1907572 (Refugee)

1907572 (Refugee) [2022] AATA 3107 (29 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1907572

COUNTRY OF REFERENCE: Fiji
MEMBER:Paul Windsor
DATE:29 July 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 July 2022 at 1:15 pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – fear of political violence – coup d’état expected at election – state protection – physical assault – criminal gangs – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 426, 441, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 13 August 2018.
In his protection visa application the applicant indicated he was born in [Town 1 in] Fiji on [date]. He stated he is ethnic Fijian, a Catholic and has never married. He stated that he departed Fiji legally [in] April 2018 and arrived in Australia on the same day, entering on a visitor visa.[1]
[1] See the Departmental file.
In his application, the applicant indicated he left Fiji to avoid a coup he feared would happen at election time and due to which he feared there would be no law and order. He stated his family were badly affected last time there was a coup because a group of men broke into their house, assaulted his family and stole their car, phones and produce from their farm. He indicated he is looking for better opportunities and a good/stable future in Australia.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding that country information indicates there was not a coup at the time of the November 2018 national election and the government was returned without any major incident, and that Fiji is currently in a state of stability, both socially and politically. The delegate found the applicant’s fear of harm was without any objective basis and is not well founded, and there was no indication he faces a real risk of suffering significant harm should he return to Fiji.
The applicant sought review of this decision on 29 March 2019. He provided the Tribunal with a copy of the delegate’s decision record.[3]
Failure to attend the scheduled hearing
[3] See the Tribunal file.
On 12 July 2022 the Tribunal wrote to the applicant advising that the Tribunal had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments at a hearing scheduled for 9:30 am on 29 July 2022. The applicant was requested to read and complete an attached ‘Response to hearing invitation’ form within 7 days of receipt of the letter.
The letter advised the applicant that if he was not able to appear as scheduled, he should advise the Tribunal as soon as possible. He was advised to note that the Tribunal will only make changes to the hearing arrangements if satisfied that it is reasonable and there are good reasons for doing so, and he must assume that the hearing will go ahead as scheduled unless he has been advised otherwise.
The applicant was also advised that if he did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.
The applicant did not attend the scheduled hearing. He did not contact the Tribunal to explain his non-attendance.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act; the invitation, which was sent by email to the email address provided by the applicant in his review application, was not returned to sender. The applicant, who indicated in his protection visa application that he speaks English, and indicated in his review application that he did not require an interpreter, did not respond to the invitation to attend the hearing and did not contact the Tribunal to explain why he did not attend the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
Claims
The applicant’s claims, as set out in his protection visa application, are summarised as follows:[4]
·He left Fiji to avoid a coup which everyone says is going to happen at election time.
·The last time they had a coup his family was really badly affected. A group of men forcibly broke into their house, assaulted his family and stole their car, phones, root crops and vegetables from their farm. There is an election coming up and he knows for sure that there is going to be another coup.
·When there is a coup, there is no law and people (mob) just do whatever they want. They attacked his house and their neighbours’ houses.
·They sought help from the church and family members who helped them rebuild their lives again. They moved to another place, started their farm again and rebuilt their lives from scratch.
·The police can’t do anything to protect his family from a mob going around assaulting and stealing from vulnerable people. The last few coups the police and army couldn’t do anything because they were scared for their own safety.
·He is looking for better opportunities and a good/stable future in Australia, which could provide work and education for him.
[4] See the Departmental file.
Findings and reasons
Identity
On the basis of the copy of his passport submitted to the Department,[5] the Tribunal accepts that the applicant is a citizen of Fiji and that his identity is as claimed. The Tribunal accepts that Fiji is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Fiji, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Assessment of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The applicant indicated he departed Fiji in April 2018 because he feared there would be a coup d’état at or around the time of the Fijian election held in November 2018. The applicant indicated his family was badly affected last time there was a coup d’état due to the associated breakdown in law and order.
The Tribunal accepts that the applicant and his family may have been adversely affected at the time of the last coup d’état in Fiji. DFAT advises that Fiji has had four coups d’état in recent history; two in 1987, both instigated by Colonel Sitiveni Rabuka, who later served as Prime Minister and Leader of the Opposition; one in 2000, led by George Speight, who is in prison; and most recently in 2006, led by Commodore Josaia Voreqe (Frank) Bainimarama, the current Prime Minister.[6]
[6] DFAT Country Information Report, Fiji, 20 May 2022, sections 2.2-2.4 and 3.40.
The 2014 DFAT Country Information Report indicates that the 2000 coup d’état occurred in May when a group of indigenous Fijians, led by former businessman George Speight, stormed the Parliament. They took the then Prime Minister Mahindra Chaudhry (an Indo-Fijian) and dozens of others hostage. During negotiations for their release, Commodore Bainimarama, then Commander of the Republic of Fiji Military Forces, assumed control of government. Bainimarama imposed Martial Law and briefly abrogated the constitution before restoring it and appointing Laisenia Qarase (an indigenous Fijian) as interim Prime Minister in July 2000. Elections were held in August 2001, at which time Qarase was elected Prime Minister. Qarase was re-elected in the 2006 general election.[7]
[7] DFAT Country Information Report, Fiji, 14 April 2015, sections 2.4-2.10.
Following a political dispute between Bainimarama and Qarase, Bainimarama took power in a coup in December 2006 and established an interim government, dominated by the military. In April 2009, the Court of Appeal declared the 2006 coup and the subsequent interim government illegal. In response, the interim government declared all judicial appointments vacant and again abrogated the 1997 Constitution. The interim government initiated the process of drafting a new Constitution in July 2009, with the commencement of a Constitutional Commission headed up by internationally renowned constitutional expert, Professor Yash Ghai commencing work on a draft in July 2012. Following disagreements with the “Ghai Draft”, the interim Bainimarama Fijian Government drafted its own Constitution which was passed in September 2013. The interim government’s stated intent included establishing a non-discriminatory Constitution and a political system to give equal representation to all Fijian citizens.
The Public Emergency Regulations which restricted freedom of association in Fiji following the abrogation of the constitution in April 2006 were removed on 7 January 2012 and were replaced almost immediately by the Public Order Amendment Decree which borrowed much of the restrictive language of the Public Emergency Regulations. Whilst the removal of the Public Emergency Regulations was met with international support, the imposition of the Public Order Amendment Decree (POAD) was seen as simply a change in name only. Bainimarama resigned as Commander of the Republic of Fiji Military Forces in 2014. His new political party, FijiFirst, won elections in September 2014 and held a substantial majority in Parliament. Bainimarama became Fiji’s Prime Minister.
The Tribunal accepts that when there is a coup d’état this may result in a period of lawlessness. The Tribunal accepts that the applicant and his family may have been assaulted and robbed by a mob of people at the time of, or in the aftermath of the 2006 coup d’état or an earlier coup d’état.
The Tribunal notes, however, that the last coup d’état in Fiji was in 2006. DFAT advised in it’s 2015 Country Information Report that Fiji is generally stable and secure and that elections in 2014 were calm and free of violence. DFAT commented that security services, including police and military, are well-resourced and maintain effective control of the country.[8]
[8] DFAT Country Information Report, Fiji, 14 April 2015, section 2.48.
In the current Country Information Report, DFAT comments that Bainimarama’s FijiFirst party went on to win the 2018 election and that both the 2014 and 2018 elections were judged to be credible by the Multinational Observer Group led by Australia. DFAT states that politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’. Transparency International reported in November 2021 that only 4 per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters. DFAT also comments that Fiji is generally stable and secure. The 2018 elections were orderly and free from violence, and crime rates, especially for violent and organised crime, are generally low.[9]
[9] DFAT Country Information Report, Fiji, 20 May 2022, 2.4, 2.34 and 3.32.
Considering the relevant country information, it is clear that there was not a coup d’état in Fiji in 2018, as feared by the applicant, and there has not been one subsequently. The last coup d’état was 16 years’ ago. DFAT states that politics in Fiji today is no longer characterised by the unrest of the past, Fiji is generally stable and secure, and crime rates are generally low. The Tribunal finds there is nothing to indicate or suggest that there might be a coup d’état, and an associated period of lawlessness in Fiji, in the foreseeable future.
Accordingly, the Tribunal finds there is not a real chance that the applicant would suffer persecution involving serious harm, for one or more of the reasons mentioned at s 5J(1)(a) of the Act, from members of a mob and/or criminals due to lawlessness arising from a coup d’état should he return to Fiji now or in the reasonably foreseeable future.
The applicant has also indicated that he was looking for better opportunities and a good/stable future in Australia which could provide education and work for him. In this regard, the Tribunal notes that he indicated in his application that he lived in [a municipality] adjacent to the capital, Suva, from 29 August 2015 until he departed for Australia [in] April 2018. He indicated that he worked for a [business] in Suva as a [specified role] from February 2011 until April 2013 and then undertook some tertiary study and practical work until August 2015, before doing farming and volunteer work at his church. While the Tribunal accepts that the applicant may feel he will have better study and work opportunities in Australia, the Tribunal finds there is nothing in the available evidence to indicate or suggest that the applicant has been or would be denied study and work opportunities in Fiji for one or more of the reasons mentioned at s 5J(1)(a) of the Act.
Does the applicant have a well-founded fear of persecution if he returned to Fiji?
Having carefully considered the applicant’s claims, for the reasons given above, the Tribunal finds there is not a real chance that he will suffer persecution involving serious harm from members of a mob/criminals, the Fijian authorities, employers or educational institutions, for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, if he was to return to Fiji, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[10]
[10] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from members of a mob/criminals, the Fijian authorities, employers or educational institutions, or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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.
Paul Windsor

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.
…

[2022] AATA 3107

29 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction