1914697 (Refugee)

1914697 (Refugee) [2024] AATA 1968 (21 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1914697
COUNTRY OF REFERENCE:                   China
MEMBER:Rosa Gagliardi
DATE:21 May 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 May 2024 at 9:46am
CATCHWORDS
REFUGEE – protection visa – China – borrowed money from friend to start business – business failed and applicant unable to repay – attacked and wounded and wife insulted – consent to decision without hearing – vague claims and no supporting documentation – member of family unit wife – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 17 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China (a matter the Tribunal accepts), applied for the visas on 27 January 2018.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicants were refugees as defined by s.5H of the Act and was therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to China, there is a real risk they will suffer significant harm as defined in s.36(2)(aa).
On 29 April 2024 the Tribunal wrote to the applicants to advise that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal therefore scheduled a hearing for the applicants to put forward their claims in person on 22 May 2024, 10:00am [EST]. The invitation also stated that the Tribunal would consider any submissions made and that the applicants should have regard to the Departmental decision which sets out the reasons for the refusal. The Tribunal also suggested that the applicants advise the Tribunal of any changes in their circumstances in providing documents and in preparing for the hearing.
The Tribunal also notes that on 26 March 2024 the applicants were advised that their file was being prepared to be given to a Tribunal member for review. This communication also enclosed a pre-hearing information form enabling the applicants to provide any further information about their claims for protection and to state whether there were any other reasons they were afraid to return to their home country.
The Tribunal notes that the applicants never responded to this pre-hearing invitation.
On 18 May 2024 the applicants wrote to the Tribunal to advise that they would both not be appearing at the hearing scheduled on 22 May 2024 at 10:00 [EST] and to “Please let us know the Member’s decision”.
The Tribunal is aware that an applicant should be given the opportunity to put forward their claims in as much detail as possible via a hearing and the ability to proceed to decision on the material before it is discretionary only. From the applicant’s correspondence the Tribunal is satisfied that the applicants do not wish to attend a hearing and are prepared for the Tribunal to make a decision on the papers. This has also been enabled because the applicants have provided the Tribunal with a copy of the Departmental decision for the purpose of the review.
The Tribunal considers that it is pertinent that the applicants have been granted multiple opportunities to put forward their claims to both the Department and the Tribunal. On
9 February 2018, for example, the applicants were sent an acknowledgement of valid application letter by the Department which stated they could provide additional information relating to their claims. The applicants were provided three channels for submitting additional information: ImmiAccount, mail or in person at the time of the collection of personal identifiers. The letter also informed the applicants that the decision on their application could be made without another opportunity to present any further information. The applicants never provided additional information in support of their claims to either the Department or the Tribunal.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants have a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicants were returned to China now or in the reasonably foreseeable future, they would be persecuted for one of those reasons, and whether they would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicants will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
In their application the first-named visa applicant wrote that he and the second-named visa applicant, his spouse, left their country because:
In 2013, my wife and I borrowed from a friend 600,000 yuan to open a [business]. No profit, encountered a plague, [stock] all died. Friends need money to do business, ask for money with me, I have no money to him, my friend is very angry, he forced me to sell my car, took away 100,000 yuan, I still owe him a lot of money, he has chased I want the money, I have no money to him, he destroyed my house every day, my wife was frightened, the spirit is about to collapse!
The applicants advanced that they had experienced harm in their country. Asked to set out the details the first-named visa applicant wrote:
I ran a [business] and borrowed money from my friend [Mr A]. Because of the plague, all the [stock] died. I did not have the money to repay the debt. The creditor forced me to sell my car and took the money away. He often smashed into my home, abusive. He wounded my arm and insulted my wife with foul language. My family did not have a normal family life and I and my wife were under great stress and almost collapsed!
The first-named visa applicant stated that they had sought assistance in his country and:
My wife and I went to the police station for help, and the police station warned him not to hurt us. But useless, creditors often harass us in my home.
He also wrote they did not try to move to another part of their country because, “We owe friends too much debt, and we can not escape debt without moving anywhere”. Asked to set out what the applicants thought would happen to them on return to China, the first-named visa applicant wrote, “If we go back, my friend will have money with us. We have no money for him now. He will always harass us. We can not live a normal life”. The applicants also confirmed that they thought they would be harmed or mistreated if they returned to their country as, “Our spirit is about to collapse. If we go back, my friends come to my house for money every day. We have no money for him, he will hit me and insult my wife. We will be crazy”.
The first-named visa applicant advised he did not think the authorities of their country could or would protect them if they returned because, “The government can not help us, and the government can not help us pay our debts”. They also wrote that they did not think they would be able to relocate to another part of the country because they did not have the ability to move; so that would not help.
The second-named visa applicant’s claims mirrored those of her husband’s.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal had invited the applicants to a hearing because it had concerns about their claims. The applicants declined the opportunity to appear before the Tribunal to provide additional significant information to fill in gaps in their claims and to provide context that would have led the Tribunal to accept that the claims made by the applicants are indeed genuine.
As it is, the Tribunal has significant concerns regarding the applicant’s claims that in 2013 or at any time, the applicants borrowed 600,000 yuan (equivalent of roughly AUD123,709.23 in current terms), from a friend, [Mr A], to start a [business] which did not turn a profit, and during a plague all the [stock] died, leading to his friend who needed the money repaid being very angry and forcing the first-named visa applicant to sell his car, smashing his home, being abusive and insulting, wounding the first-named visa applicant’s arm, and placing the applicants under great stress.
In essence, the Tribunal finds the information provided by the applicants about what they claim occurred in China is vague and general, and lacking in specificity. Despite efforts by the Department and the Tribunal to elicit further information, including supporting material, the applicants have not availed themselves of such an opportunity, leading the Tribunal to have many unanswered questions.
Had the applicants chosen to attend a hearing, the Tribunal would have asked them to provide detailed information about when precisely they borrowed the significant amount of money and on what terms they did so, for example, were interest rates agreed and what these were. Also relevant, is whether the applicants and [Mr A] had a written contract setting out such terms of the loan.
Other questions the Tribunal would have liked to put to the applicants is why in borrowing such a large amount of money they had not thought of going to a regular institution such as a bank, rather than a person who appeared to have criminal tendencies in smashing their home and assaulting the first-named visa applicant on the arm. At a hearing the Tribunal would have liked to ask many questions about the identity of [Mr A] and how they had come to be friends with him. The Tribunal would have also asked had the first-named visa applicant sought medical assistance in terms of the injury to his arm, and if so whether he would be able to provide medical evidence that he had attended a clinic because a creditor had assaulted him.
The Tribunal would have liked to understand at a hearing why the applicants had decided to go into [business activity] and whether they had had previous experience in [business task], for example.
The Tribunal also considers it reasonable that had the applicants opened a [business] that they could provide evidence such as registration of this [business] with the authorities, and evidence of when it ceased to become a business concern. It is unclear whether the applicants are claiming that they leased or purchased a property to run the [stock], however, this is another matter that if the Tribunal were to accept occurred, the applicants would be able to substantiate with probative evidence. In addition, their bookkeeping records would show that their business venture failed to make a profit and turned into a failed venture.
The Tribunal also has queries about “the plague” referred to by the applicants in their application. Was this a plague that affected just their area or a more widespread plague? Other questions involve whether in the 600,000 yuan borrowed, the applicants had accounted for feed for their animals over a longer period in the event of such a plague or a drought.
The applicants claim that they went to the police station for help and that the police had actually warned [Mr A] not to hurt the applicants, but the creditor/s continued to harass the applicants in their home. At a hearing the Tribunal would have asked the applicants whether the police had made a report of their complaint and whether they could submit that as evidence of their approach to the police.
The applicants also refer to mental and physical collapse and would have liked to ask them whether they have sought mental health treatment for any stress-related conditions and evidence that they had done so either in China or in Australia.
The Tribunal reiterates that it is not for the Tribunal to make the applicants’ claims.
The Department did not consider that the applicants’ claims were captured by s.5J(1), that is, they were not claiming to fear persecution for reasons of their race, nationality, religion, membership of a particular social group or political opinion. The applicants have claimed that they have a personal matter with their creditor/s who wants the money he lent them repaid. The applicants are also not stating that the state of China wishes to harm them for any reason.
The Tribunal is prepared, however, to consider whether the applicants are members of a particular social group, being “persons who have lost everything and are burdened with debts they cannot repay”. In this way, the Tribunal would have regard to whether the applicants on account of this particular social group would face serious harm by way of denial of capacity to earn a livelihood of any kind, where the denial threatens the persons’ capacity to subsist.
Without even arriving at the issue of whether the claims put forward by the applicants fall within the purview of s.5J(1) or s.5J(5) (serious harm), the Tribunal finds that the applicants have not made out their case. Given the significant gaps in information before the Tribunal and given the vague nature of the claims advanced, the Tribunal does not accept any of the applicants’ claims that they will be persecuted in China, for any reason under s.5J(1) or for any other reason. The Tribunal therefore does not accept that:
·      in 2013 or at any time the applicants borrowed 600,000 yuan to open a [business].
·      that the loan was from a person called [Mr A].
·      that they did not make a profit from the venture.
·      the [business] was affected by a plague and all the [stock] died.
·      friends or creditors were asking for money from the applicants.
·      someone called [Mr A] was very angry with the applicants and forced the applicants to sell their car and took away 100,000 yuan from them.
·      the applicants had no money to give [Mr A] and he often smashed their home, was abusive, wounded his arm and insulted the second-named visa applicant with foul language.
·      the applicants reported the matter to the police, and they warned [Mr A] not to hurt the applicants to no avail, as “creditors” continued to harass them at home.
·      The applicants have suffered serious mental and physical stress and almost collapsed.

Having rejected the applicants’ claims individually and, in their entirety, the Tribunal does not accept that the applicants will come to the attention of the authorities or any individual actor or actors or agency in China. The information before the Tribunal is vague, unsubstantiated, and unconvincing.
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criteria in s.36(2)(aa).
The Tribunal has also considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that the applicants will suffer significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution. The Tribunal having had significant concerns about the applicants’ claims, individually and in their totality, and having rejected these claims, finds that it is not satisfied that there are substantial grounds for believing that there is a real risk the applicants will suffer significant harm due to any adverse profile with any individual non-state actors, or individuals acting on behalf of the state, or any agency in China. The Tribunal rejects that the applicants will be arbitrarily deprived of their lives; or that the death penalty will be carried out on them; or that they will be subjected to cruel or inhuman treatment or punishment; or that they will be subjected to degrading treatment or punishment by non-state or state actors because it has rejected the applicant’s claims that they were ever of interest to any creditors in China on account of having borrowed 600,000 yuan to run a [business] which then failed.
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).
For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rosa Gagliardi
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.
…

[2024] AATA 1968

21 May 2024

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Immigration

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Judicial Review

Procedural Fairness

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