1815410 (Refugee)

1815410 (Refugee) [2024] AATA 2360 (27 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815410
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Peter Haag
DATE:27 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 March 2024 at 7:17am
CATCHWORDS
REFUGEE – protection visa – Thailand – claimed fear of former boss – credibility concerns – inaccuracy of claims made in application – knowingly misused the Australia protection visa system – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 25 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 5 February 2018. 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).
The applicant appeared before the Tribunal on 15 March 2024 to give evidence and present arguments. 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 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 25 May 2018 the delegate of the Minister refused to grant the applicant a protection visa (primary decision). The Tribunal has read the copy of the primary decision record that the applicant provided to the Tribunal in this proceeding.
Applicant’s background
In applying for a protection visa the applicant claimed he was born in Thailand and to be a citizen of Thailand. In support of these claims the applicant provided to the Department a copy of the biometric page of a passport that states the passport is an official document issued by the Ministry of Foreign Affairs for Thailand to [the applicant], [in] 2017.
The information in the visa application and the evidence at hearing relevant to establishing the applicant’s identity is sufficient to establish the applicant’s identity, nationality, and citizenship. There is no evidence to suggest 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 by the applicant, the Tribunal finds the applicant is a citizen of Thailand; as such his protection claims will be assessed against Thailand as the country of reference and ‘receiving country’ respectively.
Migration history
On 18 October 2017 the applicant lodged an application for a Visitor (Subclass FA-600) visa offshore, which was granted on 24 October 2017.
[In] December 2017 the applicant arrived in Australia on the Visitor (Subclass FA-600) visa.
On 5 February 2018 he lodged an application for a Protection (Subclass XA 866) visa.
On 15 February 2018 a bridging visa was issued to the applicant in association with the application for the protection visa.
On 9 March 2018 the applicant’s visitor visa ceased.
Protection claims
To the Minister the applicant claimed he left Thailand because:
·His boss was associating with ‘shady people’ who were around his business. He asked the applicant to deliver illegal drugs for him. The applicant refused. Consequently, his boss cut his pay, verbally abused him, physically harassed him, and aided by his friends he physically assaulted the applicant. On several occasions after the assault, the applicant’s boss told him that he will kill him.
·Fearing for his life he travelled to Australia to seek protection.
·He fears his former boss will kill him if he returns to Thailand.
·He did not seek help within Thailand because his former boss is ‘very wealthy and influential in the community’ and the community turns a ‘blind eye’ to his activities to protect themselves from losing their employment.
·He moved to the houses of close family friends, however, the applicant was advised that his former boss has a large network of connections and to leave Thailand.
·If he returns to Thailand, he will be ‘hunted down’ tortured and then killed.
·The authorities in Thailand will not protect him because his former boss is too powerful and influential in the community, and the authorities fear they will lose their employment if they oppose him.
·Relocation to escape his former boss is not a viable option because he has a ‘network of connections’ in Thailand.
The hearing
The Tribunal asked the applicant to provide details about his education and employment history in Thailand. He disclosed that he obtained a Bachelor level degree in [Discipline 1] and that he graduated in 2004 when he was [age] years old.
The applicant said after graduation he was employed in a business called [Business 1] which [undertook business activities] on behalf of various banks in Thailand including [Bank 1]. After 2 years he left that employer and established his own [business]. He operated the [business] for 5 years. He closed the business in 2011, or thereabouts. The applicant was then employed in the [specified] industry in a business called ‘[Business 2]’. He was employed in that business for 7 to 8 years, until 2016.
In 2016 the applicant was self-employed in a [different] business; he owned and operated the business until he closed it in September 2017.
In response to the Tribunal’s questions the applicant said after he closed his [business], he supported himself from his savings. He said he came to Australia as a visitor to travel and see the country. He also said he came to Australia as a tourist and for no other reason.
The applicant’s evidence of his work history after he graduated from university in 2004 up [to] December 2017 when he arrived in Australia on a visitor visa, and his evidence that he came to Australia as a tourist, to travel and see the country and for no other reason, is evidence that is materially inconsistent with the protection claims he advanced in his written application for a protection visa.
The nature and chronology of the applicant’s employment history, including that he was self-employed for the last period of his employment before arriving in Australia, seems to leave no scope for the applicant to have been harmed and threatened with death by his employer in the circumstances described in his written application for protection.
Additionally, the applicant’s evidence that he arrived in Australia as a visitor to travel and see the country, and that he did not come to Australia for any reason other than tourism, is materially inconsistent with his initial protection claim, being he fled to Australia in fear he would be murdered by his boss, and to seek protection from him in Australia.
At hearing the applicant informed the Tribunal that he applied for a protection visa because he was not ready to go home; he has debts in Thailand; and, he would have to search for employment if he returned to Thailand. The applicant told the Tribunal that it was incorrect to say he was asked to deliver drugs.
In response to the Tribunal’s questions the applicant explained the false claim about being asked to deliver drugs was made because he did not understand English.
The applicant also asserted that he paid a friend $1,000 to help him with his visa application. He told this friend rough details, and he wrote the form. He also said he gave his friend vague details, and his friend may have exaggerated. The applicant confirmed that his boss did not ask him to deliver drugs, but claimed his boss threatened him.
The applicant did not identify the person he claims was his boss, nor did he give specific evidence about when and where he was threatened and the nature of his employment at the time he was threatened. The applicant’s evidence is vague, general in nature and unsupported by cogent specificity.
When the applicant’s evidence about being threatened by his boss, is considered in the context of the applicant’s employment history and the vagueness of his evidence about being threatened by his boss, the Tribunal finds the applicant’s evidence about being threatened by his boss to be unpersuasive.
The applicant maintained that he is concerned for his safety in Thailand. His reason for concern being his competitors wanted to harm him. He said 3 men visited his shop and threatened to kill him. The applicant also said he told his friend about this circumstance. He thought his (unidentified) friend put the false information (deliver drugs on behalf of his boss) in the visa application because the threats from his business competitors may not have been enough.
The applicant also said his friend did not tell him what he wrote in the visa application form. In reply to the Tribunal’s questions the applicant conceded that he knew he was applying for a protection visa, and he did not know the reasons for protection he was relying on in the application. He accepted that he knew he had to establish he was at risk of harm in Thailand and left it to his friend to put into the application whatever reasons he thought would give him the best chance of being granted a protection visa. The applicant also told the Tribunal that he did not check with his friend to find out whether the reasons in the application were true or false.
Findings
This applicant’s evidence about the making of the visa application and the inaccuracy of the claims made in the application, satisfy the Tribunal that the applicant knowingly applied for a protection visa without paying proper regard to the accuracy and reliability of the claims made in the application, and upon which he relied to obtain a protection visa.
Additionally, the evidence is sufficient to satisfy the Tribunal that the applicant knowingly misused the Australia protection visa system to obtain a protection visa without giving due regard to the accuracy and reliability of his protection claims. The Tribunal is also satisfied that the evidence considered thus far in these reasons is sufficient to satisfy the Tribunal that the applicant is an unreliable witness in these proceedings.
Additional claims and findings
The applicant also said, if he is removed to Thailand, he would see enemies and he would not be safe if they saw him. This evidence is general in nature, unsupported by concrete evidence or cogent specificity, and when it is considered in conjunction with the Tribunal’s adverse findings about the applicant’s accuracy and reliability as a witness, the Tribunal finds this evidence to be unpersuasive.
The applicant said he is being treated in Australia for a medical issue to do with his [organ]. This assertion is unsupported by medical evidence, or other concrete evidence. The applicant asserts he wants to remain in Australia for treatment because doctors in Australia are better than doctors in Thailand. He does not claim he would be denied access to medical treatment if he is removed to Thailand.
Nevertheless, the Tribunal finds the applicant’s unsubstantiated evidence about being treated for a [specified organ] condition to be unpersuasive when considered on its own terms, and in conjunction with the Tribunal’s adverse findings about the applicant’s accuracy and reliability as a witness.
Additionally, the applicant said he wanted to work in Australia to repay the loan he took out in Thailand. The applicant did not support this evidence with documentary evidence or other evidence, or cogent specifics about the loan. The evidence is vague, general in nature, and unsupported by concrete evidence, and when it is considered together with the Tribunal’s findings at paragraphs [34] & [35], and the reasons for reaching those findings, the Tribunal finds the applicant’s evidence to be unpersuasive.
The Tribunal has given regard to the DFAT Country Information Report Thailand, 18 December 2023 (DFAT report). In view of the Tribunal’s findings at paragraphs [34] − [39], and the reasons for reaching those findings, the Tribunal is satisfied the information in the DFAT report will not serve to advance the applicant’s protection claims. Consequently, the Tribunal has decided to give neutral weight to the information in the DFAT report.
Having considered the applicant’s claims individually and cumulatively, the evidence before the Tribunal 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 he 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.
Consequently, 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 that for 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 2360

27 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction

Standing