1717659 (Refugee)

1717659 (Refugee) [2021] AATA 4511 (18 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717659
COUNTRY OF REFERENCE:                   China
MEMBER:Mr S Norman
DATE:18 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 November 2021 at 1:50pm
CATCHWORDS
REFUGEE – Protection visa – China – religion – Christian – applicant departed China lawfully on a passport in his own name – failed asylum seeker – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 and Border Protection on 1 August 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 China, applied for the visa on 15 May 2017. The Department decision was not lodged with the Tribunal.
The applicant attended a Tribunal hearing on 15 November 2021.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s receiving country / section 36(3)-(5A) of the Act:
The applicant (DOB: [redacted]), lodged the following with his PV application:[1]
[Passport details redacted]
[1] Department – folio 13.
The Tribunal accepts the applicant is a citizen of China, and that China is his receiving country.
In the absence of material evidence to the contrary, the Tribunal accepts the applicant does not have third country protection pursuant to s.36(3)-(5A) of the Act.
The applicant’s migration history:
The applicant’s migration history follows: [details redacted]
The applicant’s claims:
In his PV application, the applicant claimed he had resided in Dezhou city, Shandong province China (between [birth]- March 2017[2]); that he only speaks, reads and writes in Mandarin[3]; that he previously worked as a company manager ([specified industry][4]); that he was not in contact with relatives outside Australia[5]; and that he departed China lawfully on a passport in his own name.[6] The applicant had also claimed:[7]
·     His parents believed in God and Christianity, and he attended secret churches. The Chinese government had ‘outlawed any religion apart from Christianity’ – as they were seen as cults
·     The applicant was subsequently taken from his home and detained, and he was hit on his back and left leg. He admitted he was a Christian which led to further abuse. He was also deprived of food and sleep
·     After admitting he was a Christian, he was eventually allowed to return home. Those who did not confess were forced to remain in the labour camp until they died
·     The applicant was traumatised after being released from the labour camp and he tried to seek support from his community, but people were afraid of being implicated by association with him; and this could result in people around him being arrested. However, his parents were supportive
·     The applicant departed China because of the mental and physical harm he suffered when detained in a labour camp. He also fled as he was unable to practise his religion in China. He feared further prosecution if he tried to speak to God
·     He also believed it was impossible to live a free life and be a Christian in China. He also fears living his life in a labour camp
·     The applicant also believed that relocation was futile as the government’s religious stance was nationwide. He also said the authorities would therefore offer no protection because it was the government which mandates the harm
[2] Department – folio 36.
[3] Department - folio 47.
[4] Department – folio 34.
[5] Department – folio 43.
[6] Department – folio 26.
[7] Department – from folio 31.
Amongst other things, more recent country information stated:
3.82 Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work, or liaise with registered churches, in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.[8]
[8] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
At hearing, and for the first time, the applicant said that most of the material evidence provided in his PV form was false. He said that shortly after arriving and then commencing work in Australia, a work colleague (who had since returned to China), had prepared the PV form for him. Therefore, the applicant is now saying the following information is all false:
·     That his parents believed in God and Christianity (except perhaps for a short period in early 2016 - and the parents were said to reside in a village close to and under the administration of a nearby city)
·     That he attended secret churches in China (he claimed this never occurred)
·     The applicant was subsequently taken from his home and detained (he now claims to have been detained at a police station)
·     That he admitted he was a Christian which led to further abuse (at hearing the applicant said he was never a Christian – and he did not claim to practise either in China or Australia)
·     That after admitting he was a Christian, he was allowed to return home (this was also false)
·     Those who did not confess were forced to remain in the labour camp until they died (this was also false)
·     The applicant also fled as he was unable to practise his religion in China. He feared further prosecution if he tried to speak to God (this is also false)
·     That he worked as a ‘[Occupation 1]’ until February 2017 (at hearing he said he lost this employment in April 2016)
At hearing, and when asked why he had not provided the allegedly correct evidence sooner, the applicant said he could not speak English, and it was all the fault of the work colleague who had prepared the PV form (though the applicant declared the information in the PV form was true and correct, prior to lodging the PV[9]).
[9] Department – folio 27.
When then asked what his new claims were, the applicant said (for the first time):
·     In January 2016, a family in the village where his parents lived and worked as farmers, introduced them, and others their age, to religious services or meetings, which were only ever held at the family home (being the family home of the village persons who commenced these services or meetings)
·     The applicant was unsure what denomination the services were, and he only ever (on occasion) picked his parents up from the services
·     The applicant’s parents and others, had attended these services around once per week, from January 2016 to April 2016
·     The applicant also said that since the April 2016 incident (discussed below), his parents were no longer engaged in any Christian services or other activity (the applicant did not think that any other house church or underground church, existed in the village)
·     In April 2016, the applicant’s parents and four other persons who were in attendance at the services at the family home, were detained briefly by the authorities
·     The applicant then went to the police station where his parents were being held, and he caused a conflict, which resulted in him being detained (he said unlawfully) for around two months (between April/May/June 2016) – (though as the applicant ‘caused a conflict’ at a police station, the Tribunal does not accept the detention was unlawful)
·     Prior to being detained, the applicant had resided with his ex-wife and (now [age] year old) daughter. After his release, the applicant then resided with his parents
·     After being released, the applicant had also lost his job [in] China
·     The applicant then ‘petitioned’ the government – though the Tribunal was not able to understand what this was about – and he also assisted his parents
·     The applicant later departed China lawfully, on a passport in his own name
·     The applicant departed China because of the mental and physical harm he suffered when detained in a labour camp (though in his PV form he said that since arriving he was ‘touring Australia’[10] - and at hearing the applicant said that since arriving in Australia, he had worked as a fulltime [Occupation 2])
·     The applicant also believed that relocation was futile and the authorities would offer no protection because it was the government which mandates the harm
[10] Department – folio 34.
As noted above, the applicant had initially declared the information in the PV form was true and correct, prior to lodging the PV.[11] Further, the applicant did not attend the PV interview with the Department which had been scheduled for 1 August 2017. Also, the Tribunal’s acknowledgement of the review application letter dated 11 August 2017 advised the applicant inter alia that if he wished ‘to provide material or written arguments for us to consider, [he] should do so as soon as possible’. No material response was received. The Tribunal also issued a s.424(2) letter to the applicant dated 14 September 2021 with response due by 28 September 2021. No response was received. The Tribunal’s hearing invitation letter dated 5 October 2021 also advised the applicant inter alia that the ‘decision made by the department should set out the reasons for the decision, and [he] should have regard to these, and any changes in [his] circumstances, in providing documents and preparing for the hearing’; and that he should please ‘provide all documents [he] intend to rely on to support [his] case by 8 November 2021’. No material response was lodged.
[11] Department – folio 27.
Though the applicant had worked full time in Australia as a [Occupation 2] from (he said) almost immediately after he arrived on [date] March 2017, and though the applicant’s English was not competent, he still managed to be available for the hearing with the Tribunal (based on information provided in the Tribunal hearing invitation letter); and he still managed to locate person/s in Australia, who were sufficiently competent in English to (ie) assist him to inter alia prepare the PV application. In the circumstances, the Tribunal does not accept it is plausible the applicant was totally unaware of the claims he made in the PV form, and I reject his claim to the contrary as false. This is one reason that satisfied the Tribunal the applicant was not generally credible.
Next, though the applicant conceded at hearing that much of what he had said in the PV form was false, the Tribunal still had to struggle to ascertain his new claims. The Tribunal does not accept that evidence which was fairly recent (arising in early to late 2016), and sufficiently significant for the applicant to have departed China, would not have been more readily recalled and in more detail, if same were true. This is another reason that satisfied the Tribunal the applicant was at least, not a reliable witness.
Next, at the commencement of the hearing and when asked, the applicant said he spoke to his parents in China around 1 or 2 times per month and eventually, after repeated questions, he said they were still approached by local government officials every one or two months (sometimes at their own home), in order to check whether inter alia he had returned. The Tribunal noted that country information stated:
5.40 Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.[12]
[12] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
Therefore, the Tribunal said it may not be plausible that government officials would utilise their resources by attending the parents’ home, given they could readily check if he had returned to China (via a government database). The applicant then said his arrest may not have been lawful (he was not certain of this – and if arrested, given he was causing conflict at a police station, the Tribunal would not accept his arrest was unlawful) and the local village officials may not have access to this information. He said that County level officials or above may have access to such information (ie travel).
However, the applicant had also said his home village was close to and under the administration of a nearby city. Therefore, the Tribunal does not accept it plausible that local government (or village) officials in China, or the police, who come within the administration of a nearby city, would not have the capacity to access travel information of local persons who were of adverse interest to them. Also, I do not accept that local government officials would use their resources by fairly regularly checking on inter alia the whereabouts of a local person who was of adverse interest to them when they are otherwise able to ascertain whether or not that person had returned to China. I therefore reject as false that any enquiries were made about the applicant or his whereabouts. This is also another reason that satisfied the Tribunal the applicant was not generally credible. The applicant had also claimed the officials were asking his parents about communications with the applicant but given the Tribunal is not satisfied the applicant was generally credible, I have rejected this claim as false.
Next, the Tribunal did not propose to make the applicant’s case for him. That being said, he made no claim to have taken any precautions prior to departing China on a passport in his own name, which may have been the case if he was of ongoing adverse interest to the Chinese authorities as he now claimed.
Next, the Tribunal noted the applicant departed China lawfully, on a passport in his own name. He did not claim to have any problems departing China, and contrary to his written (false) claim to have been engaged in ‘touring Australia’, the applicant was able to have arranged work in Australia, which he said he commenced virtually immediately after his arrival [in] March 2016, and prior to drafting his PV application. This is another reason that satisfied the Tribunal the applicant was not generally credible as he made no mention of this prior to the hearing.
Next, as noted above the applicant said that after being released from detention in June 2016, he engaged in petitioning in China. However, and given the Tribunal was not satisfied the applicant was generally credible, and I do not accept that the friend who prepared the PV form, and whose English appeared very competent, would not have not included this information if told about it by the applicant (as was claimed at hearing). I therefore reject the claim (of petitioning) as false.
That being said, the Tribunal will accept:
·The applicant separated from his now ex-wife in early 2016 – and his wife and daughter (who is still studying), reside away from the applicant’s parents’ village
·The applicant continued to work [in] China until February 2016 (as claimed in his PV form - and his claim at hearing to have lost his employment after being arrested/detained in April 2016 was false)
·The applicant was never interested in, or imputed as, a Christian either in China or Australia
·The applicant’s parents were never interested in Christianity and they were not arrested and or detained for any reason claimed by the applicant
·The applicant was never arrested or detained in China, for the reason he claimed, or for any reason at all
·The applicant travelled to Australia, in order to commence work

Accordingly, and given these findings, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in China, for any reason discussed above.
Failed asylum seeker:
The country information stated:
5.44 DFAT is not able to verify the treatment of failed asylum seekers returned to China. DFAT has no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention. DFAT is unable to verify whether having sought asylum abroad would worsen the situation of individuals attracting adverse attention from authorities for other reasons. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China …[13]
[13] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
When the gist of this information was put to the applicant at hearing, he said he would be harmed by local village officials on his return to China. However, and for the reasons set out above, the Tribunal was not satisfied the applicant was of any interest to local village officials, or anyone else in China. Further, the Tribunal is satisfied the applicant does not have any relevant profile (in China or Australia), that would give rise to a real chance he would suffer serious (or significant) harm in China, if returned as a failed asylum seeker.
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, 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.
Mr S Norman
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.
…

[2021] AATA 4511

18 November 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice