1900102 (Refugee)

1900102 (Refugee) [2024] AATA 2508 (17 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Rasan T. Selliah

CASE NUMBER: 1900102

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Denis Dragovic
DATE:17 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 June 2024 at 1:08pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – knowledge of equipment smuggling – extortion – threats to remaining family – extrajudicial actions by security officials – risk of kidnapping – exit procedures – Australian citizen children – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 17 December 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of Sri Lanka. They applied for the visas on 10 April 2015. The delegate refused to grant the visas on the basis that the applicants’ claims were not accepted and as such the delegate found that the applicants did not face a well-founded fear of persecution nor that they triggered Australia’s protection obligations under Complementary Protection.
The first and second named applicants are parents to the third and fourth named applicants.
The third named applicant became an Australian citizen in 2018 and as such cannot be granted a protection visa as the visa is limited to non-citizens. The fourth named applicant reaches the same milestone [later in] 2024, as is noted and discussed further below.
The applicants appeared before the Tribunal on 31 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal has made a request for Ministerial Intervention.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first named applicant is [an age]-year-old male Sinhalese Sri Lankan who is married to the second named applicant, [an age]-year-old female Sinhalese Sri Lankan.
During the protection visa application process only the first named applicant made protection claims. As such I will engage with these first.
The first named applicant (“the applicant”) finished schooling after completing [grade] and then found work as [an occupation 1] at the airport in [year] working for a private company. In 2000 he was promoted and continued in the new role through to 2004 with the same company. He was then offered and accepted a more senior role with [Business 1] joining them in 2004 and continuing in the role through to 2008 when he came to Australia.
The applicant was married in 2006 and has two children, both of whom were born in Australia, the eldest is an Australian citizen. The second child will become an Australian citizen [later in] 2024. While the second child remains a non-citizen at the time of this decision, and as such is an applicant, I have considered the family’s circumstances were they to return to Sri Lanka in the situation that the second child becomes an Australian citizen. This is because were the parents to lodge an appeal to this decision or even were they not and were provided a Bridging Visa E that allows for visa holders to make preparations to leave the country, the second child will turn ten years old and will automatically become an Australian citizen.
The applicant fears returning to Sri Lanka based on an incident that occurred in 2007. While working for [Business 1] he had two close friends, [Friend A], who worked with customs, and another who was [an occupation 2].
The applicant claims that the Liberation Tigers of Tamil Eelam (LTTE) received some communication equipment from [Country 1] and his two colleagues helped facilitate it through the airport. He claims that after the goods were cleared, the goods were sent to two areas in the west, near Colombo, but unbeknownst to his friends the [Agency 1] was monitoring them.
The applicant said that [Agency 1] allowed the equipment to be cleared, but once delivered they arrested his two friends and the people who received it. He said that it wasn’t until about a year later, after the end of the war, that he learned of what happened to them. He said that he heard [Friend A] was released but the fate of his second friend was unknown. He claimed that [Friend A] was severely tortured and that he is now disabled and has severe mental health problems. He said that they were never brought before any court noting that at that time the authorities could arrest anyone.
The applicant wasn’t sure why they helped the LTTE. He guessed that it was possibly because of having received some threats or money. He said that the incident received a lot of publicity at the time.
The applicant believes that because he had a close association with these two men, having tea regularly at work together, [Agency 1] officers who were monitoring his friends would have been suspicious of him.
Despite some contradictory evidence in his application, the applicant confirmed that he was never arrested or questioned by anyone. The applicant opined that as he was able to obtain a passport and leave the country it was indicative of the authorities not having an interest in him. He specifically affirmed a view that neither the [Agency 1] nor [Agency 2] have an interest in him.
Following the arrest of his friends the applicant claims that he received threatening calls. They would convey a message along the lines of: ‘You could face the same situation to what happened to your friends.’ He said that they threatened him and sought money from him.
The extortion was first for [amount] Rupiah which he paid about a month and a half after the incident involving his colleagues and then a second request was made and paid which was for [smaller amount] Rupiah. He believes the second was in about January 2008. He said that nothing happened between January and April when the applicant left Sri Lanka, though he says that he took precautions such as changing his mobile telephone number.
The applicant claims that a month after arriving to Australia someone came to his home where his parents were living asking about him. He said that his mother told them that he had left Sri Lanka and travelled to Australia. He claimed that they had threatened his mother, demanding that she informs them as soon he returns.
The applicant believes that the people who had extorted money from him were the same people who came to his house after he’d departed from Sri Lanka and that they were members of the security agencies who had been monitoring the airport and knew of his friendship with the two men. He believes that they were using their knowledge to obtain additional money.
The applicant did not claim that any further incidents occurred since the middle of 2008.
The applicant had proposed for the Tribunal to hear from two witnesses one being his mother and the other a friend who had also worked in the airport and knew his situation. Both were unavailable for the hearing. The applicant explained that the evidence they would give would corroborate his evidence but would not add any new or additional evidence. The representative did not propose alternative options.
I find the applicant a credible witness. The representative provided a considerable amount of contemporaneous country information that highlighted the then situation in Sri Lanka that paint a picture of a situation which make the applicant’s narration of events plausible. As such I accept the applicant’s evidence and now turn to consider how those events of the past would impact the applicants into the future.
As I accepted the applicant’s evidence, I did not seek to set a separate hearing date to hear from the witnesses noting the nature of the evidence that was proposed to be given.
The applicant’s wife did not have claims of her own. She relies on her husband’s claims.
Considerations
The applicant fears harm from a group of people who had sixteen years ago extorted money from him. He fears that they would find a way to do the same again.
He fears that if he enters the country through the airport his passport details could trigger a notification to them, and they would seek him out. I asked the applicant how he knew that they were still working for the government all these years later. He said that he doesn’t know if they are still working for the government. I put to him that if they had access to such information then they would have known that he had left the country and would not have needed to go to his mother’s house asking about his whereabouts. He responded that they probably went there to find out more details such as how long he would be away.
I put to him that during times of war security officials have more leeway to do what they want to do (i.e., extrajudicial actions) but now, fifteen years after the war, there is more oversight, more discipline and fewer options for wayward officials to run extrajudicial activities. I asked what is the chance in today’s Sri Lanka that they could do this again? The applicant agreed that during the civil war there was impunity, but he said that law enforcement continue to act in such ways. He believes that people don’t know about all of the incidents that occur through the media.
In considering the nature of his fears, I acknowledge that when he left Sri Lanka they were genuinely held and most likely objectively well-founded. But the considerable passage of time since then has changed the situation. What is the chance that the men who extorted the applicant would cross paths with the applicant? Even were they to, would the men who were involved remember the applicant? Are they still working in their security roles? It is most likely that an extortion strategy would be weakened considering the age of the case as there is viable threat through which the men could extort the applicant. Even were they to be aware of the applicant, remember his past and continue to be involved in the security forces, would they risk their positions in the post-war Sri Lanka by attempting to extort money from the applicant?
The situation in Sri Lanka is very different now compared to when the men extorted the applicant. While country information was provided in the pre-hearing submission that references police mistreatment of suspects, the lack of a mechanism for complaints, and other short-comings in the judicial and security fields, other information indicates that the past practices of extrajudicial actions by security officials are no longer practiced. As one example, DFAT reports that in the two years prior to the publication of their most recent report there weren’t any extra-judicial disappearances reported.[1] When this was put to the applicant, he said that many incidents are not reported in the media because people who have political power and are influential can do whatever they want, including law enforcement officers.
[1] DFAT Country Information Report Sri Lanka – MAY 2024 [4.6]
Noting the passage of time and how that would impact the applicant’s specific fears I am highly doubtful that the men who were involved in the extortion in 2008 would be in a situation or motivated to harm the applicant through extortion or other means whether for reasons of obtaining benefit or to hide their past misdeeds. When taking into consideration the changed circumstances in post-war Sri Lanka, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the incident in 2007.
As noted above, the applicant acknowledges and did not make any claims that [Agency 2] or [Agency 1] were officially interested in him. There is no claim or evidence to suggest that he was ever of official interest. As such, to avoid doubt, I find that the applicant does not face any harm from government security forces.
The applicant also raised claims at the hearing pertaining to his children. Despite one and most likely both being Australian citizens before any process of repatriation is finalised, I nevertheless continue to consider their claims as it was inferred that the children would return to Sri Lanka with their parents. In such circumstances any harm the Australian citizen children face could impact the parents and in turn amount to serious or significant harm to the parents.
The applicant identified two possible risks of harm to the children, the first being kidnapping and the second hardship in adjusting to life in Sri Lanka.
Regarding the risk of kidnapping, the applicant clarified that it arose only from the risk of those who had sought him out were they to learn that he has children and then kidnapping them to extort more money from him. He did not express a concern of kidnapping more broadly. No information is available to the Tribunal to suggest that the children would be at risk of kidnapping in general.
Noting that I have found earlier that the applicant does not face a real chance, or a real risk of the men involved in extortion revisiting his circumstances, I similarly find that they would not seek to kidnap his children. As such I find that the third named applicant and his sister do not face a real chance of serious harm or a real risk of significant harm from kidnapping. For this reason, I find that the parents do not face a real chance of serious harm or a real risk of significant harm arising from any repercussions from their children’s kidnapping.
The applicant also raised the issue of hardship for his children in adjusting to life in Sri Lanka. He noted that his eldest child receives a good education in Australia and that he was concerned about the circumstances in Sri Lankan government schools. I noted that many people travel to new countries for various reasons, including diplomats and businessmen and women, and the children are required to adapt to their new circumstances including returning home after being abroad for many years. He said that his children may be able to adapt but that the challenges his children will face will affect them.
The applicant said that while his daughter can speak very basic Sinhalese, his son can’t speak it at all. He said that government schools teach in Sinhalese, and he wouldn’t be able to afford a private school that teaches in English.
He added other difficulties as being a different lifestyle and not being able to provide for them the same level of comforts. He gave the examples of mosquito borne disease or road safety.
I noted that DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities.[2] The applicant said that it is the case, and that they would be welcomed and not discriminated against, but he returned to the question of the comfort for his children and the danger he faces.
[2] DFAT Country Information Report Sri Lanka – May 2024 at [5.32]
While I accept that the children will face hardships, no evidence was provided nor were claims made that any of those hardships have a refugee nexus or are being intentionally committed and directed discriminatorily against them which is a requirement for Australia’s Complementary Protection obligations to be triggered.
Furthermore, that they will experience differential levels of comfort, have to undertake intensive Sinhalese language studies, which may impact their ability to immediately integrate into Sri Lankan society, or live a different lifestyle does not amount to serious or significant harm in the context of the Act.
With regards to the second named applicant. She did not put forward any claims of her own and there being no claims that arise on the evidence, I find that the second named applicant does not face a real chance of serious harm into the reasonably foreseeable future were she to return to Sri Lanka or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia to Sri Lanka.
I now turn my mind to consider the circumstances of the applicant and his family collectively. The applicant fears harm from an incident that occurred 17 years ago, an incident that I found would not lead to a real risk of significant harm or a real chance of serious harm. The children’s fears are contemporaneous. There is no overlap. While it is possible that the men who were involved in the extortion in 2007 would come to know that the man, they took money from has two children who are Australian citizens, I find that this would not lead to a change of behaviour such that the children would face some degree of harm.

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
Request for Ministerial Intervention
As noted above, the eldest daughter is an Australian citizen, and the second child will become one within weeks from the date of this decision. It can reasonably be assumed that by the time the Minister considers this request the first and second named applicants will have two Australian citizen children.
The Minister’s Guidelines on Ministerial Powers states that cases which should be brought to the Minister’s attention include those with ‘strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.’
In this case there are two Australian citizens who are of a young age and who will face serious, ongoing, and irreversible harm and continuing hardship if their parents are not granted visas.
The parents have indicated that their children would return to Sri Lanka with them. The nature of the harm the children will face arises from a separation away from their country, away from their community and away from the only culture they have known. While Sri Lanka has much to offer, when considering the circumstances in the context of future opportunities for these children, depriving them of an Australian life as Australian citizens having already had an opportunity to build a life here, would amount to serious, ongoing, and irreversible harm. Having to start a new life in Sri Lanka where the children do not speak the language, where the quality of life is substantially lower and the health care far less developed, would also amount to continuing hardship when considered relative to the circumstances they have access to as Australian citizens.
I note that there may appear to be a logical inconsistency between having made a finding that the children would not face serious harm in the substantive section of the decision and then finding with in the Ministerial Intervention section that they would face serious, ongoing and irreversible harm. I note that the terms are used in different contexts and as such it is open that they carry different, nuanced meanings.
For the above reasons I urge the Minister to consider intervening in this case by considering the granting of appropriate permanent visas to the first and second named applicants.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Denis Dragovic
Deputy President

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.
…

[2024] AATA 2508

17 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction