1802111 (Refugee)

1802111 (Refugee) [2024] AATA 1789 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1802111

COUNTRY OF REFERENCE: China
MEMBER:Tania Flood
DATE:22 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 March 2024 at 2:59pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – petition about official corruption – land resumption without adequate compensation – imputed Falun Gong practice – exit procedures – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 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 29 August 2017. The visa was refused on the basis that the delegate was not satisfied there is a real chance or a real risk the applicant will suffer serious or significant harm if she returns to China for the reasons claimed.
The applicant appeared before the Tribunal on 14 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English 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
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims and evidence
The applicant applied for the Protection visa on 29 August 2017. According to information contained in the application she is [an age]-year-old woman from Sichuan Province, China. Before departing China she resided in Daye in Hubei Province from [birth] to January 2017. From January 2017 until August 2017 she resided in Henan Province. She declared she is married and has [number] children. Her family and her parents are resident in Daye, Hubei Province. She is Han Chinese and has no religion. She arrived in Australia [in] August 2017 holding a passport which was issued [in] 2017.
The applicant claims the following:
She was persecuted by the Chinese government because she petitioned about official corruption.
She was advised that her land in her hometown was to be taken and she was only offered compensation at one third of the market price. She refused to sign the collection agreement.
One day the local government sent people to her home to acquire the land. They destroyed all the goods on the land and threatened her and forced her to sign the collection agreement. She was beaten for refusing to sign the agreement.
She called the police but they left them waiting. As a result she and other residents wrote a complaint letter to the city government in the hope of getting a reasonable explanation and compensation. However, when the officials learned what she had done they sent police to catch her. She was scared and escaped to Australia.
If she returns to China the police will persecute her and once she is sent to prison she will die.
Government officials collude with the police. The situation with government corruption exists throughout the country.
Attached to the application is a copy of the applicant’s passport.
Tribunal hearing
The applicant appeared before the Tribunal by Microsoft Teams video on 14 March 2024 as she has a back injury which is restricting her mobility.
During the hearing discussions were held with the applicant about her background in China, the claimed events she said occurred in China and the reasons why she fears returning to China now. Her oral testimony is summarised and included in the below findings and reasons.
FINDINGS AND REASONS
Country of reference
Attached to the Department’s case file is a copy of the applicant’s People’s Republic of China passport which verifies her claimed identity and nationality. Based on this documentation and in the absence of any information to the contrary, the Tribunal accepts the applicant is a Chinese citizen.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam vMILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal has carefully considered the applicant’s written claims and the oral testimony provided at hearing but finds due to the lack of consistency and coherency of her account of the events which are claimed to have occurred in China that she is not a witness of truth. The Tribunal’s reasons are for this finding are as follows:
Firstly, the information provided in the application for the Protection visa indicates that the applicant resided in Daye in Hubei Province from [birth] to January 2017 and in Henan Province from January 2017 until August 2017. During the hearing she stated that she was born in Sichuan Province but lived for about ten years in [Village 1] in Henan Province. On further questioning she confirmed she moved to [Village 1] from Sichuan Province after she was married and remained living there until she departed China. She confirmed that she did not live in any other locations in China.
When the differences in the applicant’s declared residential history were discussed with her at hearing she merely stated that she doesn’t know why it is written differently in the application form. The Tribunal notes that at the outset of the hearing the applicant was asked who completed her application for the Protection visa and she advised that she engaged an agency to help her. She said that she explained truthfully her situation and the officer wrote down what she said. While the Tribunal accepts the possibility that some minor discrepancies can arise in the recording of events in this case the differences between the two accounts are stark. Also, as will be seen below the applicant advised later in the hearing that she returned to her hometown in Sichuan Province in about November 2016 and stayed there for about six months before returning again to Henan Province before coming to Australia. The Tribunal also finds it concerning that throughout the initial discussion with her about her residential history in China she made no mention of spending six months in Sichuan Province from late November 2016. Ordinarily the Tribunal might not place a lot of weight on discrepancies of this nature. However, when considered together with the additional issues outlined below it causes the Tribunal to doubt the applicant’s overall credibility.
Secondly, while the applicant has provided a generally consistent account of the seizure of her land her oral testimony as to what occurred thereafter is significantly different to the claims outlined in the application for the Protection visa. For instance, at the time of application she claimed that when her land was taken and her property was destroyed and she was not assisted by the police, she and other residents wrote a complaint letter to the City government. During the hearing the applicant stated that her problems were with the village authorities and so she appealed to a different level of government; the County government. She said she took all her documents to the Country government but they told her it wouldn’t do any good as what the local government had done was in accordance with the law. She confirmed she did not appeal to the City government. When the Tribunal pointed out to her the differences in her account of what occurred she reiterated that she went to appeal to the County government. She again stated that she does not know why the agency wrote what they did in the application for the visa because she told them all about her situation. This response was repeatedly used throughout the hearing and given the entirety of the concerns expressed herein the Tribunal did not find it to be an adequate explanation as to why her written and oral evidence was different. Notwithstanding this, even if the level of government she appealed to was mistakenly recorded by the agent this does not account for why her written claims indicate that she took collective action with other residents to complain about the land seizure whereas her oral evidence indicated she acted alone.
Thirdly, the applicant introduced relevant new information during the hearing which was omitted from her written claims. When asked about the intervening period between when she appealed to authorities and when she departed China she said that the police accused her of being in a cult called Falun Gong and planned to arrest her. She confirmed she was not a Falun Gong practitioner but said that her mother was in Sichuan Province and was arrested a few times because of this. She said her mother has since passed away but one of her friends from her hometown also practised Falun Gong and was arrested and died after being mistreated in prison. She said that the police intended to use her association with Falun Gong as an excuse to arrest her.
During the hearing the Tribunal put it to the applicant that her testimony indicates she is aware of the seriousness of such an accusation and that her failure to mention it in her written claims is concerning. The applicant responded that she had wanted to include the information about Falun Gong but the agency told her she didn’t have to provide that level of detail. The Tribunal has considered her response but is not persuaded that even a poor representative would omit such relevant information from the application for a Protection visa if it had been mentioned by the applicant. The late introduction of this information causes the Tribunal to doubt its veracity.
Fourthly, the applicant introduced further new information during the hearing regarding her movements in China prior to her departure from the country. She said that a relative of her husband works for the County government and he overhead the police planning her arrest and sent word to her. She said when she heard this she fled to her neighbour’s house and hid in their kitchen until they departed. She said that after this incident she went back to Sichuan Province and remained there for about six months living with her father. She stated that the police could not find her there as she was staying in a remote village.
If the applicant’s testimony is to be believed, which it is not, the police were informed about her mother’s involvement with Falun Gong in Sichuan Province, which is considered an evil cult by the Chinese authorities. As discussed with her during the hearing, if the police knew this they would surely also have known where her family resided in Sichuan and they therefore had the capability to locate her. The applicant argued that Sichuan is 3000kms away from Henan and that she wasn’t a wanted criminal. The Tribunal has considered her response but remains of the view that if the police were intent on arresting her even on the pretext of her being a Falun Gong practitioner they had the ability to locate her and do so. That they did not further causes the Tribunal to doubt her claims.
Fifthly, the applicant claimed during the hearing that she later returned to her village in Henan Province to obtain her passport and visa and because she wanted to be with her children. When the Tribunal expressed surprise that she willingly returned to her home while still wanted for arrest by the police she then said that the dispute had died down by then. Noting her response the Tribunal asked why she cannot return home now. She responded that when she applied for the passport the police didn’t know she had returned to Henan Province. Despite that the Tribunal does not accept the police would be unaware of her whereabouts if she was living openly in her family home in Henan Province the Tribunal remains of the view that her return home to the area where she claims she will be arrested if she returns even seven years later undermines her claims. She did not claim to be living secretly and indeed her evidence is that she applied in person to the government agency responsible for issuing passports.
Sixthly, as discussed with the applicant during the hearing her ability to obtain a passport while wanted for arrest and to depart China without being intercepted is not supported by reliable country information which indicates that the government has refused passports to millions of people including on religious grounds and has sophisticated security systems in place at its international airports which would prohibit a wanted person from leaving the country.[1] In response the applicant stated that the government doesn’t really have factual evidence to convict her for being a Falun Gong practitioner. Also, she stated that she wasn’t a wanted criminal and therefore was not in the system. She stated that her fear is of the local authorities. The Tribunal acknowledges the applicant is claiming that the authorities were just using her association with Falun Gong as an excuse to arrest her and that she was not a Falun Gong practitioner. However, if the police were intent on arresting her, even on a false charge of being a Falun Gong practitioner, or because of her complaints to the local authorities, the Tribunal considers they would likely have employed surveillance to ensure she did not depart the country. The Tribunal remains of the view that her unhindered departure from China calls into question the veracity of her claims.
[1] DFAT Country Information Report, China, December 2021
Lastly, the Tribunal asked the applicant at hearing if it was her intention to depart China immediately if she was granted a visa to enter Australia and she agreed it was. The Tribunal then put it to the applicant, pursuant to the provisions of s424AA of the Act, that the Departments records show that she was granted a Visitor visa on 7 July 2017 but did not arrive in Australia until [August] 2017. The Tribunal explained that the information is relevant because despite claiming to fear arrest and death in detention she remained in her area for approximately six weeks despite having all the necessary documentation to leave the country. The Tribunal explained that if it relied on this information it might find that her claims in respect of what occurred in China lack credibility and this could lead to the decision under review being affirmed. The applicant opted to respond orally to the information at hearing and stated that the agency which assisted her to obtain the visa advised her to wait for two months because to depart immediately might attract attention and result in her being unable to depart China. She said the agency told her about previous cases where people tried to leave and were arrested and they said they couldn’t guarantee she could leave successfully. She also said that she needed to say her farewells to her children.
The applicant’s responses appeared to contradict her earlier testimony that she was able to leave China without hindrance because she was not a wanted criminal. Furthermore, her passport was issued in [2017] and according to the applicant she applied for it in Henan Province. She therefore had already spent several months with her children prior to the visa being issued in July 2017. The Tribunal does not accept the reasons given for the additional time spent in China and her decision to delay her departure from the country further adds to the Tribunal’s concerns about her claims.

Having carefully considered all the claims and evidence the Tribunal is not satisfied that the applicant claims are true or that she departed China for the reasons claimed. The Tribunal does not accept that the applicant’s land was forcibly acquired by the local government or that her goods and produce were destroyed or that she was beaten for refusing to sign over her property. The Tribunal does not accept she was refused assistance from the police or that she was persecuted for petitioning about the land seizure or official corruption. It follows that the Tribunal does not accept there is a real chance that she will suffer serious harm if she returns to China now or in the reasonably foreseeable future for reasons to do with the claimed acquisition of her land.
The Tribunal is not satisfied that the applicant’s mother was a Falun Gong practitioner but even if she was the applicant testified that she does not personally practice Falun Gong. She stated that her mother is deceased and when asked about her father’s circumstances in Sichuan Province she stated that he is alright. There was no indication from her testimony that her father is facing any difficulties in Sichuan Province on account of his wife’s former practices. In any event the applicant stated that she resided in Henan Province for many years before coming to Australia and her testimony is that her association with Falun Gong only presented itself as a problem when the police used it as an excuse for her arrest over her refusal to accept the acquisition of her land, claims which the Tribunal does not accept. As the applicant was able to live without interference in Henan Province for many years despite claiming to be the child of a known Falun Gong practitioner the Tribunal is satisfied there is not a real chance she will face serious harm if she returns there in future for this reason.
The applicant did not claim to fear harm in China for any other reason.
CONCLUDING PARAGRAPHS
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 does not accept 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 she will suffer significant harm, including being arbitrarily deprived of life, subjected to the death penalty, or subjected to torture or cruel or inhumane treatment or punishment or degrading treatment or punishment for the reasons claimed or for any other known reason. Therefore, 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.
…

[2024] AATA 1789

22 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction