1721516 (Refugee)

1721516 (Refugee) [2022] AATA 706 (1 February 2022)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721516
COUNTRY OF REFERENCE:                   China
MEMBER:Roslyn Smidt
DATE:1 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 February 2022 at 9:43 AM
CATCHWORDS
REFUGEE – protection visa – China – forced relocation by building of Three Gorges Dam –no compensation, support or household registration as promised – harassment by village leader after complaining to him and city authorities – multiple moves and jobs – credibility – inconsistent claims and evidence – residence and work history – travel to other countries – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of China, applied for the visa on 15 May 2017. The delegate refused to grant the visa on the basis that she failed to attend a scheduled interview and on the available evidence he was not satisfied that she was entitled to the visa.
The applicant appeared before the Tribunal on 19 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
The applicant is a [Age] year old married woman with one child. She lived in Fengdu County Chongqing until 2002 when she moved to Chongqing City. She obtained a passport [in] 2012. She travelled to [Country 1] for about eight weeks in October-November 2012, to [Country 2] for five days in 2016 and [Country 3] for four days in 2016. She obtained a visitor visa for Australia on 24 April 2017. Details of her past employment are unclear.
SUMMARY OF CLAIMS
The applicant claims that she was forced to relocate from her home in Fengdu County in 2002 because of the flooding associated with the Three Gorges Dam. She was promised compensation, support and household registration in a new location but received nothing so she was unable to find a home or ongoing employment. She complained to the local authorities. In particular she complained about the leader of her village in Fengdu who she claims had failed to ensure she received the assistance promised. Because of this the village leader constantly harassed her, which meant she had to move repeatedly and she was fired from any of the jobs she was able to secure between 2002 and her departure in mid-2017.
CLAIMS AND EVIDENCE
The applicant’s visitor visa
According to this application, the applicant had worked as manager for [a] company for six years. She was also a shareholder in the company. She said that she had been invited to visit a friend in Australia and she had savings and credit cards to cover the cost of her travel. She provided bank statements, what appear to be land titles and a letter of invitation from an Australia resident.
Protection visa application
The applicant applied for protection nine days after arriving in Australia. According to her application she lived in Fengdu County Chongqing from birth until 1974 then lived at the same address in Nanan District in Chongqing until May 2017. It also states that she worked at a [company] in Chongqing from 1990 until May 2017.
The applicant claimed that in 2015 she invested in the [company] for which she worked. At some time after this, the company become involved in illegal activities. When she attempted to get her money back she was threatened. She went to the police but they would not help. She believed that they were connected to the company in some way. Many other employees had invested in the company and faced similar problems. One of them was beaten to death. She was terrified and hid at home before fleeing to Australia.
There is no mention of assistance from a registered migration agent on the application. It refers to an authorised recipient with an office in [Suburb]. For convenience I will refer to this person as the applicant’s first adviser.
The application was signed in front of a Justice of the Peace on 12 May 2017.
The applicant was invited to attend an interview with the delegate on 11 August 2017 but failed to attend.
Review application
The applicant applied for review of the delegate’s decision on 12 September 2017. The same authorised recipient was named on the application. A copy of the delegate’s decision was provided, but no submissions were made at that time.
On 26 March 2019 the applicant asked that all future correspondence be sent directly to her.
On 5 November 2019 the applicant appointed a registered migration agent as her representative. On 12 January 2022 the agent provided an undated statement of claims from the applicant. The statement was written by the applicant in Chinese and accompanied by an English translation.
The applicant said that she had not been aware that her first adviser was not a registered migration agent. She said that the claims in that application had been concocted without her knowledge and they were incorrect.
The applicant said that in about 2002 residents in her local area who were affected by flooding associated with the Three Gorges Dam had been asked to migrate to the county seat of Fengdu County, Chongqing City. The county government and the village chief promised to give them household registration for their new homes and to provide housing relocation subsidies. However, they were given nothing and the applicant wandered the streets of the new area for a long time. She went to the Chongqing City government to report the village chief and after that he began to persecute her. She could not work or do business anywhere because of these problems. In order to survive she did odd jobs for short periods but the village chief always found out and she was always fired. She had no choice but to come to Australia to avoid persecution.
The Tribunal hearing
The applicant attended a hearing of the Tribunal by telephone on 19 January 2022. Her representative was also present.
I asked the applicant how she earned an income prior to leaving China. She said that she had worked as [an Occupation 1] until 2002 and then she worked for other people, sometimes as [an Occupation 2] and sometimes at other odd jobs. She also had a small business selling [products] from about 2003 to 2005. Shortly before coming to Australia she worked at a [workplace], but she was fired from that job.
I asked the applicant if she had ever owned any property in China or if she had managed to accumulate any savings. She said that she had lived hand to mouth. I noted that she had obtained a passport in 2012 and had travelled outside China once in 2012 and twice in 2016. I asked how she had been able to afford these trips. She said that she had money from her work and she had looked for special cheap promotions.
I asked the applicant how she had arranged her visitor visa for Australia. She said that a friend had helped her. She did not pay anyone to assist with the application and the only document she was required to provide was her passport. I noted that her visitor visa application stated that she had worked as a manager at a [company][1] and asked if she had ever worked for a such a company. She said that she had worked for a [company] for a few months sometime between 2010 and 2014, but as an ordinary employee, not a manager. I noted that the visitor visa application had documents which indicated that she had money in a bank account and that she owned land. She said that her friend had submitted the application. I asked if she was suggesting her friend had obtained false documents for her. She said she did not know what her friend had said or done.
[1] In fact it states that the applicant worked for a [company]. Her protection visa application states that she worked for [another kind of] company. I advised her of my mistake later in the hearing.
I asked the applicant if she had met her first adviser in person. She said they never met, but they had spoken over the telephone. She said she had gone to his office in [Suburb] to sign her application.
The applicant said that she had told her first adviser that she wanted to apply for protection because she had been persecuted after she was forced to relocate following the construction of the Three Gorges Dam. She did not know why he had omitted this information from her application and instead provided false claims relating to her work for a [company]. I noted that her application form included details relating to her family members, her work history and stated that she had lived at the same address from 2002 until 2017. She said that apart from her claims, she had not provided any information to the authorised recipient. She said that the information regarding her address was incorrect as she had never had permanent accommodation during that period.
I advised the applicant that while I was aware that there were unscrupulous people who made up claims to support applications for protection, I had difficulty understanding why her first adviser would have failed to include the information she had provided and instead make false claims on her behalf. She said that she did not know why he did this but maintained that her current claims were true.
I asked the applicant for more information about her situation in China. She repeated the broad substance of her written claims. She said that in addition to her family, another seven households from her village who lost their homes were denied proper compensation. She lodged a complaint on behalf of her family and these households in 2007, but they received nothing. I asked why she had waited until 2007 to lodge a complaint. She said that she had complained to lower level officials prior to 2007, but she first complained to the Chongqing City government in 2007. I asked her what had happened to the other seven households. She said that she did not know, but her situation was different as she had been the leader of the group.
I asked the applicant what had happened to the village leader after she lodged her complaint. Her response was confused. She said that he was no longer the village leader and that was why he was harassing her. However, when I asked her to confirm that he had lost his job because of her actions, she said that he had not lost his job and had continued to work for the government after she complained. I observed that it seemed unlikely that he would have continued to harass her for an extended period if he had not experienced any serious consequences following her complaint. She said that he had lost his job in about 2010 and she believed that this occurred because of her complaint and that he wanted to take revenge.
I advised the applicant that according to information which I had obtained, residents who were forced to relocate from the Fengdu region because of the flooding caused by the dam were relocated to a new city which was constructed to house them and that I had difficulty understanding why she would have been treated differently for others from the area. She said that relocation support applied when entire villages were affected, but only half of the houses in her village were flooded so they were not given any compensation.
COUNTRY INFORMATION
The Three Gorges Dam[2] is a huge hydroelectric gravity dam that spans the Yangtze River in Hubei Province. Commenced in the 1990s, by mid-2008 the construction of the dam had resulted in the flooding or partial flooding of 13 cities, 140 towns and 1,350 villages and the relocation of 1.24 million residents. Fengdu was one of the areas impacted by this flooding. According to reports, construction of a new city was commenced in 1999 and 3 years later it was a fully functioning city with appropriate facilities. Most of the people relocated from Fengdu to the new purpose built city appear to have received housing, in many cases better than their previous homes. Compensation and the injection of relocation funding by the government has underpinned improvements for many local economies in the affected areas. However, some rural people had difficulty adjusting to an urban environment or finding employment in the areas to which they were relocated. Reports also suggest corruption by local officials caused problems for some people seeking adequate compensation.
[2] See for example sections on history and relocation in Three Gorges Dam, Wikipedia Relocated Three Gorges Residents Face Challenges, 3 January 2008, NPR, =17784497#:~:text=Relocated%20Three%20Gorges%20Residents%20Face%20Challenges%20As%20the%20waters%20of,in%20a%20more%20urban%20environment and Chongqing: A Chinese Ghost Town Resurrected Discovery, Cathay Pacific, 15 June 2017, OF FACT
For the following reasons I did not find the applicant to be a truthful or a credible witness.
In the first place, the claims on which the applicant currently relies are completely different from the claims in her initial application and I found her explanation for this unpersuasive.
While I accept that that people purporting to be appropriately qualified advisers sometimes take advantage of recently arrived asylum seekers, in my view it is not plausible that even a dishonest person with limited competence would have failed to record any of the information provided by an applicant and instead included a completely different set of claims without informing her or explaining why.
In addition, the information regarding the applicant’s addresses and employment provided in her primary application is at odds with her current claims. She claims that the information on her application for is incorrect and that apart from explaining her reasons for seeking protection and providing her passport, she did not give her first adviser with any other information. While it is possible that the applicant does not recall her entire conversation with her first adviser, it is not plausible she was not asked to provide the biographical information needed to complete her application form. Nor is it plausible that her first adviser would have stated that she lived at the same address from 2002 to 2017 and that she worked at that same company for most of her working life if she had explained to him that she was seeking protection because she had been unable to find stable work or accommodation prior to leaving China, as she now claims. I also note that according to the applicant’s evidence at the hearing she worked for a [company] at some time. It is not plausible that her first adviser would have stated that she worked for a [company] if she had not provided this information.
Secondly, the applicant’s evidence regarding her treatment by the local authorities after her home was flooded in about 2002 and the problems she faced following this was confused and unpersuasive. While it appears that there was some corruption by some local officials dealing with relocation payments, the claim that she and her family were given no compensation or assistance after being forced to relocate in 2002 does not sit well with the available evidence, which suggests that the vast majority of people forced to relocate from Fengdu were rehoused in a new city built for this purpose and given at least some government assistance.
More significantly, I found the applicant’s evidence regarding her situation between 2002 and 2017 confused, sometimes implausible and generally unpersuasive.
The applicant claims that she was not able to find secure housing or employment from 2002 until her departure for Australia in 2017 primarily because the leader of her home village was angered when she had reported him to the authorities. However, she has given differing accounts of when she made this report and the consequences faced by the village leader. At the hearing she said that she had lodged a complaint with Chongqing City government in 2007, some five years after she was forced to leave her home and wander the streets. When I asked later in the hearing why she had not sought assistance before 2007 she said that she had complained to lower levels of government before 2007. When I asked what happened to the village leader after she lodged her complaint she said that he had lost his job, that he had not lost his job and that he lost his job but not until 2010. I find her failure to provide a reasonably consistent and coherent account of these events a strong indication that she has not provided an honest or accurate account of her situation between 2002 and 2017.

Furthermore, while it is possible that someone who lost their job or position as village leader because of complaints laid against them might want to seek revenge, I find it highly unlikely that anyone would expend the time and resources which would no doubt be required to pursue someone for up to 15 years to ensure that they were fired from every job they obtained and that they were unable to find a permanent home. I find it even more unlikely that the village leader would somehow be able to convince anyone who employed the applicant to fire her after he had lost his government job or position as village leader. I find this to be a further indication that the applicant is not a credible witness.
I also found the applicant’s claim that she was the leader of a group of seven households who had been denied compensation unpersuasive. There was no mention of this claim in her written statement and she was unable to provide any information on what happened to the other householders after the complaint was lodged. If the applicant had been the leader of a group of fellow villagers even in an informal fashion I believe she would have mentioned this prior to the hearing and that she would have had some knowledge of their circumstances after she lodged a complaint on their behalf.
Finally, the applicant’s evidence regarding her work and her financial situation between 2002 and 2017 was unconvincing. She claimed that she had only worked short term, but also said she operated a small business for about two years. She said that she had lived hand to mouth throughout this period and had no savings, but when asked how she had been able to travel abroad three times during that period said that she had been able to save money from her work to fund her travel. Her ability to take these trips and to fund her travel to Australia is a strong indication that she was not living hand to mouth with no savings before leaving China.
While some of the individual matters raised above would not have been sufficient for me to conclude that the applicant was not providing a generally honest or accurate account of her reasons for seeking protection, others are more significant and the overall pattern of her evidence has led me to the conclusion that she is not a truthful or a credible witness. It may be that she was one of the many residents of Fengdu who were relocated in 2002 because of the flooding caused by the Three Gorges Dam, but I am not satisfied that she was denied compensation for this or that she was not provided with housing or household registration in Chongqing because of the actions of the leader of her village or for any other reason. Nor am I satisfied that she was harassed by the leader of her village because she complained about his corrupt activities and was therefore unable to find secure employment or accommodation or that she was unable to find secure housing or employment after being relocated in 2002 because of a lack of government support.
After considering all of the evidence, I am not satisfied that there is a real chance that the applicant would suffer serious or significant harm for any reason if she returns to China now or in the reasonably foreseeable future. I am therefore not satisfied that she has a well-founded fear of persecution for any of the reasons set out in s 5J(1) or 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 that she would suffer significant harm.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
Member

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

[2022] AATA 706

1 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction