1835594 (Refugee)

1835594 (Refugee) [2021] AATA 2449 (28 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1835594

COUNTRY OF REFERENCE: Venezuela
MEMBER:Luke Hardy
DATE:28 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 28 May 2021 at 11:38am
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – anti-government opinions – petition critical of the government – particular social group – returnees – women – stigmatizing returnees – arbitrary detention – impact of the COVID-19 pandemic – bioterrorist labelling – fear of torture – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chen Shi Hai v MIMA (2000) 201 CLR 293
SZDTM v MIAC [2008] FCA 1258
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 14 November 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, a mother and her adult daughter, are citizens of Venezuela. They originally entered Australia [in] January 2008 and [August] 2008 respectively. They made a number of visits after that. They last arrived in Australia [in] September 2013. The applicants applied for the visas on 3 September 2015, two years after their last arrival here.
For reasons given below, I have decided this matter “on the papers.”
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted evidence, either of the applicants is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
I have opted to conduct this review on the papers, not least because I find that credibility ceases to be a critical issue in this case.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims
The applicant mother claims to have been [an occupation 1] in Venezuela and that her late husband, who travelled with her and her daughter to Australia in 2010, was also [an occupation 1]. She claims her husband had to return to Venezuela in 2011 when his children from his previous marriage started being harassed and threatened. She claims her husband’s son was kidnapped in 2014 and that he (her husband) died due to ill health exacerbated by lack of access to medication in 2015.
The applicant mother claims that she and her husband used to voice anti-government opinions. The delegate accepted the applicant mother’s claims, including a claim about having signed a petition critical of the government of the day in Venezuela, but refused to grant the visas largely on the basis that her relevant behaviour had mainly been private, that several years had passed, that she had not engaged in anti-government activities such as demonstrations in Australia, and that the Venezuelan authorities would be unlikely to pay significant attention to her since she had not led any dissent.
The applicants appear to have claimed they would be persecuted for being failed asylum seekers. The delegate at the time, citing information available at the time of decision, did not accept this claim.
The applicant daughter claimed that she would be deprived of a centralised ration card called a Carnet de la Patría, reducing her capacity to subsist, because of her parents’ activities and because she used to attend protests with her later father when she was a child. The delegate gave no weight to these claims.
Whatever may have been the perceived deficiencies in the applicants’ respective cases as at the time of the primary decision in May 2017, subsequent significant events appear to have swept them aside.
By way of background, it is a matter of historical record that the government of the late populist autocrat Hugo Chávez used the Venezuelan police and military to crush dissent as he pursued policies of arbitrary expropriation of businesses and industries that initially alleviated poverty in many instances but eventually drove Venezuela into political and economic isolation, with high inflation and shortages of food and fuel, leading to social upheaval and even more widespread poverty.[1]
[1] “Hugo Chavez: A divided and divisive legacy?” BBC News, 5 March 2013,
Chávez died in 2013. His successor Nicholás Maduro is reported to have continued Chavista policies and practices, employing similar methods, in addition to engaging with drug cartels and manipulating elections, to hold onto power and silence opposition.[2] Venezuela has since suffered crippling inflation, poor health services, large-scale unemployment and international isolation, all under a arbitrary and draconian administration.
[2] “Venezuela: The Risk to the Maduro Regime’s Stability,” Global Risk Insights, 29 May 2020,
Venezuela has also seen a massive emigration since Maduro came to power. Whereas Maduro said in June 2020 that said that his government “will continue to receive all the Venezuelans who return with love” his government is reported to have repeatedly stigmatized returnees, accusing them of bringing the Covid-19 virus into Venezuela.[3] Human Rights Watch (HRW) recently conducted research in Venezuela revealing that
People entering Venezuela are required to stay at quarantine centers known as Puntos de Atención Social Integral, or PASI. Returnees interviewed stayed in a total of 26 centers. Nineteen were primary reception centers in the border states of Táchira, Apure, and Bolívar. The rest were in the Capital District (city of Caracas) and the states of Aragua, Falcón, Guárico, Vargas, and Zulia.
While conditions in the centers vary, most returnees interviewed described them as severely overcrowded, with many people sharing a single room. Many also described unsanitary conditions, including a lack of water and electricity to run water pumps and of basic supplies needed for hygiene, such as soap. They said they had serious difficulties getting medical care and food, including formula and clean water for infants.[4]
[3] “Venezuela: Abusive Treatment of Returnees: Poor Quarantine Conditions May Spread Covid-19,” Human Rights Watch, 13 October 2020,
[4] Ibid.
Whereas this situation might arguably be described, to a certain extent, as having the appearance of a situation affecting Venezuelans generally, the evidence before me indicates that it disproportionally affects “returnees to Venezuela” who, it is reasonable to find, constitute a “particular social group” for the purposes of this decision. The treatment of returnees to Venezuela may arguably appear on the face of things to be caused by general logistics or a lack of resources, as suggested by reports of returnees being forced to remain in quarantine for weeks beyond the World Health Organisation’s recommended 14 days, purportedly due to delays in delivering their Covid-19 test results.[5] However, HRW reports HRW reports that this treatment “effectively results in arbitrary detentions.” It is therefore hard to rule out discrimination against returnees.
[5] Ibid.
Meanwhile, evidence of a deliberate of stigmatising and even intentional punishing of returnees to Venezuela has recently been found by the Organisation of American States (OAS) which reports[6] that, in spite of his June 2020 rhetoric, Maduro is in fact “criminalizing” returnees:
Maduro has accused returning Venezuelans of being “bioterrorists,” and government quarantine measures have seen returnees housed in jail cells. They have been subjected to “cruel, inhuman, and degrading treatment,” the report says, and some are prevented from moving freely about the country. This has prevented some refugees and migrants from returning to their state of origin after crossing the border ...
In June, Maduro announced that only 400 Venezuelans could return per day. Some who are caught crossing at informal points have been sentenced to up to 10 years in prison, the OAS report said …
[6] Situation of Venezuelans Who Have Returned and Are Trying to Return to Their Country in the Context of Covid-19, OAS, September 2020, see also “Returning Venezuelans subjected to 'inhuman' treatment, report says,” Devex International Development, 10 September 2020,
Whereas Venezuela is evidently utilising jails with their reportedly unsanitary conditions as quarantine centres, jails in other countries around the world are being emptied, or at least their populations reduced, because of the statistical likelihood of their becoming fatal “Covid clusters.”
It appears to me that the treatment of returnees in Venezuela is discriminatory. Such discrimination may not necessarily amount to persecution if the treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned].”[7] However, in the case of “returnees to Venezuela,” their having been labelled “bioterrorists” by the Madura regime is strongly indicative of a deliberate intention to punish and harm through undue extension of what is effectively detention in unsanitary and potentially life-threatening conditions.
[7] Applicant A v MIEA (1997) 190 CLR 225, at 258; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [45]. In Applicant S v MIMA (2004) 217 CLR 387, Gleeson CJ, with Gummow and Kirby JJ held that as a matter of law to be applied in Australia, these criteria are to be taken as settled. See also discussion and general summary of cases in SZDTM v MIAC [2008] FCA 1258 at [62]
In September 2020, the OAS presented the Maduro government with a list of recommendations in the interest of remedying the situation for returning Venezuelans.
…in accordance with Articles 19, 21, 25, 29, and 30 of the Constitution of the Bolivarian Republic of Venezuela, the Universal Declaration of Human Rights, the Inter-American Convention on Human Rights, and IACHR Resolution 01/2020, it is requested:
1) That discrimination, stigmatization, and criminalization of returned Venezuelans cease, guaranteeing their free entry into Venezuelan territory and their free movement within the national territory;
2) That all administrative acts that have been issued in violation of the Constitution, international treaties and the human rights guaranteed therein be declared null and void;
3) That all public officials who have ordered and executed such acts be subject to investigation for crimes against humanity;
4) That the victims of these human rights violations be compensated, and policies of inclusion be established to reverse the damage caused by the criminal acts of the Nicolás Maduro regime;
5) That the international community help make visible the situation in which stranded Venezuelans find themselves and condemn the unconstitutional and illegal response of the illegitimate regime of Nicolás Maduro;
6) That the international community unite to help explore different humanitarian avenues for the protection of Venezuelans who are trying to exercise their right to return to their country.[8]
[8] Situation of Venezuelans Who Have Returned and Are Trying to Return to Their Country in the Context of Covid-19, OAS, September 2020, >
However, there is no evidence to date of the Maduro government having even acknowledged the OAS’s suggestions, let alone of having begun to consider them.
Meanwhile, the Covid-19 pandemic continues to take an unabated toll in Latin America and particularly in countries like Venezuela and Brazil, both of which are ruled by autocratic and populist leaders. Whereas Brazil may see a new party in power after the next general elections, the same cannot be assumed with regard to Venezuela given evidence of vote-tampering in elections in the recent past. Thus it cannot reasonably be concluded that this situation will not continue in Venezuela well into the reasonably foreseeable future.
It is light of all this that I consider the delegate’s concerns regarding the merits of the applicants’ original application to be moot.
It would be hard to imagine that Australia would remove the applicants without letting them each first receive their full courses of whichever Covid-19 vaccinations are appropriate to their age group. On this basis, I consider it likely that they will have been vaccinated before they are removed to Venezuela. However, there remains another of potential significance to the applicants: there is no evidence before me to suggest that Venezuela’s so-called “quarantine” regime makes or will make any exception for returnees who can show medical evidence of having been vaccinated abroad.
This leaves me even more in doubt as to the treatment of returnees to Venezuela being purely motivated by public health concerns and subject purely to logistical and resource limitations.
Meanwhile, the US State Department[9] reports (not necessarily in the order shown below):
There were credible reports that the illegitimate Maduro regime attempted to misuse international law enforcement tools for politically motivated purposes as a reprisal against specific individuals located outside the country ...
Although the constitution and law prohibit such practices, there were credible reports that Maduro-aligned security forces tortured and abused detainees ...
NGOs detailed reports from detainees who were victims of sexual and gender-based violence by regime-aligned authorities ...
… prison guards systematically beat and mutilated detainees according to the detainees’ occupations, targeting the legs of soldiers, the hands of a surgeon who was arrested because he was the spouse of a soldier wanted by the regime, and in the case of Da Costa, his eyes due to his role as an academic ...
Most prison conditions were harsh and life threatening due to gross overcrowding, food shortages, inadequate sanitary conditions and medical care, systemic violence, and poor infrastructure ...
The regime also threatened, harassed, and arrested journalists, opposition politicians, and health-care workers for speaking out on COVID-19 and the response to the pandemic ...
[9] 2020 Country Reports on Human Rights Practices: Venezuela, US Department of State Bureau of Democracy, Human Rights, and Labor, 2021,
On this evidence, the applicants face the additional differential risk of being persecuted whilst awaiting release from “quarantine” on the basis of being “women in Venezuela.”
The Venezuelan government evidently continues to be highly defensive and obdurate in the face of foreign advice, expertise and criticism. The evidence of the OAS and HRW reports leads me to conclude that the applicants will not be able to avoid being “quarantined” beyond the WHO recommended period, and in unsanitary and degrading conditions, at the leisure of the Venezuelan authorities. Meanwhile, the longer they are detained, the more time there will be for them to be interrogated and harassed in relation to the length of time they spent away from Venezuela and based on imputations as to their “political opinion,” and the applicant mother’s former occupational status.
Having considered all of the evidence before me in its entirety, I am satisfied that both applicants face a real chance of being persecuted in Venezuela in the reasonably foreseeable future for reasons of their “membership of a particular social group” namely “returnees to Venezuela” and “women in Venezuela.”
For the reasons given above, I am satisfied that both applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
In the alternative, I would also be satisfied on the evidence before me that I had substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Venezuela, there was a real risk that both applicants would suffer significant harm in the form of “cruel and degrading treatment” and possibly even arbitrary deprivation of life.” (s.5(1) of the Act refers.)
S.36(3)

I note that the delegate referred to the applicants having transited through the USA in the past without seeking asylum there. That is irrelevant, as the applicants’ visas did not give them a right to reside in the USA.
I am aware that the OAS has its own international agreements in place for offering asylum to asylum seekers. However, I give little weight to that in the present case. The circumstances under which, in my view, the applicants are refugees are réfugié sur place conditions that did not exist until the last twelve months, some years after they were last in Latin America.
I am satisfied that there are no possible steps, now or in the reasonably foreseeable future, that the applicants could take in this case to avail themselves of the protection of a third country. On the evidence before me, I am satisfied that the applicants are unable to avail themselves of the protection of a third country. I find that they are not caught by s.36(3) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that both of the applicants satisfy s.36(2)(a) of the Migration Act.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 2449

28 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice