1731082 (Refugee)

1731082 (Refugee) [2018] AATA 2316 (29 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731082
COUNTRY OF REFERENCE:                  China
MEMBER:Sean Baker
DATE:29 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 29 June 2018 at 2:37pm

CATCHWORDS
Refugee – Protection visa – China – Social group – Protester against land confiscation and compensation – Victim of torture and mistreatment – Fear of harm by police – Credibility concerns – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 23 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 18 August 2017. The delegate refused to grant the visa on the basis that the material before the delegate did not provide a sufficient basis to be satisfied that the applicant’s claims were true. The applicant provided a copy of the delegate’s decision to the Tribunal.
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 (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant provided his Chinese passport and on this basis I accept that the applicant is a national of China, which is also his receiving country.
Claims
In his application for protection, provided to the Department, the applicant has made the following claims:
I had an old house in my hometown. The local government noticed that our house would be demolished. However, we did not receive any compensation. After that, my neighbour told me that our compensation was cheated by the local government. So I and neighbour wrote public letter to distribute to hope that get society'a attention and help. However, after the local government knew our behaviour, they sent police to catch us. I was not at home, so I survived. But my neighbour was caught by the police.
The police forced them said other protestor's whereabouts. I was so scared, escape China and fled to Australia. Please Australian government protect me.
When asked if he experienced harm in that country he has responded no. When asked if he moved or tried to move to another part of that country he has responded yes and when asked to give details said:
The whole situation of China was the same. The government was corruption. They colluded with the police. They only care their own benefits.
If he returns he thinks that:
If I return to China, I will suffered persecuted by the police. Once I went into prision, I will die.
He thinks he will be harmed or mistreated and states:
If I went to China, I will be persecuted by the police. Once I went into prision, I will suffered persecution on mental and physical.
He says the authorities will not protect him because the Chinese Government is corrupt and government officials collude with the police and only care about their own benefits.
He states that he thinks he would be able to relocate but then states that:
The whole situation of China was the same. The government was corruption. The police was colluded with the government's officials. Government was the protective umbrella of the police. They only care their own benefits.
It is noted in the delegate’s decision that the applicant was invited to attend an interview but did not attend.
The applicant did not provide any further material to the Tribunal.
At hearing the applicant expanded on his claims. He said that [City 1] city officials had come to his neighbourhood and said they were going to modernise the area and would acquire their properties at a good price, so the applicant and his neighbours signed contracts in March 2016. They moved out of their houses in May 2016. They had been promised the money in June 2016 but they were not paid and the officials delayed and until October the money had not been given to them. He and his neighbours went to the city government and an official said that their agreements were invalid and not legally binding and the government would only pay them half the agreed amount. The applicant and his neighbours consulted a lawyer who agreed that it was not legally binding and suggested they make a joint petition to report the [City 1] city council.
He said that they did this and signed it jointly and submitted the document to the municipal government but they turned a deaf ear. Then he and the neighbours discussed the matter and nominated a few people to go to the central Government and report the matter and expose the corruption of the municipal government. He said that they didn’t know how but the message was leaked somehow and he, his neighbour and six other dwellers were arrested around [dates] October 2016.
He said the police illegally searched his body, beat him and tortured him, trying to obtain from him information about who asked him to report to the central government, who asked him not to sign the agreement and told him they would torture him to death. Then they sent him to the detention centre where he was also tortured. They also tortured his neighbour and his neighbour went into a coma because of the mistreatment and torture he experienced and despite being sent to the hospital his neighbour died. The applicant was very scared and frightened and he signed a consent form in which he promised not to report to the central government and not to speak about what happened in prison and they released him [in] November 2016. He said the district had also asked the police to harass him since then several times. He was scared so he arranged to flee to Australia.
The applicant said he had also heard that recently the head of the city police station was fired because of the abuses of power. He said they had also gotten his family members to urge him to come back to China – he said that they suspected that he and the others were involved in the firing of the police chief.
He claimed that the firing or resignation of the head of police was because of abuse of power and they suspect he was involved in this matter. I asked if he had been in Australia when this happened and he said he was but they suspected he had contact with people in China. He confirmed that he was not, in fact, in contact with these people in China, nor was he involved in this matter. I asked then why anyone would think he had any connection to the resignation/firing of the police chief. He said that because of the illegal demolition of the house and his illegal detention, maybe this was related to the resignation of the police. I asked if there was any information that these things were connected. He said that because the police chief resigned because of abuse of power it should be the applicant’s incident that caused him to resign. I asked if he knew this or just thought this and he said his friends and family said it should be related. I asked what this meant, that it should be related and he said that to a large extent, it’s more or less related to his matter. I asked if it was not related to his matter how it would impact on him and he said right now he is very scared and not sure if it is related. He said the officials might be worried that he would say something about his illegal detention. I asked what he would say and he said he would speak about their behaviour and the illegal detention and torture and the agreement.
He said that after he was released from detention in November 2016 the police harassed him.
Credibility
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
At hearing I developed significant concerns with the applicant’s claims.
The most significant concern was the difference between his written claims and what he claimed at hearing. In his written claims he says that he was not at home when they sent police to catch them so he survived, but that the police caught his neighbour who was forced to reveal the whereabouts of others. However, at the hearing, the applicant claimed that he himself had been detained by the police as well as his neighbour, that he had been beaten and tortured and released after several weeks in detention.
At hearing I raised this with the applicant, noting that he had not said in his written claims that he had been detained, beaten or tortured, and that in his written claims when asked if he had been harmed he had responded no. I asked the applicant why there was an apparent disparity and he said it was out of fear, as he was scared. I asked him to explain this and he said he was scared that they could find him here and that in the future he might have to go back to China. I noted that if this was really the reason then it seemed strange that he would make some of his claims about the local government and local authorities, rather than not making these claims at all. He said he had been afraid that if he wrote all of the information in his application they would find him, so he dared not provide all the information. I noted again that I was not sure this explained why he had given some information but not all of it. He said that this was because at the time that he made the application he was just making a try. I noted that my concerns with the differences in his claims might lead me to doubt these claims and therefore might lead me to doubt all of his claims and his general credibility. He said he had given his claims.
I have carefully considered the claims of the applicant at hearing, and contrasted these with his written claims. I find that there is a significant discrepancy, that in his written claims he has indicated that he was not harmed in China, and claimed that he was not detained because he was not at home when the police came to catch them, that his neighbour was caught, and was forced to tell the authorities the names of the others, so the applicant fled. At hearing the applicant told a very different story, claiming that he was detained for 15 days from October to November 2016, beaten and tortured, and that his neighbour was tortured and eventually died.
I have considered his explanations for the inconsistency in his claims but I do not find them at all convincing. As I raised with him, his explanation does not appear to me to address the concern here – if he truly feared that the local authorities and police would be aware of his claims in Australia, then it appears problematic that he included some of his claims against them, but not all. When I asked him why he had taken this claimed course of action he was unable to explain why he would have done this or how this would have protected him by divulging some of the information but not all of it, nor why he had ticked that he had not experienced harm in China. I note that the applicant said at the beginning of the hearing that he had had a friend help him prepare his application, that the application had been read back to him and he said that it was correct and true and there were no mistakes. I do not accept the applicant’s explanations for why he did not include his detention, beating and torture, nor his harassment by the police after his release from detention. I find that these are significant inconsistencies in his claims and these inconsistencies, and his inability to explain in a clear and compelling way why there are these inconsistencies, lead me to disbelieve that these things happened. Further, given the significance of these claims, this leads me to doubt his other claims, and his general credibility.
A further concern is that at hearing the applicant explained that there were a number of documents which were central to his claims. These included the agreement he had signed in March 2016 with the local government, the title deeds or any documents to show his ownership of the house that had been confiscated, or a copy of the document he said that he and his neighbours had written to the municipal government. The applicant said that he had none of these documents. He said that these had been confiscated from him, and he did not have a copy, he said these documents were confiscated after he was released from prison. I noted to him that it was of some concern that he had said that he had prepared a number of documents, and taken the agreement and other documents to a lawyer, yet he was unable to provide any of the documents or a copy of them – that neither he nor the lawyer had retained these documents, that out of fear he had given them all to the authorities after his detention. I do not find his explanations for why he no longer holds these documents to be convincing – even if he was forced to hand over the agreement, it would seem very strange if he had not kept a copy of the ‘public letter’/joint petition he had drafted with his neighbours to give to the local authorities, nor that the lawyer would not have taken copies of the agreement or petition which he could have provided to the applicant. The applicant was adamant at hearing that he could not provide any documentation to support his claims.
I understand that generally it is not appropriate to expect that asylum seekers will be able to provide documents to establish their claims. However, in this case, the claims revolve around several key documents – the agreement, and the public letter/petition. Given this, and that it appears to be very unlikely that if these documents had existed, the applicant or the lawyer or another party would not have access to them or a copy of them, I find it concerning that the applicant is not able to provide a copy of these documents. Given my concern above, this leads me to further doubt the claims of the applicant and his overall credibility.

Given these concerns, I find that I do not accept the claims of the applicant, and find that he is not credible in his claims.
Does the applicant have a well-founded fear of persecution if he returns to China?
The applicant said in his written claims that he would be harmed by the police because he had complained about the unjust acquisition of his house by local authorities. At hearing he explained that he feared harm from [City 1] police and local officials and that he had been harmed by them on detaining him and then had been harassed by the police after his detention.
On the basis of my credibility findings above, I do not accept that the applicant had his house acquired by local authorities, that he signed an agreement with them that they did not honour, that he was cheated of payment by the authorities, that he wrote a public letter or joint petition with his neighbours to the authorities, that he was detained for 15 days, beaten, tortured and threatened, that after his release he was harassed by the police. I do not accept that his neighbour was detained and tortured and subsequently died. Consequently, I do not accept that the applicant had any involvement in, or would be perceived as having any involvement in, the resignation/firing of the [City 1] police chief. I find that the applicant is not credible and that he has fabricated his claims in total. Consequently, I do not accept that the applicant would, or that anyone would think he would return to China and speak about his detention and torture (which did not happen).
I accept that the applicant is Chinese national, a married male from [City 1], Shandong Province. He has worked in [China], and briefly in Australia. This is all I accept of the applicant’s claims. On this basis I find that there is no real chance that the applicant will suffer significant harm amounting to persecution from anyone for any reason, if he returned to China, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to China?
In MIAC v SQRB[1] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[1]MIAC v SZQRB [2013] FCAFC 33 (Landeer, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
As detailed above, I have not accepted his claims and find that there is no real chance that he will be seriously harmed by [City 1] police, local officials or anyone else, now or in the reasonably foreseeable future if he returns to China.
When asked the applicant did not claim that he would be harmed on any other basis on return to China but restated his claims as above and said that his family members asked him not to go back to China and to hide in Australia. I do not accept that there is any real basis for his family members to caution him against returning, as above, and I find that the applicant has not provided any other basis on which he claims he will be harmed on return.
It follows that I do not accept that there is a real risk the applicant will suffer significant harm from any person or for any of the reasons set out above or for any other reason or basis evident on the claims or material as a necessary and foreseeable consequence of him being removed from Australia to China.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
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 2316

29 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Appeal