1919280 (Refugee)

1919280 (Refugee) [2024] AATA 4349 (8 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1919280
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Dr Greg Weeks
DATE:8 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 August 2024 at 5:36pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – came to Australia in search of a better life – fears harm from his father’s family – claims related predominantly to financial concerns – medical condition – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 11 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [age]-year-old man and is a citizen of Fiji. He was born and resided in the town of [Town 1] on the [island]. He also resided in [City 1] for almost 11 years. He now resides in [Victoria] and has previously lived in [City 2], Victoria.
The applicant obtained a visitor visa to enter Australia on [date] February 2017 and arrived in Melbourne on [date] March 2017. The applicant flew in and out of Australia on other occasions prior to the cessation of his visa and arrived in Australia most recently on [date] February 2019.
The Tribunal has been provided with a copy of the applicant’s application for a protection visa dated 3 April 2019 (PV application).
Procedural history
The applicant did not attend an interview with the delegate, who refused to grant the visa on the basis that the applicant is not owed protection obligations by Australia.
The applicant appeared before the Tribunal on 30 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from [Mrs A], the applicant’s wife ([Mrs A]). The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant was not represented in relation to the review.
Claims for protection
In the PV application, the applicant claimed that he had lost his job in Fiji when the company he worked for downsized. He looked for work for six months but found it hard to find a job due to the high unemployment rate and poverty level in Fiji. The applicant stated that he had a desperate need for economic stability and needed to look after his mother who is a widow and relies on him totally for financial support. The applicant stated that he came to Australia in search of a better life, so that he might be able to support his mother at home in Fiji.
The applicant’s father died shortly before he left Fiji. He claimed that no one wanted to help when his father started getting sick, but that his extended family started pointing fingers at him and he was humiliated and called names during the time he looked for support. The applicant claimed that the government wasn't able to provide for assistance or support for his family.
The applicant claimed that he asked the Ministry of Labour for assistance but couldn't get it because he has a trade. The applicant moved to the capital city but then moved back to his island home. He stated that it is a developing town and there are not enough jobs. If he returns to Fiji, the applicant thinks that he would be unemployed and will not be able to apply for studies. He would also not be able to provide for his mother. He stated that this would mean being rejected from family and society because he is jobless and can't provide the best a family should have.
The applicant fears that he would be rejected from his family because we don't have the financial support. He claimed that most people in the community have already pushed the applicant and his mother aside due to the financial difficulty they face. The authorities provided no support or assistance when requested because Fiji is still developing. The applicant claimed that he cannot afford to relocate due to the expense, the availability of hospitals and transportation.
Pre-hearing submissions
The applicant submitted several letters of reference from members of his local community in and around [City 2]. In summary, these letters speak to the applicant’s contributions to his community in Australia, both professionally and as a volunteer, and to his impressive character. I accept that the applicant has contributed significantly to his community and that his character is outstanding.
The applicant also submitted documents relating to the health and wellbeing of his mother, Mrs [B] ([Mrs B]). I will address the content of those documents below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 (the refugee criterion).
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
For the following reasons, I have concluded that the decision under review should be affirmed.
[Mrs A]’s evidence
[Mrs A] gave evidence that she and the applicant have been married for about a year and that he fills the role of a father to her two sons, aged [age] and [age]. She gave evidence that the applicant contributes to their household and enables [Mrs A] to work full time and to undertake further study. She gave glowing testimony as to the applicant’s good character. I accept her evidence on these issues.
[Mrs A] gave evidence that, if the applicant were returned to Fiji, she and her sons would not accompany him because they lack the money to do so. She gave evidence that her marriage to the applicant would not end but that they would not have the funds to arrange a meeting for some time. I accept that evidence.
[Mrs A] is an Australian citizen and she gave evidence that she and the applicant have been setting aside money every week towards the fee payable to apply for a Partner visa. They have saved over $9,000 and she gave evidence that they would have enough to apply “in the next couple of weeks”. I accept that evidence.
The applicant’s mother
The applicant gave evidence at the hearing that he was raised by a man who was not his biological father but who was in a relationship with [Mrs B]. These reasons will refer to this man as the applicant’s father. The applicant’s father died shortly before the applicant came to Australia in 2019. The applicant gave evidence that his father had a heart problem and that, in the final part of his life, the applicant returned from [City 1] to [Town 1] to care for his father when his father’s biological children would not. I accept that evidence.
The applicant gave evidence at the hearing that [Mrs B] became pregnant at the age of [age] and that the applicant’s biological father did not remain in contact with her. The applicant gave evidence that [Mrs B]’s family told her to leave when she became pregnant and that she took pills and swallowed detergent in an unsuccessful attempt to terminate her pregnancy. It is not clear that that attempt resulted in any ongoing harm to the applicant. [Mrs B] later gave birth to a son who died at birth and a daughter who was put up for adoption. I accept that evidence.
The applicant submitted a letter dated 9 October 2020 from a medical officer at [a hospital], [City 1]. That letter indicates that [Mrs B] was diagnosed on 12 June 2002 with “Major Depression without Psychosis”, a condition for which she was prescribed medication. The letter indicates that she did not attend follow up appointments and was “non-complaint to medications”. The letter indicates that [Mrs B] again visited that hospital on 31 August 2020 and claimed to have been well since 2002 and to be comfortable without medication. She displayed no overt signs of depression. At her last review on 28 September 2020, she was not assessed as having demonstrated symptoms of poor mental health. I accept that evidence.
However, the applicant gave evidence that sometimes his mother’s “mood drops” and that she has previously suffered abuse from her current partner (a man whom I will designate PL), although they no longer live together. [Mrs B] and PL have a son who is aged about [age] years and is the applicant’s half-brother (the half-brother).
The applicant also gave evidence that his mother found a lump in one of her breasts several years ago and that this condition was “treated herbally”. The applicant gave evidence that she has since found a lump in her other breast and that she has attended a hospital several times since the applicant has been in Australia. He gave evidence that his mother is not very sick but suffers some pain after extensive physical work. He did not claim, and I do not accept, that his mother has been diagnosed with or treated for cancer.
The applicant’s evidence indicated that his mother has had both physical and mental health difficulties. He did not claim, and I do not accept, that his mother’s health concerns are not able to be managed adequately in Fiji.
Contrary to the PV application, I do not accept that [Mrs B] “relies on [the applicant] totally for financial support”. The applicant gave evidence at the hearing that he sends [Mrs B] between $100 AUD and $150 AUD every week. However, [Mrs B] also earns money by working [for] a couple who own a villa in [Town 1]. I find that she has sufficient means of support.
Matters in Fiji
Prior to the hearing, the applicant submitted documents relating to criminal complaints in [Town 1]. The first is dated 3 February 2021 and is addressed to [Mrs B]. It records that her complaint of criminal intimidation against PL resulted in him receiving a suspended sentence on 12 October 2018 and that a domestic violence restraining order (DVRO) has been made for her “safety and security” as the victim of that criminal conduct.
The second document submitted with regard to a criminal complaint is an interim DVRO made against [Mrs B] on 23 September 2019. The applicant gave evidence that his father’s family sought a DVRO against [Mrs B] following his father’s death as part of their efforts to keep her away from the family “compound”. The applicant gave evidence that [Mrs B] and his father’s family now try to keep away from each other but claimed that they still constitute a threat to her. He claimed that they had harmed her before but gave no further evidence to support that claim. Given that the applicant did not give evidence that there has been any threat to [Mrs B] from his father’s family since 2019, I do not accept that [Mrs B] is at risk of harm from that family in the reasonably foreseeable future.
The applicant claimed at the hearing that PL and his half-brother would be a threat to him if he were to return to Fiji. The applicant gave evidence that his half-brother has recently been released from prison after serving between two and three months for threatening [Mrs B] with a knife while seeking to obtain money from her. The applicant claimed that he called his half-brother and that the half-brother and PL threatened him over the phone. He claimed that they said, “if you come to Fiji, this is what we will do to you, you’ll never see your Mum again”. The applicant claimed that both PL and the half-brother are drug users. The applicant further claimed that they would harm him because he is not PL’s son or because he has lived a better life in Australia.
Both PL and the applicant’s half-brother have been arrested, tried and sentenced for threatening to harm [Mrs B]. I find, and the applicant accepted, that the police have protected [Mrs B] effectively. The applicant claimed that PL and his son could “sneak in” at night to harm him and that the police could not stop them. I find the applicant’s evidence on this issue to be unconvincing. The threat made to the applicant over the phone was non-specific and makes little sense, particularly in its mention of [Mrs B]. I do not accept that it constitutes a credible threat of harm to the applicant. The applicant gave evidence earlier in the hearing that PL had not harmed [Mrs B] since 2018, the time at which he was given a suspended sentence for criminal intimidation of the applicant’s mother. Neither PL nor his son have harmed the applicant in the past. I do not accept that there is a real chance that either PL or the applicant’s half-brother would harm the applicant in the reasonably foreseeable future if he were to return to Fiji.
The applicant gave evidence during the hearing that he fears harm from his father’s family, who might “harm or kill” him. This is a more serious claim than the applicant’s claim in the PV application that his father’s family had “point[ed] fingers at him”, “humiliated” him and “called [him] names”. My assessment of the credibility of the applicant’s claim that his father’s family might “harm or kill” him is adversely affected by the fact that it was raised for the first time at the hearing. I do not accept that the “humiliation” and related conduct which the applicant claimed to have suffered more than five years ago supports a claim that he would now suffer serious harm from his father’s family if returned to Fiji. The applicant gave evidence at the hearing that his father’s influence had prevented his father’s family causing him harm but that that the loss of that restraining influence means that the applicant now faces a real chance of harm. Their previous conduct towards the applicant rose no higher than name calling and they sought legal remedies rather than resorting to violence in their dispute with [Mrs B]. I do not accept that there is a real chance that they would harm the applicant in the reasonably foreseeable future if he were to return to Fiji.
The applicant’s health
The applicant gave evidence that there is a “mark” on his heart which he believes may require medical attention as he gets older. An MRI several months ago indicated that there is no current cause for concern for the applicant’s health from the “mark” on his heart. There is no evidence currently before me as to what effect this issue may ultimately have on the applicant. Specialist healthcare, including cardiology, is available in Fijian hospitals.[1] I find that the applicant would have access to adequate health care in Fiji in the reasonably foreseeable future.
[1] DFAT, Country Information Report: Fiji (20 May 2022), [2.11].
The applicant suffers from a condition which causes his skin to be very dry and scaly. Sometimes it cracks and bleeds and the applicant has been treated for that consequence in the past. I find that the applicant would have access to adequate health care to manage this condition in Fiji. During the hearing, the applicant gave evidence that he was mocked for his skin condition as a child and that other children accused him of performing witchcraft. The applicant did not claim that he has been harmed, or threatened with harm, for this reason since he was a child. I do not accept that there is a real chance that the applicant would suffer harm as a result of his skin condition in the reasonably foreseeable future if he were to return to Fiji.
The applicant’s motivation to live in Australia
The claims in the PV application relate in general to the applicant’s wish to achieve financial stability for himself and his mother by living and working in Australia. He gave evidence at the hearing that he looks forward to bringing his mother to live in Australia but that he was unable to do so when he first came because there was nobody to sponsor her visa.
I put to the applicant that [Mrs A]’s evidence that they have been saving towards the fee payable to apply for a Partner visa might indicate that he wishes to stay in Australia for reasons other than fearing harm if returned to Fiji. The applicant replied that he knows several people whose protection visa applications have been unsuccessful and that a Partner visa is simply another option in that eventuality. He stated that his claims for protection are genuine. He also stated frankly during the hearing that he does not want to return to Fiji because he has “established a life here” and does not want to “start from scratch”. I find that the latter response is a significant reason for the applicant not wanting to return to Fiji.
The applicant’s claims in the PV application related predominantly to financial concerns. I put to the applicant during the hearing that his claims to fear harm if returned to Fiji are not for the reasons of his race, religion, nationality, membership of a particular social group or political opinion. He replied, “I guess not”. That response is consistent with my understanding of the claims raised by the applicant in the PV application and at the hearing. I find that there is not a real chance that the applicant will suffer persecution for the reason of his race, religion, nationality, membership of a particular social group or political opinion if returned to Fiji.
Conclusions about the applicant’s protection claims

For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa). The ‘real risk’ element of the complementary protection criterion has been held by a Full Court of the Federal Court of Australia to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[2] That reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[3] For the reasons given above, I do not accept that there is a real risk that the applicant will suffer significant harm as that term is defined in s 36(2A).
[2] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, 551 [246] (Lander and Gordon JJ).
[3] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp170-1 at [1169], [1180].
I am 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.
Dr Greg Weeks
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 4349

8 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction