1807581 (Refugee)

1807581 (Refugee) [2022] AATA 2253 (17 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807581
COUNTRY OF REFERENCE:                   India
MEMBER:Mark O'Loughlin
DATE:17 May 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 May 2022 at 4:40pm
CATCHWORDS
REFUGEE – protection visa – India – intercaste marriage – fear of ex-wife’s family and community members – whether ‘well-founded fear of persecution’ – lapse of time – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 28 February 2018. The delegate’s decision was to refuse to grant the applicant a protection visa and the decision was made under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of India, applied for the visa on 6 February 2017. The delegate refused to grant the visa on the basis that they did not accept that the applicant risks being killed by the family of his ex-wife.
The applicant appeared before the Tribunal on 1 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The Tribunal advised the applicant that a certificate under s.438 of the Act attached to certain information provided by the Department which the Tribunal does not consider to be relevant to its decision and upon which the Tribunal will not be relying. The applicant was told he could consider applying to see those documents if he wished. He said that he understood. He has not made any such application.
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. The applicant in this matter does not claim to meet s36(2)(b) or (c) and there is no evidence that he does.
The Tribunal will therefore proceed to consider whether the applicant meets s36(2)(a) or (aa).
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.
The meaning of “refugee” is set out at s5H of the Act. 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).
The applicant said in his application, and the delegate found in their decision, that the applicant is a national of India. The Tribunal is satisfied that the applicant is of Indian nationality and so s5H(1)(a) applies.
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’s fear that his ex-wife’s family and community members will kill him is a fear that is reasonably held. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
When the applicant applied for review of the delegate’s decision, he provided a copy of the decision to this Tribunal. The Tribunal has relied on that document and on other documents that are referred to in this decision.
The Tribunal has had regard to the application for a protection visa form that the applicant lodged on 6 February 2017.
In answer to question 89 on that form the applicant says that he left India to come to Australia with his ex-wife, who was a student.
He says in his answer to question 90 that he believes her family members and community members will kill him if he returns.
He says that he did not experience harm in India before he left and that the problem had started in the week before he lodged his application for a protection visa.
He further says that he cannot avoid the danger by moving to a different part of India because the people who threatened him will find him.
In his answer to question 94 he says that he and his ex-wife married for love but there were always problems with the relationship because she was of the Brahmin caste and it was an intercaste marriage. Therefore, they came to Australia.
He said that they started having problems and his wife returned to India. They then decided to try again so she returned to Australia but was deported from the Airport because she had been in India for a long time and had not studied in Australia. The Tribunal observes that she was the holder of a student visa and a requirement of a minimum level of study is generally a condition of such visas.
He said that her parents believe he created a problem for her and caused her deportation. They blame him for ruining their image in the community. He said that her parents and community members are angry and told him that they will kill him if he ever steps in India.
He said that he could not seek protection from the authorities in India because the police have failed to protect many people in similar cases, and he does not think they can protect him.
He also says, in answer to question 96 of the protection visa application form, that he cannot relocate because they can find him and kill him.
At the hearing the applicant explained that he was born in Gujarat and lived there since birth.
He said that his parents still live there, and his [number of] sisters are married and no longer live with his family.
He said that he was in school until year 12, and when he finished he went to work in a [specified] company that was owned by a relative. After that he worked in a [different] company.
He said that his parents were farmers and that they still own a farm. He said they make a bare living from it.
The applicant was asked about the application form that he had submitted. He said that he completed it with help from a friend who has lived in Australia for many years.
He also said that his friend had read the delegate’s decision to him and he believes that he understands what the decision says.
The applicant said that he first met his wife in about 2012 in a tuition class, which he said is a class done after a student has finished high school. The purpose is to sharpen skills and improve opportunities for employment.
He said that she was studying [Discipline 1], and that she is about 3 or 4 years younger than him.
He said that they started as friends, but it developed to a relationship and they married. He told the Tribunal that his ex-wife’s family were opposed to the marriage although his family was not concerned.
He said that the tension arose from the difference in caste between the families. Her family were Brahmin and his were Patel.
He said that his wife lived with his family after the wedding which was [in] October 2014.
He agreed that they came to Australia [in] September 2015 as stated in the delegate’s decision.
He said that they had discussed coming to Australia before they got married.
The applicant told the Tribunal that about 2 months after the marriage he met his ex-wife’s family and there were not problems with them after that.
However, he said that her brother and some of the people from her community did not approve and tried to find out where she lived so they could take her, but once they found out that the applicant and his then wife were planning to go abroad they accepted the relationship.
The applicant then advised the Tribunal that he had made an error in his earlier evidence and that in fact he had married in 2012 and his ex-wife had finished her course in 2014.
He told the Tribunal that they had first applied for a visa to go to New Zealand but that had been refused. He did not remember why that visa was refused.
They applied for and were granted a student visa to come to Australia. The applicant’s ex-wife was going to study and he was coming as her dependent.
The applicant agreed that the initial tension with his wife’s family lasted until early 2013 and that they got the visa to come to Australia about a year and a half later.
He said that his ex-wife lived with him and his family for nearly 3 years before they left India and that the marriage was strong in that time.
He said that when they arrived in Australia [in] September 2015, his ex-wife was planning to study a Masters in [Discipline 2] at [University 1]. That course was expected to take 2 years.
The applicant explained that his ex-wife returned to India for an extended stay. He said that she had been returning to India regularly and he now suspects she had started a new relationship there.
He told the Tribunal he went to India several times to encourage her to return to Australia and when she did come back on about [date] January 2017, she was refused entry because her student visa had been cancelled. He believes she had been in India for about 5 months at that stage.
She was taken to detention and then was returned to India. He understands that she is still in India and has remarried.
The applicant told the Tribunal that he did not work during this time. He said that he just stayed at home and that when his wife went back to India, he felt depressed. He said that he got a divorce in Australia in about 2018 or 2019.
He told the Tribunal that he is on a bridging visa now and that he has remarried. His new wife, who is an Australian citizen, is supporting him. Before that he was helped by a cousin.
He said that his wife works in [Industry 1] and that they married about 18 months to 2 years ago. They met through friends.
The applicant said that he does not want to return to India because he does not know what damage his ex-wife’s family can do to him.
He said that when his ex-wife’s visa was cancelled, they threatened him and his family. They said that if he comes back to India they would kill him.
The rang him on his mobile phone to make these threats. The calls were made by his ex-wife and her brother. The applicant said that the brother told him that he blamed the applicant for the visa cancellation.
He said that the call came on the day after his wife was returned to India. He said that his ex-wife also called him and said “because of you my visa is cancelled and if you come to India my brothers will finish you, don’t you dare come to India”.
After those 2 calls the applicant blocked their numbers so they could not call him again.
The applicant agreed that those calls were 5 years ago.
The Tribunal suggested that the applicant’s ex-wife and her family are unlikely to be as cross after so much time has passed.
The applicant said that he still fears them because he has no idea what they will do.
As regards the threats to his family, he said that they used to live about 3 kilometres from his family in India. He does not know if they are still there.
He said that he understands they visited his family 4 or 5 times and “gave them a hard time”. He said that they told his father that if the applicant came back, they would kill him.
He believes that the last time they visited his family was a couple of weeks after the visa cancellation, so about 5 years ago. The Tribunal notes that this is in fact a threat against the applicant rather than against his family. There is no evidence of a threat against the applicant’s family.
The Tribunal suggested to the applicant that India is a populous country and asked whether it would be possible for him to live somewhere that his ex wife’s family could not find him.
The applicant said that he is not sure and that he thinks they could probably find him in different parts of the country. The applicant could not explain why he thinks so and the Tribunal finds this answer to be unconvincing.
The Tribunal again put to the applicant that India is a big country and that he should be able to relocate. The applicant said that that would be too difficult as it would involve starting again from scratch and living in a different city.
The Tribunal observed that he had had to do that when he came to Australia. He said that he came to Australia with his ex-wife to enable her to study, not to start a new life. He did not respond to the observation that he had, in fact, had to start a new life here.
He said that if he returned to India it would be in his mind that his ex-wife’s family might find him and give him a hard time.
The applicant agreed that he speaks Hindi, a language commonly spoken in India. He agreed that he would be able to work in India and that his only concern is that his ex-wife’s family may find him.
The Tribunal put to the applicant that this fear is unconvincing and asked whether there was anything more he wanted to say.
He said that his fears will torture him, and he will not be able to live like other Indians because of his fears.
The applicant’s evidence is that he was called once by his ex-wife and once by her brother and that those calls were nearly five years ago.
The Tribunal further notes that the applicant’s family have not been contacted by his ex-wife’s family for about the same period.
The applicant’s evidence is that he does not know what they will do if he returns to India. There is no recent evidence of them expressing an intention to kill him or otherwise harm him.
The Tribunal further notes the applicant’s testimony that he has remarried, his ex-wife has remarried and that he has “no idea” whether his ex-wife and her family still want revenge.
The Tribunal is not satisfied that the applicant’s ex-wife’s family intend to contact him or mistreat him in any way if he returns to India.
The Tribunal is not satisfied that the applicant cannot avoid his ex-wife’s family by moving to another part of India.
The Tribunal is not satisfied that the applicant would have any particular difficulty moving to another part of India.
To the extent that the applicant has suggested in his visa application that he drew the ire of his ex-wife’s family by marrying outside of his caste, the Tribunal observes that the applicant’s oral evidence was that his ex-wife’s family were reconciled to the marriage for about a year and a half before the applicant left India.
Therefore, the Tribunal does not accept the applicant’s claim that he and his ex-wife “had always problem in India due to intercaste marriage.”[1]
[1] Applicant’s Application for a Protection Visa form 866C dated 7 February 2017 Page 22 answer to question 94.
The Tribunal notes the applicant said in evidence that initially there was also some pressure from his ex-wife’s brother and the community, but that once her family accepted the marriage (about one or two months after it took place) it was OK.
The Tribunal asked the applicant about his claim that his ex-wife’s family could find him if he returned to India. The applicant was not able to provide any explanation of that claim in the face of the observation that India is a populous country. The Tribunal is not satisfied that the applicant’s ex-wife’s family or their community could find and kill him as suggested in his answer to question 96 of the Protection Visa Application.
As the Tribunal is not satisfied that the applicant faces a real chance of relevant persecution the Tribunal is not satisfied that the applicant will need to seek protection and therefore does not need to assess whether or not the police or other Indian authorities are capable of protecting the applicant.
Does the applicant satisfy S.36(2) (a) or (aa)?
As set out earlier in this decision, the applicant in this matter seeks to satisfy the Tribunal that he is entitled to a Protection visa because he satisfies S.36(2)(a) as he meets the refugee criterion, or he satisfies S.36(2)(aa) because he meets the complementary protection grounds.
Is the applicant a refugee?
For the applicant to meet the refugee criterion an applicant such as the subject applicant who is outside of the country of his nationality must demonstrate that owing to a well founded fear of persecution he is unable or unwilling to avail himself or herself of the protection of that country.
The Tribunal has had regard to the definition of a “well-founded fear of persecution” set out in s.5J of the Act which is attached to this decision.
The persecution that the applicant fears must be persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Further, the applicant must face a real chance of persecution for one of those reasons.
The applicant claims to fear mistreatment at the hands of his ex-wife’s family, who wrongly believe that he is responsible for her having her student visa cancelled.
This does not appear to fall within the reasons specified and the Tribunal is not satisfied that the persecution the applicant claims to fear is relevant persecution.
In any event, the applicant now says he has “no idea” what intentions his ex-wife’s family and community hold towards him.
The applicant had also claimed to fear persecution at the hands of his ex-wife’s family and her community by reason of intercaste marriage. That would probably be relevant persecution on the grounds of religion or of membership of a particular social group, but the applicant has given evidence that his ex-wife’s family were reconciled with the intercaste marriage before he came to Australia and there is now no suggestion that he fears persecution for this reason.
Further, if the applicant does face relevant persecution, the Tribunal is satisfied that the applicant could avoid it by moving to a part of India where his ex-wife’s family and their community are not active, so for the purposes of s5J(c) this cannot comprise a “well founded fear of persecution”.

The Tribunal is not satisfied that the applicant satisfies the definition of “refugee”.
Does the applicant meet the complementary protection grounds?
The complementary protection grounds are set out in s.36(2)(aa) which is attached.
Relevantly the Tribunal must consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer “significant harm”. “Significant harm” is defined at subparagraphs (2A) and (2B).
In MIAC v SZQRB [2013] FCAFC 33, the full Federal Court of Australia held that the test in considering whether a non-citizen faces a “real risk” of significant harm for the purposes of the complementary protection criterion (s.36(2)(aa)) establishes the same threshold as the “real chance” test in the definition of “refugee” relevant to s.36(2)(a) in relation to a well-founded fear of persecution[2].
[2] Paragraphs 245 and 246,
In considering the refugee criterion the Tribunal was not satisfied that the applicant faces a real chance of substantial harm by reason of the threats made against him by his ex-wife’s family.
The Tribunal has regard to the definition of “significant harm” in s36(2A). It provides that harm will be “significant harm” if the non citizen will be arbitrarily deprived of his life, or subjected to the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The applicant claims that he faces being arbitrarily deprived of his life by his wife’s family or community if he returns to India.
For the reasons set out in consideration of the refugee criterion, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for the purposes of the complementary protection grounds.
Further, the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where his ex-wife’s family would be unable to find him and he could avoid any such risk if it did exist. For that reason the applicant falls under s36(2B)(a) and is taken out of the complementary protection grounds.

100. For those reasons the Tribunal finds that the applicant does not meet s36(2A)(aa) and does not come within the complementary protection grounds.
101. 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

104. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O'Loughlin
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2253

17 May 2022

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Immigration

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Procedural Fairness

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