1722018 (Refugee)

1722018 (Refugee) [2020] AATA 643 (5 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1722018
COUNTRY OF REFERENCE:                   China
MEMBER:Mara Moustafine
DATE:5 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 March 2020 at 10:49am
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – support for rival to village head in election – attacks and threats by head and associates – credibility – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 428(1)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 28 August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is a citizen of China and is [age] years old. He arrived in Australia [in] March 2017 as the holder of a Visitor visa and applied for a Protection visa on 30 May 2017. The delegate of the Minister for Immigration and Border Protection refused to grant the visa on 28 August 2017.
Evidence before the Department
Protection Visa Application
According to his Protection visa application form, the applicant was born in Qingzhou City, Shandong Province of China. He is of Han ethnicity, no religion and speaks, reads and writes Mandarin. He completed [number] years of education in [Village], Qingzhou City, including [number] years of junior high school which he completed in 1988. He worked in farming from August 1988 to July 2012 and again from December 2013 to March 2017 and did part-time jobs in [Country 1] between July 2012 and December 2013. His wife [and children] live in Qingzhou City in China. He left China legally on a passport issued [in] 2013.
In a personal statement submitted with his application, the applicant stated that:
a.    His village head, whom he offended over an election, sought revenge. Thus he could not live in his hometown anymore and came to Australia.
b.    He and his second wife, whom he married in 2007, have a [child] born in [Year 1]. She also looked after his [child] born in [Year 2] from his first wife, whom he divorced. They made their living on the land. Although their financial situation was not good, their families were very happy.
c.     He went to work in [Country 1] in 2012-2013 to earn more money to pay his children’s tuition fees and his family’s daily expenses. He could not find a good job in his hometown on return to China so again made his living on the land, also doing some part time jobs.
d.    At the beginning of 2016, the election of village head began. He did not want [Mr A], the incumbent village head, who had been in the position for 12 years to be re-elected. This village head often bullied villagers and was seriously corrupt. All the villagers were unsatisfied with him but were afraid of resisting him because of his ‘vicious power’.
e.    He decided to support another candidate for the position, [Mr B], who was young and promising, well-educated and ambitious. He encouraged other villagers to support this candidate as well. However others were afraid the village head would seek revenge.
f.   The village head tried to persuade villagers to vote for him, giving them presents and money. But the applicant told the village head directly that he would not vote for him because he was corrupt and unqualified. This made the village head very angry and he warned the applicant to be prepared for the consequences of his action.
g.    After the village head was re-elected, he took his revenge, sending people to damage the applicant’s farmland, denying him village government approval for anything and keeping his financial difficulties allowance to himself. The village head also stopped people in the village employing him in part time jobs.
h.    As the applicant did not have jobs for a long time, his family’s life was very difficult so he decided to report the village head to the provincial government. He did not receive any response. However, one day the village head came to his home with some people, hit him and cracked all items at his home. He warned the applicant that his family would be harmed if he reported him to the authorities again.
i.   The applicant tried to find a job again but was unable to do so because of the village head, who also sent someone to tail him. After a year, the applicant applied for a visa to Australia.
j.   The applicant applied for a Protection visa because he fears that the village head will seek revenge again.
The applicant was invited to attend an interview with the Department on 25 August 2017 but failed to do so and did not advise the Department of any reason for his non-attendance.
The delegate refused to grant the visa on 28 August 2017 as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.
Evidence before the Tribunal
On 16 September 2017 the applicant applied for a review of the delegate’s decision, a copy of which he provided to the Tribunal for the purposes of the review and is taken to be on notice of its findings and reasons.
On 13 February 2020 a Tribunal officer, who was authorised by the Member, took evidence from the applicant (pursuant to s.428(1)(b)). The applicant was assisted by an interpreter in the Chinese and English languages. The record of that evidence has been considered by the Tribunal.
The hearing
The applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The applicant was assisted by an interpreter in the Chinese and English languages. As evidence of his identity, the applicant provided a copy of his Chinese passport, issued in [Country 1] Korea [in] 2013 and valid until [2023]. The passport contained entry/exit stamps, indicating that the applicant had left [Country 1] [in] December 2013, departed China [in] November 2014, entered [Country 2] [in] November 2014 and re-entered China [in] November 2016.
At the start of the hearing the applicant confirmed that everything in his written application form and statement submitted to the Department was true and correct and that he did not wish to make any changes. He said a friend from his hometown had helped him with his application and had read it back to him.
The Tribunal discussed with the applicant his background, including his education and employment, his reasons for leaving China and why he fears returning there. Where relevant, the applicant’s evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
Analysis, reasons and findings
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
The applicant’s key claim was that the village chief, whose re-election he opposed, advocating for an alternative candidate, took revenge on him, making it hard for him to find employment and threatening him. The applicant fears that that if he returns to China the village chief will continue to seek revenge.
The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in his evidence about his experiences in China, the implausible nature of key aspects of his claims and other reasons detailed below.
The applicant gave inconsistent evidence to the Department and the Tribunal on key aspects of his central claim that he suffered harm in China because he refused to support the re-election of the village chief –. In his written statement submitted to the Department, the applicant said his trouble started at the beginning of 2016 when he opposed the re-election of the village chief, who had been in the position for 12 years. Subsequently, he was unable to get ongoing employment as the village chief threatened those who gave him work. By contrast, the applicant told the Tribunal that he opposed the village chief, who had been in power for over a decade, at the election in 1990, a date he repeated several times. He maintained that he was in trouble with local government authorities and was thwarted in his efforts to find employment from that time until he left China in 2017.
The applicant also gave inconsistent evidence about his employment in China. In his protection visa application form he stated that he worked in farming in China from August 1988 to July 2012 and again from December 2013 to March 2017 and did part-time jobs in South Korea between July 2012 and December 2013. By contrast, he told the Tribunal that he worked in a [factory] in [town] for a couple of years after finishing middle school in 1987, then as [an Occupation] in Qinzhou [city]. However, he was never able to maintain work for more than a couple of months before being fired. He said he went to [Country 1] and worked illegally in [work sector] for about a year but was deported in 2013. When he returned to China he continued to work as [an Occupation] but the job did not last long so went to [Country 2] in 2014 and worked there for two years until his visa expired.
Further, the applicant gave inconsistent evidence regarding the harm he suffered in China at the behest of the village chief. In his written statement, the applicant referred to his farm land being damaged, problems finding work, withholding of his financial difficulties allowance, being hit and having all items in his home cracked, being tailed and his family being threatened. At hearing the applicant made no mention of these claims apart from having problems finding work and his family being threatened. Instead he introduced new claims that, after the 1990 campaign, he was threatened with death through a car accident and said he got beaten in fights against the village chief’s supporters.
In his written statement to the Department the applicant claimed that he reported the village chief to the provincial government and this prompted the chief to hit him, damage items at his home and threaten harm to his family if he reported on him again. However, the applicant made no mention of this at his hearing. When asked at the end of the hearing if he ever complained about the village chief, the applicant initially responded that complaining did not work as violence had ‘the biggest say’. However, he went on to say that he went to complain in Beijing in November 2016. Asked why he did not complain at the provincial level, the applicant said he did so in August or September 2016, although it and did not work.
Significantly, given his evidence that he spent two years working in [Country 2] from 2014 to 2016, which according to the date stamps in his passport was between [November] 2014 and [November] 2016, the applicant’s evidence to the Tribunal that he was complaining against the village head at the provincial level in August or September 2016 must be false. Likewise, his claim in his statement to the Department that he opposed the re-election of the village chief in the election campaign which began in early 2016.
As discussed with the applicant, the Tribunal finds implausible that a village chief who, by his own evidence, was so powerful that he had held his position for forty years would, seek revenge against the applicant for almost 30 years because he opposed his re-election in 1990. The applicant responded that his opposition to the village chief did not just happen once, but on an ongoing basis at elections, which occurred every three years. He also claimed that he was part of a group who opposed the chief and clashed regularly with his mafia gang of supporters in serious knife fights in which many people got injured, the most severe of which took place in 1997. The Tribunal considers this new evidence, first introduced by the applicant at hearing, opportunistic and inconsistent with his written evidence that he was unable to persuade other villagers to act against the village chief as they were afraid he would seek revenge.
The Tribunal finds dubious the applicant’s vague claim at hearing that, if he returns to China, his life will be at risk from the village chief and his mafia-like supporters through a car accident or something else. As discussed with the applicant, while he claimed that he was threatened with death by car accident by the village chief in 1990, nothing untoward happened to him during the extended periods he lived in China from that time until his departure in 2017. The Tribunal’s doubts are not assuaged by the applicant’s comment that ‘they’, who he identified as the ‘mafia government’, came to his home to threaten him, that he had to hide because he was scared of meeting them and that they continued to come on a regular basis asking his family when he might return. By his own evidence, the applicant’s family continue to live in the same village, where his wife works in a factory and his [age] year old [child] goes to school, while his [other child] goes to university in Shandong. In the Tribunal’s view, someone as powerful as the applicant claims the village chief to be, could have harmed him or his family long ago if that was his intention, which the Tribunal does not accept was the case.
By the applicant’s evidence at hearing, he left China legally on a passport in his own name and experienced no difficulty on his departure from Kunming airport. The Tribunal is therefore satisfied that the applicant was not of interest to the Chinese authorities at the time he left and has no reason to believe that he will be of interest to the authorities on his return.
In light of the multiple concerns discussed above, the Tribunal is not satisfied that the applicant has given a truthful account of his experiences in China or that any of his evidence can be relied upon. The Tribunal is not satisfied that the applicant ever opposed the re-election of the village chief, advocated for an alternative candidate or reported the village chief to higher authorities for corruption or bullying behaviour. Nor is the Tribunal satisfied that the village chief took revenge on the applicant, including by sending people to damage the applicant’s farmland, beat him, damage items at his home, tail him; denying him village government approval for anything or his financial difficulties allowance; nor that he thwarted the applicant’s employment, threatened to harm his family or threatened him with serious harm, including death through a car accident. In the Tribunal’s view, the applicant fabricated his claims in order to achieve a migration outcome. It follows that the Tribunal is not satisfied that, if the applicant returns to China now or in the reasonably foreseeable future, he will face revenge or serious or significant harm, including death through a car accident, at the hands of the village chief or his associates.
For the reasons given above, the Tribunal is not satisfied that, if the applicant were to return to China now or in the reasonably foreseeable future, there is a real chance that he will be harmed for any of the other reasons set out in s.5J(1)(a) of the Act. The Tribunal finds that the applicant does not have a well-founded fear of persecution in China.

The Tribunal has also considered the applicant’s claims under complementary protection. The Tribunal has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a Protection visa. It is therefore 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 that he would suffer significant harm, as defined in s.36(2A), which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.
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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mara Moustafine
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.
…

[2020] AATA 643

5 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction