1803203 (Refugee)

1803203 (Refugee) [2018] AATA 1755 (20 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803203
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Ms Christine Long
DATE:20 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 April 2018 at 5:46pm
CATCHWORD
Refugee – Protection visa – Fiji – No convention grounds – Economic hardship – Financial insecurity – Employment prospects – Fear of election outcomes
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 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 Immigration on 6 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Fiji, applied for a protection visa on 30 January 2018. The delegate refused to grant the visa on the basis that she decided that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2) (aa) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The Tribunal has material before it from the applicant’s departmental file including his application for protection visa plus supporting statement, made 30 January 2018, a copy of the front page of a Fijian passport in his name issued [in] 2009 noted as expiring in [2019], and a copy of the delegate’s decision record dated 6 February 2018.
The Tribunal confirmed with the department that the applicant was not interviewed by the delegate about his claims for protection.
Claims in Application for Protection Visa
In his application for protection visa the applicant claims that he was born in [City 1], [Fiji]. He indicates that he has never married. The applicant indicates that he was educated in Fiji to high school level from [year] until [year] at [a school].
The applicant indicates that in January 1980 and in January 1984 he applied for a temporary visa for a family visit to [Country 1] which was granted; he was in [Country 1] in 1980 and there again in 1984.
The applicant indicates that he has two brothers currently residing in Fiji and another brother residing in [Country 2]. He indicates that both his parents are deceased. The applicant indicates that he is a Fijian citizen and that both his parents were Fijian citizens. The applicant gives his ethnicity as Fijian and his religion as “Uniting Church”.
The applicant provides the address in [City 1] where he lived before coming to Australia in 1998 and lists various addresses in [Australia] where he has lived since arriving in Australia.
The applicant indicates that he left his country legally [in] November 1998 using a passport that is now expired and that has been misplaced. He indicates that he went to the Fijian Embassy to try to get his passport renewed.
The applicant states that he has never been employed in Australia but has stayed with friends and borrowed money from friends.
In a statement made in support of his application for protection visa the applicant states that he wants approval to be granted a visa to stay and work in Australia because he would be homeless upon arrival in Fiji and could not support himself. He states that his parents are deceased and there is no one he can rely on to help him with his needs there. He states that there is no work available for him in Fiji. He has been in Australia for almost two decades and if he returned to Fiji he would most likely have to start all over again.
Claims in Application for review
In his application for review, which includes a copy of the delegate’s decision record, the applicant makes no new claims.
Tribunal Hearing
The applicant appeared before the Tribunal on 6 April 2018 to give evidence and present arguments in support of his claims. The hearing was conducted in English without an interpreter; the applicant indicates that he did not need an interpreter in his application for review. The Tribunal was satisfied that the applicant could ably understand English and communicate well in the English language. He told the Tribunal that he had been living in Australia for about two decades.
On 6 April 2018 the applicant’s adviser sent the Tribunal a letter of support from a friend of the applicant who indicates that he has known the applicant for the last eight years and they have formed a strong bond. The writer states that the applicant has never been given the right direction in relation to legalising his settlement in Australia. The writer urges the Tribunal to consider the applicant’s personal circumstances indicating that both of the applicant’s parents have died and he will have no family support network or home to return to in Fiji. He also indicates that the living conditions in Fiji are very poor making it difficult if not impossible for the applicant to establish a well-sustained life there. The writer states that the applicant has spent many years living with his uncle in Australia and has formed many great friendships in Australia. The writer states that the applicant feels safe and supported in Australia and it will be highly detrimental to the applicant’s mental health and well being for him to return to Fiji.
The writer states that the applicant has lead a peaceful and harmless life for 20 years in Australia; he does not have any money and has lived each day at a time. The writer states that the applicant just wants a chance to live a contented and secure life and living in Australia in the way he has was his only option to escape a life of loneliness, isolation and financial insecurity.
At the hearing the Tribunal spoke to the applicant about his passport, his education in Fiji, his two visits to [Country 1] to see family there prior to his coming to Australia, his Australian visa history, his family in Fiji, his employment in Fiji and in Australia, his church community in Australia and in Fiji, why he left Fiji in 1998 and why he did not return there, why he cannot return to Fiji.
Post hearing submission
Following the hearing the applicant’s adviser sent the Tribunal a further submission from the applicant in support of his claims; the submission was received by the Tribunal on 11 April 2018.
In the submission the applicant states that there are a multitude of reasons that he cannot return to his country of birth, Fiji. He states that he has been living in the “safe and protected realms of Australia” for the last twenty years having arrived in Australia at the age of [age] years. His country of birth is hence completely foreign to him. He states that he has endured traumatic losses within his immediate family; his parents are both deceased and he has no family or friend network in Fiji. He also states that the living conditions in Fiji are very poor so it would be difficult if not impossible for him to establish a healthy and sustainable life; he has no family and no friends to return to in Fiji. He has lived with his uncle in Australia and in a share house with friends. He has formed strong friendships here and this has allowed him to maintain a healthy lifestyle in Australia. He will have to endure complete abandonment in Fiji and will feel he has nothing left to live for. He has suffered from anxiety and depression in the past and if his support network is stripped away he will have nothing left to live for.
The applicant states that he has received support, kindness and compassion from a friend whom he named (who is the friend who wrote his letter of support). The friend contributed significant monetary support for his legal advice when he was placed in the detention centre and has provided him with reassurance and encouragement. The applicant states that he will be devastated if he is torn away from the strong and enduring friendship with his long term friend. Also the applicant states that as the friend has paid excessive legal bills to support him, despite the fact he has a wife and three children, he (the applicant) could not live with himself if all efforts fail and this money goes to waste.
The applicant states that he has lived a harmless and peaceful life in Australia. He has escaped a life of loneliness and isolation in Fiji by staying in Australia and these are basic human rights which should not be overlooked or ignored.
FINDINGS AND REASONS
Essentially the applicant claims that he left his country in 1998 and came to Australia to visit Australia. He claims that he cannot return to his country because he has been in Australia for about 20 years and hence has no support or family/friend networks in Fiji; he will be isolated and lonely in Fiji. He claims he will have to “start all over again in Fiji” and there is nothing there in Fiji for him and the living conditions there are very poor. He claims it will be difficult for him to support himself in Fiji; he has/will have no home in Fiji and there is no work available for him in Fiji. It is claimed that his return to Fiji will be detrimental to his mental health and well being. He claims he has been depressed will become depressed and suffer anxiety if he has to leave his strong friendships and bonds made in Australia and cannot live with himself if all the money spent by his friend for his legal advice and assistance is wasted. Before the Tribunal he also claimed that he is worried about the general political situation in Fiji as there are elections coming up and anything could happen.
Applicant’s Identity and Country of Reference
The Tribunal finds that the applicant is who he claims to be and that he is a Fijian national. Although the applicant told the Tribunal that he had mislaid his Fijian passport, which the Tribunal accepts, there is a copy of the front page of the applicant’s passport issued in 2009 on the departmental file. The Tribunal finds that the country of reference for the purposes of this application is Fiji.
Visa History
There is no dispute that after the applicant’s [temporary] visa expired three months after his arrival in Australia in November 1998 he remained in Australia without a visa till detained by Australian immigration authorities in 2018, apart from a short period he had bridging visas in 2010 after going to Immigration authorities in Australia to try to regularise his immigration status. The applicant’s visa history is set out in the delegate’s decision record lodged with his application to the Tribunal for review.
Reason for leaving Fiji and remaining in Australia
The Tribunal finds that the reason the applicant left his country in 1998 was to come to Australia to visit Australia because he had a chance to do so at that time. When the Tribunal asked the applicant at the hearing why he left Fiji and came to Australia in 1998 he said that at that time he had a chance to come to Australia to visit a friend of his mother. He explained that the friend he came to visit was a lady who was Fijian but who was an Australian citizen and she usually stayed in Fiji when she was there at an apartment where his mother worked. The applicant said that she sponsored him to come to Australia to visit but he is no longer in contact with this woman; he was last in contact with her before 2000.
The applicant said that when he came to Australia in 1998 his visa for Australia was for three months and he intended to return to Fiji when he left there but he then changed his mind about returning. When the Tribunal asked him why he did not return to Fiji as he originally planned he said that he thought he could stay here and get an education; he said “people tell you a lot of things”. He later said that he went to see Immigration authorities in Australia in 2010 to try to get a visa but he did not go back to Fiji after he was given a bridging visa because he did not have the confidence to do so. The Tribunal accepts that the applicant stayed in Australia after his three month visa expired for the reasons that he gave the Tribunal at the hearing, namely because he thought he might be able to get an education in Australia and because he lost the confidence to return to Fiji in and around 2010 after he had approached immigration authorities to try to regularise his immigration status.
Applicant’s family in Fiji
The Tribunal accepts the applicant’s evidence to it at the hearing about his family members. He told the Tribunal that just before he left Fiji to come to Australia he was living with his brothers and his father in the family home in [City 1]. He told the Tribunal that his parents passed away in Fiji; his mother passed away before he left Fiji in 1998 and his father passed away after he came to Australia. His father worked for a government department when he was alive. The applicant told the Tribunal that he has one brother living in [Country 2] but that he has two brothers presently living in [City 1], one younger and one older brother, with whom he has kept in contact since he has been in Australia. His brothers both live in [City 1] and are married with children. His younger brother is employed in the Army in Fiji and his older brother works for [a company] there. The applicant said that he is in contact with his brothers in Fiji on social media and was in regular contact with them on social media before he was detained. He said that he also has some cousins in Fiji but he is not in contact with them. He said that the family home is in [City 1] and that most of his family is based in [City 1]. He said that the family home in [City 1] is rented out and that his younger brother in [Country 2] is the owner of the family home “under the will”. He thinks that the rent from the house pays for the house but he does not really have any idea about those things.
Real chance of serious harm and /or real risk of significant harm in Fiji
The Tribunal accepts that it will initially be difficult for the applicant to return to his country after being absent from there for about 20 years. It accepts he will miss friendships and bonds formed in Australia and that he will have to establish new networks of support in his country. The Tribunal also accepts that the applicant feels indebted to his friend in Australia who has helped him financially and emotionally, especially in relation to his protection visa application. The Tribunal does not consider that these matters amount to serious harm for the purposes of the refugee criterion or significant harm for the purposes of the complementary protection criterion under the Act.
The Tribunal does not accept that the applicant will be isolated, lonely and without any support or a home in Fiji and will suffer harm there for those reasons. The Tribunal finds that the applicant has close family members in Fiji to call on for support and help, namely his two brothers with whom he has kept in contact while living in Australia; he told the Tribunal both brothers are employed and are living with their families in [City 1]. When the Tribunal asked the applicant why his family members could not help him until he found work if he returned to Fiji he said that he does not want to be a burden on them, that it is hard for them and that they are struggling to make ends meet but he also said that he has not asked them about helping him if he went back to Fiji. The Tribunal also finds that the applicant would return to his Methodist church community where he could seek support if he returned to Fiji. When asked by the Tribunal about his church attendance in Fiji he said that he went to the Methodist church when he was in Fiji and he said that he would again join the Methodist Church community if he is returned to his country.
The Tribunal also does not accept that there will not be any employment available for the applicant if he returns to Fiji. While the applicant told the Tribunal that he did not work before he left Fiji he said that he studied till 1993 and did a tertiary course which he did not complete. He said that he did a foundation course for university in 1995 which his father was paying for but he did not finish the course as the fees were high. He told the Tribunal that he did not work in Fiji although he mentioned that his father, his brothers and his mother were working. When the Tribunal queried why it was that he did not work he said that work was hard to find but he then said he helped neighbours and community members doing jobs like mowing lawns. The applicant also claimed that he has not worked in Australia over the last 20 years but when the Tribunal queried this he then said that he had worked at a car wash in in exchange for accommodation in a flat upstairs over one to two years and has done other work helping friends such as moving house. He said that he has also done farm work and mentioned fruit crops.

The Tribunal also generally discussed with the applicant country information which indicates that the economy of Fiji is growing and although there is unemployment there are jobs available in Fiji; DFAT Country Information Report Fiji, 27 September 2017, (in particular paras 2.18 and 2.30 which indicates 76% of men participated in the labour force). Given the applicant’s education and background and the fact that he has gained some work experience while living in Australia the Tribunal finds that the applicant will be able to find some employment to enable him support himself, even if only basically, in Fiji.
While the Tribunal accepts that the applicant is worried and concerned about returning to Fiji because he has been absent from that country for many years and he does not have the same network of support and friends there, and because he will have to leave friends and contacts made in Australia over the last twenty years, the Tribunal finds that there is no real chance of serious harm, or real risk of significant harm, for the applicant for these reasons in Fiji. Further the evidence before the Tribunal does not enable it to conclude that the applicant’s return to Fiji will result in detriment to his mental health and well being for that reason such that there is a real chance of serious harm or a real risk of significant harm for him in Fiji if he is returned there. There is no medical evidence before the Tribunal in relation to the applicant’s claims about his mental health issues, including about depression or anxiety.
Claims about outcome of elections
The applicant also claimed before the Tribunal that he is worried about the political situation in Fiji because there are elections this year and “you never know what happens”. He agreed with the Tribunal that he was generally worried about the elections. The applicant did not claim that he was concerned about any particular outcome from the elections which would affect him or target him for any reason, or which would discriminate against him for any reason. To the extent that the applicant claims that he fears harm in his country from the general outcome elections the Tribunal finds that, for the purposes of the refugee criterion, that outcome would not involve systematic and discriminatory conduct as required by s.5J(4)(c) of the Act . Hence the applicant does not have a well founded fear of persecution in Fiji in relation to this claim.
Further, as regards the complementary protection criterion, the Tribunal finds that the applicant’s claimed risk of harm from the outcome of the elections in his country would be the same risk as that faced by the population generally; s.36(2B)(c) applies so that that risk is not a real risk of significant harm for the applicant in his country.
CONCLUSION
For the purposes of the ‘refugee’ criterion, the Tribunal finds that the applicant does not have a genuine fear founded upon a real chance of persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returns to Fiji.
Further the Tribunal finds that, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to a receiving country, in this case Fiji, there is a real risk that the applicant will suffer significant harm.
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.
Ms Christine Long
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 1755

20 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice