1820736 (Refugee)

1820736 (Refugee) [2024] AATA 3009 (24 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Arthur Vasilopoulos (MARN: 0002668)
CASE NUMBER:  1820736
COUNTRY OF REFERENCE:                   France
MEMBER:Peter Katsambanis
DATE:24 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 April 2024 at 1:00pm
CATCHWORDS
REFUGEE – protection visa – France – political opinion – supporter of Marine Le Pen – opposition to Islamic immigration – social media activities – threats from jihadist terrorist groups – vague and undetailed evidence – 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) FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 4 July 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 France, applied for the visa on 22 December 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant was represented in relation to the review by a registered migration agent. .
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether there is a real chance that if the applicant returns to France that she will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to France, there is a real risk that she will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Protection Visa Application
The applicant is a [age]-year-old female who was born in [Town 1], France on [date]. She is a French citizen and provided the Department with a copy of her valid French passport as well as other identity documents written in French.
In her protection visa application form, the applicant stated that she was of Norman ethnicity and Catholic religion. She listed her occupation as [Occupation 1]. She claimed that she was currently in a de facto relationship. Her parents, one sister and one brother were all living in France.
The applicant claimed that she last arrived in Australia [in] May 2016 on a working holiday visa. She had previously been to Australia in 2015 on a similar visa. She listed her extensive work history in France, primarily working as a [Occupation 1] in various [workplaces]. She also listed her education history in France, including a [Occupation 2] apprenticeship which she completed in 2002.
In her protection visa application form, the applicant stated that she was seeking protection in Australia so that she did not have to return to France. She claimed that she left France for fear of her life and that she had fears of harm from jihadis in France. She believed that if she returned to France, she would be killed or she would be attacked, targeted or kidnapped by the jihadists. She claimed that in the past in France she had received phone calls from unknown sources and the voices told her they would kill her if she made postings on Facebook. She claimed she rang the police, but nobody took her seriously and the police told her to forget about it, so she felt insecure. She claimed that after she received these threatening phone calls, she left France and came to Australia.
The applicant claimed that if she returned to France, she believed she would be harmed by the jihadists. She did not believe the police or other authorities would protect her because all the attacks that happen in France show that the police cannot stop the jihadists. She believed that the jihadists and all their connections in France will target people like her that speak out against the jihadist terrorists.
In an undated statement accompanying her protection visa application, the applicant outlined her family history, her education and her previous employment in France. She stated that she first came to Australia on a working holiday visa in January 2015. Before her departure from France, she was shocked to hear of the Charlie Hebdo terrorist attacks on 7 January 2015 where she claimed that 11 people died and 11 ended up in hospital. A few days later, she heard about a terrorist attack on a shop cashier where hostages were taken and 4 people died. She no longer felt safe and secure in Australia and couldn’t wait to start a new life in Australia. She settled well in Australia, found work picking grapes and met the love of her life.
In June 2015, the applicant claimed she was offered a good work proposition to return to France. She decided to return to France after discussing things with her boyfriend, [Mr A]. She left Australia [in] November 2015. When she was in [City 1] on a stopover on the way to France, she found out about another terrorist attack in Paris, and this reminded her of the Charlie Hebdo attack. Whilst still in [City 1], she found out about a series of attacks in Paris including at the Bataclan, at a restaurant and at a bar. She was delayed in [City 1] for some time whilst the situation in Paris was clarified and then she was allowed to continue her travel to Paris.
The applicant claimed that when she arrived in Paris [in] November 2015, she was scared and shocked to see the military presence at the airport and she felt insecure. She went to Normanby where she felt sad and cried a lot because she missed her boyfriend. She found it hard to enjoy life because there was constant discussion of the terrorist attacks in the media.
The applicant claimed that she was very angry and disappointed in the French government so she started to support Marine Le Pen, who was a French politician campaigning to become President of France, because this person stood for the same things the applicant stood for and would take decisive action against jihadists. She expressed her fears for the next generation in France if the current government remained in power.
In a further statement dated 22 December 2017, the applicant stated that she continued to support Marine Le Pen and her ideology. She also supported other political entities in France that are opposed to Islamic migration. She had shown this support by making postings on Facebook and sharing articles online. She included some of these posts and articles within her statement but apologised that they were in French because she did not have money to translate them into English. She claimed that after she made these posts, she received threatening phone calls from unknown sources. She tried to get help from the local police, but they did not take her seriously, which made her very scared. She departed France for Australia not long after she received these threats.
In this statement the applicant claimed she believed she would be harmed by jihadists and that the police and other authorities in France would not be able to protect her because they had not been able to stop other such attacks in France. She did not believe that she would be safe in any part of France.
The applicant expressed her disappointment that Marine Le Pen did not win the French presidential election and stated that she made the Facebook posts to make people aware of the dangers of ignoring jihadists, and the poor leadership of the French government. She feared that because of these postings, the jihadists in France would follow her and attack her or even kill her, so she was scared for her life. She did not think the government or the police in France can stop these terrorists.
The applicant claimed that she returned to Australia [in] May 2016 and was happy to reunite with her boyfriend because she feared for her life in France. She stated that her boyfriend could not return to France or Europe to be with her, and she was frightened that, being alone, she would be caught and tortured by jihadist terrorists in France. She claimed that on 14 July 2016 she saw news on Facebook about a terrorist attack in Nice, France which did not surprise her, but she felt secure being in Australia.
The applicant appealed to the Australian government to assist her because she could not return to France, or any other part of Europ,e given that jihadists had attacked people in all of Europe.
Attached within this statement were several news articles and Facebook posts. These articles and posts were written in French, with no English translation provided, but an observation of these articles and posts indicates that they refer to Marine Le Pen and her political movement. After one article, the applicant has added in English that the article “is from Wikipedia and speaks about Marine Le Pen”. There were several short Facebook posts in the name of the applicant that were included within the documents provided to the Department. Although written primarily in French and not translated, these posts show that the applicant was engaging in online discussions that related to Marine Le Pen.
The delegate refused to grant the applicant a protection visa on 4 July 2018.
Application for Review
The applicant applied to the Tribunal for a review of the delegate’s decision on 17 July 2018. She also provided the Tribunal with a copy of the delegate’s decision record and accompanying notification letter.
The Tribunal wrote to the applicant on 14 March 2024 advising her that having considered the material before it, the Tribunal was unable to make a favourable decision on this information alone. Accordingly, the Tribunal invited the applicant to appear before it in person in Melbourne on 30 April 2024 at 9:30 am to give evidence and present arguments relating to issues arising in her case. This letter outlined that if the applicant did not appear at the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The letter also provided details on how the applicant could provide further documents or submissions to the Tribunal in support of her claims.
On 22 April 2024 the applicant’s representative informed the Tribunal that the applicant did not wish to participate in the scheduled hearing and that she consented to the Tribunal making a decision on the papers without taking any further steps to allow her to appear before it.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
There is no issue as to identity or nationality. The applicant arrived in Australia on a valid French passport and provided a copy of this passport to the Department. The Tribunal therefore accepts that the applicant is a national of France and has assessed her claims accordingly.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The applicant has claimed that she is a supporter of the political party and ideology of French politician Marine Le Pen and other political parties in France that are opposed to Islamic immigration. She has claimed that she has expressed this support through posts on Facebook and that as a result of her Facebook activity she claims that she has received threats from unknown people who she believes are associated with jihadist terrorist groups. She also fears harm on return to France from jihadist terrorist groups because of her support for Marine Le Pen and other political groups opposed to Islamic immigration.
Based on the applicant’s written statements that she provided to the Department and based on several Facebook posts she provided indicating her involvement in online discussions about Marine Le Pen, the Tribunal accepts that the applicant is a supporter of the political party of Marine Le Pen and other political parties that are opposed to Islamic immigration. The Tribunal also accepts that the applicant has expressed this support through her participated in online discussions on Facebook and would therefore have some publicly accessible profile as a supporter of this politician and these types of political parties.
However, the applicant has provided vague and undetailed evidence over time about the threatening telephone calls she allegedly received from jihadists after she made Facebook posts highlighting her support for politicians like Marine Le Pen and about any reports she made to police about these alleged threatening calls. She has provided no details about the dates or approximate dates on which she claims to have received these threatening phone calls, how many such calls she may have received, whether she was able to identify which telephone number these calls were being made from, where she was when she received each call, the actual threatening words used by the callers who allegedly called her, the dates or approximate dates when she reported these calls to police, which police station she attended to make these reports and whether or not the police made any record of the reports that she made to them.
As noted above, s 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section of the Act, the Tribunal does not have the responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[1]
[1] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
In the applicant’s circumstances, the Tribunal’s letter of 14 March 2024 clearly informed the applicant that if she elected not to attend a hearing and in the absence of any further information the Tribunal would make a decision on the evidence before it. The applicant subsequently declined the invitation in that letter to appear before the Tribunal at a scheduled hearing to give evidence and make submissions. The applicant also did not provide any further information or details relating to her claims for protection in her response, despite being given the opportunity to do so. Therefore, in such circumstances, the Tribunal considers that the applicant has been afforded a reasonable opportunity to provide further information and evidence to the Tribunal about her claims but has chosen not to do so. Accordingly, as the applicant has had a reasonable opportunity to provide further information and evidence, the Tribunal has proceeded to make a decision on the evidence before it without seeking any further information from the applicant.
Based on the vague and undetailed evidence before it, the Tribunal does not accept that the applicant ever received any threatening telephone calls from any jihadist terrorists after making her Facebook posts and or that she ever reported such alleged telephone calls to police. Accordingly, on the evidence before it, the Tribunal finds that the applicant never received any threatening telephone calls from any jihadist terrorists after making her Facebook posts and that she never reported these alleged telephone calls to police.

The applicant has made no other claims that she suffered any harm in the past in France for any other reason and no other claims arise from the facts before the Tribunal.
The applicant has claimed that if she returns to France now or in the reasonably foreseeable future, she fears she would be harmed or even killed by jihadist terrorists because of her ongoing support (including her Facebook activity) for Marine Le Pen and other political parties opposed to Islamic immigration. However, the applicant’s claims in relation to these fears are vague and undetailed. She has not provided any information about which particular jihadist terrorist groups or people she fears would harm her, how these groups or people would know that the applicant holds the views that she holds and why they would specifically target her for any harm. In addition, the Tribunal has already found that the applicant was never threatened by any jihadist terrorist groups in the past in France.
Based on the vague and undetailed evidence before it, and based on the previous finding that the applicant was never threatened by any jihadist terrorist groups in the past in France, the Tribunal is not satisfied that if the applicant returned to France now or in the reasonably foreseeable future that she would suffer any serious harm from jihadist terrorists for reasons of her ongoing support for Marine Le Pen and other political parties opposed to Islamic immigration or for any other reason.
The applicant has made no other claims that she fears harm if she returned to France now or in the reasonably foreseeable future for any other reason and no other claims arise on the facts before the Tribunal.
Therefore, having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has already found that if the applicant returns to France there is no real chance that she would suffer any serious harm from jihadist terrorists for reasons of her ongoing support for Marine Le Pen and other political parties opposed to Islamic immigration or for any other reason. As the test for real risk in s 36(2)(aa) is the same as the test for real chance (see MIAC v SZQRB (2013) FCR 505), the Tribunal therefore finds that if the applicant returned to France there is no real risk that she would suffer any significant harm for the same reasons.
Apart from these claims, the applicant has made no other claims that she fears significant harm on return to France for any other reasons and no other claims arise on the facts before the Tribunal.
Accordingly, on the evidence before it, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Katsambanis
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 3009

24 April 2024

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Standing