1827259 (Refugee)

1827259 (Refugee) [2023] AATA 3712 (28 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1827259

COUNTRY OF REFERENCE: Fiji
MEMBER:Catherine Carney-Orsborn
DATE:28 August 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the first named applicant a Protection visa.

Statement made on 28 August 2023 at 10:20am
CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian – political opinion – opposition to the government – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
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 (‘the Department’) on 4 September 2018 to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Fiji, applied for the visa on 30 April 2018. The delegate refused to grant the visa on the basis that the first named applicant is not a person in respect of whom Australia owes protection obligations and that the second named applicant (the spouse of first named applicant) is not a member of the same family unit as a non-citizen who holds a Protection visa and therefore does not engage Australia’s protection obligations.
On 16 August 2023, the second named applicant contacted the Tribunal and indicated she no longer wished to be a party to the application and would withdraw. On 16 August 2023, the second named applicant sent a letter to the Tribunal confirming she did not want to be a party to the application for protection and would withdraw from the application.
On 22 August 2023, the Tribunal confirmed the second named applicant’s withdrawal from the proceedings in writing. The Tribunal has no jurisdiction in relation to the second named applicant.
The first named applicant (the applicant) appeared before the Tribunal on 23 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department and the Tribunal files.
The Department file contains copy of the application form for a Protection visa, copy of each of the applicants’ foreign passports, applicant’s statement of claims, copy of each applicant’s birth certificate, and copy of the delegate’s decision record.
The Tribunal file contains copy of the application for review and copy of the delegate’s decision record.
Applicant’s background
The following information was provided by the applicant in his application for a Protection visa with the Department.
He is from [a named town in] Fiji. He is a fluent speaker, reader and writer of the English and Fijian languages. He identifies with the Christian faith, particularly the [named] denomination. He is married and has [specified family members]. His children are not included in the present application, his wife, withdrew from the application prior to the hearing. He declared being unemployed in Australia; however, in Fiji prior to his arrival in Australia, he worked as an [occupation 1] for a [business] in Fiji from [specified year] to 2018. He completed equivalent [school grade] in Fiji.
Applicant’s claims for protection
In an undated statement of claims, the applicant stated the following.
The applicant stated he experienced the military rule in Fiji from 2000 to 2006 where he did not know what it was like to live in a democracy. He stated that once in Australia he understood the oppression and depression he lived under in Fiji.
He stated that he came to Australia originally to attend a religious conference with his wife in Sydney. He stated that his stay in Australia helped his mental health and helped him realise he could exercise his freedom of speech and opinion without fears of suppression or arrest in Australia.
He stated that he feared returning to Fiji because his mental health would continue to deteriorate, he would not be able to exercise his freedoms and would not be able to enjoy his human rights as an indigenous person.
He stated that he would not have access to mental healthcare in Fiji.
He stated that relocation was not an option as he had previously moved from Labasa to Lautoka with no difference or improvement in safety for him and his family. That the military and government would know his whereabouts and would threaten them.
The second named applicant stated in her application form that she did not have claims on her own and relied on the first named applicant’s claims for protection.
The delegate’s decision
Regarding the situation for indigenous Fijians, the delegate considered country information and reports for the period of 2015 to 2017. The delegate found that indigenous Fijian experienced a low-level of discrimination in certain economic areas such as business and professional services and transport sector. The Indigenous Fijians were well represented in Parliament. Indigenous Fijians dominated as the majority of the population of Fiji, they dominated sectors of civil service, security forces, agriculture, primary industries, fishing, and government. That while the applicant had claimed that his cultural and traditional values were not respected, the country information did not support a finding that indigenous Fijians were subjected to societal discrimination that would constitute serious harm.
Regarding the political profile, the delegate found that considering the evidence before the Department as submitted by the applicant, there was no basis to conclude that the applicant had a high-profile as a public figure or leader of an organisation who may hold opposing views to the government so as to be perceived as someone of interest to the Fijian authorities. That while the applicant may hold opposing views about the Fijian government, there was no evidence to indicate that the applicant was a high-profile public figure or a senior member of an opposition political party in Fiji who would face a chance of harm from the Fijian government.
Regarding the human rights condition in Fiji, the delegate considered country reports on the matter for the period of 2007 to 2015. The delegate found that the country information supported that the human rights situation in Fiji had improved from the miliary ruled Fiji in December 2006 to a constitutional Fijian republic in 2018. That there was no evidence indicating worsening conditions in Fiji in relation to human rights and freedom of speech. That, there were credible reports of continued self-censorship by members of civil society on political issues through broad powers and harsh penalties under relevant decrees. That a relatively recent history of prosecutions meant that public figures treaded carefully in their expression of public opinion in Fiji.
Regarding the mental healthcare in Fiji, the delegate found that based on 2017 country information and reports there was no evidence indicating that the applicant would not have access to mental healthcare, or that accessing the mental healthcare would be onerous to the applicant should he wished to seek treatment for his mental conditions in Fiji.
Applicant’s migration history
Departmental records indicate that the applicant first arrived in Australia [in] November 2015 as the holder of a Visitor 600 subclass visa. He departed Australia [in] December 2015. He then returned to Australia a second time as the holder of a Visitor 600 subclass visa [in] March 2018.
The Tribunal hearing
The following is a summary of the oral evidence taken on 23 August 2023 from the applicant at hearing with the Tribunal.
The Tribunal went through the purpose of the hearing before the Tribunal. The Tribunal explained the issues and criteria it was considering and that the hearing was the applicant’s opportunity to provide information and evidence on his claims to fear harm if returned to Fiji.
The Tribunal asked the applicant why he feared returning to Fiji. He responded with words to the effect that his fear is that he would be deprived of life development. He was asked to expand on how that relates to the Convention. The applicant stated that his fear was based on his race.
The Tribunal asked him to expand on his fears. He responded that when he arrived in Australia the previous government was in power. He stated that things were not stable in 2018 when he applied.
The Tribunal then discussed with the applicant country information which indicated that Fiji is stable and there is a coalition in power which appears to be backed by indigenous Fijians.
He responded that he agreed with the country information and that things are now stable.
The applicant agreed he could return to Fiji.
The Tribunal asked the applicant for some background. He stated he was working in Australia as [an occupation 2] and more recently in [specified employment].
He had family in Fiji and belonged to the Methodist church.
The applicant indicated he did not have anything further to add.
The Tribunal discussed with him that in his application he had stated he suffered from mental health problems. He stated that he was depressed.
The Tribunal asked if he received any treatment for his condition. He responded that he has help from his church.
He was not on any medication. The Tribunal discussed with the applicant that his church was the Methodist Church in Fiji which is a major church in Fiji. He agreed it is the majority.
He agreed he has a large family and support in Fiji. He agreed he would get support from his community and church for any issues with depression in Fiji.
The Tribunal then indicated that if there was nothing further it would end the hearing. He responded he had nothing further to add.
The applicant queried whether he would wait for a decision to appeal. The Tribunal responded that he would, however, it was a matter for him, and he should seek advice from a Migration lawyer.
Nationality
The applicant claims to be a citizen of Fiji and has provided a copy of his Fijian passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Fiji and that he is outside of his country of nationality. As such, the Tribunal finds that Fiji is the applicant’s receiving country for the purpose of assessing his claims for protection.
There is no evidence before the Tribunal to suggest that the applicant holds any other citizenship or has any third country visas.
Country Information
DFAT Country Information Report Fiji May 2022
As of 2022, DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei. Statistics on ethnicity were not released by the Fiji Bureau of Statistics for the 2017 census due to problems when collecting the data. The largest opposition party in Parliament is currently the Social Democratic Liberal Party (SODELPA) which polled well in the 2018 election and largely draws its support from iTaukei. FijiFirst is popular among Indo-Fijians, who support its multi-ethnic platform.[1]
Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups. iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.[2]
DFAT has reported in its latest cable that following the December 2022 Fijian general election, no political party won a clear majority of seats in Parliament to form Government. After ten days of inter-party negotiations, a coalition of three parties (The People’s Alliance, National Federation Party (NFP) and Social Democratic Liberal Party (SODELPA)), led by Prime Minister Sitiveni Rabuka, formed government. The change of government ended the prime ministership of Josaia “Frank” Bainimarama who assumed leadership in Fiji following a coup in 2006. Since the formation of the new government, there has been no significant political unrest or deterioration of government functions. The political situation in Fiji remains stable.[3]
Mental healthcare in Fiji
The mental healthcare services are similar to those in most upper- middle income Asia-Pacific countries. Mental health care in Fiji is integrated with general health care. Free and generally effective government health care is generally available in Fiji, and Fiji has a government Free Medicine Scheme for low-income individuals under which some drugs are available.[4]
[1] DFAT Country Information Report Fiji May 2022 at 3.4—3.5.
[2] Ibid at 3.9—3.10.
[3] DFAT Fiji Country Information – Political update 20230621135833 3 August 2023 p 2.
[4] Department of Home Affairs Report on Fiji – Mental health care services, Returnees, Unionists, Public Servants, Teachers 20191104171609 2 December 2019 p 6.
Consideration of Claims
The applicant in his written claims for protection, as set out above, stated that he was at risk if returned to Fiji due to his being indigenous Fijian and the oppressive regime impacting on his mental health. He provided no supporting evidence or detail of this written claim.
At hearing, the applicant discussed with the Tribunal his fear of returning to Fiji. The Tribunal discussed with him the political situation in Fiji as outlined in country information.
He agreed with the country information and stated that he felt he could return to Fiji and not suffer any harm.
He agreed that things were stable in Fiji.
The Tribunal put to the applicant that in his written claims he had discussed having mental health issues.
The applicant said that he received support from his church and no other treatment. He agreed with the Tribunal that he could receive the same support in Fiji. He stated that he had a large family in Fiji which would offer support to him.
No doctor’s reports or mental health professional reports were provided to the Tribunal.
The Tribunal explained to the applicant that it was only looking at his protection claims and could not grant any other visas.
He stated he understood this and queried if he appealed after the Tribunal’s decision. The Tribunal explained that was an option up to him and he should seek his own legal advice.
He indicated he understood this.
There is nothing before the Tribunal which would indicate that the applicant if returned to Fiji would suffer serious harm for a Convention or any other reason. He has worked in Fiji and Australia and has a large supportive network of family and church members who will continue to provide him with a safe supportive environment. There is no evidence before the Tribunal that he is a leader of any organisation or an outspoken critic of the authorities. The applicant when his claims were discussed with him stated that he could return to Fiji and be safe.
After considering the applicant's claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to Fiji now or in the reasonably foreseeable future, there is no real chance that he will be persecuted for the reason of his race, being a member of a particular social group or for any other Convention reason.
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
A person meets the complementary protection criteria 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.
‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.

Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s 5(1) that the applicant could suffer if he returned to Fiji. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk he will suffer significant harm. Therefore, the applicant does not satisfy s 36(2)(aa) of the Act.
CONCLUSION
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 the criterion in s.36(2).
The Tribunal has no jurisdiction in relation to the second named applicant.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Catherine Carney-Orsborn
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.
…

[2023] AATA 3712

28 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice