1812585 (Refugee)

1812585 (Refugee) [2022] AATA 2481 (27 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr John Vrachnas
CASE NUMBER:  1812585
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Sheridan Lee
DATE:27 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the second and third named applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 27 May 2022 at 2:39pm
CATCHWORDS
REFUGEE – Protection Visa – Iraq – a particular social group or groups – a single woman without male protection – single mothers, female academics and Sunni women in Iraq – membership of the same family unit as the first named applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 April 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old Iraqi woman and two of her children. She applied for the visas on 13 October 2015 on the basis that she would be persecuted by the Iraqi Government for an alleged security breach at her former place of employment. The delegate did not accept the applicant’s claims as credible and refused to grant the visas.
The Tribunal viewed a copy of the applicants’ passports. The Tribunal finds that Iraq is the country of their nationality and the receiving country in considering the protection claims.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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, I have 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
Background
The applicant first arrived in Australia on [date] May 2014 on a Postgraduate Research Sector, Subclass 574 visa. The applicant’s husband, Mr [A] , and her sons, [names deleted], arrived with the applicant. The applicant’s third and fourth sons, [Son B] and [Son C], were born in [Australia].
[The applicant] applied for protection on 13 October 2015. [Mr A] and their two eldest sons were included in the application as secondary applicants.
On 27 October 2017, [Mr A] withdrew his application for protection stating that only his wife had claims for protection.
[Son B] was born on [date]. Regulation 2.08 sets out that if a non-citizen applies for a visa and has a child after the application is made, but before it is decided, the child is taken to have applied for a visa of the same class at the time they are born. As such, [Son B] was taken to have applied for protection.
Departmental records suggest that the Department was not immediately aware of [Son B]’s birth. As such, his application proceeded independently. A unique set of claims for protection were put forward on his behalf.
The Tribunal did not locate any record of a visa application in respect of [Son C].
Application for protection
The following information was set out in the application for protection form and an accompanying written statement:
·The applicant was accepted into university in Iraq in 1997. Her father passed away in 1991 and as a result her family’s economic situation was difficult. The applicant joined the Ba’ath party at the age of [age] to be able to study.
·After graduation in 2001, the applicant gained part-time employment at [a workplace].
·[In] January 2002, the applicant was employed by the Iraqi Government [with Agency 1]. While working for [Agency 1] she met her husband, who was also an employee. The couple married on [date] January 2005.
·During her employment, the applicant gained experience [and] thanks to her [specified] background she had an advantage in [working in a specified field].
·The applicant and [Mr A] were amongst [number] people who were chosen to work for [Agency 1]. Tests were conducted to restrict employee numbers and allocate tasks appropriately, as well as making sure that none of the employees were linked to the previous regime.
·The applicant worked on a number of highly sensitive [projects].
·In 2003, during the interim government in Iraq, [Agency 1] was replaced by [Agency 2]. After undertaking training, [the] applicant was employed by [Agency 2] with [Mr A].
·In 2006, Sunni Muslims in Iraq began to be targeted in mob attacks. Sunnis fled Iraq because they were identified as supporters of the Ba-ath party or Al-Qaeda. The applicant and [Mr A] moved around for safety reasons.
·In 2007, the couple decided to move to [Country 1]. The applicant only stayed in [Country 1] for one month and [Mr A] for two.
·In 2010, the applicant and [Mr A] were accepted by a [Country 2] [university]. They studied in [Country 2] until September 2012.
·When the applicant and [Mr A] returned to Iraq, they were allocated sensitive work tasks due to their recently obtained qualifications. They worked on a project that involved identifying people by checking their address, position and religious beliefs. The project could identify people working for [a named agency] and other sensitive information. People’s details had to be kept safe, with a high level of confidentiality. There were concerns as to who would have access to such information and how it could be utilised. The applicant and [Mr A] worked on the project under strict supervision.
·The applicant and [Mr A] were accepted into an Australian [university].
·Before arriving in Australian, the applicant and [Mr A] transferred all their completed work and programs to a newly appointed [staff].
·The Iraqi government agreed to cover all fees associated with the applicant and her [Mr A]’s studies in Australia and their salary. However, in April 2015 there was a major change and the applicant and [Mr A] were not able to collect the funds. The applicant’s family contacted [Agency 2] to follow up on the applicant’s monthly wages and they were advised that the payments were placed on hold. Further, they were told that [Agency 1 personnel] were wanting to interview the applicant and her husband to find out where they were and what they were doing.
·The applicant discovered that there had been a security breach and highly secret and confidential information stored in the database she had worked on had been accessed by unauthorised users and had been given to militia groups so they could use it against the government.
·The Iraqi Government believes the applicant and [Mr A] are supporters of ISIS or another opposition party.
·The applicant received threatening phone calls.
·The applicant could not live in Baghdad as she would be identified.
The delegate conducted an interview with the applicant on 31 October 2017. The delegate noted a number of inconsistencies between the applicant’s written application and her oral evidence at the interview and refused to grant the applicant protection on 9 April 2018. A copy of the delegate’s decision was provided to the Tribunal with the application for review.
Application for merits review
The applicant applied for merits review of the delegate’s decision on 2 May 2018.
On 11 June 2021, the applicant advised that a separate application for protection was made by her son, [Son B]. She provided the Tribunal with a range of documents that were submitted to the Department in respect of [Son B]’s application and appointed the same representative to assist with her application for merits review.
Submissions
The applicant’s son, [Son B], was born in Australia on [date]. He was not included in the current application for protection. The applicant advised the Tribunal that she instructed her representative at the time [to] add [Son B] to her pending visa application, but he failed to do so. As a consequence, a separate protection visa application was made for [Son B]. An interview with the delegate took place on 11 May 2021 with the applicant appearing as [Son B]’s guardian. At the date of this decision, the outcome of [Son B]’s application was pending.
The applicant supplied the Tribunal with a statutory declaration, dated 4 May 2021, which was provided to the Department in support of [Son B]’s application for protection. The declaration included the following information:
·The applicant and [Mr A] are no longer in a relationship. [Mr A] returned to Iraq in January 2021 and remarried.
·The original application for protection made by the applicant and [Mr A] was “thoroughly confused” by the representative. [That representative] was later suspended from practice by the Office of the Migration Agents Registration Authority. The representative provided untrue information to the Department without instructions, which resulted in the wrong assessment of the protection claims by the delegate.
·During the protection visa application process, [Mr A] was experiencing significant mental health issues and attended psychological counselling. Despite having marital difficulties, the couple remained together and had a fourth child, [Son C].
·As a result of [Mr A]’s mental health issues and concern for his family in Baghdad, [the representative] advised that he should withdraw his protection visa application. He was further advised that he could rely on the applicant’s claims. [Mr A] and the applicant were told by [the representative] that the withdrawal would not be questioned and the withdrawal reasons listed would not affect the current application.
·[Mr A] returned to Iraq to visit his ill mother in 2021. She died a month after his return.
·The applicant was not provided a proper opportunity to explain her claims and [Mr A]’s withdrawal to the delegate at the interview.
The declaration provided the following clarification of the applicant’s claims for protection:
·[Mr A] and the applicant worked on [a] database for [Agency 2] before coming to Australia. The project had initially started in cooperation with [another department]. The applicant and her husband worked on a high security database containing classified information. [Details deleted]. Before their departure, the system management was handed over to a person named [name] and the personal information was only entered in the database after the applicant’s arrived in Australia when the database was commissioned.
·In April 2015, the applicant’s scholarship funds were cut off. Her family made enquiries to [Agency 2] and received no explanation. [Mr A] then made some calls and discovered that the [project] was under investigation. He was advised that they should return to assist with the investigations. A few speculations were made about other employees of the ministry. The applicant was informed by a friend and Ministry work colleague that her and [Mr A] were suspected of taking classified information and sharing it without consent. The applicant claimed that they were an easy target because they were not present at the time and because they were Sunnis.
·[Mr A] threatened to take custody of the children if the applicant did not pay him a monthly salary and repay the dowry.
·If returned to Iraq, the applicant would be vulnerable as a single woman without male protection.
On 27 August 2021, the applicant’s representative supplied a letter from [a] Paediatrician, Dr [D], dated 23 August 2021. The letter reports that [Dr D] holds a [degree]. [Dr D] outlined that [Son B] is a patient under his care for the ongoing management of developmental delay and a language disorder. He requires fortnightly Speech Therapy, Occupational Therapy and Play Therapy.
Tribunal hearing
The applicant appeared before the Tribunal on 14 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant gave evidence that she was born in Baghdad, Iraq. She spoke Arabic and self-identified as Sunni Muslim.
In addition to the claims already set out in her written submissions, the applicant gave evidence that she travelled to Australia in 2014 to complete a [degree] on a scholarship awarded by [Agency 2]. She completed [degree] in 2019. The applicant gave evidence that she now delivers some teaching at [a] College.
The applicant previously lived in [Country 2] for a year and a half from 2012, where she completed her Masters, and once travelled to [Country 1] for a holiday.
Prior to the applicant’s arrival in Australia, she lived in Baghdad. She completed a [degree], between September 2017 and June 2001. From January 2002, the applicant was employed [with] [Agency 2].
The applicant alleged that when she arrived in Australia, she did not think she would be here forever. Four months into the applicant’s scholarship, the Iraqi Government stopped making payments under her scholarship. The applicant alleged that payments towards all scholarships sponsored by Iraq were suspended at that time, however other students received back payments at a later date.
The applicant said that she discovered that there was a leak of sensitive information that resulted in some people being killed. There was a rumour that the information was leaked by individuals overseas and the applicant and [Mr A] were the only people who had gone offshore. She went on to say that the head of [the project] in Iraq was also accused of leaking the information and stealing [amount] in funding.
The applicant alleged that her relationship with [Mr A] was over and he remarried in Iraq. When I asked if they were divorced, she advised that there was no need for [Mr A] to divorce in order to marry a second woman in Iraq. The applicant strongly disapproved of the second marriage. She advised that [Mr A] first decided to return to Iraq because his mother was gravely ill and she was unsure how the new relationship began. His mother passed away [in] 2021.
Two months after [Mr A] returned to Baghdad, his brother and his family were killed in a home invasion. The applicant expressed the belief that the assailants mistakenly believed him to be [Mr A].
The applicant received two calls from the Iraqi embassy on [date] November 2021. She said the caller demanded she send ID documents for a legal matter. The caller would not identify themselves nor provide further reason for the request. The applicant showed me a record of the calls on her phone and screenshots were submitted to the Tribunal after the hearing. The number listed is the same as the number published for the Iraqi embassy.
On 14 January 2022, the Tribunal received an additional statement from the applicant’s representative clarifying some of the issues discussed at the Tribunal hearing. In relation to the calls from the embassy, it was noted that “the applicant assumed the calls were in connection with action [Mr A] is taking over custody of the children, as she has not paid him any money. She sent her ID documents but, on the advice of a lawyer friend, did not send her passport as requested.”
Attached to the statement was a photograph of [Mr A]’s mother’s gravestone, a copy of an invitation to [Mr A]’s wedding to the daughter of [a named person] on [date] April 2021, which was sent to a mutual friend in Australia.
FINDINGS
For the reasons given below, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a). I have concluded that the matter should be remitted for reconsideration.
I accept that the applicant is a single Sunni woman, mother of four children, that she has been awarded post-graduate qualifications and works as an academic. For these reasons, I find that she belongs to a particular social group or groups, consisting of single women, single mothers, female academics and Sunni women in Iraq.
Departmental records confirm that [Mr A] departed Australia [in] January 2021 and at the date of this decision had made no attempt to return. I accept that the applicant disapproved of [Mr A]’s second marriage and did not wish to remain in an ongoing relationship with him. Of particular note, I acknowledge that [the applicant] continued to pursue protection in Australia for herself and her children with the knowledge that her husband would not be included as a member of the family unit, and therefore it is unlikely that he could return to Australia in the future.

The Department of Foreign Affairs and Trade (DFAT) assesses that most Iraqi women, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. Long-standing traditional values and gender roles continue to significantly restrict the participation of women in the community and workforce, in both the public and private sectors. DFAT assesses Iraqi women and girls face a high risk of gender-based violence, including sexual assault and domestic violence.[1]
[1] Ibid.
Most cases of violence against women in Iraq are thought to remain unreported due to high levels of social stigmatisation, societal perceptions that domestic issues should be dealt with as family matters, lack of police and judicial personnel trained to deal with gender-based violence cases, as well as a lack of protective legislation.[2]
[2] International Protection Considerations with Regards to People Fleeing the Republic of Iraq, United Nations High Commission for Refugees (UNHCR), 3 May 2019, 86-87.
Women in Iraq face significant restrictions on their freedom of movement and often need the consent of a male guardian to travel, obtain identity documents and work.[3] This would pose particular problems for [the applicant] while she cared for four children with no male companion.
[3] Country Reports on Human Rights Practices for 2020 – Iraq, US Department of State, 30 March 2021.
DFAT reports that ongoing barriers to returning to Iraq include housing destruction, lack of livelihoods and services, security concerns and social tensions in place of origin. These barriers are exacerbated by factors including mental health/trauma issues.
On the basis of these factors, I find that [the applicant] is a person to whom Australia owes protection. I note that I had some concerns in respect of the credibility of the applicant’s evidence in relation to other claims put forward to the Department and the Tribunal. Nevertheless, the attributes listed above have been accepted and it is not necessary to make findings of fact in respect of the remaining claims.
I am satisfied that [the applicant] is the mother of the second and third named applicants and I find that they are members of the same family unit for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the second and third named applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Sheridan Lee
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 2481

27 May 2022

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