1820915 (Refugee)

1820915 (Refugee) [2021] AATA 3302 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820915
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Luke Hardy
DATE:18 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 August 2021 at 3:07pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – failure of business in home country and debts to former workers – written claim of fear of harm from investors, workers or authorities disavowed at hearing – amount of debt, partial repayment already and financial capacity to pay remainder – no criminal or civil proceedings – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J(1)(a), 36(2), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 dependants.
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 13 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a citizen of Malaysia. She arrived in Australia on [Date] March 2018 on a visitor visa. She applied for the protection visa on 20 March 2018. After the delegate refused to grant a protection visa, [the applicant] sought review by this Tribunal, constituted by me.
[The applicant] appeared before me by telephone on 18 August 2021. The hearing was held during a lockdown caused by the outbreak in Sydney of the delta variant of the COVID-19 virus pandemic. I determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to the need to avoid undue delay to the matter were the hearing not conducted by telephone. There were no audio issues affecting clear communication through the interpreter throughout the hearing. I am satisfied that [the applicant] was given a fair opportunity to give evidence and present arguments.
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 (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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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
The main issue in this case is whether, on accepted evidence, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
In her original application, [the applicant] claimed that she used to operate a “multi-level marketing” business with a partner who embezzled its hundreds of investors’ money and absconded, whereabouts unknown. She provided no details as to when this happened. She said that the investors reported the matter to the police and that she was convicted in the matter as a result, with the company’s assets also frozen. She claimed that, fearing investors’ revenge and “harm from the authorities,” she fled Malaysia for Australia.
[The applicant]’s oral testimony before the Tribunal was somewhat different from what she claimed in her original protection visa application, although, to be fair, the core problem seemed quite similar, though on a much smaller scale. She said the difference in her claims was due to her having received assistance from a friend in lodging her original application. She said the friend had since left Australia and returned to Malaysia.
In her evidence to the Tribunal, [the applicant] said she and her former business partner ran what was evidently a fairly small-scale, straightforward [wholesale] business out of a shop with an adjoining warehouse in Sabah state. She said the company would buy choice [product] and sell and deliver them wholesale to retailers and the like. She said the company employed 200 people. She said there was a fire in 2014 on the night of 29 September 2014 that destroyed the shop, warehouse and stocked [product]. She said that her partner cut his losses, raiding the company’s accounts of then-as-yet-to-be-paid workers’ wages totalling 20,000 Malaysian ringgit (approximately A$7,000), and disappeared leaving her with a wages bill that she could not pay.
[The applicant] was quite vague when answering questions about how she dealt with the matter in the three-and-a-half years between the fire and her coming to Australia. She said that because the [business] folded she had to borrow money form a friend to help support her younger sister’s education, and she also said she had already repaid this money in full, but this did not address how she managed the situation of her company’s debt to its workers over those years before coming to Australia.
Pressed to provide some detail, [the applicant] said she reported the embezzlement by her partner to the police who, she said, were unable to assist her. I asked her if any court became involved and she said that nothing related to this matter had been brought before a court. She denied that she had ever been convicted. She said that as far she knew she was the only person who reported anything to the authorities. In this way, she negated a number of details claimed in the original protection visa application.
[The applicant] said that because she had been permitted, on her bridging visa, to work in Australia, pending the outcome of her protection visa application, she had been able to repay half f the workers disaffected by the collapse of the [business]. She said she now only owes 10,000 ringgit (or approximately A$3,300). I asked her what would happen t her if she were to return or be removed to Malaysia in the reasonably foreseeable future and she said that she would have to find work so that she could finish paying the 10,000 ringgit debt. She said she had already paid half her debt to her former workers in just over three years. (That, I note, is notwithstanding the economic vicissitudes of the 2020-21 Covid-19 pandemic.)
[The applicant] said that an adequately well-paying job might, however, be hard to find and that she might have to sell or “pawn” her parents’ house to pay the debt, leaving her homeless. At no point in the hearing did she suggest that she faces prosecution as claimed in writing in the original application.
Based on information from Malaysian news media, I put to [the applicant] that she would not likely need to seel or “pawn” her parents’ house to raise 10,000 ringgit. House prices in Sabah state are notoriously high, with the mean price estimated to be 250,000 ringgit, according to Free Malaysia Today,[1] with even “affordable” housing for low-income workers valued at around 45-50,000 ringgit.[2] Responding to this, she said the position put to her was probably correct. Meanwhile, I note, between her last three years or so in Malaysia and her three years or so in Australia, she claims to have paid two thirds of a total debt to others of 30,000 ringgit. On this evidence, it struck me that it is well within [the applicant]’s capacity to complete payment of her overall debt. Addressing this, [the applicant] said she needs to work in Australia to be able to pay the debt sooner. She also said she feared being sent back to a country where people are catching Covid-19.
[1] “High cost of land main reason property in Sabah expensive, says state minister,” Free Malaysia Today, 22 December 2020,
[2] Ibid.
I put to [the applicant] that international travel restrictions prevent Australia from removing people to Malaysia or anywhere for the time being and she appeared to accept this. I asked her then how she would be treated in the potential event of return to removal to Malaysia. In reply, she said she would have to work to raise money to pay her former workers. Overall, she did not suggest that she faces serious or significant harm. She said nobody has sued anyone in relation to the matter of the [business] or her partner’s act of embezzlement. She also said that no charges had bene laid against her and that no court had convicted anyone.
I put to [the applicant] that needing to stay in Australia to work so as to pay off a 10,000 ringgit debt did not sound like the basis for Australia engaging its international protection obligations. In response, she said she might not be able to find the money she needs to pay. According to Salary Explorer, the average wage in Malaysia is 6,000 ringgit per month, or 79,000 ringgit per year.[3] If [the applicant] can find an average-paying job, her debts would be covered by less than two months’ wages or, bearing in mind that she would need money to support herself, might quite manageably be stretched out over six to twelve months.
[3]
I asked [the applicant] if she had any other claims to make in this matter and she indicated that she did not, but expressed hope that Australia would continue to let her work here until she has paid her debts.
Findings in relation to s.36(2)(a) and (aa) of the Act, respectively
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[6] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]
[6] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[7] Sun v MIBP [2016] FCAFC 52 at [69].
None of [the applicant]’s claims and evidence suggest that this application meets criteria in s.5J(1)(a) of the Act, in that although she had identified harm, or at east some struggle or detriment, none of it targets her for reasons of “race, religion, nationality, membership of a particular social group or political opinion.” In addition, the obligation to pay 10,000 ringgit is evidently not a form of harm as it is money she acknowledges owing the persons to whom she owes it; neither is it so onerous as to amount to being seriously harmful to her; nor is there evidence of her facing serious harm if she does not pay the money, let alone the harm described in her original protection visa application.
Meanwhile, the claim about fearing deportation during the Covid-19 pandemic is baldly speculative and not based in any facts regarding Australia’s response to the crisis, a response that includes ongoing restrictions upon travel abroad.
On the evidence before me, [the applicant] does not face a real chance of serious harm in Malaysia in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the act. Her claimed fear of being persecuted, or even prosecuted, is not well founded. She is not a refugee.
For the reasons given above, I am 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), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.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 (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of Malaysia, I find that Malaysia is the “receiving country” in this case.

[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. The harm [the applicant] identifies in this case is the economic burden of raising 10,000 ringgit in a timely fashion to pay off an outstanding debt to around half of 200 former employees. Ultimately, having disavowed key claims that were included in her primary application, [the applicant] does not claim to face any “harm” beyond the weight of meeting that financial obligation. The absence of “significant harm” in this matter is critical to the outcome of [the applicant]’s claims as complementary protection claims.
Ultimately, [the applicant]’s claims have failed as refugee status claims due to their failure to meet the “real chance” test. In view of the "real risk" test imposing the same standard as the “real chance” test, [the applicant]’s claims can no more succeed as complementary protection claims that they have done as refugee status claims. This includes her Covid-19 claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, she does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy

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.
…

[2021] AATA 3302

18 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction