1906691 (Refugee)

1906691 (Refugee) [2019] AATA 5930 (18 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906691
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Rodger Shanahan
DATE:18 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 18 July 2019 at 2:26pm

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Assyrian Chaldean Christian – significant health issues – poorly educated – Arabic language proficiency – ex-drug addict – adequacy of treatment in Iraq – support network in Iraq – role of local church – familial connections – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 18 March 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iraq, applied for the visa on 22 February 2019.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed that he would be harmed or killed by insurgents or terrorists because of his religious beliefs. He also claimed that because of his disability he would face cruel or inhuman treatment and that he may be targeted by criminal gangs.
AAT Hearing
A range of family members attended the hearing but they were present largely for character witness purposes. The Tribunal decided only to swear in the applicants’ parents.
The applicant claimed that if he returned to Iraq, he would be killed by ISIS and other groups in Iraq. Asked to elaborate on which groups he meant he said bad soldiers and kidnappers because of his Christian religion and background as an Assyrian Chaldean. He also did not know anyone in Iraq as he had left at a very young age – he would suffer from trauma as a result and did not speak the language. He spoke Aramaic from his parents growing up. His parents spoke Arabic. As they had lived in Iraq for 30 years.
Asked if he went to school in Iraq he said that he was [Age 1] when the war started in 1980. It was put to him that people still went to school during the war. He said he didn’t remember going to school much. It was put to him that he left Iraq when he was [Age 2] and he would have completed primary school – he said he couldn’t remember and he never finished primary school. It was put to him that the Tribunal didn’t understand why he would have had to drop out of school in primary school because of the war, when the war didn’t touch Dohuk.
He claimed that the war started because of the Iranians and the first attack was in Dohuk. Asked if he learnt Arabic he claimed initially that he didn’t but then said that he was taught it but didn’t learn much. It was put to him that Aramaic became more of a liturgical language and those speakers needed to know Arabic if only to deal with Iraqi authorities. He agreed and said people could speak Arabic and Kurdish. Asked again if he was taught Arabic at school, he initially said that he didn’t and then that he couldn’t remember.
Asked if he had any other claims to fear serious harm in Iraq, he claimed that the country was unstable and the laws didn’t work. It was put to him that his fear of serious harm needed to relate to him, and he claimed that people would see that he had been deported long ago.
He was asked to now expand on his claims. He claimed that Christians were being persecuted and he had seen many documentaries with churches being bombed and prietss being beheaded. Asked whn these events occurred he claimed that this was a few years ago but it had stopped now. Asked what the situation was with respect to Christians currently, he said that he got his news from speaking to people and watching the TV. Asked if he had evidence, he said that he didn’t but spoke to friends and family and the internet. He googled information on the internet on his phone.
Asked what years that priests were being beheaded and churches destroyed, he said that he thought it was 2005 but didn’t know exactly when it was but also referred to it being done by ISIS. He was asked why he thought something would happen to him in 2019 when he had seen things from 2005, and he said that things were always happening and he saw videos where ISIS were trying to get land. He said that he saw a documentary with Ross Kent where he was with forces fighting ISIS. Asked where the documentary was filmed he said that he wasn’t sure but it was Syria and maybe northern Iraq. He claimed that there was always fighting in Iraq.
It was put to him that there were 30 million people in Iraq and he was asked why he would be targeted specifically. He said that he didn’t speak the language and didn’t know what to say as Iraq was dangerous. Asked what he meant by bad soldiers, he claimed that one couldn’t tell anybody from anybody and it was hard to trust anyone. The Kurds, Sunni and Shi’a were always fighting. It was put to him that he was none of these and he claimed that he didn’t know but one of them may try to convert him.
Asked about the kidnappers, he claimed that he had heard that people got kidnapped in parts of Iraq. He had heard this from others – he watched some documentaries. Asked why he thought he would be kidnapped amongst a population of 30 million, he said it was because was Christian Catholic. Asked if he had any evidence that Christians were being kidnapped in Iraq in general or Dohuk in particular, he said that he didn’t know.
Asked if he had any family in Iraq, he said that he didn’t and claimed that [some of his relatives] were in [Country 1], Australia and [Country 2] and [other relatives] were in Australia, [Country 3] and [Country 2]. He had no cousins in Iraq. Asked if his family sent money to relatives in Iraq, he said that he heard they sent money but he didn’t know who they gave money to.
His parents were active churchgoers in [Church 1]. Asked why he couldn’t be supported by the Chaldean church in Dohuk if he were to return to Iraq – they could perhaps find him accommodation, a job, learn the language and do the things a Christian community would do. Given his parents were active in the church here in Australia they could support him. He claimed he didn’t know how it worked in Iraq, whether the church in Dohuk was poor, and he had grown up in Australia and this was where his family was.
He also cited concern about his health conditions and he said that he had lower back pain, PTSD, and was blind in one eye ([specified eye condition]). Asked if he was legally blind, he claimed that he had a lens and if he took it out he couldn’t see. He began to say that he couldn’t see with the lens. He was asked if he was blind in one eye as there did not appear to be medical evidence of this. He then stated that he wasn’t blind but had [an eye condition].
He agreed that he had PTSD from his experiences in Iraq, and was asked whether any of the other family members suffered from it. he claimed that he thought some had it and were treated. Asked if he thought or he knew this to be the case, he said he didn’t know. He was warned that he had to be truthful and not present thoughts as facts.
Asked what medical conditions he believed he couldn’t be treated, he said he thought it may be his back but he didn’t know as he didn’t know anything about Iraq. He was asked whether he had done any research on the conditions in Iraq in order to make his claims he stated that he got stressed if he looked at information and didn’t deserve to be sent back to Iraq so he didn’t research it. He said he heard things from other people about how expensive medical care was.
He was asked how it was the rest of his family were Australian citizens and he wasn’t. he claimed that he only found out this was the case when he was brought to detention. He was told that he missed out because of his age. It was put to him that his siblings older and younger than him were citizens and he wasn’t. He didn’t remember what he did when they were made citizens and he didn’t understand why he missed out.
Asked if he was being treated for medical conditions currently, he claimed he had a bad neck in [Detention Centre] and was told that it was chronic. He had to wait for physiotherapy at his current location. He had been given an appointment for his eyes and asked if he had treatment or medication for mental health, he claimed that he wasn’t and he refused to take medication because he feared for his safety. Asked when his last mental health treatment in [Detention Centre] was, he said it was just before or just after Christmas.
Asked if he was in a UNHCR refugee camp in [Country 4] he said he was but there was no school for him to attend. In the camp he spoke Assyrian. He spoke to no Arabs as there were Assyrians and Kurds. The officials spoke English and [Language 1]. Asked how he conversed, he said that he stayed close to his family. He was asked if he spoke to any other non-Assyrian speaker in the three years and he said that there were about 20 families who stayed close in that time. He claimed he would be stuck in Dohuk as he couldn’t travel south and there were checkpoints everywhere.
He was asked if he had seen a psychiatrist or just psychologists. He said that he saw a psychiatrist [Mr A] in Sydney but he passed away while he was seeing him. He saw Dr [B] who was a psychologist. It was put to him about a letter dated [June] saying that he needed to see a psychiatrist straight away and he needed a team of mental health professionals yet nothing appeared to have happened since then.
It had been addressed to the adviser and she was asked what occurred and she said that this related to a period when he was undergoing treatment but he hadn’t been there since. It was put to her that the letter was dated June 2019 and she claimed that the letter related to the period a few years ago when he was treated. It was written by a GP and the letter made judgments about the medical facilities in Iraq and the need for a team of mental health specialists and these both appeared to be outside his areas of expertise. She said that the letter applied to a past period where he was treated. She confirmed that [Dr B] was a psychologist not a psychiatrist as she had described him.
The applicant’s mother was brought in as a witness and she was asked what schooling he did. She said he didn’t do much and didn’t complete primary school. He had done a year or three perhaps – from age [age]. The school was sometimes shut due to the war. Asked why he only did two of seven years (from age [age]-[age]) given they didn’t close the schools down for years, she said it was no more than three years. Asked what he did if he didn’t go to school, she said that they were hiding because they were Christian.
She was asked why they closed the schools if the fighting wasn’t near Dohuk. She said it was hard. She was asked what he did during the other four years – the schools were open and the fighting wasn’t where they lived. She said that he didn’t do well in maths and didn’t see much. It was very hard from 1988 and they left in 1990.
He didn’t do school in the camps but they did classes for the children. She and her husband both spoke Arabic. The children were taught Arabic in Dohuk (and Kurdish). Her son learnt a few words from here and there but he forgot everything. Arabic was the first language in the country. They didn’t speak Arabic in home but in the camp the others were Kurdish and she didn’t speak Kurdish. It was put to her that if she wanted to speak to a non-Assyrian such as a Kurd she would have to have spoken Arabic to the majority Kurds in the camp.
It was put to her that if the UN was running a refugee camp with Kurds, Assyrians and some Arabs then the lingua franca would have been Arabic as they all knew it. She said the UN workers spoke [Language 1]. When they got to Tasmania her husband spoke English and he spoke for them. She had no relatives left in Iraq, a [relative] came to Australia two years ago and [others] from 2000 and 2010. Her parents were in [Country 3].
She sent money through the church to poor people in Iraq – sometimes through the church and sometimes to people whose name they had been given. She is active in the church in Australia and volunteers with them.
She was asked why, if her son returned to Iraq the church couldn’t assist him. She claimed it was very hard for the church there and her son had some problems and needed someone to look after him and his family was in Australia.
After a natural justice break the applicant’s adviser stated that Christians were being persecuted in Iraq and that ISIS were still active. Many Assyrians were scared to approach officials in the country about their persecution until they left. The Kurdish and Iraqi governments saw the Assyrians as a political threat. The applicant had limited education and had been in Australia for decades. He didn’t speak Arabic and may have thought Aramaic was Arabic or had inadvertently said he spoke Arabic when he didn’t.
He had no community support in Iraq and was therefore at higher risk of persecution. He had mental health issues and had been drug-free for a number of years because he had been in prison. He was not well educated or of high intelligence and therefore was at risk. The churches are so inundated with vulnerable people that the Australian communities had to fundraise for them, so he would be another burden on an already overburdened institution.
The family was not aware of why he had not been granted citizenship. She was asked why they were not aware that one of their children had not been granted citizenship, and she said the family had a sponsor and they may not have been aware and didn’t check things at the time.
She said that he belonged to a special group of people who were failed asylum seekers and were poorly educated, ex-drug addicts with mental health issues and therefore was more vulnerable than simply a failed asylum seeker. Kidnappings were a regular occurrence but were under-reported.
It was put to her that kidnapping wasn’t a big issue in the Tribunal’s mind but the length of time he had been out of the country was an issue. The adviser was asked to provide any more information about the missing citizenship for the applicant. The member was also concerned about the mental health services in Iraq and the adviser was asked to provide more information regarding this aspect of the claim.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants arrived in Australia on a refugee visa [in] March 1993. For reasons unknown he was the only member of the family who was not granted citizenship and his visa was cancelled in [August] 2017 as a result of a jail sentence he received. He subsequently applied for protection in February 2019. I am satisfied that he is an Iraqi citizen and his claim will be assessed as such.
The applicant is a single Iraqi Assyrian Chaldean Christian [aged]. He feared that if they returned to Iraq and that he would be targeted because of his religious faith, by criminal gangs and because he suffered from a health disability.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant. I found the applicants’ evidence regarding many of his claims to lack credibility.
Religious persecution
I do not accept that there is a real chance that the applicant will face serious harm on return to Iraq solely due to his religious identity. Country information indicates that they face low levels of official discrimination but moderate levels of discrimination and violence where they are a minority.
Health Issues
I do not agree that the applicant’s health issues are, by and large, untreatable in Dohuk although I note the shortfalls in medical attention available there. I have taken into account evidence from a psychologist [Dr B] but lend it relatively little weight given his reliance on unproven assertions from the applicant. In 2019 he stated that the applicant suffered from PTSD which was ‘the result of being persecuted due to his ethnic religious beliefs’ and that if he returned to Iraq ‘[the applicant] understands he would be pressured to convert to Islam’ (folio 282).

There is no evidence available to the Tribunal that indicates the applicant would be pressured to convert to Islam in Dohuk. In 2013 [Dr B] diagnosed the applicant with complex PTSD consequent to being raised in war-torn Iraq, walking 14 days over mountains to [Country 4] and having his grandfather die in his arms.
There are a range of other documents that outline the applicant’s physical and mental health conditions and, while some appear to be based on the applicant’s assertions for their diagnosis, there is sufficient evidence for me to accept that the applicant suffered and suffers from depression (possibly with PTSD), has some physical health issues and was a former drug addict who is currently drug-free.
I do not accept on the face of it that the applicant would be unable to seek appropriate (as opposed to Australian standard) medical treatment if he were to return to the Dohuk area. I use the word appropriate advisedly as the test is not whether the treatment is Australian standard; rather it is whether it is adequate.
Support Network in Iraq
The applicant’s health issues though, cannot be viewed individually or in isolation from his surrounds. In order to maintain a drug-free regimen and to give him the best opportunity to overcome his mental health issues it is important that he has access to a support network that is outside the medical system.
I accept that the applicant is not well educated but I do not accept that he is unable to speak Arabic. So he would be able to communicate with others and find employment commensurate with his education level. More critically I also accept that the applicant’s family members are no longer in Iraq and therefore he would need to find some alternate source of emotional support that a family would provide.
I have considered whether the church in Dohuk could fulfil that function, but am not satisfied that it can or should. As the adviser pointed out, the church relies on external donations to minister to its present workload and it seems unusually cruel to foist on them someone with significant issues who has lived outside the country for 30 years.
He appears to have a supportive family in Australia who have undertaken to provide him with emotional, practical and employment support. Whether this will work in the long term is not the concern of the Tribunal, but it does demonstrate the type of support that only committed families can do.
Country information[1] indicates that familial connections are important in the Kurdistan region in order to assist in reintegrating returnees. Given that these are entirely absent in the case of the applicant and that he is returning after 30 years and with cumulatively significant health issues to address I am satisfied that there is a real chance that he would suffer serious harm if he were to be returned to Iraq.
[1] DFAT Country Information report – Iraq, 9 October 2018
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 5930

18 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies