1802843 (Refugee)

1802843 (Refugee) [2023] AATA 1065 (30 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1802843
COUNTRY OF REFERENCE:                  China
MEMBER:Dominic Triaca
DATE:30 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 January 2023 at 11:52am
CATCHWORDS
REFUGEE – protection visa – China – non-appearance before the Tribunal – application dismissed – request for reinstatement – religion – Christian – unregistered family Church – fabricated claims – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Subramaniam v MIMA (1998) VG310 of 1997
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 2 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) (delegate’s decision). If granted, a subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.
The applicant who claims to be a citizen of China applied for the visa on 15 September 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s36.2 (a) or (aa) of the Act and is not a member of the same family unit as a non citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act.)
The Tribunal wrote to the applicant and invited him to appear before the Tribunal at a hearing that would provide him with an opportunity to give evidence and present arguments in support of his case (the hearing invitation). The hearing invitation indicated that if the applicant did not participate in the hearing, the tribunal may proceed to make a decision in relation to the application without enabling him any further opportunity to participate in a hearing. The hearing was scheduled on 25 October 2021. On the morning of 25 October 2021, the applicant requested that the hearing be postponed, and the Tribunal rescheduled the hearing to 28 January 2022.
On 28 January 2022, the applicant did not appear at the scheduled hearing. The Tribunal made multiple telephone calls to the telephone number provided by the applicant. On 1 February 2022, in the absence of any contact from the applicant, the application was dismissed.
Subsequently, the applicant applied to the Tribunal for the application to be reinstated and on 8 April 2022 the Tribunal reinstated the application.
On 18 November 2022 a further hearing invitation was issued to the applicant and a hearing of the application was scheduled by the Tribunal on 6 December 2022. The applicant did not appear at the time and place at which the hearing was scheduled to take place. Several attempts were made by the Tribunal to contact the applicant by telephone, without success, on the telephone number that he had provided to the Tribunal for the purposes of communicating with him in relation to this application. A mandarin interpreter was booked for the hearing. The last unsuccessful attempt to call the applicant was at 9.05am on 6 December 2022. The interpreter was advised that their services were no longer required as the applicant was unable to be contacted.
By email dated 9 December 2022, the applicant contacted the Tribunal by email and requested that the application be reinstated.
The matter was relisted to 25 January 2023 and on that day, the applicant appeared at the hearing by telephone with the assistance of an interpreter.
For the following reasons, the Tribunal has concluded the decision under review should be affirmed.
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 Tribunal has concluded that the decision to refuse the applicant a protection visa ought to be affirmed in this case for the reasons set out below. In reaching this decision, the Tribunal has had regard to the documents provided by the applicant to the Department and the Tribunal including:
(a)The delegate’s decision record;
(b)The applicant’s original written visa application;
(c)All written material filed by or on behalf of the applicant;
(d)Other relevant documents on the Tribunal or Department files;
(e)The Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department of Home Affairs;
(f)Country information prepared by the Department of Foreign Affairs and Trade expressly for protection and status determination purposes, also mandatory considerations under Direction No. 84.
Not all evidence and material that has been placed before the Tribunal is specifically referred to in the tribunal’s reasons. The reasons refer to information that is materially significant to the determination of the issues at hand.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background.
The applicant is a [age] year old citizen of China. He provided a copy of his passport to the Department corroborating this claim. He does not claim to hold citizenship of any other country. He provided the Department with sufficient evidence of his identity which is consistent with his narrative and biometrics. As such, I accept his identity is as set out in the application.
Protection Claims.
The applicant’s protection claims are set out in the delegate’s decision. In summary, those claims are as follows:
(a)He originally came to study as a student.
(b)He was a devoted Christian and member of an unregistered family Church in China known as a house Church.
(c)His father was arrested by the Public Security Bureau and detained at [the] custody centre for one week.
(d)He fears that he will be arrested and detained if he returns to China due to his involvement in the local family Church.
(e)If he returns to China, he will continue to practice his religious beliefs.
(f)Before coming to Australia, he did not experience any harm by the government.
(g)He cannot relocate within China.
The applicant attended an interview with the Department on 23 January 2018 where he reiterated his claims and added further information to the effect that he continued to practice his religion in Melbourne where he attended Church. He said that his father had been arrested in about August 2017, beaten in detention and suffered sleep deprivation. He said that he would continue to evangelise and attend Church if he were to return to China. He also provided evidence in the form of a document purporting to be a certificate of his father’s release from detention [in] August 2017.
Evidence at the Hearing
The Applicant confirmed that he is a [age] year old citizen of China. He was born on [date]. He arrived in Australia [in] April 2008 on a student visa. He returned to China for a short period in April 2009. He has not returned since that time. He returned to Australia [in] April 2009. He has resided here continuously since then.
He applied for a further student visa which was refused in July 2010. He remained in Australia without any visa until he applied for a protection visa, the subject of this application on 15 September 2017. On 2 February 2018 a delegate of the Minister for Immigration and Border Protection refused his application (delegate’s decision). He subsequently applied to the Tribunal for a review of that decision.
The applicant’s evidence before the Tribunal was quite extraordinary. He stated:
(a)He has resided in Australia since age 17. He enjoys living here and wishes to remain.
(b)His family in China consists of his parents, brother and sister. They reside in Fujian province.
(c)He completed Secondary School in China and came to Australia was study. When his student visa application was refused, he focused on work. He has worked here since that time, mainly in the construction industry.
(d)He says that his family owed money when he first came to Australia having been ‘scammed’ by his original agent in China. He has sought to assist them financially through hit work in Australia.
(e)He had no visa between about 2010 and 2017. He says he was ignorant of the requirements and the victim of bad advice by various agents. It seems he was untrusting of agents in general given his experience in China where he considers that his family was ‘ripped off’ when making the initial visa application for a student visa.
(f)He was conscious of the fact he had lived here for a considerable period without a visa in about 2017. This led him to approach an agent with a view to seeking a visa so he could remain here legally. At that time, he hoped to remain here to work or study.
(g)The agent’s advice in 2017, which he accepted, was to the effect that the only visa that was open to him was a protection visa. This led him to make the application for a protection visa. He says that the documents were prepared by the agent.
(h)He says that the matters set out in the protection visa application were largely false and untrue.
(i)He confirmed that he had attended an interview with the Department in January 2018. He says that he did so with his agent at the time. He says that notwithstanding the application contained false statements, he reiterated his claims and provided additional evidence in support of the application.
(j)He says that he now realises that the agent was ‘deceptive’ and advised him that the only way to remain in Australia was to make an application for a protection visa. He paid $1,000 for the application. He did not pay attention to the detail contained in the documents. He says that the agent told him ‘This is the only visa that would work for you.’
(k)He continued to work in Australia and provided some financial assistance to his family.
(l)He enjoys living in Australia and working in the construction industry. He says that the pay and conditions are better than those in China.
(m)At the interview with the Department, he followed the agent’s lead.
(n)His hope in making the application was that he would be able to remain in Australia legally. He says that he wishes to remain here, work and ‘pay tax’.
(o)When asked, he stated he was now ‘telling the truth’. He confirmed that in his previous application and interview he had not done so. He said t
(p)He is not a religious person. He is not a Christian and is not a member of a ‘local church’ or ‘shouters church’.
(q)He does not fear returning to China.
(r)He does not fear persecution there.
(s)The incident involving his father did not occur.
Analysis and Findings.
In this case, the tribunal is satisfied that the applicant is a citizen of China and of his general personal background as described by the applicant in his evidence before the Tribunal, and the delegate and his original protection visa application. In this respect the tribunal finds: (a) The applicant is a citizen of China. (b) China is the country of reference for the purpose of assessing his application against the criteria for the grant of a Subclass 866 visa.
The tribunal has significant credibility concerns with the applicant’s original claims and does not accept any of them.
The Tribunal accepts the Applicant’s evidence before the Tribunal to the effect that the content of his application and previous statements to the Department was entirely fabricated and designed to improve the Applicant’s prospects of obtaining a visa to enable him to remain in Australia. It accepts his evidence that he has not been truthful in his claims. Consequently, the Tribunal does not accept any of the Applicant’s claims set out in his original visa application. It follows that the Tribunal does not accept the applicant’s claims to the extent they were elaborated on in his interview with the delegate.
The Tribunal finds that the Applicant’s application form contained false statements in order to mislead the Department. Further, the Applicant made false and untrue statements during his interview with the Department in January 2018, including providing a false document in relation to his father’s detention.
Accordingly, the applicant’s claims in their entirety are rejected. In particular, the tribunal does not accept the following core aspects of the applicant’s claims: (a) That the applicant was a member of the ‘shouter’s church’; (b) The applicant was a member of any religious organisation; (c) That the applicant’s father was detained due to his religious beliefs; (d) That the applicant may be harmed, or threatened with harm upon his return.
Given these findings, the tribunal is not satisfied the applicant faces a real chance of serious or significant harm for the reasons claimed. The findings summarised above lead to the inevitable conclusion that the applicant does not meet the refugee criteria because the tribunal is not satisfied that there is a real chance that, if he returned to China, he would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The tribunal finds the applicant does not meet the refugee criterion.
Does the applicant meet the Complementary Protection Criterion?
Having concluded that Applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Having considered all of the evidence before me, for the reasons set out above the tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk the applicant will suffer significant harm.
Accordingly, I am not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa)
Delay
I have also had regard to the delay in the Applicant’s lodgement of a protection visa application. In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. Additionally in Selvadurai vs the Minister for Immigration and Ethnic Affairs (1994) it is stated in regard to a delayed lodgement of a refugee application: "In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant's alleged fear of persecution. It is a rational consideration open on the material.”

In this case there is a significant delay between the Applicant’s most recent arrival in Australia (2009) and the date of the application (2017). This delay weighs against the application and is consistent with the Applicant’s evidence that he does not fear persecution in China.
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). 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.
Dominic Triaca
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.
…

[2023] AATA 1065

30 January 2023

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