1815263 (Refugee)

1815263 (Refugee) [2024] AATA 2284 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815263
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Haag
DATE:22 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 March 2024 at 3:31pm
CATCHWORDS
REFUGEE – Protection Visa – Thailand – applicant abandoned the protection claims she relied on before the primary decision maker – money lender – no evidence of the money lender(s) threatening to harm the applicant – applicant now has the financial means to fully repay her mother’s loans – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 23 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Thailand applied for the visa on 22 December 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act, and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant: (s 36(2)(b) and s 36(2)(c) of the Act).
Upon the applicant’s request, she appeared before the Tribunal on 14 March 2024 via a visual link from Queensland to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A].
The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist the applicant in specifying any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
On 23 May 2018 the delegate of the Minister refused the application for a protection visa. On 25 May 2018 the applicant applied to the Administrative Appeals Tribunal for merits review of the application.
Applicant’s background
The applicant stated in the visa application and oral evidence at hearing that she was born in Thailand and that she is a citizen of Thailand. In the visa application the applicant stated she can speak, read and write Thai and read and write English.
At hearing the applicant said she became pregnant in Australia. At that time she was employed on a farm located near the regional city of [City 1], in the State of Victoria. About 4 months after becoming pregnant the child’s father abandoned her. Their son was born in [City 1] on [date].
The child’s father has had little contact with the applicant and his son since he separated from the applicant. After separation and before the birth of their son, the applicant was driving her car in the direction of her place of employment, and the road was wet and slippery. Her car skidded off the road and crashed into a fence. The fence and car were damaged.
At present the applicant is residing in Queensland.
Applicant’s identity
As part of the visa application the applicant provided a certified copy of the biodata pages of her passport. The document states the passport was issued in the name of [name] on [date] 2017 by the Ministry of Foreign Affairs, Thailand. There is no evidence to suggest it is a non-genuine document. The information in the document is consistent with evidence the applicant gave at hearing.
The evidence is sufficient to establish the applicant’s identity and that she is a citizen of Thailand. There is no evidence that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any country other than Thailand. Therefore, based on the information provided in the visa application and the evidence at hearing, the Tribunal finds the applicant is a citizen of Thailand, as such her protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.
Migration history
On 18 July 2016 the applicant applied for a Student (Subclass TU 500) visa offshore.
On 3 August 2016 the student visa application was granted.
On [date] August 2016 the applicant arrived in Australia on the student visa.
On [date] November 2017 the applicant departed Australia and returned to Thailand.
On [date] December 2017 the applicant returned to Australia on the student visa.
On 22 December 2017 the applicant lodged an application for a Protection (Subclass XA 866) visa.
On 9 January 2018 the applicant was granted a Bridging (Subclass WA 010) visa in association with the application for a protection visa.
The hearing
The Tribunal now summarises the evidence given by the applicant in respect of the claims made in her written visa application. The applicant claimed she would be harmed in Thailand by gangsters who murdered her parents because her father refused to pay them protection money. Her friends informed her that the gangsters still want to collect the protection money they say they are owed, and they will kill all members of her family, including her, to get their money. To secure protection from these gangsters the applicant applied for a protection visa.
At hearing the applicant said her parents were not murdered by gangsters and that the claims made in her written application are untrue.
The applicant explained that she was in a group of farmworkers who were called to a meeting after work. They were introduced to a person who offered to assist them to obtain a visa that would permit them to work anywhere in Australia for more money, because they would be able to work legally. She does not know this person’s name. The applicant and several co-workers were taken to a migration agent. The agent wrote their visa applications for them. The applicant told the Tribunal that she did not know she was applying for a protection visa. She believed she was applying for a work visa that would permit her to work legally anywhere in Australia.
The Tribunal is satisfied that the applicant abandoned the protection claims she relied on before the primary decision maker and that she does not rely on those claims in this proceeding. Therefore, the Tribunal gives no further consideration to the protections claims articulated in the written visa application.
At hearing the applicant relied on new claims. The Tribunal now summarises those claims:
·The applicant arrived in Australia as the holder of a student visa to undertake a course of study in General English; she did not complete the course.
·When the applicant was working on a farm near the city of [City 1] in Victoria, she became pregnant. The father of their child disassociated himself from her. During her pregnancy she was driving herself to work when she lost control of her car and caused significant damage to a roadside fence and the car.
·The applicant’s child was born at the [City 1] hospital on [date]. When her infant son was ready to travel, she took him to Thailand. She left him in the care of her mother because she was unable to care for him on her own in Australia.
·The applicant re-entered Australia on her student visa on [date] December 2017 and lodged an application for a protection visa on 22 December 2017.
·The foregoing circumstance led to the applicant borrowing approximately $18,000 from her mother. Her mother borrowed this money from unnamed money lenders and gave it to the applicant to meet her expenses in Australia, being:
(i)$8,500 for medical and hospital expenses associated with the birth of her son.
(ii)$4,000 for living expenses and to repair the damaged fence and her car.
(iii)$5,500 to the agent who assisted her to lodge the protection visa application. (The applicant has tried unsuccessfully to contact the agent. She believes the agent is no longer in business.)
The applicant said she agreed to repay her mother’s debt and that she returned to Australia to earn money to repay the debt and to support her son. From time to time she remits money to her mother.
The applicant said at hearing the witness, [Mr A], has been her romantic partner for approximately 5 years. They were seated beside each other throughout the hearing.
The applicant and Mr [Mr A] gave consistent evidence about the risk of harm to the applicant if she returned to Thailand. The applicant said the money lender from whom her mother borrowed the money often visits her mother and demands to be paid. By implication the applicant claims her mother may be harmed, and that she would be harmed in Thailand if her mother’s debt is not repaid.
Mr [Mr A] said he had spoken to the applicant’s mother. Based on what the applicant’s mother told him, he believes the applicant would be harmed if she returned to her mother’s home and the loan is not repaid. He said the area where the mother’s home is located is in the northern part of Thailand where the rule of law is lax, and if loans are not repaid, defaulting borrowers and their family members are likely to be harmed by their creditors.
If the applicant’s evidence is to be accepted, the purposes for which the money was borrowed was to pay debts incurred in Australia in late 2016 and 2017: being the motor car collision when the applicant was pregnant; medical expenses due to the birth of the applicant’s son on [date]; and the fee for preparing her protection visa application which was lodged on 22 December 2017. Nevertheless, there is no evidence of the money lender(s) physically harming the applicant’s mother, son or family members in Thailand. There is no evidence of the money lender(s) threatening to harm the applicant.
Mr [Mr A] and the applicant gave consistent evidence about the applicant’s work history in Australia and her current financial position. To summarise their evidence: the applicant has been a hardworking employee who always paid tax on her earnings. She has saved diligently and accumulated approximately $40,000 in her Australian bank account, and approximately $17,000 in her superannuation account.
This evidence establishes the applicant has the financial means to repay the money her mother borrowed for the applicant to use in Australia. The applicant also said she had agreed to repay her mother’s loans, and that she returned to Australia for that purpose.
The DFAT Country Information Report Thailand – December 2023 (DFAT report) is consistent with the applicant’s evidence to the effect that unpaid private money lenders are likely to use violence to recover money they claim to be owed.[1]
[1] DFAT report [3.112]-[3.118]
It is evident that the applicant has the means to avoid any risk of harm she fears she would face if she were removed to Thailand. To avoid any risk of unpaid money lenders harming her and her family members, the applicant has the capacity to draw down her $40,000 in bank savings to repay her mother’s debt of about $18,000.
Repayment of the loan is an effective protective measure available to the applicant both in Australia and Thailand, with Thailand being the receiving country for the purposes of this proceeding.
In evidence the applicant made clear that she does not want to stay in Australia permanently. Initially, the applicant said she returned to Australia to earn money to repay her mother’s loan, to support her son and spend more time with her partner, [Mr A].
After the applicant acknowledged that she had the financial capacity to repay her mother’s loan, she changed her reasons for wanting to spend more time in Australia. She asked to be allowed an additional 3 to 6 months to spend more time with [Mr A], and to sell the assets she owns in Australia.
On balance, the Tribunal accepts the applicant’s mother borrowed the three sums of money the applicant referred to in her evidence, totalling approximately $18,000 Australian dollars.
The Tribunal also accepts the applicant fears if she returned to Thailand and the debt was not repaid, the money lenders would hold her responsible for the debt, and to force recovery of any unpaid part of the debt, they would seriously harm her, her young son and her mother.
The Tribunal is satisfied the applicant now has the financial means to fully repay her mother’s loans.
There is no evidence that the applicant will not honour her agreement to repay the money her mother borrowed to benefit her in Australia.
There is no evidence that the applicant would be unable to transfer her savings to Thailand if she sought to do so. Relevantly, the applicant gave evidence that she has successfully transferred funds from Australia to her mother in Thailand.
Findings
On balance, the Tribunal is satisfied that effective protection measures are available to the applicant both in Australia and Thailand, by means of the applicant repaying the loans from her bank savings while she is in Australia or upon returning to Thailand.
Having considered the applicant’s claims individually and cumulatively, the evidence before the Tribunal considered alone, and in conjunction with the DFAT report, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if she is removed to Thailand now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Furthermore, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Complementary protection
The Tribunal now turns to consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘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’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246] [297] and [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Thailand now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.

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

[2024] AATA 2284

22 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction

Appeal