1728378 (Refugee)

1728378 (Refugee) [2021] AATA 5314 (6 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1728378
COUNTRY OF REFERENCE:                   China
MEMBER:Nathan Goetz
DATE:6 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 December 2021 at 2:02pm
CATCHWORDS
REFUGEE – protection visa – China – domestic violence – workplace harassment – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 425, 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 and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant identifies as a [age]-year-old female citizen of China. [In] December 2016 the applicant arrived in Australia holding a visitor visa. That visa had an expiration date [in] March 2017.
On 30 January 2017 the applicant applied for the protection visa. On 31 October 2017 the applicant failed to appear at an interview with the delegate. On 31 October 2017 the delegate refused to grant the protection visa on the basis that the applicant did not satisfy s 36(2)(a), (aa), (b) or (c) of the Act.
On 15 November 2017 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa. On 19 November 2021 the Tribunal wrote to the applicant and invited her under s 425(1) of the Act to appear at a Tribunal hearing commencing at 10:00am on 6 December 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because the Tribunal was unable to make a favourable decision to the applicant on the material it had. On 22 November 2021 the applicant completed and returned a ‘Response to hearing invitation form’ and advised that she would appear at the Tribunal hearing.
On 6 December 2021the applicant appeared at the Tribunal hearing by telephone. The Tribunal was satisfied that a telephone hearing was appropriate given the COVID-19 pandemic and current New South Wales Government health orders. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Mandarin languages.
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
Protection visa application form
The applicant declared this form on 26 January 2017. She had no assistance completing the form. She indicated that she was born in Suzhou, Jiangsu, China and that she was a Chinese citizen. She provided detail of her Chinese passport which was issued [in] 2012 and expiring [in] 2022. She identified as married. Her marriage was [in] May 1998 in Jiangsu, China and the relationship began on 18 October 1996.
She detailed her address history in China between June 1996 and December 2016 as [address], Suzhou city, Jiangsu, China. For the same period she declared that she was a worker in a [store] located in the same province.
She detailed that she was in contact with relatives in China. She contacts them by weekly telephone calls to China. She has no personal contacts in Australia. She identified her husband as [named], who was born in [year], and a son, [named], who was born in [year], as living in China.
Asked to detail travel to any country other than Australia in the last thirty years, the applicant indicated the following travel:
·     [December] 2012 to [January] 2013: [Country 1]
·     [May] 2013 to [June] 2013: [Country 1]
·     [July] 2013 to [August] 2013: [Country 1]
·     [November] 2013 to [December] 2013: [Country 1]
The applicant identified that she was making her own claims for protection but did not answer the questions in the form about her reasons for claiming protection. Instead, she attached a written statement in which she wrote:
She worked at a local store in China where she was in charge of [a particular area]. Her salary was calculated according to a base wage and a commission on sales. She noted her success in this role.
In October 2015 a person [named] became manager of the store. She noted his retail experience and the effect he had on sales. The applicant indicated that she and the new manager had a good relationship.
On 3 January 2016 the applicant and other employees were invited to dinner to celebrate their hard work over New Year’s Day. After dinner, the group went to a place for karaoke. During that time, the manager put his arm around the applicant’s waist. The applicant did not yell out because she did not wish to startle anyone else. She made an excuse to go to the bathroom. When she came out, she headed home and was anxious because of what happened.
The applicant returned to work the next day. At lunchtime, the manager sat next to the applicant and whispered into her ear. He asked the applicant out to dinner after work and told the applicant she would lose that month’s commission if she refused. The applicant wrote that she had to agree. The applicant wrote that when she finished work, the manager was very flirtatious towards her, complementing her and touching her whenever he found the chance. She felt sick and wished the dinner to end as soon as possible so she could leave. She was too afraid to tell her husband about what happened when she returned home and thought she could handle the problem by herself if she was given more time.
She decided to write a complaint to the company’s main department [in] May 2016. In the letter, she wrote that the manager was harassing his colleague and asked the company to remove him from his position. She noted that she had worked for the company for many years and seeking new employment would be difficult. Two days after the applicant made the complaint, the manager came to find her. He had obtained the letter and reprimanded the applicant for complaining about him. The applicant found out that the manager’s uncle worked in company management and had informed the manager of the report.
The following day, the applicant was removed from her position and then worked as a cleaner. She wrote that this was unfair but there was nothing she could do. She hoped to be comforted by her husband when she could not hide the truth, but her husband said that the applicant had tried to seduce the manager and gotten herself into this mess. From that moment on, the relationship took a turn for the worst, but they stayed married for the sake of their soon.
The applicant wrote that she ended up being a victim and had done nothing wrong. Her relationship was forever broken, and she had no more faith in China because it was a sexist country, so she applied for a visa to come to Australia for a trip. During this trip, a friend suggested that the applicant apply for protection in Australia, so she no longer needs to ‘suffer the consequences of authority abuse from everywhere in China.’
Delegate decision record
The only relevant information provided by the delegate decision record was the applicant’s migration history which the Tribunal has repeated in this decision record.
Discussion at Tribunal hearing
The applicant told the Tribunal that all the information in her protection visa application form was true and correct.
She said that her intention when she applied for the visitor visa to come to Australia was to stay here permanently. She planned to apply for protection and stay. She was aware when she was in China that she could seek asylum in Australia.
The Tribunal asked the applicant why she was applying for protection in Australia. She said she suffered domestic violence in China and wanted to stay in Australia. Her friends said that in Australia women are protected.
The Tribunal asked the applicant to tell the Tribunal about her experience of domestic violence in China. The applicant said that her husband would return home after drinking or playing mahjong and would hit her. He would harm her every two or three days. She has not divorced her husband because he would not allow this. The Tribunal asked the applicant if she had separated from her husband while she was in China. She said she did. About four months prior to her departure from China. She rented a place to live in [a named] town, which she described as a rural area of Suzhou city, Jiangsu, China. She took her son with her to this new place. She placed her son with his father’s parents when she was about to leave China. She did not place her son with her own parents because they were elderly. She confirmed that she had only one child.
The Tribunal asked why the applicant could not return to China given she had been separated from her husband around four months prior to her departure. She said that she did not want to go back to living with her husband. The Tribunal asked the applicant why she would not resume living independently in China. The applicant said that her husband would find her, and that her husband continues to telephone her parents to see if she has returned to China. She told the Tribunal that her husband had found her during those four months when she was living independently of him, but she would hide. He would come to the door and she would hide from him. She said that she moved to several places and left as soon as she got her visa to come to Australia.
The Tribunal asked the applicant whether she was a homemaker in China. She said she was. The Tribunal asked whether the applicant had ever worked or if she had been a homemaker since she was married. She said that she was a housewife and did not work during her marriage.
The Tribunal asked whether the applicant reported her husband’s activity to police. She said she did not. She did not do this because police do not handle these matters like police do in Australia. In China people just ran away.
The applicant told the Tribunal that she had never been hospitalised on account of her husband’s assaults. She said that she did not do so because her assaults resulted in bruises and swollen areas, but she was poor and cannot afford hospitalisation.
The Tribunal confirmed that with the applicant that her claim was that she cannot return to China as she feared her husband will assault her in the future. The Tribunal asked whether there were any other claims. She said that she would like to stay in Australia because her husband keeps harassing her and wants to know where she is.
The Tribunal raised with the applicant the concerns it had about the truthfulness of her claims. The Tribunal noted to the applicant that in her protection visa application form she declared that she lived at one address in China between 1996 and her departure from China, which was inconsistent with her oral evidence about her living arrangements in China where she claimed that she had separated from her husband and moved. The applicant repeated that her husband looked for her during the four months when she lived separately. The Tribunal asked the applicant why there was inconsistent evidence about this, and the applicant responded that the solicitor or migration agent did not ask her about this in detail. She then said to the Tribunal that she had a migration agent, and he was located in [suburb], New South Wales. The Tribunal noted that the protection visa application form disclosed no assistance and the form suggested she completed and lodged the protection visa application herself. The applicant said that the migration agent did not say that much to her, and she had completed the form herself.
The Tribunal raised with the applicant the inconsistent evidence she had given about her employment history. The Tribunal noted that in her written protection visa application she detailed that her employer had been harassing her, and that this was a reason why she applied for protection in Australia. The inconsistent evidence suggested that the applicant’s claims were not true and invited the applicant to comment on the inconsistency. The applicant responded that the employment was prior to her having a child in 1999. After that time, she did not work. The Tribunal noted that previously the applicant told the Tribunal that she did not work prior after her marriage, which the protection visa form discloses was in 1998. The applicant responded that Chinese culture required her to stop working after having her child. The Tribunal noted that her written protection visa application suggested she was working until she left China in December 20116. The applicant said that she did not have money and had worked odd jobs and queried whether that was considered work.
The Tribunal also noted to the applicant that she had not claimed in her written protection visa application that her husband had been violent towards her and that she feared harm in China on that basis. This suggested to the Tribunal that the claim had been fabricated. The Tribunal invited the applicant to comment on the inconsistency between the written protection claims and what the applicant said at the Tribunal hearing. The applicant responded that when she was assaulted prior to having her child. She also told the Tribunal that her migration agent did not tell her that much and that when she was planning on the Tribunal appeal, the solicitor asked her if she wanted to add anything to the application.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection.’ The Tribunal must also determine whether the applicant is a member of the same family unit as a person who is a ‘refugee’ or who meets ‘complementary protection.’
For the following reasons, the Tribunal has concluded that the [decision under review should be affirmed.
What is the country of reference?
The Tribunal is satisfied that the applicant is a citizen of China on the basis of her Chinese passport. There is no evidence to demonstrate that she holds citizenship of any other country, or that she possesses a right to enter and reside in another country. Accordingly, the country of reference for the protection visa assessment is China.
Is the applicant a witness of truth regarding the facts she submitted?
The Tribunal does not accept that the applicant is a witness of truth concerning any of her claims arising from her written protection visa application form nor arising from the oral evidence she gave at the Tribunal.
The applicant told the Tribunal that her claims in the protection visa application form were true. However, she did not repeat these claims at the Tribunal hearing, telling the Tribunal she was not employed and was a homemaker from the time of her marriage. Not being employed fundamentally undermined her protection claims concerning her manager, and the claimed distance that was created between her and her husband when she told her husband of what happened to her. Given the applicant told the Tribunal hearing that what was claimed in her protection visa application form was the truth, the inconsistent evidence she provided between her written application and her oral evidence demonstrates to the Tribunal that the written claims were fabricated either by the applicant (and she has since forgotten what she wrote) or that the claims were fabricated and fed to her. The Tribunal is not persuaded by the applicant’s explanation about the inconsistency, given that this itself change when the Tribunal put the concerns it had to the applicant for comment. Her evidence changed from not working after marriage to not working after having a child to doing casual work before she left China. The Tribunal is satisfied that the change in the applicant’s evidence was an attempt by her to provide an evidentiary basis (that is, she was still employed as detailed in her written protection visa application form) so that she could maintain her earlier claims about the harassment from her manager. The Tribunal is not satisfied that there is any truth to this claim.
The applicant also claimed that she feared returning to China because she feared future harm from her husband, who had previously assaulted her several times during the course of their marriage. She separated from him four months prior to departing China but despite relocating, he found her. She hid and he continues to contact her parents to find out if the applicant has returned to China. The Tribunal does not accept that there is any truth to the applicant’s claims arising out of her claimed fear of harm in China due to her husband. If the applicant had separated from her husband because of suffering domestic violence, such a claim would have been detailed in her written protection visa application form. Instead, the written form details nothing more than the relationship taking a turn for the worse when she revealed what the manager had done to her which resulted in her being demoted to cleaning duties, and that they stopped feeling like a family.

The Tribunal is satisfied that if the applicant’s husband had assaulted her as she claimed, she would have detailed those assaults in her written protection visa application form. If the applicant feared returning to China because she feared her husband would again be violent towards her, the Tribunal is satisfied that those claims would have been detailed in the protection visa application form. If the applicant left her husband and lived independently for about four months before departing China and was in hiding (and being found by her husband, requiring her to relocate several times), the Tribunal is satisfied that this would have been detailed in her written protection visa application form. The Tribunal is not satisfied by the applicant’s explanation about why this detail was not included in the written protection visa application. It makes no sense that the applicant would seek to add this at the Tribunal hearing at the suggestion of her migration agent, when the factual basis for the claim related to previous incidents in China. The failure of the applicant to detail the claim and the facts that gave rise to that claim in the written protection visa application form demonstrate that the claim was fabricated. The Tribunal views that the applicant’s evidence to the Tribunal hearing that her friends had said that Australia gives protection to women who have suffered domestic violence as indicative that the applicant had decided to make this claim at the Tribunal hearing because she believed that it was more likely that she would be granted a protection visa on this basis. The Tribunal is not satisfied that there is any truth to this claim.
CONCLUSION
The Tribunal is not satisfied that the applicant is a witness of truth. Her evidence was inconsistent between her written protection visa application and her oral evidence to the Tribunal. The applicant had a flexible approach to the truth. The Tribunal is satisfied that the applicant’s claims for protection were manufactured in order to be granted a protection visa.
Refugee
The Tribunal is not satisfied that there is a real chance of serious harm to the applicant in China due to her race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
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 there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to China there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
There is no evidence that the applicant is a member of the same family unit as a person who meets s 36(2)(a) or (aa).
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
…

[2021] AATA 5314

6 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction