are very high in Papua New Guinea, with as many as 70 per cent of women experiencing family or sexual violence at least once in their lifetime.
[2] See for example, “Papua New Guinea 2015 Human Rights Report”, United States Department of State, April 2016; “Domestic Cruelty: The Violent Scourge of Papua New Guinea”, ABC March 2016; “Women seek islands of refuge in Papua New Guinea’s sea of violence”, Guardian (Australian Edition) March 2016; “Bashed up: Family Violence in Papua New Guinea”, Human Rights Watch, November 2015.
While there have been some recent measures to improve the responses of the police and the judicial system to these problems, effective state protection is largely absent. There is evidence of unwillingness on the part of the police, particularly in rural areas but also to some extent in Port Moresby and other major population centres, to regard domestic violence against women as a suitable matter for official action and a tendency to dismiss complaints or abet the offender. The judicial system, in particular at village level, has demonstrated a general inability or unwillingness to penalize the few offenders who are charged and brought before the courts.
The applicant claims she decided to come to Australia to escape from a “terrifying” life with her ex-partner who had been verbally, physically and emotionally abusive towards her. They were not officially married and never lived together in the same house. She claims that it was only after she had their daughter that he told her that he had other wives and children. She said that he lived with them. She and her children were living with her parents as her ex-partner never provided her with any accommodation and did not support their daughter financially. She said that she took him to court to get maintenance and has provided court documents supporting these claims. She told the Tribunal that as a result of her court action her ex-partner became more aggressive towards her and physically attacked her when she went to his office every fortnight to get money from him. She claims that he approached her one day when she was at the market towards the end of 2015 and stabbed her because she applied for child maintenance.
The applicant told the Tribunal that she had to flee to the settlements and moved from house to house so that her ex-partner would not find her. She said that this affected her children a lot and they could not go to school and lost a lot of weight. She says that her ex-partner used witchcraft against her and sent bad spirits in the form of animals around to her mother’s house. She said it affected her health.
The applicant told the Tribunal that she cannot return to PNG because she is afraid of her ex-partner and he comes from a bad background of criminals and politicians. She says that because of these connections the police will not help her. She says that her life would be in danger if she returned.
The Tribunal asked the applicant whether her ex-partner had sought her out prior to her departure from PNG and she said that he had not. She said that she had to go to his office every fortnight to get money from him. She said she sometimes went to his house. The Tribunal asked why he would be motivated to seek her out and harm her if she returned to PNG and she claimed that he considered herself and their daughter as his property and that he would find her and hurt her and take her daughter away.
The applicant told the Tribunal that her ex-partner had tried to take their daughter before she left PNG. She said that he had arranged to have her arrested so that he could take their daughter when she was in prison overnight. Asked if he did take their daughter whilst she was in jail she said that he didn’t. She said that he sent the police three times to have her arrested but she ran away. Asked if she left her daughter at the house when she ran away she said that she did. The Tribunal put to the applicant that if her ex-partner did indeed want to kidnap their daughter he had several opportunities, manufactured by himself expressly for the purpose, but nevertheless did not do so. The Tribunal put to the applicant that it found her account implausible and was not satisfied that her ex-partner had any motivation to seek her out to harm her should she return to PNG. The applicant said that she was afraid that he would kill her and the police won’t help her.
The applicant’s accounts of her assaults by her ex-partner also appeared implausible to the Tribunal. She claimed that she had to seek him out every fortnight for money for their daughter, which she claims that he did not pay, and was physically assaulted by him every time. Apart from the market incident, she did not recount to the Tribunal any other incident of violence towards her from her ex-partner. The Tribunal does not accept that someone who claims to have been “terrified” of her ex-partner would nevertheless seek him out every fortnight, knowing that she could expect to be assaulted by him, to ask for money that he never gave her. It simply defies logic.
Nor does the Tribunal accept that her ex-partner would be motivated to stab her in a public place. The applicant told the Tribunal that the incident happened in around November 2015. The incident was not reported to the police and she was not hospitalised. The applicant claims she fled to the settlements to get away from him. Asked if this incident happened before or after she got her visa she said it was after. She told the Tribunal that she received her visa in November 2015 and left PNG on [date] March 2016. The Tribunal put to the applicant that if she was indeed terrified for her life and that of her daughters at this time, it seemed incongruous that she nevertheless remained in PNG for four months whilst she was in possession of a visa to leave. The applicant said that she had no support and no money to leave and it wasn’t until she told her cousin [her] story that he lent her some money so that she could depart. The tribunal does not accept that someone who has claimed to be “terrified” for her life would remain in such circumstances whilst in the possession of visas to travel to Australia with her two children.

The Tribunal questioned the applicant about how she obtained passports for the children in her father’s name and she claims that she couldn’t get their respective father’s to sign the forms. She said that she obtained her own passport in 2012, her son’s in 2013 and her daughters in August 2014. The Tribunal put to her that she could in fact be seen as having removed two children from PNG without the permission of their fathers. The applicant said that she just wanted to get out of PNG and her life was so terrifying.
The Tribunal put to the applicant the contents of an affidavit in response provided by her ex-partner in relation to the court matter in PNG. This was a document she had provided to the department to support her claims. In this affidavit the applicant’s ex-partner denied that he was the father of the applicant’s daughter. He claims that he supported her financially with around [amount] kina per fortnight along with extra cash until she told him that the child was not his. The applicant told the Tribunal that it was all lies.
The Tribunal has considered the letter from [Organisation 1] stating that the applicant and her two children have experienced and been exposed to severe physical and emotional abuse prior to entering Australia. The Tribunal notes that [name deleted] of the service relies entirely on the applicant’s account of her life and departure in PNG and has no reason to question it. The applicant and her children have been living under the care of the service and provided with accommodation and a payment of over $1,000 per fortnight from the Department of Home Affairs since their arrival. The Tribunal places some weight on the fact that two separate entities found the applicant’s account convincing such that they have provided her with such extensive services and support. However in the context of all the circumstances, and in particular the applicant’s credibility, the Tribunal is not minded to give this document and these facts significant counterbalancing weight.
The Tribunal has also considered the statement from [Mr B] supporting the applicant’s claims. However, also for the reasons above, the Tribunal does not give this document any weight.
The Tribunal finds the account provided by the applicant of her reasons for departing PNG and coming to Australia to seek protection to be fabricated in its entirety.
Given these considerations the Tribunal finds remote the chance the applicant would face significant harm on return to PNG for the reasons claimed, or indeed for any reason.
CONCLUSIONS
The Tribunal finds the applicant does not have a well-founded fear of persecution on return to PNG. 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).
Having found that the applicant’s account of her reasons for departing PNG and for not wishing to return are entirely fabricated, the Tribunal is therefore 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).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
A B Baker
Senior 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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 1008

19 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction