1904517 (Refugee)

1904517 (Refugee) [2019] AATA 5258 (12 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1904517
COUNTRY OF REFERENCE:                   El Salvador
MEMBER:Luke Hardy
DATE:12 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 April 2019 at 2:02pm

CATCHWORDS
REFUGEE – protection visa – El Salvador – imputed political opinion – FMLN supporter – anti-government pamphleteering during the Duarte regime – significant changes in relevant circumstances – particular social group – former criminals – complementary protection – gang culture – real chance test – general harm – health and family circumstances – intention to inflict harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

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 Immigration on 21 February 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The [applicant] is a citizen of El Salvador. He became internally displaced in El Salvador in 1983 and was selected to settle in Australia under the Special Humanitarian Programme, which is to say that he was never determined individually or prima facie a refugee. He entered Australia on a BF-C (transitional permanent) visa [in] July 1983. He was [age] at the time. Evidently, he had settlement problems and fell into petty crime. He accumulated a criminal record involving a number of periods in jail.
[The applicant]’s BF-C visa was cancelled by the Department of Home Affairs (the Department/DHA) on 27 September 2017. He applied to have the cancellation revoked but the Department refused to revoke on 10 September 2018. [The applicant] sought AAT review of that decision, but it was affirmed by the AAT on 30 November 2018. He then lodged an appeal against that decision in the Federal Circuit Court [in] December 2018 and his appeal is pending.
On 31 January 2019, [the applicant] also lodged a protection visa application. The Minister’s delegate refused to grant the visa on 21 February 2019. [The applicant] then sought review by the Tribunal.
[The applicant] appeared before the Tribunal on 9 April 2019 to give oral evidence and present arguments. He is unrepresented. A Spanish-English interpreter attended but was not required, as [the applicant] speaks fluent English in the Australian idiom.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision on his protection visa application. The decision record contains an uncontested summary of information provided at the interview and also identifies what the delegate considered to be critical issues in this case, namely the significant change in relevant circumstances in El Salvador since [the applicant] last lived in El Salvador.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether or not on accepted facts [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
[The applicant] claims he lived in [Municipality 1], a town in [a certain] department of El Salvador. He claimed that when he was a youth he did some anti-government pamphleteering. This would have been during the time when José Napoleón Duarte was dictator in El Salvador. [The applicant] claims he does not have very clear memories about the political situation in those days. He does apparently recall the Duarte regime operated or endorsed military and para-military death squads to round up and “disappear” perceived opponents high-profile and low. He said that some local supporters of the left-wing opposition group FMLN used to pressure or bully local youths into joining anti-government demonstrations and the like. He said he just went along with them. At the hearing he was vaguely able to recall what the acronym FMLN represents.
[The applicant] claims that in 1981, he was arrested by Salvadoran authorities and charged with plotting against the government, apparently for no graver act than handing out pamphlets in support of the FMLN. He claims he was jailed as a political prisoner and stayed in jail for 26 months. He claims an Amnesty International campaign succeeded in his release from jail in 1983. He claims he spent a few weeks in [an] internally displaced persons’ (IDP) camp where he and others were interviewed for resettlement in Australia. He travelled to Australia in July 1983 and his mother joined him here the following year. He said he also has a younger half-sister.
[The applicant] has had little education and has been outside of El Salvador for most of his lifetime. He has displayed throughout his evidence virtually no detailed knowledge or understanding of events that ensued in El Salvador since his departure from the country. The thrust of his claims is that Duarte’s or a “Duarte-style” police force and army, and also “death squads”, continue to operate in El Salvador and that they do so with impunity. Contradicting this perception, there is a wide range of independent country information sources, cited by the delegate in the primary decision, describing the end of Duarte’s rule upon his death in 1989; the more pragmatic tenure of his chosen successor Alfredo Cristiani until retirement in 1994; the 1991 peace agreement that ended the civil war between the FMLN and the government, and that also mandated reduction in the military and break-up of paramilitary groups, in 1991; the establishment of a Commission of Truth that reported to the UN in 1993; and a history of free and fair elections that for several terms favoured ARENA, the more conservative party led by Cristiani, until the last decade or so, when the more left-leaning FMLN has won, with the FMLN currently forming government in the country.
I put to [the applicant] that El Salvador is a constitutional democracy with free and fair elections and that, far from being a hangover of the Duarte era, it is currently governed by the FMLN. I put to him that it is likely the FMLN and its voters probably include large numbers of former political prisoners now living and working at large in El Salvador. In reply, [the applicant] said, “Yeah.” He said that he knew a lot of Salvadorans who went back to El Salvador. He said he never heard from them after they returned. He said that they were not relatives and that this might be why they did not stay in touch. It seemed hard for me to give this response much weight.
I put to [the applicant] that according to the US Department of State, in its annual reporting of human rights conditions in El Salvador in 2018,[1] observed that there were no reported political prisoners in the country as at 2017. The same report said that there were no reports of politically motivated killings; that arbitrary arrests were apparently limited to detaining suspected M-13 and other gang members; that there were some, though very few, instances of illegal detention by security personnel, notable cases evidently having been scrutinised judicially; that freedom of movement was respected; that freedom of expression was generally respected by the government; that the government respected freedom of religion and of peaceful assembly and association; and that the Constitution provides citizens the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage.
[1] EL SALVADOR 2017 HUMAN RIGHTS REPORT, US Department of State, 2018,
In response to the generally positive report from the US State Department, [the applicant] posited that its observations might all be propaganda. This seemed understandable given the disclosure of detailed, independent corroborated information, over the years, regarding the role of the US State Department and CIA in propping up the Duarte regime that saw the disappearance of over 40,000 Salvadoran citizens.
I put to [the applicant] that the most recent country reports by Amnesty International (AI)[2] and Human Rights Watch[3], whilst citing some negative trends, especially due to the high profile of violent drug gangs in the country, did not appear to disagree with the US State Department’s overview. AI did report the UN High Commissioner for Human Rights asking the El Salvador government to end extraordinary security measures adopted since 2016 to combat gang violence and organized crime, on ground they failed to comply with international human rights standards, not least because they included prolonged and isolated detention under inhuman conditions, and prolonged suspension of family visits to prisoners.[4] [The applicant] did not rebut these positions.
[2]
[3]
[4]
I raised the potential issue of vulnerability to intimidation by El Salvador’s notorious gangs, drawing attention to the fact that each gang “controls” its own “territory”, gang members having sometimes harassed and even killed civilians from other “territories” who entered their own, even on public transport and even if they were just going shopping or to work. However, I put to him that on the face of it, this is generalised civil disturbance or, put another way, harm faced by the population generally. In reply, [the applicant] said that if he has to return to El Salvador he did not know where he might stay and he has no family there.
I note that [the applicant] was originally from [Municipality 1]. I also note that [Municipality 1] has a relatively low rate of gang violence compared to other parts of El Salvador, and was even reportedly beset in 2015 by no gang presence at all.[5] Whereas this situation might have changed for better or worse in recent years, there is no evidence that the risk of harm in [Municipality 1] would be a risk faced by [the applicant] individually.
[5] [Source deleted]
Having regard to offences he may have committed in Australia, I put to [the applicant] that I could not find any evidence of El Salvador practicing “double jeopardy”, i.e., re-trying returned citizens charged with or convicted of crimes in foreign jurisdictions. [The applicant] did not rebut this position.
[The applicant] said that his mother who is [age] will not be able to cope if he has to go back to El Salvador. He indicated that they will never be able to meet again. I asked him how his own health was and he said he is “not in a great state” and relies on medication for depression, anxiety and cholesterol. I accepted this to be the case. [The applicant] then said that he might be able to continue on his current prescriptions in El Salvador, but that he feared one would need money. He generally despaired of being able to get a job in El Salvador due to his age, lack of skills and long absence from the Salvadoran job market. I put to him that these seemed more like complementary protection issues and that, in assessing them, I must find evidence of “intention” to harm. I put to him that, on his evidence, there did not appear to be any intention on anyone’s part to harm him by denying him health care or employment. In reply, [the applicant] said that he did not think there is a Salvation Army in El Salvador, a fact, if true, that we both considered ironic. As happens, I later ascertained that the Salvation Army does operate in El Salvador, which is included in territory that comes under its Latin America North office in Costa Rica.[6]
[6]
I asked [the applicant] for which party he would vote in El Salvador and he said he would not know, given how long he has been away.
I asked [the applicant] if his mother and half-sister are Australian citizens and he said they are. He said his half-sister was born in [an Australian] hospital.
I asked [the applicant] if he had any other claims. He said he would just like things to go in his favour for once. He mentioned people having robbed him.
I note that [the applicant] was evidently baptised in [a] Church in 2018 but has made no substantive claims about his having joined the latter.
Findings in relation to s.36(2)(a) of the Act
I find [the applicant] to have been a generally credible witness. I find that his claim that the current government will behave towards him like the Duarte regime and its paramilitary groups is not deliberately misleading but merely misinformed, and entirely understandable probably as a traumatic sequela caused by his time in jail.
Relying on the independent country information regarding significant socio-political change in El Salvador since the early 1980s, I am not satisfied that [the applicant] faces a real chance of being persecuted in the reasonably foreseeable future in El Salvador for reasons of “political opinion”, either actual or imputed.
Whereas I acknowledge the intrusive and often violent presence of gangs like M-13 in El Salvador I am not satisfied that this gives rise to a real chance of [the applicant] being persecuted there in the reasonably foreseeable future for any reason included in s.5J(1)(a) of the Act.
I am not satisfied that [the applicant]’s health, criminal or family issues give rise to a real chance of being harmed for any s.5J(1)(a) reason. With particular regard to his criminal record in Australia, I am satisfied that he does not face a real chance of being re-prosecuted in El Salvador, and I am not satisfied that he faces discrimination amounting to persecution for reasons of being a member of a “particular social group” such as might be characterised as former criminals. Notwithstanding his criminal background, I am not satisfied that [the applicant] faces a real chance of being imputed to be a gang member in El Salvador.
For want of evidence to the contrary, I am not satisfied that [the applicant] faces a real chance of being persecuted in El Salvador in the reasonably foreseeable future for reasons of religion.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] faces real chance of being persecuted in El Salvador in the reasonably foreseeable future, either separately or cumulatively, for any s.5J(1)(a) reason.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(a) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of El Salvador, I find that El Salvador is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are for the most part the same as his refugee status claims. Since his refugee claims failed due to a failure to meet the “real chance” test, they can no more succeed as complementary protection claims.
In particular I have considered [the applicant]’s situation in the context of El Salvador’s gang culture, but I find that the harm he fears is harm faced by the population generally: ref. s.36(2B).
With regard to [the applicant]’s health and family circumstances, his claims about detriment potentially suffered in the event of removal to El Salvador do not raise any intentional element and thus do not involve significant harm as exhaustively defined In the Act.
Overall, on the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to El Salvador, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 5258

12 April 2019

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

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