1720910 (Refugee)

1720910 (Refugee) [2018] AATA 5650 (14 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720910
COUNTRY OF REFERENCE:                  China
MEMBER:Tania Flood
DATE:14 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 December 2018 at 3:42pm
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – political opinion – Communist Party – freedom – dissatisfaction with Chinese society – applicant fears suffering emotional and mental damage living in China – no real chance of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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 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 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 26 August 2015. The delegate refused to grant the visa on 8 December 2015.
On 16 February 2016 the Tribunal (differently constituted) affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court of Australia [in] July 2017 for failure to consider whether there was a real chance the applicant would suffer serious harm for reason of his political opinion and for failure to engage with the question of whether the applicant had a well-founded fear of persecution where he claimed that he would be required to conceal his political beliefs to avoid harm.
The matter is now before the Tribunal pursuant to an order of the Court.
MIGRATION HISTORY
On 5 October 2012 the applicant was granted a [temporary] visa ([subclass]) and he entered Australia [in] October 2012. This visa was valid until 2 October 2013. The applicant applied for a further [temporary] visa on 30 September 2013 which was refused by the Department as the applicant failed to meet the English language requirements. The Department’s decision was affirmed by a differently constituted Tribunal.
The applicant was granted a series of Bridging visas and he made an application for Ministerial Intervention on 18 May 2014 which was not considered on 14 June 2015.
The applicant applied for a Protection visa on 26 August 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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 s.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 there is a real chance the applicant will suffer serious harm on return to China 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 and foreseeable consequence of him being removed from Australia to China there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims and evidence
In his application form for a Protection visa the applicant claims that there is a lack of love, inclusiveness and respect in China. If he returns to China he will lose himself and he won’t be welcomed. He will be under pressure and will be mentally injured. In the past he endured political education when he was young.
Attached to the application for a Protection visa is a written submission which the applicant previously relied on when making an appeal for Ministerial Intervention on 18 May 2014. In this submission he states that he [lived] in Australia for one year and a half and would like to live here. He said people suggested to him various ways of gaining permanent residence in Australia but he did not want to break the law or employ trickery or defame the government of China to do so. He said that there is little possibility that his personal safety will be violated but he is sure that his mental health would definitely suffer if he returned to China.
In summary, the applicant claims that China is a nation that lacks love and inclusiveness; that free speech and political dissent are suppressed and the ideology of citizens is unified. He states, a society which lacks inclusiveness is full of hostility, devoid of cooperation, harmony or unity. Lack of respect for humans contributes to the neglecting of human rights, justice and fairness. Lack of respect for nature leads to over-exploitation, environmental pollution and waste of resources. He claims that the combination of these problems leads to China’s current social situation: natural disasters occur frequently and people live under great pressure, lacking a sense of safety as well as happiness. The Chinese government misleads the public and has distorted history. In China if you want to make a difference you must obey the words and leadership of the Communist Party. Chinese society operates by way of hidden rules and bribery and is judgemental. Individuality is obliterated and you become an outsider if you want to just be yourself. He wants to get married, raise children and live a harmonious life but in China where love is lacking he cannot do that.
The applicant appeared before the delegate on 16 October 2015 and the decision record of the delegate dated 8 December 2015 indicates that the applicant stated he fears he will suffer emotional and mental damage due to the lack of respect and social cohesion in China. He stated that he did not suffer any physical harm in China but he said that in 2000 he was riding a bicycle from work to home and [was involved in an accident]. He said he suffered [several injuries] and his workplace refused to pay workers compensation. He said he studied [a specific subject] and did a lot of research to support his claim in court but still lost the case. However in the process he obtained a Diploma in [a specific subject] and became a [Occupation 1]. He said his court case lasted [a number of] years and demonstrated that China has no fair legal system.
The applicant appeared before the formerly constituted Tribunal on 10 February 2016. At that hearing he said that he could not return to China because the values advocated by the Chinese government are at odds with his own values and the contradictions have become stronger since he has lived in Australia. If he returns to China he will be in conflict with the government and this will lead to him being persecuted. He will not join the Communist Party and he will not be able to fulfil his career aspirations. He doesn’t want his children to be brought up and subjected to Communist Party ideology.
In relation to his workers compensation claim he said that he witnessed the presiding judge meeting with his employer at a local restaurant and he took photos of them together. He then went to the President of the court who told him he could apply to have that judge excused but he was advised that he should think carefully about this course of action. He thought that even with a new judge he would still not get a fair judgement. He remained in his job until he departed China and was never physically harmed or threatened with physical harm as a result of his pursuit of the court case.
The applicant stated that when he was in China he compromised his own values for the purpose of self-protection and to avoid any unnecessary harm from the government. He said that in the past he chose to restrain himself and abandon his aspirations in order to avoid harm. When asked if he would continue to compromise his values in order to avoid harm in China he said he would probably do so.
Tribunal hearing
The applicant appeared before the differently constituted Tribunal on 27 November 2018. He told the Tribunal that his values and political understanding conflict with the Chinese government. He said the conflict of values has become more intense the longer he has stayed away from China. He said he does not feel confident he can compromise his values in the way he previously did by hiding his true values from the Chinese government. He said that in the current environment, where control over the Chinese people is rigorously enforced, if he reveals his true values he will suffer physical torture at the hands of the state. By way of example he referred to the imprisonment of Liu Xiao Bo the Nobel peace recipient and to a case in July 2015 which saw the arrest and disappearance of human rights lawyers. He also advised the Tribunal that in the past year many teachers and professors have been harmed and detained for speaking out against the government. He said that these developments cause him to fear returning to China. He added that he doesn’t want to marry or raise a family in China in such circumstances.
When the Tribunal asked the applicant if he had suffered any past harm in China he referred to the incident in which he incurred a work-related injury when travelling to his employment and received no compensation. He said he pursued the matter in court and lost. He said he appealed the decision of the court and again was unsuccessful. He said he appealed to the provincial people’s committee and they gave him a note to return to the court at which stage his case was upheld. Despite this outcome he said the company failed to pay him any compensation.
The Tribunal asked the applicant whether his appeal to the provincial people’s committee caused him to suffer any serious harm and he said he was not physically harmed. However, he said that in the course of pursuing his matter in the court he witnessed the judge having dinner with a leader from his company and he photographed them and complained to the court. He said he was advised he could request a different judge but he didn’t and no punishment was given to the original judge. He said the whole court process caused him mental harm and made him feel very disappointed with the Chinese legal system.
The Tribunal asked the applicant whether he engaged in any anti-government activity in China and he said he refrained from any public expression of his opinions although he did voice his views privately to friends.
When asked what he fears will happen if he returns to China the applicant said that if he returns to that environment where there is no freedom of speech he will have to suppress his views. He said that he might not cope with the situation and express himself publicly which will lead to him being physically tortured. He said his mental health will also suffer.
The Tribunal asked the applicant why he thinks his personal views will cause him harm in China and he said he fears he will have to behave in accordance with government requirements and respect the government’s values and opinions. He said he will be forced to obey the commands of the Communist Party. He added that he cannot accept the Chinese political education system.
The Tribunal asked the applicant whether he has publicly expressed his political views since being in Australia and he said he has not because his parents and family are still living in China. He then said that he has posted comments on some online forums including commenting on [social media]. He added that he also has a blog. When asked for details of his online comments he said he made a comment about [specific issues]. He said not many people responded to his comments as he is not famous. He said he started the blog not long after arriving in Australia in 2013 but whereas he first made entries every few days he no longer does. He said the last time he posted a comment was in about 2015. When asked if he fears harm in China on account of this online activity he said he doesn’t consider his blog or other comments to be controversial or contradictory to government opinion.
The Tribunal put it to the applicant that it doesn’t appear that he is currently engaged in any high profile behaviour which is of a kind that is likely to bring him to the adverse attention of the Chinese authorities. The applicant responded that he isn’t doing much at present because he is currently living in Australia which is a relatively free environment. He said he is just observing what is happening in China but if he goes back he cannot promise he will be able to control himself.
The Tribunal suggested to the applicant that if he had such strong political opinions it could be expected he might be expressing them in the relative safety of Australia but he is not. The Tribunal asked the applicant why it should conclude he would do so if he returns to China. The applicant responded that he is living here at present and is not under that much pressure. He agreed he is not famous or influential and said that people haven’t paid attention to his blog. However, he said that he and Liu Xiao Bo are the same type of victim but because he is not famous and doesn’t have much influence there won’t be much news about him if he suffers serious harm.
The Tribunal asked the applicant, why the Chinese government will be interested in him given his evidence is that he is not famous or influential. The applicant responded that due to the need to protect himself and his family he will have to hide to ensure the government doesn’t notice him. He said that the need to hide his true feelings will cause him mental harm. When asked if his family have been approached by the authorities in connection with his online activity he said he doesn’t believe they have.
FINDINGS AND REASONS
Country of reference
At the Tribunal hearing the applicant produced a copy of his People’s Republic of China passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of China and has assessed his claims against China.
The Tribunal’s reading of the applicant’s written and oral evidence is that he fears his personal and political opinions will result in him being seriously harmed on return to China.
Based on the applicant’s oral evidence the Tribunal is satisfied that he suffered no serious harm in China on account of his pursuit of legal action over his workers compensation claim and/or due to his related appeal to the people’s provincial committee. While the Tribunal accepts the applicant found the process unsatisfactory and that it left him feeling disappointed with the Chinese legal system the Tribunal does not accept that these feelings amount to the mental harm which is claimed.
The applicant does not claim to have been politically active in China and his oral evidence is that he never publicly expressed his personal and political opinions in China. He confirmed his views did not bring him to the attention of the authorities prior to his departure from China.
Since arriving in Australia he has not engaged in any political or anti-government activity although he has on occasion posted online comments on news channels and voiced opinions on a personal blog. Despite acknowledging that he has largely only been observing the political situation in China at the hearing he expressed concern that if he returns to China his dissatisfaction with the political system might cause him to publicly express his views.
It was difficult to ascertain on his evidence precisely what views the applicant might express or what activities he might engage in to demonstrate his dissatisfaction with the political system. The Tribunal also found it difficult to accept that he will act in a manner which is likely to attract adverse attention when he has largely refrained from controversial activity in the years he has lived in Australia.
On 11 December 2018, in support of his claimed online activity, the applicant emailed the Tribunal numerous documents including what he says are screenshots of a Chinese webpage and various passages of highlighted Chinese text. Certain of the information is translated by a NAATI Certified Translator and the remainder using google translate.
The Tribunal has had regard to the information which has been provided but is uncertain as to its source, manner of distribution or target audience. Nevertheless, after its best efforts at deciphering the content, the Tribunal’s reading of the information is that it represents personal musings on a wide range of issues from the commercial sex industry to general thoughts on corruption and misuse of power, the need for reform around social issues and opinions about outdated Chinese morals and laws. Furthermore, the applicant appears to philosophise about topics including the law, morality, love, marriage, parenting, sexual desire, Confucian, filial piety, public pension schemes and human emotion.

The Tribunal accepts that the applicant has made posts along the lines of the above on an online platform but there is no evidence to support that he is a recognised or high profile blogger or political or social commentator. The Tribunal’s reading of the information is that it is very general and not of a kind which would be considered threatening to the Chinese government. In any event the Tribunal notes that the applicant’s own evidence is that he last engaged with this type of activity three years ago and he does not consider his comments to be controversial or contradictory to government opinion. Further, the applicant informed the Tribunal that generally people haven’t paid attention to his remarks. Having considered the information provided post hearing the Tribunal is not persuaded that the content of his past online activity is such that it will attract any adverse attention from the authorities if he returns to China.
The Tribunal accepts the applicant is discontent with the socio-political situation in China and would prefer to live in a more open and democratic society. While during the hearing the applicant went to lengths to point out that the only way he will avoid persecution in China is to hide or compromise his true political views the Tribunal does not accept this. As noted, the applicant last engaged in any online commentary in 2015 and the Tribunal found his comments as to any likely intended future actions to be somewhat speculative. Based on the level of his past and present behaviour the Tribunal is not persuaded that he is sufficiently motivated to engage in a level of political discourse or activity which will likely attract adverse attention from the authorities. While the Tribunal accepts the applicant holds personal views which may be at odds with the prevailing social and political opinions of the Chinese government he has not demonstrated a high motivation or willingness to publicly act on them. Based on his behaviour to date, the Tribunal is not satisfied that the applicant will be required to modify his behaviour so as to avoid a real chance of serious harm to him for reason of his personal or political opinions.
For completeness the Tribunal acknowledges the applicant’s wide-ranging claims of dissatisfaction with Chinese society in general including the claimed lack of love, happiness and inclusiveness; the lack of respect for individuality and nature and the prevalence of societal judgement. Further, the Tribunal notes the applicant’s concern that he won’t be able to fulfil his career aspirations to be a [Occupation 1] if he does not join the Communist Party. However, the Tribunal is not satisfied that any impact the applicant might suffer from these circumstances will amount to serious harm as explained at s.5J(5) of the Act or to significant harm as defined in s.36(2A) and 5(1) of the Act.
Having carefully considered the applicant’s claims, both individually and cumulatively, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm on return to China for reason of his political opinions or for any other reason. Therefore the Tribunal finds the applicant does not have a well-founded fear of persecution in China, either now or in the reasonably foreseeable future.
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) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk he will suffer significant harm. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
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.
…
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 5650

14 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction