1921718 (Refugee)

1921718 (Refugee) [2022] AATA 842 (7 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1921718
COUNTRY OF REFERENCE: Thailand
MEMBER:Peter Vlahos
DATE:7 February 2022
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 7 February 2022 at 9.05AM
CATCHWORDS
REFUGEE – Protection visa – Thailand – applicant refused hearing invitation – decision made on papers – refused to deliver drugs for previous boss – threats and harassment – inability of authorities to provide protection – inability to relocate – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 425(2)(b), 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (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 & Anor (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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Thailand, applied for the visa on 22 October 2018. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant made an application to the Tribunal to review the delegate’s decision on 7 August 2018.
The applicant in this case is not represented by a registered migration agent of Solicitor.
On 25 January 2022 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the Application but was unable to make a favourable decision on the information alone. The Tribunal invited the applicant to give oral evidence and present arguments at the hearing.[1]
[1] see, the AAT File.
On 2 February 2022 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to decide on the review application without taking further action to allow or enable her to appear before it.
This matter has therefore been determined on the evidence available to 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 applicant has a well-founded fear of persecution for one of the enumerated s.5J reasons and if not, whether there are substantial reasons for the Tribunal to believe that the applicant will suffer significant harm if returned to Vietnam. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s identity and nationality
The applicant provided a copy of her Thai passport to the Department of Home Affairs (‘the Department’). On the basis of this document and without any evidence to the contrary the Tribunal finds that the applicant is a national of Thailand, which is also the receiving country.
Third Country Protection[2]
[2] see, section 36(3) of the Migration Act 1958 (as Amended).
Also, there is not information before the Tribunal to support a conclusion that the applicant has a right to enter and reside in any safe third country and so the Tribunal finds.
The Applicant’s Claims for Protection
The applicant provided little detail in her application for protection. She claimed that:
·In Thailand, the applicant’s previous boss started associating with shady people.
·When the applicant refused to deliver drugs for him, her boss cut her salary, verbally abused her and beat her up with his friends.
·The applicant’s boss started making death threats against her. The applicant was afraid and left Thailand.
·If the applicant returns to Thailand she will be tortured and killed by her former boss.
·The applicant claims that the authorities in Thailand will not protect her because they are corrupt and will be bribed by her former employer.
·The applicant cannot return to Thailand or to any other part of Thailand to avoid harm because her employer and his friends can track her down.
The delegate when considering the applicant’s application, noted that the applicant had been given the opportunity to provide all of the details of their protection claims. The delegate also noted that the application form completed by the applicant, required the applicant to provide all of their claims for protection and all documentation or other evidence to support their claims. The Tribunal also noted that on 6 November 2018, the applicant was sent the acknowledgement of a valid application having been made but advised that additional information relating to the applicant’s claims could be provided to the Department. The correspondence of 6 November 2018 also informed the applicant that the decision on her application could be made without another opportunity for her to present any further information to the Department. The delegate noted that at the time of delegate’s decision, the applicant had provided no additional information.
The delegate in his assessment of the applicant’s claims provided understood that the applicant was claiming that she faced harm from her former employer with whom she had been involved in a dispute with. That dispute involved the applicant’s refusal to trade narcotics for her employer. The delegate noted that the applicant claimed that she had been threatened and the Thai authorities would not assist her (with the provision of protection) because they were corrupt and likely be bribed by her former employer.
The delegate also noted in the decision, that the applicant claimed that the Thai police were corrupt and ‘susceptible to [the] influence by criminal elements or influential individuals’ but the delegate did not accept this claim because making reference to the available country information on Thailand, the delegate found that the authorities in Thailand had been very active against the criminal elements in Thai society and that (on the information available) ‘having influence did not mean an individual would not be punished for committing a criminal act or acts.[3] The delegate also noted, that while the country information indicated that there was some ‘corruption’ in the ranks of the Thai police and judiciary, there was nothing to suggest in the opinion of the delegate that the state would be unable or unwilling to protect the applicant in her particular circumstances, if she required protection. There was nothing before the delegate to indicate that the applicant would be prevented from accessing that available protection by the state. The delegate then determined that given the available country information – the protection available in Thailand was ‘durable’ and that durability consisted of ‘appropriate criminal laws, a reasonably effective police force and an impartial judicial system.’ The delegate concluded that the applicant would receive protection from the Thai police and judiciary in Thailand against any threats she may face from her former employer in Thailand.[4]
[3] see Delegate’s record of decision at p.5 in the AAT File
[4] Ibid, AAT File see delegate’s decision at p.5.
The applicant provided a copy of the delegate’s decision to the Tribunal.
In a submission to the Tribunal dated 2 February 2022 the applicant provided no explanation for her claims or provided any further evidence – new evidence to the Tribunal concerning her claims. The only request made by the applicant of the Tribunal was to consider her claims as they were submitted to the Department and requested that a decision on the papers, without the need to attend the scheduled hearing. No other requests were made by the applicant for the Tribunal to consider.
The Tribunal noted the applicant’s decision not to proceed to a scheduled hearing and to have the Tribunal determine her claims for Protection on the papers.
In accordance with s. 425(2)(b) of the Act the Tribunal has proceeded to decide the case on the material before the Tribunal.
Consideration
The Tribunal has carefully considered the claims made by the applicant. 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 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 of their claims.
On the other hand, as stated previously, 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 invited the applicant to a hearing as the Tribunal had concerns about his claims. The applicant declined the opportunity to appear before the Tribunal to provide further information about her claims after being made aware that on consideration of all the material before the Tribunal relating to her application the Tribunal was unable to make a favourable decision on that information alone.
The applicant claims that she left Thailand to escape being persecuted by her former employer, the reason being that she refused to deliver illegal narcotics. The applicant also feared that she would not be protected from such persecution if she remained in Thailand by the Thailand police and generally, the Thai state. Given the material on the Department’s file the Tribunal accept this.
The applicant claims that she forced by her former employer in Thailand to ‘sell narcotics’ but refused to do so and as a result of her refusal to do what her employer wanted, he beat her and took reprisals on her earnings. If the applicant had attended the hearing, the Tribunal would have asked her to provided details of how the employer demanded of her to participate in his trade of illegal narcotics. The applicant would have also asked the applicant to explain to the Tribunal what were the actual reprisals she suffered because she refused to do as her former employer demanded? The Tribunal would have asked from the applicant to provide any further details of whether her former employer had also threatened her family members in order to add pressure on the applicant to deal on his behalf with illegal narcotics. Moreover, the applicant provided in her application no details of when these demands were made on her by her employer. The Tribunal would have asked of the applicant to explain when this series of events actually occurred. Had the applicant attended a hearing, the Tribunal would have asked her to provide details of how she came to deal with these demands made by her former employer. Moreover, the Tribunal would have asked the applicant to explain in detail – why she could not provide any description of these issues she had with her former employer to Department when requested? If the applicant had attended the hearing, the Tribunal would have asked the applicant to explain why she claims she knows no one in Thailand that could help her? The Tribunal would have asked details from the applicant as to what help did, she request from the Thai authorities and why it was not forthcoming as she claimed. Indeed, the Tribunal would have explored with the applicant her claim as to why she considered the Thai state and police as corrupt and open to bribery? Furthermore, the Tribunal would have asked the applicant to explain her claim that she could not relocate to another part of Thailand in order to escape her employer’s continued threats. Also, the Tribunal would have asked the applicant if she had attended the scheduled hearing to explain her claim that if ‘she returned to Thailand’ she would be ‘found’, ‘would be incarcerated’ and ‘face physical punishment’ when she was able to leave Thailand without being stopped by her claimed persecutors at the airport. How then is it possible, if she returned to Thailand her persecutors would find her ‘anywhere within Thailand’?
Had the applicant attended the hearing, the Tribunal would have asked her about her claims to fear harm on return to Thailand in more detail.
The Tribunal has considered the material provided by the applicant to the Department and to the Tribunal and the information in the delegate’s decision and the Tribunal finds the information and documents provided by the applicant to be general and lacking detail, particularly in relation to her claimed fears.
The Tribunal finds that the applicant has failed to establish her claims. On the very limited evidence she has provided, and taking account her decision to decline to attend a hearing to provide more information, the Tribunal does do not accept that the applicant:
§attempted to escape Thailand.
§was persecuted by her former employer and his associates for refusing to deal on the employer’s behalf in the illegal narcotics trade.
§has suffered harm, for that reason or any reason, in Thailand, on the basis of the limited and undetailed information she has provided and his decision not to attend the hearing.
§does not know anyone that can help her and that the Thai police cannot be trusted and that the Thai police are easily bribed.
§cannot find refuge in any part of Thailand because she will be located by her former employer and his associates.
§if she returns to Thailand will be persecuted and would face physical punishment from her former employer and his associates.
The Tribunal does not accept on the limited information before it that the applicant has had any involvement with a former employer her tried to force her to sell illegal narcotics for him or that because of her refusal to so do her former employer’s bidding, she was physically abused, harmed and her wages reduced.
The Tribunal does not accept the applicant has suffered serious or significant harm, for any reason, in the past, for the reasons above.
On the limited information before Tribunal, the Tribunal does not accept that the applicant would be harmed or mistreated because she refused to trade in illegal narcotics for her former employer or that if she remained in Thailand, she would have suffered harm and persecution and death inflicted on her by her former employer or by his associates.
On the limited information before the Tribunal, the Tribunal does not accept that the applicant would be harmed or mistreated for any reason connected to any demand made upon her to deal/ or trade in illegal narcotics by her former employer because she refused to do so as she claimed.
Having considered the applicant's claims, the Tribunal finds that the applicant has not established her claims and that there is no real chance that the applicant will face persecution for reasons of refusing to deal or trade in illegal narcotics because her former employer demanded this from her or that her refusal had caused her to be harmed and would be again persecuted if she returned to Thailand or for any other s.5J reason if he returns to Thailand now or in the reasonably foreseeable future.

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).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The Tribunal has had regard to her claims, as above, with regard to complementary protection, but has the same concerns which it wished to explore with her at the hearing. The Tribunal is not satisfied that the applicant has established that she will suffer significant harm for the claims she had made concerning her former employer demanding from her to deal in illegal narcotics or for any other reason.
The Tribunal has carefully considered the claims and the Tribunal does not accept that she has suffered any harm on the limited information she has provided. For the reasons above, the Tribunal does not accept that these circumstances give rise to a real risk of significant harm. She has not provided any other claims which the Tribunal has accepted. The Tribunal is therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that the applicant will suffer significant harm.
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).
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…

[2022] AATA 842

7 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing