1911639 (Refugee)

1911639 (Refugee) [2021] AATA 705 (17 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1911639

COUNTRY OF REFERENCE: China
MEMBER:Paul Windsor
DATE:17 February 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 February 2021 at 4:36pm
CATCHWORDS
REFUGEE – protection visa – China – non-appearance before the Tribunal – loan shark – threat of forced prostitution – physical violence – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 426A, 441A
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 Home Affairs on 30 April 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 China, applied for the visa on 18 May 2018.
In her protection visa application the applicant indicated that she was born on [date] in Longyou, Zhejiang province China, is of Chinese ethnicity and a Buddhist. She stated she has never married. She indicated she departed China legally [in] March 2018 and arrived in Australia [later in] March 2018, entering on a visitor visa.[1]
[1] See the Departmental file.
In her application, the applicant indicated that she sought protection in Australia because she borrowed money at a high interest rate from ‘a bank’ that turned out to be a loan shark, which she can’t repay. She stated that when she could not repay the interest she was threatened that she would be forced to work for them as a prostitute.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding the applicant did not meet the refugee criterion because her claims did not relate to one or more of the reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion, the delegate, after considering relevant country information, found that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that she will suffer significant harm as outlined in s36(2B)(b).
The applicant applied to the Tribunal for review of this decision on 9 May 2019. She provided the Tribunal with a copy of the delegate’s decision record.[3]
Failure to participate in the scheduled hearing
[3] See the Tribunal file.
On 1 February 2021 the Tribunal wrote to the applicant advising that the Tribunal had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone. The applicant was invited to appear by telephone before the Tribunal to give evidence and present arguments at a hearing at 10:30 am on 17 February 2021. The applicant was advised that the Tribunal would contact her on [her phone number] (the contact telephone number she provided in her review application). She was asked to advise the Tribunal if this number is not correct or if she would prefer the Tribunal to call her on another number. The applicant was requested to read and complete an attached ‘Response to hearing invitation’ form within 7 days of receipt of the letter.
The applicant did not respond to the hearing invitation letter or otherwise contact the Tribunal, including to advise a different telephone contact number.
The hearing invitation letter also advised the applicant that if she was not able to participate in the proposed telephone hearing she should advise the Tribunal as soon as possible. She was advised to note that the Tribunal will only change the date if satisfied she has a very good reason for being granted an adjournment and, if the Tribunal did not advise her an adjournment had been granted, she must assume that the hearing will go ahead.
The applicant was advised that if she 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 her to appear before the Tribunal.
The applicant was sent SMS reminder messages regarding the hearing on 10 and 16 February 2021 to the mobile phone number she provided in her review application.
On 17 February 2021 five attempts were made to contact the applicant on the number provided: at 10:15 am; 10:20 am; 10:21 am; 10:30 am; and 10:35 am. All but the second call attempt rang out and went to voicemail. The second call attempt was answered by an unidentified person with a female voice, but that person hung up when the hearing attendant started speaking.[4]
[4] See the relevant case note in the Tribunal file.
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 and the hearing invitation (sent by email) was not returned to sender. The two SMS reminders about the hearing did not return ‘message undeliverable’ responses. The applicant did not respond to the invitation to attend the hearing and has not contacted the Tribunal to provide an alternative telephone contact number, to seek an alternative time for the hearing, or to explain why she would not be participating in the hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has 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 (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
The applicant’s claims for protection were set out in her protection visa application. Her claims were as follows (as written by the applicant):[5]
[5] See the Departmental file.
Select the country or countries from which this applicant is seeking protection and cannot return to. Country CHINA
Provide reasons why this applicant left that country:
I BORROWED HIGH INTERESTS RATE LOAN FROM A BANK. BUT IT TURNS OUT IT IS NOT A BANK AND I GOT INVOLVED INTO A SHARK LOAN. I CANT REPAY THE INTERESTS EVEN.
Did this applicant experience harm in that country or those countries? Yes
I CANNOT REPAY THE INTERESTS AND THEY ARE CALMING THAT THEY WILL SEND ME TO A PROSTITUTION PLACE AND LET ME EARN MONEY TO REPAY THEM. I DIDNT GO SO THEY CAUGHT ME AND PUNCHED ME.
Did this applicant seek help within the country or those countries after the harm? No
POLICE SAID THEY CANNOT HELP ME AS I SIGNED THE DOCUMENT.
Did this applicant move, or try to move, to another part of that country to seek safety? No
I CANNOT GET THE RIGHTS TO LIVE IN OTHER COUNTRY AS NO COUNTRY WILL ACCEPT REFUGEES APART FROM AUSTRALIA.
Explain what the applicant thinks will happen to them if they return to that country:
I WILL BE SENT TO THE PROSTITUTION PLACE AND EARN MONEY FOR THEM. IF THEY CAUGHT ME, I WILL IN DANGER AS IF I SAY NO, THEY WILL KILL ME.
Does this applicant think they will be harmed or mistreated if they return to that country? Yes
I WILL LOSE MY LIFE
Does this applicant think the authorities of that country can and will protect this applicant if they go back? No
THIS LOAN SHARK PEOPLE WILL LOCK ME IN AND ASK ME TO WORK AS PROSTITUTE FOR THEM. I DON'T HAVE A CHANCE TO RUN AWAY FROM THEM.
Does this applicant think they would be able to relocate within that country to an area where they would not be harmed? No
THEY ARE SUCH A HARMFUL AND POWERFUL UNDERGROUND GROUP. THEY HAVE ALL MY INFORMATION.
Findings and reasons
Identity
On the basis of the copy of her Chinese passport submitted to the Department,[6] the Tribunal accepts that the applicant is a national of China and that her identity is as claimed. The Tribunal accepts that China is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[6] 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 her being removed from Australia to her receiving country of China, there is a real risk she 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.)
Having considered the applicant’s written statement of claims the Tribunal finds that she has not provided sufficient detail or evidence to support her claims that she borrowed money from a loan shark at a high interest rate which she could not repay, that she was told she would be sent to a ‘prostitution place’ to earn money to repay the debt, and was caught and punched when she did not comply. This is for the following reasons, considered cumulatively.
Firstly, the applicant has provided no detail regarding the loan she claims to have taken, such as why she needed to borrow money, when she borrowed the money, how much she borrowed, and why she decided to take a high interest rate loan when she could not even repay the interest. She has not indicated what the terms of the claimed loan were, including the interest rate, duration of the loan, size and frequency of the repayments, and whether she had to provide any collateral for the loan. Additionally, the applicant has provided few personal details in her application, including no information regarding her parents or any other family members. She stated that she has never studied and has never worked but indicated she lived off savings, without explaining how she was able to accumulate savings if she has never worked and owed a debt to a loan shark.
Second, the applicant has not provided any supporting documents, such as a copy of a loan agreement, or, if this was not possible, explained why this was not possible.
Third, the applicant states that she thought she was borrowing from a bank, but it turned out it was not a bank but a loan shark. She has not explained how she could have mistaken a loan shark for a bank.
Fourth, while the applicant stated that she did not seek help within the country after she was threatened with being sent to a ‘prostitution place’ and was caught and punched when she didn’t comply, she contradicted this by stating that the ‘police said they cannot help me as I signed the document’, indicating that she did seek assistance from the police. If this was in fact the case, the applicant has not provided any information regarding why her having signed a loan agreement would mean that police would not assist her if she was threatened with forced sexual servitude and ‘caught and punched’ as claimed, quite different matters to failing to meet loan repayment obligations. While failing to honour a loan agreement might be regarded by police as a private/civil matter rather than a criminal matter, it seems unlikely that police would say they can’t help someone being coerced into prostitution, through actual violence, because they signed a loan agreement.
Fifth, the applicant claimed that if she returned to China the loan shark would catch her and send her to the prostitution place and if she refused she would be killed. The applicant did not explain, however, how she managed to escape from these people when she did not comply with their demand to go to the prostitution place while she was in China, even though she states that she was caught and punched by them. While she states that these people will lock her in and she won’t have a chance to run away from the loan shark’s people, who she claims are a powerful underground group who have all her information, she does not indicate how she managed to escape from them after being caught previously, and how she was able to fund and obtain a visa and travel to Australia in March 2018.
If the applicant had participated in the hearing, the Tribunal would have asked her in detail about these issues. On the available evidence, the Tribunal is not satisfied that the applicant has established her claims to have borrowed money from a loan shark at a high interest rate, where she could not even pay the interest, that she was threatened with being forced into prostitution to repay the debt, and that when she failed to comply was caught and punched.
After carefully considering the available evidence, the Tribunal has concluded that the applicant has concocted her claims. The Tribunal does not accept that she borrowed money from a loan shark that she could not repay, was threatened with forced prostitution to repay the debt and, when she didn’t comply was caught and punched. Accordingly, the Tribunal does not accept that the applicant sought but was denied help and protection by local authorities.
As the Tribunal finds that the applicant does not owe a debt to a loan shark which she cannot repay, has not been threatened with forced prostitution, caught and/or subjected to violence by a loan shark or their agents, the Tribunal finds that there is not a real chance or a real risk that the applicant would suffer serious harm or significant harm from a loan shark and/or their agents should she return to China.
As the Tribunal finds that the applicant does not face a real chance of suffering serious harm or a real risk of suffering significant harm should she return to China, the Tribunal finds that the applicant does not require the protection of the Chinese authorities.
Does the applicant have a well-founded fear of persecution if she returned to China?
For the reasons given above, the Tribunal does not accept there is a real chance that the applicant will suffer persecution involving serious harm from a loan shark and/or their agents, for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, if she was to return to China, 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 being removed from Australia to China, 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.[7]
[7] 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 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 her being removed from Australia to China, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from a loan shark and/or their agents, 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, the applicant 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.
…

[2021] AATA 705

17 February 2021

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice