1816832 (Refugee)

1816832 (Refugee) [2022] AATA 2897 (19 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tam Nguyen (MARN: 0743595)
CASE NUMBER:  1816832
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:David James
DATE:19 July 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 July 2022 at 2:30pm
CATCHWORDS
REFUGEE – Protection visa – Vietnam – applicant failed to provide further details as to her claim – involved in an anti-communist underground group – delay in applying for protection visa – credibility concerns – decision under review affirmed

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 6 June 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 Vietnamese citizen, applied for the visa on 19 March 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 was represented in relation to the review.
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–5LA, 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 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Vietnam she would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The applicant when applying for the visa stated the following as to her claims for protection:
a.    that she left Vietnam to study in Australia so she could acquire an Australian education qualification which might assist her in applying for a visa to remain in Australia, while she waited for a change to the Communist regime in Vietnam;
b.    she stated that she belonged to the educated youth who recognised the dictatorship and pressure of the government towards the Vietnamese people and that she had joined an underground group which promoted anti-government views. After friends within this group had been arrested and detained with some of them being tortured by the Communist cadres she and others escaped Vietnam to seek protection from a western country where they may wait for a change of regime in Vietnam;
c.     she reports that when she left Vietnam the local cadres interviewed her parents about her student activities in Vietnam and she has been told by her parents that she is on a ‘black list’ with her local authority;
d.    she fears that she would be arrested and detained if she returned to Vietnam;
e.    she states that she had not experienced any harm in Vietnam but that she had witnessed her friends being harmed by the local cadres; and
f.   she believes that there is no one or no organisation that can help victims of the government and that she could not relocate within Vietnam to avoid arrest as the Household Registration system controls movement of people within Vietnam and those on the ‘black list’ are not permitted to move to other parts of the country.
Delegate’s decision
The delegate’s decision of 6 June 2018 to refuse the protection visa was made on the information before the delegate. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, that there is a real risk the applicant will suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Invitation to attend hearing
On 24 June 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 14 July 2022. The applicant, through her representative, replied on 7 July 2022, indicating that she would not participate in the hearing and consented to the Tribunal making a decision on the papers. The applicant also requested that the Tribunal take into account the applicant’s Statutory declaration that was enclosed with the applicant’s ‘Response to hearing invitation’. Given the applicant provided the Tribunal with submissions as to her application in the form of the Statutory declaration that accompanied the ‘Response to hearing invitation’ which in summary repeated her claims in her earlier application and a history of her relationships in Australia as outlined below at [15] the Tribunal has agreed to the applicant’s request and the hearing scheduled for 14 July 2022 has been vacated.
As to the applicant’s Statutory declaration which accompanied her ‘Response to hearing invitation’ she states that:
a.    she arrived in Australia on a student visa on [date] August 2013 with the intention of obtaining an Australian education, and skills, that would help her serve her country (Vietnam) when she returned to it;
b.    whilst attending her course she met and then married [Mr A] who she later divorced on [date] October 2016;
c.     she then met and married [Mr B] on [date] July 2017, however her husband subsequently committed criminal offences resulting in the withdrawal of her partner visa application;
d.    she was then contacted by her parents who told her that the local authority sought to interrogate her for her anti-communist conduct through her involvement with an underground group;
e.    she applied for a protection visa with the aim of staying in Australia to wait for a change of political system in Vietnam;
f.   she has now met another fellow who she is cohabiting with and who has promised to marry her. She is presently awaiting a divorce certificate from her last marriage from the Family Court;
g.    she chose not to attend the Tribunal hearing of 14 July 2022, “because of waiting for another visa lodged with DHA”; and
h.    she would not have the freedom of a citizen if she returned to Vietnam.
The Tribunal notes that the applicant in her protection visa application recorded [date] March 2014 as her arrival date in Australia. However Departmental records indicate that the applicant arrived in Australia on a student visa on [date] August 2013 (as she stated in her Statutory declaration) and that she has previously applied for two partner visas, both having later been withdrawn on 29 March 2016 and 13 March 2018.
Country information
The Tribunal has taken into account the DFAT Country Information Report Vietnam, 11 January 2022 as relevant, including the information under the headings of ‘Political System’ at 2.28, ‘Political Opinion (Actual or Imputed)’ at 3.49 to 3.57, ‘Internal Relocation’ at 5.18 to 5.24 and ‘Treatment of Returnees (Exit and entry procedures)’ at 5.25 to 5.28 noting that at 5.25 the report states:
…In practice, the Government imposes limits on entry and exit for political activists and Government critics. This is achieved by refusing to issue passports or laying criminal charges to prevent travel, and is sometimes used against the families of persons of interest.
FINDINGS AND REASONS
In reaching its decision, the Tribunal has considered the Department’s file in relation to the application. The Tribunal has also noted, as outlined above, that the applicant chose not to accept the Tribunal’s invitation to attend a hearing and give evidence and present arguments.
As noted above, the applicant provided a copy of the delegate’s decision with her application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Vietnam and provided details of her passport with her application. Based on this material the Tribunal finds that the applicant is who she says she is, and a national of Vietnam. Vietnam is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal notes that it is for the applicant to make their case. In this case the Tribunal observes that the applicant has not provided a level of detail necessary to satisfactorily establish the relevant facts of this case. Further, it is noted, despite having received an unfavourable decision from the delegate, the applicant failed to provide further details as to her claim and only repeated her vague claim of having been involved in an anti-communist underground group together with her history of past withdrawn partner visa applications to the Tribunal by way of a Statutory declaration in support of her claim. The applicant has also chosen not to accept the Tribunal’s invitation to a hearing to give evidence in respect of the claim providing her excuse that she was “not attending the Tribunal hearing on 14 July 2022 because of waiting for another visa lodged with DHA.”
In this regard the Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The applicant claims to have joined an underground group which promoted anti-government views and after friends within the group were arrested and detained with some of them being tortured, she and others escaped Vietnam to seek protection so that they may wait for a change of regime in Vietnam. The applicant’s claims are vague and without any detail as to when she joined and what the circumstances were of her joining the anti-government underground group. She has not provided any details of her alleged student activities and where they were conducted. She has not provided any details of how this group met and who the other members of the group were. Equally she has not provided any information as to what has since happened to other members of the group and whether she has been in contact with any of the members of the group. Further she has not provided any description of the group’s activities and what the circumstances were surrounding the group’s identification by the Vietnamese authorities and what the name or community identity of the group was.
Additionally, the applicant has not provided any particulars of her alleged escape but simply indicated that she travelled to Australia on a student visa to obtain qualifications to assist her when she returned from Australia after a regime change in Vietnam. Her exit from Vietnam was without incident although she states other members of the group had been arrested, detained and some tortured. She claims her parents were interviewed about her student activities and informed that she was on a ‘black list’, although this interview occurred after the applicant left Vietnam. It is noted that her claims were to the effect that before she left Vietnam she had joined an underground group that promoted anti-government views and that friends within the group had been arrested and so she escaped. These claims are inconsistent with the applicant having to escape Vietnam and having an adverse profile with the government due to her activities with the underground group and with the country information as outlined above at [17] which indicates Vietnam limits the entry and exit of political activists.
The applicant also claims that although she has not experienced harm in Vietnam she has witnessed her friends being harmed by the local cadres. In this regard the Tribunal notes that the applicant has not provided any details of what harm she has witnessed, when and where she witnessed this alleged harm and who the victims of this harm were. Given the serious nature of this claim as to witnessing the harm of others at the hands of the communist cadres it is not accepted by the Tribunal that the applicant would not have a clear and detailed recollection of these incidents which could have been provided to the Tribunal.
The Tribunal also notes that the applicant did not lodge her protection visa application until 19 March 2018 after having arrived in Australia on [date] August 2013. Given her claims included her escape with others from Vietnam to seek protection her delay in making her application for protection of almost 5 years raises further doubt as to the veracity of her claims for protection, notwithstanding her claim that ‘she was then contacted by her parents who told her that the local authority sought to interrogate her for her anti-communist conduct through her involvement with an underground group’. And further that ‘she applied for a protection visa with the aim of staying in Australia to wait for a change of political system in Vietnam’, as outlined above at [15] d. and e. The Tribunal finds that this delay as to making her claim is inconsistent with her claim of having been involved in an anti-government underground group and having to flee Vietnam due to the arrest, detention and torture of some of her friends in that group. The delay in making her application on the basis that she did not make such application until her parents informed her as to the authorities wishing to interrogate her and that she was then on a ‘black List’ is not accepted. In that regard, the Tribunal has noted that in Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in the lodgement of a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution.
Given the lack of details provided to the Tribunal by the applicant as to her claims together with the delay in the application for the visa by the applicant the Tribunal does not accept the claims of the applicant and finds the applicant to be unreliable as to her claims.
Given the matters raised above as to the credibility of the applicant the Tribunal does not accept that the applicant was or is a member of an anti-government underground group which was identified by the Vietnamese authorities with some members being arrested, detained and tortured. The Tribunal equally does not accept that the applicant escaped Vietnam for Australia to seek protection. Additionally, the Tribunal does not accept that her parents were interviewed by the Vietnamese authorities as to her alleged student activities in Vietnam and that she was on a ‘black list’ with her local authority nor that she witnessed friends being harmed by the communist cadres.

For the reasons above the Tribunal does not accept that the applicant will be arrested and detained if she returns to Vietnam.
Refugee criterion – s36(2)(a) of the Act
Based on the information before it, the Tribunal having considered all the applicant’s claims both individually and cumulatively, finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fear of persecution is not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection – s 36(2)(aa)
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal has found that the applicant has not provided a level of detail necessary to satisfactorily establish the relevant facts in this matter. Having regard to the Tribunal’s findings made above, the Tribunal has rejected all of the applicant’s evidence and claims on a credibility basis including as to her political opinion imputed or otherwise and alleged adverse profile with the Vietnamese authorities. Therefore, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that she will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additionally, there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection 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.
David James
Senior 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 2897

19 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing