1830207 (Refugee)

1830207 (Refugee) [2020] AATA 3778 (27 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1830207
COUNTRY OF REFERENCE:                   China
MEMBER:Rodger Shanahan
DATE:27 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 July 2020 at 8:53am
CATCHWORDS
REFUGEE – protection visa – China – dispute with local authorities about compensation for sale of land to developers – arrest, detention and beating by cellmates – rumours spread by village committee – credibility – inconsistent claims – no documentary evidence – delay applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 10 October 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 China, applied for the visa on 24 August 2017.
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). 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
Protection Visa Application
The applicant made the following written claim:
My name is [applicant name]. I was born on [date]. 1 lived in [village], [town], [City 1], Shandong, China.
In October 2016, the village leaders came to my place and told me the village had sold my homestead to [a] Real Estate Company, which was to start their project next week. I totally disagreed with the sale of land, but the village leaders said that the land had been sold and there would be no discussion on that. All the villagers whose land was sold went to the village committee to protest. The village committee said that they would compensate us. A large number of bulldozers came into the village although the villagers begged them not to. After losing the houses, the honest villagers went to the village committee for compensation. The village committee said they would compensate us 300 Yuan per square meter. My family homestead covered an area of 300 square meters. According to standard of the village committee, we were supposed to get 90,000 Yuan subsidy. This was far from the national
compensation standard. We requested the village committee to increase the compensation. However, the village leaders said either we took that amount of money, or we would not get a penny.
In December, the villagers went to the town government to report the village committee. The leaders of the town government listened to our report, but they were on the side of the village committee. They said what the village committee had done was to develop the rural economy. I retorted them that the development of the economy was to make farmers have a better life. Was it developing the economy while we lost our homes? The town government leaders were very angry at what I said and called us ignorant farmers and then kicked us out of the town government office. After we went back to the village, the village leaders came to me and told me not to have day dreams because there was no way for us to report them down. It seemed the town government had informed the village committee of our reporting. I contacted some villagers and we decided to go to [City 1] for petition.
[In January] 2017, three villagers and I went to [City 1] Municipal Bureau for Letters and Calls for petition. The staff there told us to go home and wait for the news. On the third day after we went to report, the village leaders came to me and asked me what I did when I went to [City 1]. I said I did nothing there. Then the village leaders said they needed to decrease half of my
cultivated land since I needed time to go to report. In this way, half of my 3 mu arable land was taken away by the village committee. The greenhouse vegetables I grew on the arable land were almost ready to be sold on the market. Now I lost the vegetables so I lost my source of income. So I took the land contract to argue with the village committee. The village director tore up the contract on the spot and said viciously that this piece of paper was a shit.
He also threatened me that I would be at the dead end if I kept going for petition. I was determined not to give in because I believed I was living in a country with adequate legal system. I must get my rights and interests back. I wanted to continue petition.On February [Date 1], 2017, two villagers and I went to [City 1] Council to report the village leaders' corruption and abuse of power. The officer there said: "Why wouldn't you, a young girl, work hard but to go for petition here and there? Do you think you would surely get the money after petition?" I was very angry at what he said so I had an argument with him. After a while, they called the police, saying that we went to the government to make trouble. They also told the police to teach us a good lesson. At the police station, the three of us were locked up in separate rooms. I was locked up with a group of female prostitutions and thefts. Under the instructions of the police, those women beat me from time to time. I cried loudly for help, but the police would not care about me. I was detained for seven days like this. I was released after my family paid a fine of 5,000 Yuan.
After I went back to the village, all the villagers were talking about me. They said I was doing prostitution business in the city in the name of going for petition. I did not dare to go out of my place. I guessed it must be the village leaders who deliberately spread rumors on me to destroy my reputation. I became the No. 1 bad lady in the village. Even the villagers who went to petition with me suspected me. I really could not stand it and tried to commit suicide. Finally, one of my friends persuaded me to leave China, which made me see the hope of life. I finally came to Australia. I hope the Australian government would protect me.
AAT Hearing
The applicant claimed that if she returned to China she had no house and many people would suspect that she had been a prostitute and they would spread gossip and she couldn’t stand this. Ask what serious harm she feared, she claimed that she couldn’t face the people and couldn’t stay living there. She thought that the village officials and police were working together and when she made a petition they connived together.
She was again asked what serious harm she feared would happen to her and she said her house was gone and her farming land had been reduced and they didn’t want her to go to the city or make a petition. She was again asked what harm she feared, she claimed she had no money to buy a house in the city but if she went back to her village the village officer would do something to her, she wasn’t sure what would be done but last time they had spread rumours she was a prostitute. Asked if they would do anything else to her she said she didn’t think so.
Asked why they would spread these rumours, she said a village officer had done this because on [Date 2] February 2017 she and another villager went to the city to make a petition and they argued with the city government officials and they reported her to the police who then took her to the police station. It was put to her that she had to make out her claim regarding serious harm to the Tribunal.
She claimed that there would be rumours but they wouldn’t affect her life but she wasn’t sure if this was serious harm. Asked why she made a petition she claimed her house was taken away and she was only given very little compensation. Her house was taken away in October 2016. The house was under her name. Asked if she was married or if was under her name, she claimed she was divorced in May 2017 – she married in February 2012.
She claimed that the house was given to her by her parents prior to her marriage, in 2011. Asked if she had any evidence such as title deeds that the house was in her name she claimed she didn’t bring it with her. Asked if she could provide it, she claimed that it had been many years and she didn’t know where it was. She asked if she could provide a photo of the house and it was put to her the Tribunal would have no idea of whose house the photo belonged to.
Asked if she had marriage and divorce certificates, she claimed she had divorce certificate but had lost her marriage one. It was put to her that she should be able to access a copy and she said it was hard as she was in Australia. Asked what family she had, she said her parents were in China and two [children]. Asked why her parents gave her the house, she said parents normally gave children the house as she was an only child. Her parents had their own house with two bedrooms – her children stayed with her parents. Her husband had his own family and she didn’t want to give the children to him and he didn’t want the children.
Asked why she came to Australia, she said that there were rumours in the city about her and her friend said she could go abroad so she did. Asked why she chose Australia, she claimed that she heard Australia is a migrant country and the environment is good. She came on a visitor’s visa. Asked if her intent was to be a tourist, she claimed her friend told her that she could come as a visitor and then apply for another visa. Asked what her intent on coming to Australia was, she claimed that she wanted to come to apply for protection.
Asked if she knew how to apply for protection in Australia, she claimed that she lodged an application after a month. It was put to her that she took nearly two months to apply for protection and she claimed that she asked her friend to do the preparation. She said her friend submitted it after a month. She knew her friend ([Ms A]) because she came from the same home town. It was put to her that she signed the form on 19 August 2017 which was nearly two months after she arrived.
She claimed it had been many years and couldn’t remember the time. It was put to her that she had been asked on the form and said she didn’t receive any assistance with the form. She said her friend translated it for her and also the documents. She was asked why she would say she didn’t receive help when she obviously had. She said she provided all the documents and was only helped with the translation.
It was also put to her that she didn’t mention any children in China in her application. She claimed she only wrote about her as it was her claim. It was put to her that she was asked to list her family (including children) and she only mentioned her parents and sister but no children. She said they were young and it referred only to family members who could be contacted. She said she was not aware of this part in the form and she was told Question 42 was quite explicit in what it asked for. She said she may not have paid attention to this.
Asked when she had her passport issued, she said it was [2016] – asked why she elected to get one at this time, she said she wanted to leave the country. Asked when she applied for an Australian visa, she claimed that she couldn’t remember but it was in 2017. It was put to her that she didn’t get a visa until June 2017 which was a long delay for someone who wanted to leave the country.
The lack of urgency may indicate that she was in no hurry to leave. She said she needed to prepare her money after she got her passport and she couldn’t leave quickly. Asked why she couldn’t, she said she wasn’t thinking of going abroad when she got the passport, she just got it. Asked if her house was demolished prior to her receiving her passport, she said this was correct.
Asked why she couldn’t just live in her parents’ house, she said that it was too small for all of them. Asked if anything happened to her when she went to the city to petition and she said she was detained and they allowed a female cellmate to beat her – she was lightly injured.
Between the house being demolished and her leaving China, she stayed at her friend’s place. This was for around four months. Asked where she stayed the other time, she said she rented a house. She stayed with her friend in October 2016 for four months and then in Feb/March she rented until she came to Australia. Asked why she couldn’t rent a house on return to China, she claimed that there was an income issue, particularly with her children. It was difficult to support two children and rent a house but in Australia she could earn more to support her children and parents. It was put to her that she only needed to earn enough to survive, not more comfortably than that. She said that she could survive but it wasn’t enough. It was put to her that she could still live in her parents’ house even though it may be tight. She said she would have to sleep on the couch.
She was told about s 424AA and it was put to her that during her DIBP interview she said she struggled financially because the demolished house belonged to her husband’s family yet today she claimed that she was given the house by her parents in 2011. There was a concern that this inconsistency was such that there may never have been a house that was demolished. She claimed that she never said the house belonged to her husband – the notes taken by the member from the interview were advised to the applicant that they noted her family-in-law owned the house. She refuted the fact that she would ever had said this.
She was asked if she could provide any documentary evidence about the house ownership or her marriage or divorce and she said that she didn’t think she could provide any of this. It was put to her that delays in leaving China and applying for protection in Australia weren’t indicative of someone fearing serious harm in China.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a tourist visa [in] June 2017, and applied for protection on 24 August 2017. I have sighted a copy of her passport and accept that China is the applicant’s country of nationality.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal 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. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant is a [age] year-old, Chinese woman. She claimed that her home had been demolished and she had received insufficient compensation for it, that she had petitioned the government and been detained and beaten by her cellmate as a result, that she was divorced and would be unable to care for her children and that rumours had been put about that she was a prostitute because she had gone to the city to petition.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding her claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that she fabricated her claims in order to be granted a protection visa.
Demolished House
I do not accept that her house in China was ever demolished or land taken. To begin with she never produced any documentary evidence regarding ownership such as a land title deed, nor did she provide any documentary evidence regarding the order to demolish or compensation offers. Perhaps most importantly in determining the truthfulness of her claim she was inconsistent in claiming who owned the house.
In her DIBP interview she claimed that it belonged to her family-in-law yet in her AAT hearing she claimed that it belonged to her and she was given it by her parents before she married in 2011. Although she denied she ever stated this in her DIBP interview the member listened and took detailed notes of the interview, and the applicant never provided an alternative renderring of the account of the house ownership based on her interview.
This view is reinforced by her lack of urgency to leave China or apply for protection. Despite claiming that she left China to seek protection in Australia, she had her passport issued [in] 2016 (her house allegedly having been ‘sold’ in October 2016), was granted an Australian visa in June 2017 and arrived in Australia that same month but didn’t apply for protection until the second half of August 2017.

I do not accept her reasons for this, that she wasn’t thinking of going abroad when she got the passport, or that she needed to prepare her money. If she wasn’t thinking of going abroad when she got the passport it makes little sense that she would have applied for one. And she also did not explain why it took her so long to prepare money for her trip to Australia.
Because I do not accept that her account of the house ownership and demolition is true, it follows that she never petitioned the government, was never detained and never beaten. Because I do not accept that her house has been demolished I also do not accept that she would be unable to live anywhere on return to China or be unable to provide for her two children.
Other Issues
I also do not accept that she is divorced and is looking after her two children. She never mentioned either of the children in her protection visa application, however I am willing to accept that this may have been an oversight. Regarding her alleged divorce from her husband she was unable to provide copies of her marriage or divorce certificates. She claimed that she had a copy of her divorce certificate however never produced one; I do not accept that she was in Australia and it was hard to obtain a copy of her marriage certificate – both her parents are in China and could have sought them on her behalf. This then means I have to rely on her oral testimony which I have already shown in the case of house ownership, to lack credibility.
I also do not accept that she would be impugned with being a prostitute because it was a rumour spread by the council authorities because she had gone to the city to petition. This relies on her having gone to the city to petition, a claim I have already not accepted as being true. She also said that the rumours were not something that would cause her serious harm.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5J(1) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant ever had her house demolished or land taken without sufficient compensation, that she sought to appeal that decision or that she was beaten as a result, that she would be unable to sustain herself or her family or that she would be impugned with being a prostitute, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
CONCLUDING PARAGRAPHS
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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 3778

27 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction