1902540 (refugee)

1902540 (refugee) [2024] AATA 4324 (16 August 2024)

DECISION RECORD

DIVISION:

Migration & Refugee Division

CASE NUMBER:

1902540

COUNTRY OF REFERENCE:

Ireland, Republic of

MEMBER:

Fraser Robertson

DATE:

16 August 2024

PLACE OF DECISION:

Perth

DECISION:

The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 August 2024 at 9:38am

CATCHWORDS
REFUGEE – protection visa – Ireland – partner’s former partner a career criminal – applicant shot by unknown persons, claimed to be at the direction of partner’s formed partner – official police documentation and news reports – prime suspect living in Northern Ireland – attack and motive accepted – applicant’s right to enter and reside in third country – citizen of European Union – EU not a country for purposes of Act – Ireland not party to Schengen agreement, so passport is required – right to move and reside freely for three months, with possibility of extension – no steps taken – claim of partner’s former partner’s extensive criminal network, real risk of significant harm in each EU country and need to live in hiding – relationship with partner ceased and no further contact – no threats or harm to family in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (3), (4), (5), (5A)
Migration Regulations 1994 (Cth), Schedule 2
CASES
AYC16 v MICMSMA [2022] FedCFamC2G 292
DQU16 v MHA [2021] HCA 10; 273 CLR 1
EVA17 v MIBP [2018] FCAFC 214
MIMAC v SZRHU [2013] FCAFC 91; 215 FCR 35
SZRTC v MIBP (2014) 224 FCR 570
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

The applicant is an Irish national who last arrived in Australia in September 2017 and applied for a protection visa in October 2017. He claims that before leaving the Republic of Ireland ('Ireland'), he was attacked on two occasions and shot four times on the second occasion. He claims there is a "contract out" on his life, and if he is returned to Ireland or anywhere in the European Union ('EU'), he will be killed.
In January 2019, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa. The delegate was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm.
The applicant seeks a review of the decision refusing their application for a protection visa. He has provided a copy of the decision to the Tribunal. He appeared before the Tribunal to give evidence and present arguments on 5 August 2024. He provided additional material on 12 and 13 August 2024.
Section 36(3) of the Migration Act 1958 (Cth) (the 'Act') provides that Australia does not have protection obligations to a person who has not taken all possible steps to avail himself of the right to enter and reside in a third country.
As a citizen of Ireland, the applicant has a right to enter and reside in Spain, Germany, and other EU member states, and the applicant has not taken all possible steps to avail himself of those rights. The applicant, correctly, in my view, did not cavil with any of those propositions. Rather, the applicant claimed that by s 36(4), (5) or (5A) of the Act, he was excluded from the operation of s 36(3) of the Act.
I have found that s 36(4), (5) or (5A) of the Act do not apply to the applicant or exclude the applicant from the operation of s 36(3) of the Act. In those circumstances, by operation of s 36(3) of the Act, Australia is taken not to have protection obligations to the applicant, and therefore, the decision under review must be affirmed.
These are my reasons.
CLAIMS AND EVIDENCE
The applicant was born in [Year] and is presently [Age] years old. The claims made in his protection visa application can be summarised as follows. While in Ireland, the applicant started a relationship with a woman ('[Ms A] '). The applicant moved in with [Ms A] and her children in May 2017.
[Ms A] has two children. The children's father is [Mr B]. The applicant claims that [Mr B] is a [Geographical area] man with multiple aliases and different passports. He claims that [Mr B] is a career criminal well-known to the An Garda Síochána (i.e. the Irish Police).
[Ms A] and [Mr B] could not agree on arrangements for [Mr B] to spend time with his children. The applicant claims that [Ms A] later told him that [Mr B] had said, “wouldn't it be terrible if something happened to someone [Ms A] loved?" The applicant claims that [Ms A] dismissed the threat.
[In] June 2017, the applicant claimed he was travelling to work when an unknown person opened fire on him from the window of a car. The applicant was physically unharmed. The applicant returned home, contacted the authorities, and gave a statement. The applicant was provided with strategies to reduce the risk that he faced.
[In] August 2017, a second attack took place. The applicant was shot through his car windscreen. Eight shots were fired in total, and four hit the applicant. Police and an ambulance were called. He was taken to hospital, where three bullets were removed, with the fourth being deemed too dangerous to remove. He was in hospital for around ten days with an armed police guard. Following his release, he moved from [County 1] to [County 2] and then to [County 3].
The applicant claims that police considered that [Mr B] had likely engaged a person to kill him. He claims that whilst the Police offered and could protect him for a limited period, they could not provide him with constant protection. The applicant claims that the Police expressed to him, on several occasions, their view that he was in extreme danger. The applicant claims that as police in Ireland do not usually carry firearms, they have a limited ability to deal with heavily armed criminals such as [Mr B] and his associates.
The applicant was not interviewed in connection with his protection claims.
Review application
In support of his review application, the applicant provided a statement where, among other things, he claimed that he believed the assassination attempts were part of [Mr B]'s jealousy and intention to seek revenge during this custody dispute with [Ms A]. He further claimed that it was relevant that [Mr B] ordered his assassination from Northern Ireland, which is a separate jurisdiction and country from Ireland. He further claims that he has "not simply relocated to Australia" but has been 'in hiding' here in Australia.
The applicant provided documentary evidence supportive of his claims to have been shot four times and to have been at personal risk. Hospital records indicate that the applicant underwent an emergency exploratory laparotomy with resection of a perforated intestine. The applicant has also provided news reports to the delegate, which both corroborate the fact of the attack and name him as the victim.
The applicant contends that he cannot relocate within the EU because no person has been charged, and [Mr B] has extensive resources and an extensive criminal network. He contends that the interconnectedness and relatively unrestricted movement increase the risk of harm to him rather than reduce or mitigate it. The applicant further points to the case of Steven Utah, who, he claims, was granted refugee status by the Immigration and Refugee Board of Canada. Information indicates that Steven Utah was granted protection in Canada when it was found that Australian authorities could not protect him.[1] The applicant also refers to another decision, John Doe et al. v. Canada (IACHR, Report No. 78/11), which he submits illustrates the importance of an individualised assessment of risk and the provision of adequate protection.
[1] 'Bikies infiltrator 'outed by Australian authorities' given Canadian refugee status', ABC News, 20 August 2018, <>
The applicant lodged witness statements and written submissions in support of his review application, which I have considered.
The applicant sought that his mother provide evidence to the Tribunal. At the hearing, I explored the evidence he anticipated she would provide. That evidence was, the applicant explained, limited to her discussions with a detective from the Irish police about steps taken to obtain an information note to provide the Tribunal. I took the view that the better approach was to provide time for the information note to be provided, as that would be the best evidence of the view taken by the Irish authorities.
In view of those matters and the applicant's indication that he considered the document from the detective would be available by the 'end of the week', I provided the applicant with seven days to provide any additional evidence from the Irish police.
The applicant provided additional documents and information on 12 August 2024. That included a letter from [Inspector C] with the Irish Police. [Inspector C] confirms that the applicant was attacked and that the investigation confirmed that "the motive behind the attack was identified as being borne out of jealousy by "[the applicant's] then partner's ex-partner." [Inspector C] refers to the ex-partner as:
"a known criminal who is suspected of involvement in a number of serious crimes up to and including murder. It is believed that the attack on [the applicant] was motivated by jealousy on his part as [the applicant] was spending time with the children of his partner and the children's father".[2]
[2] The applicant suggested that there was a typographical error at the top of page two of the letter and that he had requested an updated letter. I do not necessarily agree. However, I have proceeded on the basis that the letter intends to convey that the motivation for the attack was jealousy and that the jealous was that the applicant was spending time with [Ms A] and her biological children at a time when their biological father was not. Quite apart from my view that the letter, as presently drafted, conveys that impression, that construction is also the construction that best supports the applicant's case and is most favourable to him.
[Inspector C] adds that following an investigation, a male was detained and questioned but released without charge. When the case was referred to the Director of Public Prosecutions, it was determined that there was insufficient evidence to support a prosecution. [Inspector C] claims:
If [the applicant] were to return to Ireland a threat assessment would be conducted…and a detailed management plan would be put in place, however, this would not involve 24 hour protection for [the applicant].
The prime suspect in this investigation is residing in Northern Ireland and has direct access to the Republic of Ireland and Great Britain. He would enjoy free access to the common travel area of Europe.
The applicant also provided news reports. One appears to be dated [July 2020] and refers to [Mr B] having been "nabbed," which I infer means arrested, in the North of Ireland. It refers to [Mr B] as being of [Nationality] descent and having moved between Dublin, Northern Ireland, and [Geographical area] in recent years. It also reports that [Mr B] is "one of Dublin's most notorious criminals" and his associates have been "linked to [gang-land] murders in Ireland."
Another article, dated September 2021 and provided by the applicant, refers to a man, [Mr D], who shares a surname with [Mr B] and I am prepared to infer is his brother, having been jailed for a violent attack on a man in Northern Ireland. It suggests that [Mr D] "left Northern Ireland for [Country 2]…but returned to face justice". He was sentenced to a [term] of imprisonment, but it was reported that he would be released after half of that time. As they share a surname, I infer that [Mr D] is related to [Mr B]. A subsequent article dated June 2022 indicates that [Mr D] was sentenced to a further two months for [assaulting] a prison officer.
Another article indicates that in March 2022, [Mr B] was charged with involvement in the large-scale distribution of cocaine and cannabis. It notes that [Mr B] was released on bail. A further article from the applicant, dated July 2022, indicates that [Mr B] had varied bail conditions to permit him to travel to [Destination] for a holiday.
The applicant has not provided, nor have I been able to locate, any further information about the charges pending against [Mr B].
RELEVANT LAW
In making this decision, I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs.[3] Ireland has no Department of Foreign Affairs and Trade ('DFAT') Country Information Report.
[3] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) (the 'Act') and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
Refugee criterion
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 decision‑maker 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.[4]
[4] Migration Act 1958 (Cth), s 5H(1)(a).
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.[5] Persecution must involve serious harm[6] and systematic and discriminatory conduct.[7]
[5]        Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[6]        Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[7]        Migration Act 1958 (Cth), s 5J(4)(c).
A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[8] A "real chance" is a prospect that is not "remote" or "far‑fetched" but does not require a likelihood of persecution on the balance of probabilities.[9] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.
[8] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
Complementary protection criterion
If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the ‘complementary protection criterion’ under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[10]
[10] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
‘Significant harm’ is exhaustively defined in s 36(2A) of the Act.[11] The circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.
[11] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
Qualification of protection obligations
Satisfaction of section 36(2) of the Act is qualified by s 36(3). Section 36(3) of the Act provides:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
Section 36(3) is itself qualified by s 36(4)-(5A), which sets out the circumstances in which s 36(3) does not apply to a country.
Where an applicant has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if they have not availed themselves of that right unless the qualifications in either s 36(4), (5) or (5A) are engaged, in which case the s 36(3) preclusion will not apply.
The term ‘right’ in s 36(3) is not restricted to a right in the strict sense that it is legally enforceable. Rather, it includes a liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement.[12] Additionally, the right to enter and reside need only be temporary.[13]
[12] Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; 215 FCR 35.
[13] SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570 at [27].
CONSIDERATION
This is an application to review a decision to refuse to grant the applicant a protection visa. As such, I am directed to only deal with the elements of the criteria necessary to resolve the application for review.[14]
[14] See Direction in relation to Conducting Migration and Refugee Reviews given under section 18B of the Administrative Appeals Tribunal Act 1975.
To have any prospect of succeeding in his review application, the applicant must avoid the operation of s 36(3). If he cannot, his review application must fail.
In his letter, [Inspector C] does not name the person arrested or the "prime suspect." He does not refer to [Mr B] in any way. In the applicant's case, the attack on him was carried out by a third person at the direction of [Mr B], who was, at that time, in Ireland.
I accept that the applicant was attacked on two occasions and, on the second occasion, was shot four times. Given the failure of [Inspector C] to expressly identify [Mr B] as being involved or that the person who was arrested was [Mr B] or was an associate of [Mr B], I have some doubt about whether [Mr B] caused the attack on the applicant. However, I am prepared to accept that the attacks occurred at the direction of [Mr B]. I am also prepared to accept that, as the applicant claims, they arose out of [Mr B]'s jealousy and arose in the context of AS and [Ms A] being in a custody dispute regarding their children.
The applicant claimed at the hearing that [Inspector C] would confirm that the Irish authorities consider that his life is still at risk and that he faces that risk throughout the whole of the EU. [Inspector C]'s letter stops short of making those claims. Rather, it suggests that a threat assessment and detailed management plan would be implemented if the applicant returned to Ireland. It qualifies that the management plan would not include 24-hour protection; moreover, in the context of the reasons given for the attack by [Inspector C], the Irish authorities do not, at least at present, express any particular view as to the ongoing risk, if any, to the applicant.

Insofar as the risk to the applicant throughout the EU is concerned, [Inspector C] only notes that the "prime suspect" would "enjoy free access to the common travel areas of Europe". As a statement of fact, that would likely be correct. [Inspector C] does not say whether the applicant would face a risk of harm if he were elsewhere in the EU. Additionally, it is unclear who the "prime suspect" refers to or who the "male" arrested was. On one view, the "male" may be same person as the "prime suspect". It may be that the "male" is the person who carried out the attack and [Mr B] is the "prime suspect" as the person who ultimately is considered to have directed the attack. It may be that [Inspector C] believes that [Mr B] personally carried out the attack.
The dispositive issue
As such, the determinative issue in this case is whether s 36(3) applies to the applicant. I will first consider whether s 36(3) applies to the applicant and then determine whether its operation is limited by ss 36(4), (5) or (5A).[15]
[15] SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570 at [25].
Country of nationality
The applicant claimed to be a national of the Republic of Ireland. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that the Republic of Ireland is the applicant’s country of nationality and the receiving country.
Right to enter and reside in a third country?
The Republic of Ireland is an EU member state. As a citizen of Ireland, the applicant is automatically an 'EU Citizen'.[16] I note that the EU is not a ‘country’ for the purposes of the Act.[17]
[16] See, for example, European Commission, < See also BZAAH v Minister for Immigration and Citizenship [2013] FCAFC 72; 213 FCR 261 at [80] (Nicholas J).
[17] BZAAH v Minister for Immigration and Citizenship [2013] FCAFC 72; 213 FCR 261.
The EU member states are Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.
All EU citizens and their family members have the right to move and reside freely within the EU.[18] Article 21 of the Treaty on the Functioning of the European Union provides:[19]
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
[18] See Conference of the Representatives of the Governments of the Member States, Consolidated version of the Treaty on the Functioning of the European Union, 2008/C 115/01, European Union, 13 December 2007, Art 21; European Union, Charter of Fundamental Rights of the European Union, 2012/C 326/02, 26 October 2012 (‘EU Charter of Fundamental Rights’), Art 45. See also European Commission, 'Guidance on the right of free movement of EU citizens and their families' 2023, [3.1] < Conference of the Representatives of the Governments of the Member States, Consolidated version of the Treaty on the Functioning of the European Union, 2008/C 115/01, European Union, 13 December 2007, Art 21.
All EU citizens and their family members have the right to move and reside freely within the EU.[20] The conditions for the exercise of the right of free movement and residence within the territory of the Member States by EU citizens and their family members are set out in the Free Movement Directive.[21] EU citizens can live in another EU country for up to three months without any requirements other than holding a valid identity card or passport.[22] As Ireland is not a party to the Schengen Agreement, Irish citizens must present a passport when entering other EU Member States.[23]
[20]       See Conference of the Representatives of the Governments of the Member States, Consolidated version of the Treaty on the Functioning of the European Union, 2008/C 115/01, European Union, 13 December 2007, Art 21; European Union, Charter of Fundamental Rights of the European Union, 2012/C 326/02, 26 October 2012 (‘EU Charter of Fundamental Rights’), Art 45. See also European Commission, 'Guidance on the right of free movement of EU citizens and their families' 2023, [3.1] <        European Commission, 'Guidance on the right of free movement of EU citizens and their families' 2023 < European Union, Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, 2004/38/EC, 29 April 2004 (‘Free Movement Directive’).
[22]       Free Movement Directive Chapter II. See also European Commission, 'Guidance on the right of free movement of EU citizens and their families' 2023, [4] <       Mobility in the EU: Frequently Asked Questions: European Commission, 26 April 2024, <>
To stay in another EU country for more than three months, EU citizens must meet certain conditions depending on their status (for example, worker, self-employed, student, etc.).[24] They may be asked to comply with administrative formalities.[25] An individual who claims a residence right beyond the initial three months benefits from an assumption that they enter the host state to seek employment for so long as they can provide evidence that they are continuing to seek employment and have a genuine chance of being engaged.[26] An EU citizen is entitled to ‘a reasonable period of time’ to look for work which, should the EU citizen decide to register as a jobseeker in the host Member State, starts from the time of registration.[27] EU citizens have the right of permanent residence in another EU country after legally residing there continuously for five years.[28] Family members of EU citizens, either EU citizens or nationals of a non-EU country, have the right to accompany or join EU citizens.[29]
[24]       European Commission, 'Guidance on the right of free movement of EU citizens and their families' 2023, [5]-[7] <       European Commission, 'Guidance on the right of free movement of EU citizens and their families' 2023, [5]-[7] <       European Commission, 'Guidance on the right of free movement of EU citizens and their families' 2023, [6] <       European Commission, 'Guidance on the right of free movement of EU citizens and their families' 2023, [6] <       European Commission, 'Guidance on the right of free movement of EU citizens and their families' 2023 <       European Commission, 'Guidance on the right of free movement of EU citizens and their families' 2023 <>
Based on the above country information, I find that the applicant has a right to enter and reside in each other EU member state. The applicant did not contend otherwise. Indeed, the claims he advanced to the Tribunal were partly based on the free movement of people within EU member states. Whilst the right is not automatically permanent, it is, at a minimum, a temporary right subject to extension. The fact that an EU citizen has a right to work and the term of their stay can extend beyond three months provided they satisfy certain administrative criteria and are either in work or actively looking for work satisfies me that the right conferred on EU citizens is a right to reside in the EU member states.
The phrase ‘all possible steps’ means what it says and should not be read down.[30] The applicant has not taken any steps, let alone all possible steps, to avail himself of his right to enter and reside in an EU member state. All that is required for the applicant to avail himself of his right to enter and reside in an EU member state is to arrive at an immigration checkpoint and present an Irish passport or identity document.[31] He has done neither of those things. I find that the applicant has taken no steps to avail himself of a right to enter and reside in any other EU member state.
[30] NBLC v Minister for Immigration & Multicultural & Indigenous Affairs, NBLB v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 149 FCR 151 at [64];
[31] Free Movement Directive.
The applicant argued that he faced a real risk of significant harm in each EU member state for the same reason. He did not seek to differentiate between EU member states. In those circumstances and considering how the applicant has run his case, I do not consider it strictly necessary to reach a conclusion on a particular member state.
To avoid doubt, I have considered the situation in Spain and Germany. As I raised with the applicant at the hearing, country information indicates substantial Irish expat communities in Spain.[32] Country information also indicates that the numbers of Irish migrants who live in the United Kingdom are roughly similar to those who choose to live in Germany.[33] Spain and Germany were two options that I raised with the applicant at the hearing, and he did not suggest that the risk of harm there would be greater than, for example, in Slovakia. He contended that the risk of harm was relatively uniform across the EU.
[32] >
I find that s 36(3) applies to the applicant in respect of each EU member state other than Ireland. More specifically, I find that the applicant has a right to enter and reside in both Spain and Germany. That right arises from his status as an EU citizen and the free movement laws that are in place within the EU.
Having found that s 36(3) applies to the applicant, I now turn to consider whether its operation is excluded by operation of s 36(4), (5) and (5A).[34]
[34] SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570 at [25].
Does s 36(4) apply?
Section 36(3) does not apply to any country in relation to which:
(a)the applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;[35] and
(b)there are substantial grounds for believing that that, as a necessary and foreseeable consequence of the applicant entering and residing in the EU member state, that there would be a real risk that he will suffer significant harm.[36]
[35] Migration Act 1958 (Cth), s 36(4)(a).
[36] Migration Act 1958 (Cth), s 36(4)(b).
Does s 36(4)(a) apply?
Section 36(4)(a) only operates where an applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The applicant correctly conceded, in my view, that the harm he feared was not due to his race, religion, nationality, membership of a particular social group, or political opinion.
The delegate concluded that the applicant was a member of a particular social group because his "experience distinguishes him from the rest of Irish society". The 'experience' was the attacks that occurred on him. There are two fundamental problems with that conclusion. First, a particular social group based on an applicant's past 'experience' would, without more, be a particular social group of one person. Second, such a social group fails to satisfy the requirements of s 5L(d) of the Act. The uniting characteristic of any such group would inevitably be a fear of persecution.
The applicant agreed that the harm he feared was uniquely personal. I agree. The motivation of the person(s) that the applicant claims would seek to harm him is personal. It is not feared for reasons of race, religion, nationality, membership of a particular social group or political opinion.
It follows that s 36(4)(a) does not, and cannot, apply to the applicant.
Does s 36(4)(b) apply?
In respect of whether s 36(4)(b) applies, the applicant essentially advances two arguments concerning the application of s 36(4) to him:
(a)first, he faces a real risk of significant harm in every EU member state because the free movement in the EU that permits him entry and residence will also mean that those who would seek to do him harm can also move in a similarly free manner; and
(b)second, that s 36(4)(b) applies to him because, relying on EVA17, he would not be 'relocating' to a third country but rather would be 'in hiding'.
The 'relocation vs hiding' submission
The applicant places weight on his contention that if he were to live in an EU country, he would be doing so "in hiding". As I understand the argument, it is contended that a person cannot be required to reasonably relocate to a place where they would be living 'in hiding'. The applicant claims that principle applies to him because he would be living 'in hiding' within the EU. In this regard, the applicant's written submissions refer to a decision of the Full Court of the Federal Court of Australia in EVA17 v Minister for Immigration and Border Protection[37] and quoted from paragraph [38] (sic: [39]) of that decision as follows:
“… relocation states that harm might be avoided merely by changing locations. That is quite different to hiding which involves the essential element of concealment in order to avoid detection by pursuers.”
[37] EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214.
The submission continues:
In [the applicant's] case the issue of hiding geographically extends to a number of European countries given that he is an EU citizen and has free access to at least 26 countries in the border-free “Schengen area” in Europe.
I have considered the applicant's arguments in this respect. I do not accept that the paragraph cited from the decision of the Full Court in EVA17 articulates a principle of general application. Rather, the paragraph explains why the Immigration Assessment Authority failed to appreciate the extent of the applicant's claim in the case before it.
However, I approach the applicant's submissions as characterising his claims to fear harm. Namely, after he was released from hospital but remained in Ireland and whilst in Australia, the applicant has not 'relocated' to avoid further harm or adverse interest by merely changing location, but rather because he has been in hiding.
Is there a real risk of significant harm in Spain, Germany or the broader EU member states?
In advancing his case, the applicant did not seek to differentiate the risk of harm to him from one EU member country to another or argue that the risk of harm to him was greater in one EU member state than another. He claims to face a real risk of significant harm throughout the entirety of the EU because of [Mr B]'s extensive resources, extensive criminal network and association with [a gang].
Whether a person faces a real risk of significant harm is a prospective enquiry. Whilst past harm is relevant to whether such a risk is established, it is not determinative of that question.
I have considered whether the applicant faces a real risk of significant harm in Spain or Germany and whether I am satisfied that, as the applicant claims, he faces a real risk of significant harm throughout the entire EU.
For the following reasons, I do not accept that the applicant faces a real risk of significant harm in relation to Spain, Germany, or the EU member states more broadly.
I am prepared to accept that, as the applicant claims, [Mr B] is involved with the [gang] and has extensive resources and an extensive criminal network. In assessing whether the applicant faces a real risk of significant harm, I have considered the extensive resources, extensive criminal connections, and the association between [Mr B] and the [gang].
I accept that the free movement of persons within the EU applies to the applicant and other people in the EU, including in Ireland and Northern Ireland. I accept that [Mr B] directed the attack against the applicant from Northern Ireland, a country in the United Kingdom. I accept that [Mr B] and many of his associates would hold passports qualifying them as EU citizens and, as such, would have the same rights of movement within the EU as the applicant. Based on the information provided by the applicant, I also accept that bail conditions may limit the movement of [Mr B] within the EU. However, such conditions are capable of being varied.
I accept that the applicant was in a relationship with [Ms A]. I accept that [Mr B] and [Ms A] were involved in a dispute about the care arrangements for their children, who were then about [Ages] years old. I accept that [Mr B] became jealous and unhappy after the applicant moved in with [Ms A].
I accept that the relationship between [Ms A] and the applicant lasted one to one and a half years. I accept that they moved in together in early 2017. According to the applicant, [Ms A]'s children were [Ages] at the time. In other words, the eldest is likely to be an adult or will shortly become an adult. The younger child will be [Ages] years old. Nothing suggests that the custody dispute between [Ms A] and [Mr B] remains ongoing. Whilst it is something that I attach minimal weight to, it is difficult to see how [Mr B] would have been able to participate in a custody dispute in Ireland or spend time with his children whilst being, as the applicant claims, the subject of an arrest warrant in that country.
Based on the evidence from the applicant, particularly the threat that was made to [Ms A], and the content of the letter from [Inspector C], I find that [Mr B]'s animosity towards the applicant arose out of jealousy in the context of their acrimonious custody dispute and [Mr B]'s desire to intimidate, control and coerce [Ms A]. I am satisfied and find that the jealousy and animosity occurred because of the ongoing relationship between [Ms A] and the applicant, and the applicant's presence in the same home as, and ongoing involvement with, [Mr B]'s children. I have no doubt that the animosity and the attacks that followed were intended to be, and were, as a matter of fact, a most extreme form of domestic violence and coercive control directed towards [Ms A] by [Mr B]. That much is clear from the threat that [Mr B] made to [Ms A] and the threat being acted upon when the threat proved insufficient to achieve the control [Mr B] sought.
However, I am not satisfied and do not accept that [Mr B] harboured any personal animosity toward the applicant over and above that associated with his ongoing relationship with [Ms A], presence in the same home as his children and desire to intimidate and control [Ms A].
[Inspector C] refers to only a single attack on the applicant. However, I accept that there were two attacks. It is reasonable to infer that [Inspector C] was more concerned about the second attack than the first. I find that the first attack was unsuccessful at either harming the applicant, intimidating or controlling [Ms A] or causing the relationship between the applicant and [Ms A] to end. I accept that following the first attack, he remained in a relationship with [Ms A]. The second attack was more successful. The applicant was seriously harmed when he was shot four times and was hospitalised. I accept that following his hospitalisation, he separated from [Ms A] and went into hiding before leaving Ireland. I accept that whilst in Australia, he received some emails from [Ms A] but responded that he did not wish to have any further contact with her before deleting those emails.

The applicant claimed that he had not been harmed in Australia because it was more difficult for [Mr B] to travel, or have people travel, to Australia than within the EU. He claimed that if he were to return to the EU, [Mr B] would re-engage in efforts to kill him because he was closer. When I suggested to the applicant that, in my experience, absent a criminal record, people from Ireland and the United Kingdom, which includes Northern Ireland, regularly travel to Australia with relative ease on tourist visas, he seemed to agree. I also raised with the applicant that country information demonstrated that the [gang] had links to Australia[38] and that had [Mr B] known where the applicant was and wanted to harm the applicant here in Australia on the applicant's case, he would have sufficient means and ability to carry that out. When confronted with this, the applicant did not disagree, only responding that it was something he had not fully considered.
[38] [Source deleted].
I do not accept that the absence of harm or threats to the applicant in Australia is readily explained by Australia having tighter border controls than EU member states. It is entirely plausible that if [Mr B] had the extensive criminal connections that the applicant claims, he would have been able to locate the applicant in Australia and have been able to arrange for him to be targeted. The absence of harm, considered with all of the other evidence, supports a finding that [Mr B] has achieved what he set out to achieve and caused the relationship between the applicant and [Ms A] to end. Having achieved that, I find that [Mr B] is no longer interested in continuing to harm the applicant. There is no prospect of it resuming. The absence of harm is because of a lack of any ongoing adverse interest from [Mr B] towards the applicant. I do not accept that the absence of any ongoing threats or harm to the applicant is explicable because [Mr B] does not have the means and ability to carry out attacks in Australia.
Suppose [Mr B] were as determined to harm the applicant, as he argues, and had the criminal connections the applicant attributes to him. In that case, I have difficulty accepting that distance would, without considerably more, result in the applicant's apparent safety. I do not accept that the requirement to obtain a visa for any person that would be 'sent' to harm the applicant would have gotten in the way of the [Mr B] harming the applicant if he was determined to harm the applicant. Given [Mr B]'s claimed connection to the [gang], it seems plausible that [Mr B] would have the ability to task a person already in Australia to harm the applicant if he was so minded.
I have considered whether the absence of further harm is explicable given that the applicant has been in hiding since the second attack, first in Ireland and then in Australia. In this regard, I accept that the applicant has avoided establishing any internet or public profile for himself and has avoided participating in or associating with members of the Irish expat community here in Australia.
While I accept that the applicant has lived 'in hiding' in Australia, he has not been threatened or harmed, and no attempts to harm him have occurred in Australia. Moreover, based on the applicant's evidence, I find that following his departure from Ireland, neither his mother, stepdad, [(step) siblings], nor [children (biological and stepchildren)] were subjected to threats, harmed, or contacted for information about his whereabouts. I also find that he did not experience any threats after the second attack or after he departed from Ireland.
The applicant claims that the two attacks demonstrate that the animosity was personal and directed towards him and that [Mr B] was particularly determined to harm him. I have considered that submission and do not accept it. Rather, it is entirely plausible and credible, and I find, that the reason why the applicant has not experienced further harm or his family have not been contacted is because [Mr B] has no further interest in the applicant because he achieved his goal of ending the relationship between [Ms A] and the applicant and exercising a measure of control and intimidation over [Ms A].
Moreover, I consider that it is implausible in the circumstances that if [Mr B] was particularly determined to kill or further harm the applicant that he, or persons acting at his direction, would not have been able to, at a minimum, locate and contact members of the applicant's immediate family to, at a minimum, press them for information about the applicant's whereabouts. The absence of such contact does not support a conclusion that [Mr B] was particularly determined to kill or further harm the applicant.
Rather, as I suggested to the applicant, I find that [Mr B]'s motivation in seeking to harm him was, ultimately, directed towards ending his relationship with [Ms A] against a broader strategy of coercive control designed to intimidate and control [Ms A] in the context of their separation and ongoing custody dispute. I find that [Mr B]'s objective had been achieved following the applicant's departure from Ireland and the end of his relationship with [Ms A]. There was and is no further reason to harm the applicant or expose himself or others to the associated risk from authorities. In my view, [Mr B] has no ongoing adverse interest in the applicant because he has achieved his goal. Whilst the motivation to harm the applicant might be described as personal, I am not satisfied that it was personal with respect to the applicant; rather, I find it was personal with respect to [Ms A]. The applicant was the collateral damage.
I have also considered whether the fact of the police complaint is likely to be an ongoing motive for [Mr B] to continue to harm the applicant. No person has been charged. The applicant's evidence was that he was expressly told not to volunteer to be a witness because he may be forced to return to Ireland to give evidence, which would increase the risk to him. I accept that the applicant took that advice and has not volunteered to be a witness. I find that the applicant has no desire to volunteer to be a witness. I do not accept that the fact that he survived the attack or made a report to the police, either in isolation or in combination with other matters, means that he faces a real risk of significant harm. I also do not accept that the fact that no person has been charged results in a conclusion that he faces a real risk of significant harm.
A conclusion that the applicant does not face a real risk of significant harm does not require a positive finding that the applicant will be safe in Spain or Germany (or the EU more broadly). Having regard to all the evidence before me, I find that the risk of the applicant suffering significant harm in Spain or Germany (or the EU more broadly) is truly remote.
I have considered the applicant's claims that if he was to relocate to any EU country, he would be living 'in hiding' and that a person cannot be required to 'relocate' to a place where they would be 'in hiding'. Indeed, the applicant claims that he is 'in hiding' in Australia. Whilst I accept that the applicant keeps himself separate from Irish expat communities in Australia and would likely continue to do so irrespective of whether he remained in Australia or was to live in Europe, I do not accept that being 'in hiding' amounts to significant harm or that his own decision to remain 'in hiding' results in a conclusion that he faces a real risk of significant harm. In any event, and to avoid doubt, my findings about whether the applicant faces a real risk of significant harm contemplate a situation where the applicant does not live in hiding but engages in a life where he does not actively seek to avoid being identified, engages with, among others, the Irish expat community and does not live 'in hiding'.
I have also considered the alternative construction of the ‘relocation vs. in hiding’ submission, which states that requiring a person to relocate to a place where they will live in hiding is impermissible. I do not accept that.
Section 36(3) does not require an assessment of the reasonableness of requiring an applicant to enter and reside in a third country. The operation of s 36(3) is limited only by s 36(4), (5), and (5A). It is only consequential to a finding that a person faces a real risk of significant harm in a country that it becomes necessary to consider whether they can reasonably relocate to another place in that country.
Having considered the claims, evidence, material and submissions before me, separately and cumulatively, I find that if the applicant were to enter and reside in Germany, he would not face a real risk of significant harm. On the same basis, I also find that if the applicant were to enter and reside in Spain, I am satisfied that he would not face a real risk of significant harm. I have also considered whether the applicant faces a real risk of significant harm throughout the EU, more generally as he claims; having done so, I am not satisfied that he faces a real risk of significant harm.
I find that Section 36(4)(b) does not exclude the application of s 36(3) to the applicant.
Refoulment from a third country (ss 36(5) and 36(5A))?
I have considered whether the applicant would be refouled from an EU member state to Ireland. I note that the applicant made no express claims in this regard. Nevertheless, I have considered the prospect of this occurring on the material before me, particularly because despite my view that the applicant is likely to be permitted to remain in Spain or Germany beyond the 3-month period, his right to enter and reside there is not automatically permanent.[39]
[39] See, for example, AYC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 292 at [33]-[44] (Ladhams J).
Having regard to the country information already referred to above, an individual who claims a residence right in an EU member state beyond the initial three months benefits from an assumption that they enter the host state to seek employment for so long as they can provide evidence that they are continuing to seek employment and have a genuine chance of being engaged. Whilst I appreciate that English is not the first language of many EU countries, including Spain and Germany, I do not accept that fact alone leads to a conclusion that the applicant would not have a genuine chance of finding employment such that his right of residence would be extendable beyond the initial 3-month period. In any event, I note that the type of right envisaged by s 36(3) includes a temporary right to enter and reside, which, in my view, incorporates the notion that the right need not involve permanent residency but must only admit the possibility of extension. Such a right arises concerning EU member states, including Spain and Germany.
As I have already noted, I am not satisfied that he would be unable to obtain work or find himself unable to subsist. I am satisfied that he could establish himself in either of those countries and would be able to obtain work. In those circumstances, I am satisfied that the applicant's right of residence in Spain or Germany would, for practical purposes, be analogous to a permanent right of residence after which he could obtain citizenship of either country (or any other country that he elects to live in).
Moreover, even if the applicant were not able to remain permanently in either Spain or Germany, I am not satisfied that there is a real chance or real risk of the applicant being removed back to Ireland. EU member states must respect the principle of non-refoulement in accordance with their international obligations.[40] I am not satisfied that there is a real chance or real risk of the applicant being returned from Spain, Germany or any other EU member state to Ireland other than in accordance with a proper application and consideration of the non-refoulment principle. I am satisfied that the applicant would not be returned to Ireland if to do so would be contrary to the non-refoulment obligations of those countries.[41]
[40] See European Union Agency for Asylum, < See European Union Agency for Asylum, <>
I am not satisfied that the applicant has a well-founded fear that he will be returned to Ireland from an EU member state or that there is a real risk of returning him to Ireland from an EU member state. I find that ss 36(5) and 36(5A) of the Act do not apply to him.
DOES SECTION 36(3) PRECLUDE AUSTRALIA FROM HAVING PROTECTION OBLIGATIONS?
For the above reasons, I am satisfied that s 36(3) applies to the applicant. I find that s 36(4), (5) or (5A) do not exclude the operation of s 36(3) with respect to the applicant. In those circumstances, Australia is taken not to have protection obligations to the applicant.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Fraser Robertson
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

[2024] AATA 4324

16 August 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

DIVISION:	Migration & Refugee Division
CASE NUMBER:	1902540
COUNTRY OF REFERENCE:	Ireland, Republic of
MEMBER:	Fraser Robertson
DATE:	16 August 2024
PLACE OF DECISION:	Perth
DECISION:	The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 August 2024 at 9:38am