1724428 (Refugee)

1724428 (Refugee) [2023] AATA 1275 (21 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1724428

COUNTRY OF REFERENCE: United States of America
MEMBER:James Lambie
DATE:21 March 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 March 2023 at 4:55pm
CATCHWORDS
REFUGEE – protection visa – United States of America – particular social group – victim of criminal group – fear of physical harm – fear of killing – delay in applying for protection – applicant sought by corrupt law enforcement agencies – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA [1998] FCA 305
Zhang v RRT and Anor [1997] FCA 423
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 14 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of United States of America, applied for the visa on 10 August 2017. The delegate refused to grant the visa on the basis that he could not be satisfied that the applicant was a person in respect of whom Australia had protection obligation.
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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claims to [age] years old and a national of the United States of America.
On 14 November 2013, the applicant was granted a subclass 601 Electronic Travel Authority. He arrived in Australia [in] February 2014.
The Electronic Travel Authority ceased on 10 August 2014.
[In] August 2017, the applicant was taken into immigration detention. He lodged an application for a subclass 866 Protection visa 10 August 2017 and was released from immigration detention [later in] August 2017 on a subclass 050 bridging visa.
On 14 September 2017, the applicant was notified that the Department of Immigration and Border Protection had refused to grant his application for a protection visa in a decision made on the same date.
On 9 October 2017, the applicant applied to the Tribunal for merits review of the Department’s decision.
Claims
The applicant claims he is being pursued, and will be harmed, tortured and killed, by a criminal organisation run by a man named [Mr A].
The applicant claims that his [Relative A] was a prominent civil rights activist in the United States in the [specified era]. As a result of his activism, he made many enemies among those opposed to the civil rights movement. [Mr A], whose family the applicant claims were heirs of the [Family A] and who lost their fortune following [a historic event], blamed the applicant’s [Relative A] for the loss. The applicant claims that [Mr A] hired someone to murder his [Relative A] in [a town in] California, in about 2010.
He claims that [Mr A] hired the murderer through a site on the dark web by the name of [site name], operated by a hacking group known as [Group 1]. He claims that, in addition to murder for hire, the site also offers [specified criminal activities].
The applicant claims that, from about 2000, people seeking to harm his family made contact with him under [assumed] names through the online [site named]. Among those, he claims, was a rogue FBI agent who had been seeking his [Relative A] for years. He claims that people associated with [Group 1], with the assistance and cooperation of rogue FBI elements, were able to access his computer. He claims that, once these people had located his physical address in California, they embarked on a campaign of surveillance and harassment. He claims that this included making false claims to the police and suborning police officers to follow and harass him. He claims that the group sought to use online sexual encounters to engage in extortion against him. He claims that it was corrupt police, together with a [conspirator] [of Mr A’s] by the name or pseudonym of [Ms A] who committed the murder of his [Relative A].
The applicant claims he was further harassed, threatened with harm, financially defrauded , and had attempts made on his life by [Mr A] through his associates, persons associated with [Group 1], elements of organised crime, and rogue FBI agents.
The applicant claims that the people seeking to do him harm have access to FBI and National Security (NSA) databases and would be able to locate and kill him anywhere in the United States.
The applicant claims that a number of conspirators are present in Australia and that [Ms A] may be, or have posed as, an officer of an Australian police force. He claims that there are Australian operatives working out of [specified locations in Australia]. He claims that a backpacker hostel in [a location] is, or has been, a hub of this group’s illegal activity – including an attempt on his life – and that it has been protected by police officers. He claims that a member of the ‘Anonymous’ online activism group, assisted by serving or former members of the [state] police, have conducted surveillance on him and harassed him.
Evidence
The Tribunal has a range of material before it, including:
·The applicant’s protection visa application, lodged on 10 August 2017;
·The applicant’s identity documents, being a copy of his passport issued by the United States of America provided to the Department;
·The delegate’s decision record, dated 14 September 2017;
·The application for review form, dated 9 October 2017;
·Department file [number] concerning his protection visa application;
·Country information on the United States of America, referred to below.
Country of reference/receiving country
The applicant claims to be a citizen of the United States of America. Based on the evidence provided to the Department by the applicant, and in the absence of any evidence to the contrary, the Tribunal finds that the United States of America is his country of nationality and also his receiving country for the purposes of ss. 36(2)(a) and 36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have the right to enter and reside in any other country; therefore, it finds that the applicant is not excluded from Australia’s protection obligations under s. 36(3) of the Act.
Hearing
On 30 January 2023, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that material alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 7 May 2023. The letter advised that if he did not attend the hearing and postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent by email to the email address provided in the application for review. That correspondence has not been returned from that address and the Tribunal has received no response. The applicant did not provide a telephone number at which he could be reached.
The applicant did not appear before the Tribunal on the day and at the time and place he was invited to appear. The applicant did not provide any explanation as to why he could not attend at the scheduled time. In these circumstances, and pursuant to s. 426A of the Act, the Tribunal has determined to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
Accordingly, this matter has been determined on the evidence available to the Tribunal.
Claims and evidence, and findings
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. Similarly, that the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, and Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal also notes that the recent decision of the Federal Court in BZADA v MIC andRRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of
satisfaction to grant the applicant a visa given his failure to attend the hearing and
the Tribunal’s inability to test and examine his claims in evidence. The relevant
statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach
a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the
criteria for the grant of a protection visa depends not on a particular matter being
established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has carefully considered the applicant’s claims as detailed in his application for a protection visa, both individually and cumulatively. The applicant did not take the opportunity to attend the hearing and did not provide additional information in support of his claims, even after having been advised of the delegate’s decision. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
The applicant’s written claims are contained in his protection visa application and an undated letter to a [Mr B] apparently also submitted to the Department. The claims comprise a complicated conspiracy involving a large number of persons, some of whom appear to have multiple identities. While he has provided descriptions of the type of documents that might support aspects of his claims, none of the documents themselves have been submitted.
Had the applicant attended the hearing, the Tribunal would have asked him for further detail about his claims, which would have afforded him an opportunity to address the unusual nature of them and to respond to the decision of the delegate. He would also have been able to provide further information and evidence.
On the material presented, the Tribunal has insufficient evidence as to:
·The applicant’s [Relative A’s] role in the civil rights movement and his murder in 2010, there being no record of either discoverable to the Tribunal;
·details and evidence of his claims concerning [Group 1], which are not consistent with publicly available material to the effect that it had a membership of [number] people and ceased its activity in 2011, and the activities of which are not consistent with his claims;
·details and evidence as to his allegations against [Mr A], whose connection to the [Family A] or company, as forming a possible motive for his alleged behaviour, is not consistent with publicly available information;
·details and evidence as to how any connection between the applicant’s [Relative A’s] activities and the [historical event affecting] some assets of the [Family A] company might be made;
·details and evidence as to the means by which he claims to have been defrauded or had unauthorised transactions made on his bank account;
·details and evidence as to his means of knowledge as to the alternate personalities and disguises employed by [Ms B] and [Ms A];
·details and evidence of his claims of the actions of corrupt law enforcement officials in the United States and Australia, including his means of knowledge of those matters;
·details and evidence of the attempts claimed to have been made on his life;
·details as to why the applicant seeks protection in Australia when, on the face of his claims, the conspirators are active here, have made at least one attempt on his life while he has been in Australia, and have suborned Australian law enforcement officers to further their purposes.
I have also noted that the applicant, despite having arrived in Australia in February 2015, did not apply for a protection visa until 10 August 2017 . Had he attended the hearing, I would have asked him why he had lodged his protection visa application only after being taken into immigration detention three years after the expiry of his Electronic Travel Authority.
A delay in seeking protection can support an adverse credibility finding as well as finding that the applicants fear is not well-founded[1]. In Subramaniam v MIMA[2], the court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. While a delay in making protection visa application by itself is not conclusive, it reasonably remains an indication in the applicant’s case that claimed fear of harm in this regard is not genuine. Had the applicant attended the hearing, the Tribunal would have asked whether he had a reasonable explanation for the delay in making the protection visa application.
[1] See Zhang v RRT and Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
[2] [1998] FCA 305.
The Tribunal has had regard to the following information concerning law enforcement in the United States of America:
The Department of Immigration and Border Protection Country Overview on the United States of America (June 2017)[3] reports relevantly:
Human rights are respected in the United States of America. Freedom of expression is constitutionally protected and rigorously enforced. Freedom of the press is generally respected …
The United States has reduced the electronic surveillance on its citizens. Mass surveillance under s. 215 of the Patriot Act was ruled illegal by the Second Circuit Court of Appeal in May 2015. In June 2015, Congress passed the USA Freedom Act, under which intelligence agencies must make more specific requests to telecommunication companies to retrieve records. A privacy advocate will be included in deliberations of such requests…
The United States has an independent police force and judiciary, which respects the rule of law … Most law enforcement agencies are state and local government responsibilities. Arbitrary detention, and torture and other degrading treatment is prohibited. Corruption is investigated and prosecuted, as necessary. The media regularly report allegations of corruption. Judicial independence is respected
[Footnotes omitted]
[3] Department of Immigration and Border Protection, United States of America: Country Overview, June 2017
Because the applicant did not appear and provide evidence as to his means of knowledge as to the activities of the conspirators, his means of knowledge as to the extent to which federal, state and local law enforcement, and the judiciary, had been suborned by the conspirators, including the extent of harm, if any, suffered by him, or provide evidence as to why he continues to be sought by the conspirators or law enforcement agencies, the Tribunal is unable to be satisfied that there is a real chance that on return to the United States, either now, or in the reasonably foreseeable future, that the applicant would be persecuted or suffer serious or significant harm.
Cumulative claims

Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence the claims described above, if he returns to the United States now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to the United States. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
The Tribunal has considered the applicant’s claims in terms of complementary protection.
Having regard to the findings of fact above, I do not accept that the applicant left the United States because he feared for his physical safety.
In view of these findings, I am not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to the United States now or in the reasonably foreseeable future. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, I am not satisfied that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment, or he will be subjected to degrading treatment or punishment if he returns to the United States now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the circumstances above, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s. 5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the United States that there is a real risk that he will suffer significant harm.
Overall conclusion
For the reasons 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 of 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.
James Lambie
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…

[2023] AATA 1275

21 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice