1725137 (Refugee)

1725137 (Refugee) [2018] AATA 5061 (12 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1725137
COUNTRY OF REFERENCE:                  China
MEMBER:Shahyar Roushan
DATE:12 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 April 2018 at 4:17pm
CATCHWORDS
REFUGEE – protection visa – China – social discrimination – property dispute – inadequate compensation – credibility issues – fabricated and concocted their claims to achieve a migration outcome – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth) Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 September 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
Background
The applicants are wife ([the first named applicant]) and husband ([the second named applicant]). They are nationals of China. They arrived in Australia on [temporary] visas on [date] October 2013. [The second named applicant] then departed on [date] March 2014 and re-entered Australia on [date] April 2014. The applicants applied for protection visas on 4 August 2017.
Claims and evidence
Protection visa application
In their protection visa applications, both applicants made the following claims for protection.
They took part in a protest against an ‘unfair house demolition and reported corrupt officials’. They faced ‘revenge and persecution’. The Town government notified them that their ‘home area would be demolished and renovated’. The developer explained the compensation to them with a ‘bad and arrogant attitude’. They were offered only 1/3 of the market price, which would have resulted in huge losses. They ‘strongly disagreed’. Consequently, they organised a protest with ‘other relocation households’ and gathered at the Country government building. Shortly after the protest, the police ‘ransacked relocation households homes’ including the applicants’ friend’s house. The applicants ‘were lucky enough to escape’. Subsequently, they heard that protesters were ‘cruelly tortured in a detention centre’. The police knew the applicants had participated in the protest and wanted to arrest them. Consequently, they ‘fled’ to Australia and they are too afraid to return to China.
Corruption in China is very serious and ‘officers try to protect each other and cover each other. They fear that they will be arrested and convicted of opposing the Chinese Communist Party. ‘Officers colluding with the police’ will continue to harm them and the ‘political system is corrupted’.
The applicants were invited to attend an interview with the delegate of the Minister. However, they did not attend the interview.
On 28 September 2017, the delegate, in separate decision records, refused to grant [the first named applicant] and [the second named applicant] protection visas.
Review application
The applicants applied for a review of the delegate’s decision. They were represented in relation to the review by their registered migration agent. The applicants submitted copies of the delegate’s decision records to the Tribunal for the purposes of the review and they are taken to be on notice of the delegate’s findings and reasons.
The applicants appeared before the Tribunal on 22 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants' representative did not attend the hearing.
Where relevant, the applicant’s’ oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
The Tribunal did not find the applicants to be credible and truthful witnesses and has concluded that the decisions under review should be affirmed.
There were significant inconsistencies between the oral evidence given to the Tribunal by [the second named applicant] and [the first named applicant]. As set out below, these glaring inconsistencies shrouded many aspects of the applicants’ evidence to the Tribunal, including their claims in relation to [the second named applicant]’s travels, their residential addresses in China, their family composition, employment, property ownership, experiences of harm and the arrangements made towards securing their Australian visas.
[The second named applicant]’s travels
[The second named applicant] stated at the hearing that he travelled to [Country 1] in 2008 and resided in that country until 2011. In October 2013, he and his wife came to Australia on [temporary] visas. About five months after he came to Australia, he returned to China to visit his ill grandmother and remained for approximately five weeks. During this period, he travelled to [Country 2] at the insistence of a close friend, who resided in that country. His friend wanted to show him [Country 2] and financed the trip. [The second named applicant] remained in [Country 2] for two days only. He then travelled back to China before returning to Australia.
[The first named applicant], however, told the Tribunal that her husband returned to China in March 2014 and while he was in China he travelled to [Country 2], where he stayed for one week. He went to [Country 2] in order to find a job as he was told by his friend that there were many opportunities in that country. However, her husband decided to return to China as there were no jobs and he could not speak the language.
Residential addresses
[The second named applicant] stated that, in China, he resided in a house located in [Village 1], Meihekou Town, Jilin Province. The house was built by his father and he had resided in that house ever since he was a child. After their marriage, his wife came to live with him and his parents in the same house. They continued to reside in the same house until their departure from China for Australia in October 2013. Following their marriage, neither of them had resided anywhere else in China. However, ‘a long time ago’, [the second named applicant], occasionally, stayed with his aunt in a nearby village for short periods of time. During his visit to China in 2014, [The second named applicant] resided in his own house with his mother. He did not reside anywhere else in China during this trip.
Whilst [the first named applicant] also stated that, in China, she had resided with her husband in a house owned by her husband’s family in [Village 1], she told the Tribunal that the house was acquired by, and sold to, developers in March 2013. [The first named applicant] and [the second named applicant] then moved into rented accommodation in Meihekou City and resided at the same address until they came to Australia in October 2013. [The second named applicant]’s mother, who resided with them in [Village 1], went to live with her brother elsewhere. [The first named applicant] stated that, when her husband visited China in March 2014, he stayed at his uncle’s house or with other people.
Family composition
[The second named applicant] told the Tribunal that he and his wife have an [age] year old son. Their son and [the second named applicant]’s mother continue to reside in the same house he and his wife resided in before coming to Australia. [The second named applicant] said he is in contact with his son and his mother once a week via telephone or WeChat.
[The first named applicant], on the other hand, stated that she and her husband do not have any children. They wanted a child but they were too busy and could not have one.
Employment
[The second named applicant] stated that he worked as a farmer in China. He had three pieces of land and he grew rice. They used some of the rice for personal consumption and sold the rest. In [Country 1], he worked in a factory and when he returned to China he stopped working as a farmer because he had saved enough money. His uncle, however, continued to cultivate the three pieces of land. In Australia, he has held odd jobs working in [different areas]. [The second named applicant] also said, when he worked as a farmer in China, his wife assisted him on the farm. She did not work after he returned from [Country 1].
[The first named applicant], however, told the Tribunal that she worked in [a certain role] in China. She explained that she worked [in] different stores until 2005. From 2005 to July 2013, she worked for a small [company]. She did not work in the three months prior to her departure from China. In Australia, she worked in [several roles]. In relation to her husband, she said, before 2008, [the second named applicant] worked in [odd jobs]. He then travelled to [Country 1] to work in a factory. Following his return to China, he did not work. In Australia, her husband works only one or two days a week in construction. He does not work much because he is not in good health. [The first named applicant] stated that her husband owned one piece of land in China, which his mother rented out to others. No agricultural produce, including rice, was grown on the land.
Experiences of harm
[The second named applicant] stated at the hearing that in 2011, developers came to his house and told him that they wanted the land on which his house was built. He refused because the compensation they offered was inadequate. They did not tell him how much they were willing to offer, but he knew it was only ‘a little bit’. He did not ask how much the developers were willing to offer because other people knew that there was no point to this. As he had refused the offer, sometime in the middle of 2011, some people hired by the developers came to his home and beat him. He was hit on the head and had to go to the hospital. He did not require stitches and spent only one day in hospital. Following this incident, his wife wanted to seek justice, so she wrote a letter of complaint to the police. The police, however, were connected to the developers and, in December 2012, they arrested his wife. [The first named applicant] was detained for 20 days. She was released after they reluctantly promised not to complain again. Other than police harassment, nothing else happened after January 2013.
[The second named applicant] stated that, ultimately, his house was not acquired or demolished because, approximately a year after he and his wife came to Australia, the developers were punished by the authorities for taking bribes. He said his son and mother continue to live in the same house. However, he and his wife are still at risk of harm because the developer and the head of the police blame them for complaining and they want information. They may still ask other people to harm him and his wife.
[The first named applicant] provided a different account, stating at the hearing that, in October 2012, they were notified that their house was marked for demolition because developers intended to build a factory on the land. They were offered RMB50,000 in compensation, which was approximately half of the market value of the property. When they refused, in December 2012, some people came to their house and beat her husband. He was hospitalised for 10 hours. [The first named applicant] reported the matter to the police, but nothing happened. She then wrote a complaint letter to a radio station and her letter was read on air by an announcer. Following the broadcast, they received threats from the developer and she was arrested. She was detained for 20 days and, when her family and friends saw her suffering, they advised her to sell the property. She was released in January 2013 and agreed to sell the house. They received RMB50,000 in compensation. In October 2016, the head of the local police, who was in a close relationship with the developer, was arrested as a result of the complaints she had made. She knew this because the head of the police had told her mother-in-law that what she and her husband had done was ‘illegal’ and he wanted them to go back to help with the investigation. She fears harm from the head of the police and the developer, because she complained against them.
In addition, each applicant’s oral account of their experiences in China contrasted sharply with the identical claims they had put forward in their protection visa application, in particular their claims that they organised a protest with ‘other relocation households’, gathering at the Country government building; that the police had ‘ransacked relocation households homes’ including the applicants’ friend’s house, that the applicants ‘were lucky enough to escape’; that they had heard other protesters were ‘cruelly tortured in a detention centre’; and that the police knew the applicants had participated in the protest and wanted to arrest them.
Arranging Australian visas
[The second named applicant] informed the Tribunal that, in May 2013, he approached his friend to assist him with departing China. He paid RMB30,000 to his friend, who arranged an Australian visa for him and his wife. His friend and family helped him with the payment.
[The first named applicant], on the other hand, stated that [the first named applicant] told the Tribunal that she had made all the necessary arrangements to obtain Australian visas for her and her husband. She had approached a person working in agency at the beginning of 2013 to assist her with the process. She had paid RMB300,000 towards the visas and airfare. The costs were partly covered by the compensation received from the developers. She borrowed the rest from family and friends.
The inconsistencies between [the second named applicant]’s evidence and that of his wife were put them, in each other’s presence, under s.424AA of the Act. [The first named applicant] said she had no comments in relation to any of the inconsistencies raised. [The second named applicant], however, stated that certain incidents had taken place a long time ago, he had sustained an injury to his head and, under the circumstances, inconsistencies were ‘normal’. The Tribunal does not agree and does not find the explanation provided satisfactorily addresses the extent and breadth of the discrepancies and the variations in the applicants’ evidence. These inconsistencies cast serious doubt on the truthfulness of both applicants and fundamentally undermine the credibility of their evidence.
In reaching this view, the Tribunal has also taken into account the applicants’ delay of nearly four years in lodging in their application for a protection visa. At the hearing, [the second named applicant] stated that they did not know how the visa system works. They thought they would be able to obtain permanent residency on the basis of their [temporary] visa, but they realised that the visa was only valid for four years. [The first named applicant] told the Tribunal that they had not applied for a protection visa previously because their [temporary] visa remained valid for four years. As it was put to the applicants at the hearing, the [previous] visa was a temporary visa and that, if they had a genuine fear of being harmed in China, it would be reasonable to expect them to have applied for a protection visa at an earlier opportunity. The Tribunal is of the view that the applicants’ delay of some four years in seeking protection casts doubt on the genuineness of their claimed fear of persecution and the credibility of their claims.
For all the above reasons, the Tribunal finds the applicants not to be credible, truthful or reliable witnesses. Their evidence show their propensity to shift and tailor evidence in a manner which achieves their own purpose. The Tribunal finds that the applicants have fabricated and concocted their claims to achieve an immigration outcome. The Tribunal, therefore, does not accept that their house, their land or any other property owned by either or both of the applicants was marked for confiscation and/or demolition. The Tribunal does not accept that their house, their land or any other property owned by either or both of the applicants was confiscated, acquired or purchased by any developers with police connections. As the Tribunal has rejected these central claims, the Tribunal does not accept any of the claims flowing from these claims. Specifically, the Tribunal does not accept that [the second named applicant] was assaulted and injured, resulting in hospitalisation, by the developers or anyone working for or associated with any developers. The Tribunal does not accept that [the first named applicant] complained to the authorities, sent a letter to the police or wrote to a radio station in relation their claimed predicament. The Tribunal does not accept that [the second named applicant] and [the first named applicant] organised or participated in any protest against house demolitions. The Tribunal does not accept that [the first named applicant] was arrested and detained for 20 days. The Tribunal does not accept that anyone else was arrested, detained and mistreated as a consequence of any incident or event claimed by the applicants. The Tribunal does not accept that the applicants faced ‘revenge and persecution’. The Tribunal does not accept that they were harassed, intimidated or threatened by the developers, the police or anyone else. The Tribunal does not accept that their house was ransacked. The Tribunal does not accept that the applicants had ‘fled’ China or that their departure was in connection with any of the claims put forward by them.

After considering all of the applicants’ claims, both individually and cumulatively, the Tribunal does not accept that they have been harmed in the past in China or that, if they were to return to China now or in the reasonably foreseeable future, there is a real chance that they will be harmed for the reason of their race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicants do not have well-founded fear of being persecuted. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). Having considered and rejected the applicants’ claims, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that they will suffer ‘significant harm’, as that term is exhaustively defined in s.36(2A). The Tribunal, therefore, is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on either or both of the applicants for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that either or both applicants will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that they will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicants will suffer arbitrary deprivation of their lives or the death penalty. The Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Shahyar Roushan
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.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 5061

12 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction