1826215 (Refugee)

1826215 (Refugee) [2020] AATA 4551 (28 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826215
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Alison Murphy
DATE:28 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 October 2020 at 4:54pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from creditors – economic conditions and unemployment – new claims raised at hearing – ethnicity – disputes over land ownership – illness and claim of black magic – credibility – inconsistent evidence – no reasonable excuse for not raising those claims earlier – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
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 4 September 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 25 June 2018. The delegate refused to grant the visa on the basis that he was not satisfied the applicant was a person to whom Australia owed protection.
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, 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) of the Act. 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) of the Act, 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 of the Act, 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 s.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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and he has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality and the receiving country.
The applicant’s personal background
The applicant is a [Age]-year-old male from the town of [Town] in Sabah, Malaysia. In his visa application the applicant gives his ethnicity as ‘Sabahan’. At hearing he told me he was of the Murut ethnic group, one of a number of indigenous ethnic groups in Sabah.
The applicant told me he was [one of several] siblings, the youngest two of whom are still at school. His parents and siblings are still in [Town] and the applicant supports them financially.
The applicant was educated to the equivalent of year [grade], finishing his studies in [year]. Since then he has done a series of jobs [in] [Town]. He stated that his salary was very low, as low as [amount] ringgit per month and never more than [amount] ringgit per month, and in 2017 he only managed to earn [amount] ringgit per month.
I accept the above matters to be true.
The applicant’s claims for protection
In his visa application, the applicant states in summary that he left Malaysia for a new environment and a safer country with a good economy. He states that if he returns he will have a hard life due to the high cost of living and criminal issues. He states that he failed to settle his outstanding debts such as his mortgage and car loan due to financial problems and his name will be blacklisted by the banks for not paying his debts on time. He cites a report stating that youth unemployment in Malaysia was at 10.7% in 2015 and that 72,000 workers were dismissed in 2016 and 2017, mainly in manufacturing sectors. He states that 183,000 are unemployed, including 31% who are post-graduate students.
At hearing the applicant stated that he came to Australia to support his family, saying that he did not wish to deceive the Australian government. When asked why he had applied for a protection visa, he stated that someone told him he should do so, so that if he was stopped by the police he could show them his visa.
I discussed with the applicant that a refugee is a person with a well-founded fear of persecution for reasons of their race, religion, nationality, membership of a particular social group or political opinion. The applicant stated that in his case it was because of his Murut race. When asked if he thought anyone would try to harm him if he returned to Malaysia, he stated that they would because of a misunderstanding between the races over a land grab happening in his village. When asked who would try to harm him, he said people from his own Murut race because of fights over land ownership.
When asked why he thought anyone would try to harm him personally, he stated someone could use black magic against him and that he had fallen ill and nearly died in Malaysia, causing him to seek treatment in his village. He stated he couldn’t identify who it was who made him sick and he didn’t know what that person had against him, and after he recovered he decided it was time to move to another country so that other people did not harbour ill feelings towards him.
When asked if he were involved in a dispute about land ownership, the applicant stated that there were bad feelings between himself and other people over land, but it had not yet reached the level where sharp instruments were involved. When asked if he owned land in Malaysia, the applicant stated that he did but the ownership was claimed by someone else and the matter was yet to be resolved while that person continued to utilise the land in Sabah. He later said that it was actually his parents who owned the land, but they intended to give it to him. In order to claim ownership they needed a grant which had not yet been issued. When asked why he hadn’t mentioned this in his visa application, the applicant said the person who made the application for him did it this way.
I put to the applicant that at the beginning of the hearing he had stated he came to Australia to find work and that was consistent with what he had put in his visa application. I put to him that I might take the view that was the real reason he came to Australia, rather than any fear of harm because of a land dispute. The applicant stated he now wished to use the land dispute as his reason for wanting to stay in Australia and not the reasons set out in his visa application. He stated he had forgotten to state this reason in his visa application.
I noted the visa application stated he had failed to settle his outstanding debts including a mortgage and car loan in Malaysia. When I sought to clarify whether he held those loans in Malaysia, the applicant initially confirmed that he did have those loans from the bank. However, when I discussed with him that his ability to obtain those loans from the bank appeared inconsistent with his earlier evidence about his financial situation, the applicant stated that he had to write them down in his original visa application in order to get the visa. He said he was worried that if he put down racial tensions as his reason for claiming protection his visa application may not be approved because Malaysia is now peaceful, although racial tensions and dispute still exist. When I again sought to clarify whether or not he had a mortgage and a car loan with a bank, the applicant stated again that he did have those loans, but that he had not used his real name to take out those bank loans because if he did the loans wouldn’t have been approved.
I put to the applicant that I was having difficulty accepting what he was telling me about his loans in Malaysia to be true, noting that he had variously stated in his evidence during the hearing that he had a mortgage and car loan from the banks in Malaysia; that he didn’t have those loans but wrote them down only to obtain a visa; and that he did have those loans but he took them out under a different name. I put to him that banks require a range of identity and other documentation before lending significant amounts of money such as would be required to buy a house and a car and it was difficult for me to accept that he could have obtained those loans under a different name.
The applicant responded by saying he wished to proceed on the basis of his claims made at hearing and not those in his visa application. He said it was true he had financial difficulties in Malaysia but he did not have a mortgage, only a car loan. He said he did not borrow the money for the car loan from the bank, rather he borrowed from someone outside the bank and he had repaid about half the amount he borrowed. He said he would not return to Malaysia until that person moved elsewhere, which would take some time, and he would also wait until the relationship is healed among people in his race.
Refugee assessment
Fear of harm relating to outstanding loans
In his visa application the applicant claims to fear harm relating to his failure to settle outstanding debts such as his mortgage and car loan due to financial problems, stating his name will be blacklisted by the banks for not paying his debts on time.
I do not accept the applicant has any outstanding loans in Malaysia, either to the banks or any non-bank lender or unlicensed money lender. In making that assessment I note the applicant changed his evidence about his financial commitments repeatedly during the hearing, telling the Tribunal firstly that he had a mortgage and car loan with the banks in Malaysia, then that he only wrote that down to get the visa because he thought his other claims wouldn’t succeed, then that he did have those loans but he took them out in another name and finally that he didn’t have a mortgage but had a car loan ‘from someone outside the bank’. He also told the Tribunal that he did not wish to rely on the written claims in his visa application. I do not consider his evidence in regard to his outstanding financial commitments to be credible and I do not accept he has any outstanding loan with any bank or non-bank lender.
It follows that I do not accept that if he returns to Malaysia he will be blacklisted by the banks for not paying his debts on time, nor that he will be harmed by non-bank lenders for reasons of outstanding loans. For these reasons I do not accept there to be a real chance that any person or group would seek to harm the applicant for reasons of any outstanding loans.
Fear of harm relating to economic conditions
At hearing the applicant gave evidence that he came to Australia to support his family because he could not earn enough money in Malaysia and I accept that to be true. I find that the applicant left Malaysia for economic reasons including the cost of living in Malaysia and difficulty finding adequately paid work in Sabah. I accept the applicant may be able to earn more in Australia than in Malaysia.
During the hearing I discussed with the applicant that a refugee was a person with a well-founded fear of persecution in their own country, which meant the Tribunal had to be satisfied there was a real chance he would be subjected to serious harm if returned to Malaysia for reasons of his race, religion, nationality, membership of a particular social group or political opinion. The applicant did not suggest that the economic harm he feared arose for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
While I accept the applicant is able to earn more money in Australia than in Malaysia, I find the economic harm he fears in Malaysia is not for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion. Therefore, he does not meet the criteria set out in s.5J(1)(a) of the Act.
Fear of harm relating to land dispute
At hearing the applicant made a new claim to fear harm in Malaysia from other members of the Murut ethnic group because of racial tensions around land. He stated that there were bad feelings between himself and other people over land and he had in the past become ill as a result of black magic and feared this could happen again.
Section 423A of the Act sets out how the Tribunal is to treat new claims and evidence raised before the Tribunal that were not raised in the application before the primary decision maker. It requires the Tribunal to draw an inference unfavourable to the credibility of the new claims unless satisfied the applicant had a reasonable excuse for not raising those claims earlier. When asked why he hadn’t raised these claims in his written claims, the applicant stated first that the person who had completed his application decided to do it a different way and later that he had forgotten to include them in his visa application. He also stated that he was worried that if he included it in his reasons for claiming protection his visa application may not be approved because Malaysia is now peaceful, although racial tensions and dispute still exist
I am not satisfied the applicant has a reasonable excuse for not raising this claim earlier. In making this assessment I note that the applicant states in his visa application that he did not receive assistance in completing the form and he has signed each of the Parts B and C of that form. I consider that whether he completed the form himself or instructed someone else to do so, he would have raised this claim in his visa application if it were true. I note specifically that the applicant made no mention of these claimed events in response to questions asking him if he had experienced harm in Malaysia and whether he thought he would be harmed or mistreated if he returned to that country.
As well, I have other concerns about the credibility of this claim. Although he initially claimed to be a landowner in Sabah, he later stated that it was his parents who owned the land. His parents and siblings remain living in the applicant’s home area in Sabah and he does not suggest they have been harmed. He does not know the identity of the person he claims sought to harm him in the past by black magic. He also said he was worried that including racial tensions in his claims for protection may lead to his visa application being rejected because Malaysia is now peaceful, although racial tensions still exist.
I accept that racial tensions and land disputes occur in the applicant’s home area, noting that DFAT reports the acquisition of native land has led to tension between developers and indigenous groups across the country, especially in Sabah and Sarawak.[1] However for the reasons set out above, I do not accept the applicant himself is involved in such a land dispute. It follows that I do not accept there to be a real chance that any person or group would seek to harm the applicant for reasons of a land dispute.
[1] DFAT DFAT Country Information Report Malaysia 13 December 2019 at 2.25
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
For the reasons set out above I have not accepted there to be a real chance the applicant will face harm from any person or group for reasons of outstanding loans or a land dispute. In MIAC v SZQRB, the Full Federal Court held that 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.[2] For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia.
[2] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
I have accepted that the applicant left Malaysia for economic reasons including the cost of living in Malaysia and his difficulty finding adequately paid work in Sabah, and that he may be able to earn more in Australia than in Malaysia. ‘Significant harm’ is exclusively defined in s.36(2A) as follows:
(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.

As discussed with the applicant at hearing, the Australian courts have held that complementary protection obligations are concerned with acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person.[3] I do not accept that any reduced earning capacity or other economic hardship the applicant may face as a necessary and foreseeable consequence of being returned to Malaysia would arise from the intentional or deliberate act or omission of a third person or persons.
[3] GLD18 v MHA [2020] FCAFC 2.
For these reasons I do not accept there to be a real risk that the applicant would face significant harm from any person or group as a necessary and foreseeable consequence of being removed from Australia and returned to Malaysia.
CONCLUSIONS
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 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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Murphy
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.
…

[2020] AATA 4551

28 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies