1801813 (Refugee)

1801813 (Refugee) [2022] AATA 67 (4 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1801813

COUNTRY OF REFERENCE: China
MEMBER:Tania Flood
DATE:4 January 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 January 2022 at 5:33pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – underground church group – detention – physical harm – fear of killing – exit procedures – medical care – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 499
Migration Regulations 1994, 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 Home Affairs on 23 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 4 May 2017. The visa was refused on the basis that the delegate could not be satisfied on the available information that there is a real chance the applicant will suffer serious harm on return to China on account of her being a Christian. Furthermore, the delegate was not satisfied that there is a real risk the applicant will suffer significant harm in China for this reason.
The applicant was invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant agreed to appear before the Tribunal by telephone on 9 December 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to her during the telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if she returns to China for reason of her race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in her application for a Protection visa the applicant is [an age]-year-old woman from Liaoning Province, China. From birth until February 2017, she resided at an address in [a named town] in Liaoning Province. After completing High School, she attended [a named university] [between specified years]. From [specified year] to December 2016, she was employed as a Team Leader – Supervisor in a [products] business in [a named town in] Liaoning Province. She arrived in Australia [in] March 2017 as the holder of a Visitor visa. Prior to arriving in Australia, she visited [Country 1] [in] February 2016.
The applicant claims to be a Christian. She claims she left China due to the physical and mental harm she suffered from being detained in China. Her grandparents were firm believers in Christianity and God and from a young age she attended secret church services in China.
The applicant claims she feared for her life in China as she was detained in a labour camp and physically harmed. She states that she was taken from her home in order to confess her wrongdoing. She was assaulted on her back and left leg in order to admit she was a Christian. She was left mentally broken from lack of food and proper sleep. Once she admitted she was a Christian she was taken home but those who refused to do so died in the labour camp. Her parents were supportive but because of her negative presence she feared people around her might be arrested as well.
The applicant claims she continued with her life but was unable to practice her religion. She feared she would be prosecuted again if she attempted to speak to God and for that reason she fled her home country.
The applicant claims that if she returns to China she will be arrested again and will be unable to live a free life. She fears living the rest of her life in a labour camp. She cannot relocate within China because the Government has declared that any religions not approved by them will result in punishment.
The applicant did not attend a scheduled Protection visa hearing with the Department. Nor did she provide supporting documents or additional written submissions to either the Department or the Tribunal.
Tribunal hearing
The applicant appeared before the Tribunal by telephone on 9 December 2021. The Tribunal used the opportunity of the hearing to discuss with the applicant her background in China, her claimed reasons for departing China and the reasons why she fears returning to China. Her testimony and responses to issues raised with her by the Tribunal are summarised in the following findings and reasons.
FINDINGS AND REASONS
Country of reference
Attached to the Department’s file is a copy of the applicant’s People’s Republic of China passport which verifies her claimed identity and nationality. In the absence of any information to the country the Tribunal accepts the applicant is a national of China.
Christian claims
During the Tribunal hearing the applicant maintained her claim to be a Christian and to have fled China after being harmed by the authorities on account of her religion.
After careful consideration of her claims and oral testimony the Tribunal is not satisfied that the applicant is or ever was a Christian and does not accept that she departed China for the reasons claimed. The Tribunal’s reasons for these conclusions are as follows:
The Tribunal considers the applicant has presented an inconsistent account of the manner in which she became a Christian and her claimed mistreatment by the Chinese authorities for this reason. In her written claims the applicant states that her grandparents were firm believers in Christianity and that from a young age she attended secret church services in China. When asked how she was first exposed to Christianity during the hearing she stated that a friend introduced her to the faith when she was about [age] or [age] years old. Also, when asked if any other of her family members are Christian she indicated she is “unsure” whether any of her family members were or are Christian.
The Tribunal discussed with the applicant during the hearing the discrepancy in her evidence as to how she was first introduced to Christianity and she responded that in order to protect her family she didn’t want to reveal the whole situation. She added that although her grandparents have passed away she doesn’t want to share information about them.
The applicant’s responses do not, in the Tribunal’s opinion, overcome the problems presented by her inconsistent evidence. Indeed, the Tribunal considers her response in respect of withholding information about her grandparents’ religion illogical given her willingness to identify them as Christians in her written claims. Furthermore, the applicant claims to be a committed Christian and in the circumstances the Tribunal finds it implausible that she would not know whether her immediate close family members shared her religious beliefs.
The Tribunal also considers the applicant has presented an inconsistent account of the circumstances surrounding her claimed detention and mistreatment by the authorities in China. When asked during the hearing what caused her to depart China she said that she is a Christian and once when attending church she and others were detained by a group of plain clothed officers and taken to a detention centre where she was reproached and interrogated. When asked if she suffered any other mistreatment she said that she was held in a dark room, denied food and forced to work long hours.
The Tribunal put it to the applicant that her written claims indicate something different in that she previously said she was detained after being taken from her home and not the church and also physically assaulted while in detention. The applicant responded that sometimes the police came to interrogate her at home but when she was detained it happened in the church. As to the claimed mistreatment she said that she had previously mentioned being made to stand for long periods and added that her captors shone bright lights in her eyes. She confirmed those were the only incidents of physical assault she encountered. When the Tribunal pointed out that her written claims indicate she was assaulted on the back and leg she said she probably forgot to mention that as this type of treatment happens a lot in China.
During the hearing the applicant advised the Tribunal that she has a brain tumour and sometimes has difficulty remembering events clearly. She was invited to provide proof of her medical condition after the hearing and on 13 December 2021 she emailed the Tribunal a copy of a radiology report dated [in] June 2021. The report indicates the applicant underwent an MRI Brain Scan which concluded she has a “posterior fossa arachnoid cyst, no other notable finding and normal MRA”. This report does not assist the Tribunal to determine whether her medical condition could account for her failure to recall a key component of her claims. For all the reasons contained herein the Tribunal did not find the applicant to be a credible witness and is not persuaded that memory loss accounts for the differing accounts of key aspects of her claims.
At the outset of the hearing the Tribunal asked the applicant if she had personally prepared her application for Protection and she confirmed she had. She said she was aware of the contents of the application and did not wish to amend any of the information contained therein. The applicant claims to have only been detained once and notwithstanding the medical evidence she has produced the Tribunal is not persuaded that the whereabouts of this event could easily be confused. Furthermore, the applicant offered no satisfactory explanation as to why she claimed in her application for a Protection visa that she had been physically assaulted on her back and left leg when her oral evidence is that this did not occur.
The Tribunal also found the applicant’s account of what occurred after her release from detention to be unpersuasive and unsupported by country information. The applicant claims that following her release from detention she first went back to the home she shared with her husband before they separated but later rented a property because the authorities were coming to the house to supervise her and she didn’t want her family to be bothered. She said that it wasn’t easy for her to move out of the house because she was followed wherever she went.
Noting the above the Tribunal asked the applicant how it is possible she managed to make all the necessary arrangements to obtain a visa and flight ticket for Australia and more importantly to leave the country given she was under surveillance. The Tribunal discussed with the applicant DFAT’s 2019 advice[1] which indicates the Chinese authorities have sophisticated systems in place to deter persons of interest from leaving the country. The Tribunal notes that since the time of the hearing DFAT has released an updated country information report (see below). The Tribunal has reviewed the relevant section in the latest report on exit and entry procedures and is satisfied it doesn’t present a significantly different analysis to that included in the previous report from 2019. The applicant responded that she had health problems and needed to go to different appointments. She said she was not such an important figure and later on the supervision relaxed a little bit. She also said she informed the authorities that she needed to travel and relax to overcome her health problems and this is why they allowed her to travel.
[1] DFAT Country Information Report, China, 3 October 2019
If the applicant’s claims are to be believed, which they are not, and she was under surveillance by the Chinese authorities the Tribunal considers it improbable they would have permitted her to depart China in order to travel and relax as is claimed. The Tribunal also does not accept that a person undergoing close personal surveillance by the authorities could freely exit China without hindrance. In forming this opinion, the Tribunal has had regard to DFAT’s latest country information report[2] which indicates that exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies feed data into databases including from tax, customs, police or judicial authorities. This technology is used to create an exit control list. National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons.
[2] DFAT Country Information Report, China, 22 December 2021
Further, despite stating in her application for a Protection visa that she was unable to keep practicing her religion after her release from detention for fear she would be prosecuted again she informed the Tribunal that she in fact attended church roughly five or six times after her release. However, she said she was followed each time. When the Tribunal pointed out it seems implausible the authorities would permit her to attend church after detaining her and forcing her to admit she was a Christian and threatening her not to continue practicing her faith she said that because she is a woman all they could do was threaten her or put her back in detention. She said that she was not stopped from entering the church but once after leaving the church they threatened to put her back in detention. The Tribunal has considered the applicants responses but remains unconvinced that a person whom the authorities deemed fit to arrest for her Christian activity and keep under surveillance for this reason could evade being detained again when according to the applicant the authorities were well aware of her movements and Christian activity.
The Tribunal is also of the opinion the applicant’s oral evidence in respect of her religious practice in Australia was vague and unconvincing. While stating that she goes to church quite often and gathers together with other Christians she could not name the church she attends or provide an address for the church other than noting it is in [a named suburb]. When asked what type of church she attends she could only say it is a “Jesus” church and she appeared to be largely unaware there are different denominations of Christianity. She claimed to read the bible but when asked to relate a story which particularly appeals to her she gave a generic and undetailed account of a story about a sick child recovering after being prayed for. When asked if she is baptised she first said that when she goes to church she sits down in the pew and a father is present and they do all kinds of things together. She later asked if baptism involves water and when the Tribunal indicated it usually does she said she is not baptised. Relevantly she had no evidence to provide in support of her Christian activity in Australia.
The Tribunal put it to the applicant that her evidence in respect of her Christian knowledge and activity in Australia is not convincing and she replied that the church she attends is operated by Koreans and as a result there are some language barriers and accordingly they have told her to just feel with her heart. While acknowledging that language barriers could possibly account for some of the Tribunal’s concerns in respect of her awareness of her current church congregation, it nevertheless remains that the applicant claims to have been a practicing Christian in China. Given the length of time she has been an adherent of Christianity the Tribunal expects she ought to have been able to demonstrate a greater understanding of basic factors relating to her faith than she did.

Having carefully considered the available evidence, and for all the reasons outlined above, the Tribunal is not satisfied that the applicant was or is a Christian. The Tribunal does not accept she was ever detained, harmed or monitored by the Chinese authorities on account of her religion or that she fled China out of fears for her safety for this reason. The Tribunal is also not convinced that the applicant has been attending any Christian church services in Australia or otherwise practicing Christianity in Australia. It follows that the Tribunal does not accept she will practice Christianity on return to China or be arrested upon return or denied the ability to live and practice her religion freely in China. The Tribunal does not accept that there is a real chance or a real risk the applicant will suffer serious or significant harm if she returns to China now or in the reasonably foreseeable future for reason of her being a Christian.
Other claims
The applicant also stated at hearing that she will not be able to receive proper treatment for her medical condition in China and will not be able to survive in China without a job. When questioned further about these fears she put these obstacles down largely to the fact that she has an adverse profile with the authorities in China on account of her being an identified Christian. As found above the Tribunal does not accept the applicant is a Christian or was ever a person of interest to the authorities in China for this reason. It follows that the Tribunal does not accept she will be denied medical care or employment for this reason.
The Tribunal acknowledges the applicant also connected her inability to work with her medical condition but there is nothing before the Tribunal to indicate that her condition cannot be resolved and/or that treatment for her condition will not be available to her in China.
Based on the available information the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to China because she will be unable to obtain medical treatment or find employment.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons already articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk she will suffer significant harm. Accordingly, 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.
Tania Flood
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.
…

[2022] AATA 67

4 January 2022

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