1912005 (Refugee)

1912005 (Refugee) [2019] AATA 6059 (12 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912005
COUNTRY OF REFERENCE:                   Belgium
MEMBER:Roslyn Smidt
DATE:12 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 August 2019 at 11:15am

CATCHWORDS
REFUGEE – protection visa – Belgium – particular social group – women – children – gender based violence – victim of sexual and physical abuse by family members – death threats – confinement to mental health institutions – forced prostitution – investigations into paedophiles – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, 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 17 April 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Belgium, applied for the visa on 31 December 2018. The delegate refused to grant the visa on the basis that she could access protection from the authorities in Belgium.
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 Complementary Protection Guidelines and 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.
BACKGROUND AND ABILITY TO PROVIDE EVIDENCE
The applicant is [an age] year old woman from Belgium. She arrived in Australia [in] August 2018 on an Electronic Travel Authority. On [a date in] December 2018 she was located destitute at [an] Airport after which she was interviewed by [Status Resolution] staff and referred to [an international agency] for assistance in returning to Belgium. When the client met with [that agency], she decided that she did not want to depart and she instead lodged a protection visa. Following this she lived briefly with a friend, before becoming homeless again before Christmas 2018. During discussions with [Status Resolution] staff [in] January 2019 she said that she had been forced to perform sexual acts while in Australia and also claimed that she could not return to Belgium as she was a victim of abuse by her father and other males in her life. She stated that she was pregnant, but was unable or unwilling to provide any details of when she conceived or the identity of her child’s father.
[In] March 2019 a social worker from [a named] Hospital confirmed that the applicant was an inpatient at the hospital. The date and circumstances of her admission are not clear, but it is clear that she was admitted due to psychiatric issues as she was in a locked ward. [In] April 2019 an officer from [Status Resolution] contacted a social worker at the hospital requesting information on the applicant’s cognitive ability/awareness in relation to the handing down of the decision on her case and whether a guardian was required. The hospital responded that the applicant did not currently require a guardian to receive information about her application. The applicant was discharged from hospital [in] May 2019 and since that time she has resided in a home for pregnant women.
[Later in] May 2019 the Tribunal received correspondence from a child protection worker at the [state welfare department] which indicates that the Department has concerns for the applicant’s unborn child and that she continues to have contact with mental health professionals.
Given the applicant’s mental health issues and the possibility of issues regarding her ability to provide evidence the Tribunal attempted to contact the social worker or case worker who had assisted when she was hospitalised to ascertain whether she had legal representation and to recommend that she be assisted to obtain professional advice in relation to her visa application. The Tribunal was advised that the social worker at the hospital was no longer involved in the applicant’s and staff at the home where she was residing advised the Tribunal to contact her directly to discuss her representation. The applicant failed to answer the Tribunal’s calls.
The applicant attended the hearing on 8 July 2019 alone. According to her evidence at the hearing she had been hospitalised in Belgium for psychiatric reasons at least twice. The nature of her evidence at the hearing indicated that she continued to suffer from mental health issues.
At the end of the hearing I suggested that she might benefit from advice from a suitably qualified migration lawyer or agent. She said that she had received some assistance in the past from a lawyer called [name]. I urged her to contact [that lawyer] to obtain advice or assistance locating a suitable adviser perhaps at one of the community organisations which provide assistance in the migration area. I advised her that I would delay a decision on her case for two weeks and that I would contact her prior to finalising her case to see if she had been able to obtain any assistance and wished to make further submissions.
On 24 July 2019 the Tribunal contacted the applicant to see if she had obtained legal representation. She said that she was meeting with a lawyer later that day. On 25 July 2019 she provided the Tribunal with the name and number of the lawyer. The Tribunal contacted the lawyer who advised that she had provided the applicant with some advice in the past but was not currently representing her. Subsequent attempts to contact the applicant were unsuccessful and she has not contacted the Tribunal with any further information regarding her representation.
While no medical evidence setting out a diagnosis of the applicant’s mental health issues has been provided it is clear that the applicant suffers for ongoing mental health problems. In these circumstances it would have been beneficial for the applicant and helpful for the Tribunal if she had been assisted by a registered migration agent or lawyer. However, to the extent possible given the lack of medical evidence, I have taken account of the applicant’s mental state in considering her claims and I am satisfied that she has had a fair opportunity to provide relevant evidence in support of her application.
CLAIMS AND EVIDENCE
In her protection visa application the applicant indicated that she wished to provide her claims orally. On 15 January 2019 she was asked to provide additional information, but failed to do so. She was not interviewed by the Department of Home Affairs in relation to her application for protection. The delegate who decided her case noted that she had told the Status Resolution Officer that she had been abused by her father and other men in Belgium and addressed this issue in her decision.
In her decision the delegate reviewed evidence relating to the rights of citizens of Belgium to reside in other European Union countries as set out in the Treaty of Maastricht and concluded that she had a right to enter and reside in other EU countries.
The delegate also reviewed evidence regarding the issue of protection of victims of abuse in Belgium. She noted that the US Department of State Human Rights Report for Belgium for 2018 stated that the Belgium government has effective mechanisms in place to investigate and punish abuse and corruption and that there were no reports of impunity involving the security forces that year. She also noted evidence from a 2016 report by the European Institute for Gender Equality and an Amnesty International report which state that women who are victims of violence have access to protection measures including protective orders and access to housing.
In these circumstances the delegate found that the applicant’s fears of serious or significant harm were not well-founded.
The applicant attended a hearing on 8 July 2019. A French interpreter was provided, but the applicant preferred to give evidence in English. The interpreter remained throughout the hearing and the applicant was advised to use his services should she wish to do so. As discussed below, her responses and the evidence she provided were confused. However, there was nothing which suggested that she lacked the ability to provide evidence in English.
The applicant’s evidence at the hearing was confused and confusing. In essence she appears to be claiming that she was a victim of sexual and physical abuse by family members and others over many years in Belgium, that she was the subject of harassment and death threats related to information she has obtained regarding paedophiles in Belgium, that she was wrongly confined to mental health institutions and that the authorities in Belgium would not or could not provide her with protection.
The applicant said claimed that she was abused by relatives and other men as a child with the knowledge and agreement of her mother. She said that she fell pregnant at the age of ten and was taken somewhere, but she appeared to be unsure whether she had given birth to a child at that time and if so what had happened to that child. She said that the abuse ceased when she was fourteen, but also suggested it continued following that time. She claimed that after leaving home her stepfather and possibly others had attempted to force her into prostitution. She appeared to suggest that she was forced to work as a sex-worker for brief periods, but this was not clear. She said that she had fallen pregnant at the age of 26 and family members had taken her to a private hospital where some relatives worked to secure an illegal late term abortion. She said that some time later she had seen or been sent a picture of her son on the internet. When asked how she knew it was her son she said that she had recognised him and added that she believed that someone, possibly a relative, had stolen the baby, or possibility stolen both children she had given birth to.
The applicant said that she had investigated or somehow obtained information about paedophiles in about 2012 including cases relating to her family and friends. She said that she had written down the information she had obtained and had spoken to a few friends about it. She also said that she had tried to contact human rights groups in a number of countries and had spoken to a police officer about this, but nothing happened. She said that one involved a young girl who was a relative of her step-father who was drugged and abused. She spoke to the parents of the child who told her that a child of nine or ten had abused her. She also spoke to her brother, but she did not speak to the police because her mother and step-father were very powerful and could not be touched. She was unable to explain why her mother and stepfather were so powerful.
The applicant said that people had access to her apartment. She said that she had been living with a relative and she believed that the people who entered the apartment were trying to destabilise or discredit her because she was investigating paedophiles. She said that because of this problem she had to leave the apartment and live with a friend. These problems appear to have occurred relatively recently. She also spoke about an aunt who had offered or tried to help her who had died or been killed but the circumstances were unclear.
The applicant said that she had received about eight death threats because of her investigations into paedophilia. These threats appear to have come from members of her family, but she also claimed that she had been attacked by an unknown person in the street outside her home. She said that when people came to her assistance her would-be attacker called the police and accused her of something. The police held her in a police car and by the time she established that she lived in a nearby apartment the man had left. She said that she believed that she had been targeted by the man who had attacked her, but she did not know why.
The applicant spoke about being confined in mental health institutions on two occasions. In about December 2013 she went to live in a house with some Muslim people and converted to Islam. Several days later she was detained and taken to a hospital where she was held until February 2014. She said that this occurred because she had converted to Islam. She spoke about contacting a lawyer and writing letters to a judge. She said that she was never seen by a psychiatrist, but the judge ordered that she remain in the hospital. She also spoke about an occasion in 2015 when she stayed with a friend of her father while waiting to meet her father. When her father arrived he called an ambulance. She protested, but she was taken to a hospital where she was sedated and when she woke she was in a clinic wearing a nappy. She later contacted a lawyer. It is unclear how long she was hospitalised on either occasion.
I asked the applicant if she still considered herself to be a Muslim. She said that she did and regretted that she was not practicing correctly, but also said that she wanted her son to have a Christian education.
I asked the applicant if she had ever contacted the authorities or a lawyer in Belgium to help her with the abuse which she had suffered. She did not respond directly. I advised her that it was my understanding that people in Belgium were able to access help if they faced abuse of the kind she had spoken about or if they had psychological or psychiatric problems. The applicant said that her rights had not been respected when she was hospitalised and nobody had helped her.
I noted that the delegate had found that the applicant could leave Belgium if she felt unsafe and live in another country in the European Union. The applicant said that the people who wanted to harm her were powerful and had contacts everywhere in Europe.
I asked the applicant what she feared would happened to her if she returned to Belgium. She said that she would not be able to get a job and her parents would spread bad information about her.
I asked the applicant about her current pregnancy. She said that the father of her baby was Australian. She had some contact with him and he had told her he would be present at the birth of her child. I observed that her pregnancy did not appear to be relevant to her application for protection, but suggested that she would benefit from professional migration advice regarding her current situation.
CONSIDERATION OF THE APPLICANT’S CLAIMS
Much of the applicant’s evidence regarding the problems she experienced in Belgium was confused, some of it implausible. For example, she claimed that she was pregnant at the age of ten, but was uncertain if she had given birth. She claimed that she was forced to have a late term abortion in her twenties, but also she had seen or been sent her child’s picture online and said that she believed that both of her children had been stolen. She claimed that she had evidence of paedophilia, but did not provide a coherent account of how she obtained this information and claimed at different times that she had reported these allegations to the police and that she had spoken to the police, but they failed to respond. She claimed that she had received eight death threats and appeared to suggest that they came from her family, but when asked for more information she spoke about being accosted in the street by someone who called the police and was permitted to leave when they arrived.
In light of the applicant’s ongoing mental health issues I accept that she believes the claims which she made at the hearing to be true. However, I did not find her to be a credible witness and, while she may have suffered abuse from someone at some time in the past, I am not satisfied that her claims regarding being continually abused and threatened by her family or anyone else in Belgium are true. It follows that I am not satisfied that there is a real chance that she faces serious or significant harm from members of her family or anyone else on return to Belgium because she has information on people involved in paedophilia or for any other reason.
For the sake of completeness I also note that, as pointed out in the delegate’s decision, information from a number of sources indicates that Belgium provides effective protection to women who are victims of gender based violence[1]. It has a reasonably effective and impartial police force and judicial system and the government has identified tackling gender-based and domestic violence as a priority for police and prosecutorial authorities and women who are victims of violence in Belgium have legal access to protection measures.
[1] See for example US Department of State Country Report on Human Rights Practices, Belgium 2018; Combating violence against women - Belgium', European Institute for Gender Equality, 25 November 2016 and "Amnesty International Report 2016-2017",

I accept that the applicant was confined to psychiatric institutions in Belgium on at least two occasions and that this was done on an involuntary basis. I also note that she was admitted to a psychiatric institution in Australia on what appears to have been an involuntary basis. As pointed out at the hearing, the evidence indicates that appropriate care is available for people suffering from mental health problems in Belgium. A recent report by the World Health Organisation[2] sets out the services available to people suffering from mental health issues in Belgium. According to a report on Belgium’s mental health services in a publication aimed at expatriates[3], compulsory admission to psychiatric institutions in Belgium involved a medical recommendation and assessment by a psychiatrist. An appeal process is available to patients who also have access to a lawyer. Neither report suggests that mental health patients are held inappropriately or abused while in care.
[2] Belgium: switching to community mental health care Peace of mind: The Bulletin's guide to mental health in Belgium 18 February 2016
Again, while I accept that the applicant genuinely believes that she was wrongly confined to psychiatric institutions in Belgium or denied proper treatment while held in institutions, I do not accept that this occurred in the past or that there is a real chance that she will suffer serious or significant harm on return to Belgium as a result of being inappropriately admitted to or confined in a psychiatric institution or receiving inappropriate or inadequate treatment while a patient in such an institution.
I have considered the applicant’s claims that her parents may spread false rumours about her. It is not clear why they would do this or why this would result in the applicant experiencing serious or significant harm on return to Belgium. There is no credible evidence before me which suggests that the applicant suffered serious or significant harm in prior to leaving Belgium as a result of rumours spread by her parents and on the evidence currently before me I am not satisfied that she would suffer serious or significant harm as a result of false rumours if she returned to Belgium.
I have noted the applicant’s claim that she would not be able to get a job if she returned to Belgium. I acknowledge that the applicant’s mental health issues may make it difficult for her to obtain or keep a job. However, I am unaware of any evidence which suggests that she would be denied employment or the right to earn a livelihood as a result of discrimination related to her health issues or for any other reason. On the evidence currently before me I am not satisfied that she would suffer serious or significant harm as a result of being denied employment or the right to earn a livelihood if she returned to Belgium.
I have also noted that the applicant is pregnant. It appears that the applicant’s child was conceived in Australia and may be entitled to Australia citizenship. At the hearing she claimed that the child’s father was an Australian citizen, but no evidence to support this has been provided. The applicant’s evidence at the hearing indicated that she was not currently in a relationship with the father of the child and that he had little involvement or interest in the child. As noted above, the [state welfare department] has been monitoring the applicant’s situation with a view to ensure that the welfare of her child is protected.
No protection claims have been raised in relation to the applicant’s pregnancy or child and I am unaware of any reason why the fact that she is pregnant or has given birth in Australia would place her at risk of harm if she returned to Belgium. For the sake of completeness, I am not satisfied that the applicant faced a real chance of suffering serious or significant harm on return to Belgium because she gave birth to a child in Australia.
IS THE APPLICANT ENTITLED TO PROTECTION?
After considering the applicant’s claims singly and cumulatively, I am not satisfied she faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s.5J(1) of the Act. Therefore I am not satisfied that she has a well-founded fear of persecution in Belgium now or in the reasonably foreseeable future.
After considering the applicant’s claims singly and cumulatively, I am not satisfied she faces a real risk of suffering significant harm on return to Belgium. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Belgium, there is a real risk that she will suffer significant harm.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
Roslyn Smidt
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 6059

12 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness