1918922 (Refugee)

1918922 (Refugee) [2024] AATA 4230 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1918922

COUNTRY OF REFERENCE: Mexico
MEMBER:Denis Dragovic
DATE:10 October 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2024 at 4:49pm
CATCHWORDS
REFUGEE – protection visa – Mexico – imputed political opinion – Party of the Democratic Revolution member – criminal gang – political killings – home robbery – father’s detention – extortion – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
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 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 21 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Mexico. He applied for the visa on 10 June 2015.
The applicant appeared before the Tribunal on 9 October 2024 to give evidence and present arguments.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age]-year-old male man from [Town 1]. [Town 1] is in the state of Guerrero, Mexico.
The applicant studied in [Town 1] through to junior high school and then moved to Mexico City to continue his education before going to [Country 1] to study at a university in [state].
Upon return to Mexico, he started working for [Agency 1] in Guerrero. [Later] he met his future wife who also worked for [Agency 1]. They married in Feb 2012.
The applicant obtained his job through a meeting with a former [Official A] who had become the [Official B] for the state. The applicant didn’t know him at the time, but both were members of the same Church. The applicant believes that it was simply that the man liked him, and their faith brought them together and so he got the job. He was [age] years old at the time.
The role was to lead the [Team 1] within [Agency 1]. His immediate report was a ‘[position title]’ and above him was the [Official B].
The job being a political appointment required the applicant to join the ruling party within the state, the Party of the Democratic Revolution (PDR). He said that he didn’t want to join a political party, but he wanted to work for the government, so he joined.
In September 2014 forty-three students who had commandeered buses in [Town 1] to take them to Mexico City to participate in a commemoration were disappeared. At the time, no one took responsibility. In subsequent investigations under the Mexican president, information has revealed that the army, navy, and police knew where the students were at all times. It was found that they had ‘collaborated to make them disappear’ and that it was most likely in cahoots with local drug lords.[1] The applicant provided considerable information on this incident.
[1] >
The applicant claimed that this incident precipitated his departure from Mexico. He said that [Official A] was arrested, and as [Official B] who had found him a job had strongly supported the arrested [Official A] the [Official B] also resigned. The applicant felt that he no longer had political patronage to protect him, so he started to look to go abroad.
The applicant explained that in Guerrero there are many different drug cartels but two main ones and depending upon the political party in power at the time one or the other is aligned with the government.
The applicant described how one of his friends who worked in another section of [Agency 1] and was aligned with the same faction within the PDR as him died in late 2014. The applicant believes that he was murdered. He said that the friend had a car accident but that the brakes didn’t work. He explained that this friend was one of the right hands of the then [Official B], that they would travel together, and the friend would be often seen alongside the [Official B]. The applicant believes that he was killed through the process of the changing power dynamics after the student massacre.
The applicant said that he had also been seen together with the arrested [Official A] and that the [Official B] had warned him about the risks of organised crime and that everyone was looking for people to blame. He felt that he had to leave immediately.
The applicant applied for a student visa and came to Australia in January 2015. He didn’t want to go to [Country 1] as he would have been legal there and he applied twice to move to [Country 2] but was rejected.
His wife, whom he had married in 2012 did not join him. He described her as being a family-oriented person and that she wanted to remain with her family. They met again in [Country 1] in 2017 but he hasn’t seen her since. He said that over time they stopped talking. She told him that she would file for divorce, but he doesn’t know if she has. He explained that in Mexico the other person in a divorce proceeding doesn’t need to be present. He said that he has asked her when they last communicated if she has done that, but she didn’t reply. Then he learned that she was with another man.
The apartment of the applicant and his then wife was broken into in September 2013. At some stages of the applicant’s evidence to the Department it appeared as if it was also broken into in 2014 but the applicant confirmed at the hearing that it was only once.
The applicant explained that he and his then wife were living [a short distance] away from [Agency 1]. They would walk there and then come back after work. On the day of the robbery, someone must have come into their apartment while they were at work. They took the television, laptops, money, jewellery, and all his paperwork. The police were called, and they took pictures of the crime scene, but they explained that robberies were common and that it was unlikely that they would recover the stolen goods. He said that the next day when he went to his job, his immediate boss who was within a different faction of the PDR, asked him about his apartment implying that everyone knew what happened. The applicant took this to mean that there was some political involvement.
He said that he found out that his immediate supervisor from the other faction has relations with organised crime. He believes that it was organised because only their apartment was hit. He added that all of his documents were taken which implied that they were after information that they could use to extort him. He believes that it was to get leverage on him. Maybe they were hoping to find videos or photos that can incriminate him. But he confirmed that at no time did anyone contact him with any extortion demand.
During this period the applicant was also dealing with his father’s incarceration. His father was imprisoned in October 2013 for ostensibly introducing a buyer to a seller that didn’t fulfill their obligations. The applicant’s father called him when he was being detained and the applicant subsequently travelled to the prison where he was serving his sentence. Initially he travelled every weekend but that subsequently reduced to every two weeks and then every three. He said that he needed to bribe the police just to enter. He described the prison as being run by the drug lords. Prisoners need to pay for everything from going to the toilet to eating. For this reason, the applicant would buy a stack of tortilla and then put money between the tortillas to give his father some resources while in the prison.
At the same time the applicant didn’t want his employer to find out that his father was in prison. For this reason, he didn’t work his connections to help his father.
The applicant claimed that during this period he would sometimes speak with the gang members over the telephone. He detailed how he would get requests for more food or certain goods be brought in. Sometimes the calls were indirect threats such as, ‘we’ll take care of him, just bring this.’ The applicant said that this continued while he was in Melbourne and he would hear threats to his father, so he would deposit money as requested. The applicant said at the hearing that he wasn’t directly threatened by those in the prison, but they did appear to know details of him.
The father’s sentence was for [period]. He was released in 2016. He moved immediately to Mexico City to live with [a relative] and has not returned to his former hometown and state. The applicant claims that his father changed his phone and doesn’t respond to unknown numbers, that way he has avoid any further contact with the prisoners he had dealings with.
Once the father was released the applicant stopped responding to calls from unknown numbers and so he hasn’t received any contact from anyone related to his father’s experiences since his father’s release.
The applicant received threat by way of a letter that was received by his wife in December 2015 while he was living in Australia.
The letter states:
Mrs [name] we have searched for your husband [applicant name] but we know he’s left the country so you can tell him not to come back because we are going to kill all the people that belonged to [the previous] government as well as those related to [Mr A] and his family [named]. We know where your husband is because his father is in prison so tell him to send more money for his quotas if he doesn’t want you or his family to pay the consequences. Yours [Leader A].
The applicant believes that the letter is connected to his father and his own politics. [Leader A], he explained, was one of the gang leaders in his father’s prison, and he believes he was related to one of the powerful gangs in Guerrero.
In his written submissions he wrote that he received a threatening call in November 2018 that led to him deleting his social media accounts as he believes that someone saw that he was living abroad and living a life that indicated that he had some money. He believes someone thought they could collect money from him. At the hearing the applicant said that this phone call was most likely the last threatening call he received, but he wasn’t sure.
The applicant explained that the current political make up of Guerrero is the MORENA Party which is an off shoot of the old PDR. He said that it was because of the past scandals no one wanted anything to do with the PDR, so a new political party was created by the same people. [Details deleted.]
The applicant has not been involved in any political activities while in Australia. Nor has he been involved in any activities that could lead to him facing any harm in Mexico.
I accept the applicant’s narration of events as they have been consistent, he has provided a level of detail spontaneously that gave weight to his evidence and all that he said that could be verified against independent third-party information aligned.
With regards to the suspicions of the applicant regarding the 2013 home invasion, I find that it would be speculative to reach a conclusion that their apartment was targeted because of his political role based on the evidence before me. The applicant was never extorted despite remaining in his role for over a year after the break in, the applicant had provided evidence of a high level of crime in those years, and that others knew is explained by the police presence being known to other political leaders.
With regards to the death in a car accident of a work colleague, similarly, there is insufficient evidence to base any weight on the applicant’s suspicions that it was foul play considering that the applicant acknowledged that it appeared to be a car accident. This is supported by what appears on the material before me that the murderers of Guerrero don’t go to such lengths to disguise their killings.
Considerations
Having accepted the applicant’s narration of his life, I now turn my mind to consider whether upon return he faces a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
The applicant was never a political operative. He was recruited into a role for reasons other than his political beliefs. Once in the role he was imputed to have the same political beliefs as the faction of the PDR that appointed him. I accept that this would have been known by those who follow such things. As politics in Guerrero is intertwined between the drug lords and politicians, I accept that people in both camps would have been aware of his affiliation.
But the applicant was not a political player, and while in his position at [Agency 1] there was not claim that he made decisions that offended one group or another. The threats he received appear to have been only for the purposes of extortion based on social media posts showing him living in Australia or direct knowledge through his father. If he was to return to Mexico that trigger would no longer be relevant.
The applicant noted that [Official B] who had recruited him continues to live in [Town 1], albeit with the explanation that he knows how to protect himself whereas the applicant doesn’t. This is relevant as it lends some weight to the applicant not being at risk as his patron who was political, who had wielded power and was more widely known has not been harmed although I accept that the former [Official B] would have resources available to him that the applicant would not.
In considering the situation, I note that it has been nearly ten years since the applicant left Mexico. Ten years since he held any role that would associate him with a political party. He was never senior or of a high profile although I accept that he was photographed alongside people who were. I note that the political party that is in power now is the same as the applicant’s albeit of a different faction. I also accept that into the reasonably foreseeable future there could be a change in government and an opposing group may come to power.
Ultimately, a central consideration that I need to turn my mind to is whether someone will be willing to dedicate the resources, make the moral choice, and be willing to take the risk of being either publicly identified or charged to target the applicant.
I accept that, to use a colloquial term, ‘life is cheap’, in such places as Guerrero, and so the equation would be different than in places such as Australia for various reasons. These include that the government is corrupt and so they may not go after those that harm the applicant leaving little deterrence, or for a debased person who has ordered many murders or carried out many violent attacks, another hit may mean little. In reflecting on this situation, the below referenced country information regarding the current situation in Guerrero was taken into consideration as providing further context.
When considered overall, noting that the applicant does not have an intention to return to politics, not having been involved while abroad and even at the outset not being political until he obtained his first government role, I find that the dynamics of the past that may have impacted him then have not carried over to the now. I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal upon return to [Town 1] for the reasons of his past activities and associations.
The applicant noted how the state of Guerrero has a high crime rate and claimed at various stages that he would be at risk of harm because of this. Considerable country information was provided in the original application to the Department from 2015 and earlier, but in considering this claim I place greater weight on information that he submitted more recently that is dated from the past few years to ascertain the current and future circumstances.
This includes references to ‘a wave of political murders’[2]; the active involvement of criminal gangs in extortion that in turn influences the price of basic goods including in some cases forcing vendors to reduce their prices[3]; ongoing violence against journalists throughout the country[4]; a chart showing a steady increase in murders across the country through to 2020 and an associated impunity[5]; details of turf wars between drug groups;[6] and drug cartel organised protests that bring two thousand people onto the streets.[7]
[2] and
[5] ibid
[6] type="1">
The applicant had also provided other country information, for example, a Mexico-wide Human Rights Watch report or a report on the 10 Most Corrupt Police Forces in the World; information relating to a specific initiative in Acapulco, a town in Guerrero, to replace the state police with national forces in 2019. Such reports are relevant for context and were taken into consideration.
At the hearing he referenced the recent [deleted] of the [Official A] of the capital of Guerrero. This aligns with country information on the event.[8]
[8] [Deleted].
I accept that there is a high crime rate in Guerrero and that there are ongoing turf wars between drug cartels which lead to the targeting of political candidates and office holders.[9] In considering whether the applicant faces a real chance or a real risk of being a collateral victim of some of the violence I find that he would not, I find that the evidence before me of the violence is such that the applicant does not face a real chance of serious harm or a real risk of significant harm through generalised violence.
[9] See for example the news article provided by the applicant to the Tribunal ‘Thrown from bridges, horrifically mutilated, raped or simply 'disappeared': Inside the Mexican state where 900 women have either vanished or been murdered and 1,200 raped in a single year.’ 7 July 2019
With regards to the risk the applicant faces from individual gang members who had engaged with the applicant while his father was in prison and specifically in reference to the threat letter his wife received in 2015 from [Leader A], I find that the applicant does not face any harm from [Leader A] nor from any of the gang members who were incarcerated in the same prison as his father. I make this finding on the basis of no harm befalling his father since his release or evidence of his ex-wife being pressured as a means to get to the applicant. Adding to this is the considerable passage of time that would diminish the clarity of memory of the applicant in the mind of [Leader A]—the applicant was nothing more than a source of some small additional income.
Any threat that arises from [Leader A] due to the applicant’s political affiliation as the letter indicated knowledge of the applicant’s political activities has been covered in the above considerations as [Leader A].
In considering the applicant’s claims cumulatively I note that the various claims considered above are of the same source but considered from multiple different angles. The perpetrators of the harm are the same—drug cartels. It is possible that they are of the same single drug cartel (i.e., the harm he fears isn’t from the cartel that is aligned with his political party). In each of the considerations above I have reflected on how the other motivations or pathways could compound the harm, for example, that the gangs who knew his father and interacted with him would feed in that information to those who are opposed to his political views. This scenario is evidenced in the threat letter that references both the father and the political angle. As these factors cannot be disaggregated meaningfully, considering the source of the harm is the same, I make note that consideration has been given in the above paragraphs to how they each interact.
For example, and to avoid doubt, I have considered earlier how the generalised violence reduces the impediments to targeted violence when considering whether the applicant faces a real chance or a real risk of being targeted for his past activities.
Conclusion
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.
Denis Dragovic
Deputy President

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 4230

10 October 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness