1922614 (Refugee)

1922614 (Refugee) [2022] AATA 4567 (10 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Marta Mamarot
CASE NUMBER: 1922614

COUNTRY OF REFERENCE: Venezuela
MEMBER:Nora Lamont
DATE:10 November 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 10 November 2022 at 10:04am
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – anti-government demonstration – kidnapping – torture – wealthy business family – decision under review remitted
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 29 July 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 Venezuela, applied for the visa on 23 January 2018.
The applicant appeared before the Tribunal on 31 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Based on copies of the applicant’s passport which was provided to the Department, the applicant’s oral and written evidence, and in the absence of any evidence to the contrary, the Tribunal accepts the applicant is a national of Venezuela and has assessed his claims against that country in relation to s.36(2)(aa) and s.36(2)(aa) of the Migration Act.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
There are no non-disclosure certificates on the applicant’s file.
The delegate refused the application for the following reason: [1]
I am not satisfied that the applicant has a public political profile or a recent political profile in Venezuela such that he would be seriously harmed by the Venezuelan authorities in the reasonably foreseeable future for reason of his political opinion.
[1] [File number] Decision Record
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
Background
The applicant is [age]-year-old male born in Caracas Venezuela. The applicant’s mother and sister both reside in Australia. His father remains in Venezuela. The applicant studied [Subject 1] and received a bachelor’s degree. He came to Australia in 2011 for his sister’s wedding and again in 2013 on a [temporary] visa, but it did not work out and he returned to Venezuela.
The Tribunal has regard to the following documents and submissions: [2]
i.Legal submission from the applicant’s representative.
ii.Statutory Declaration from the applicant.
iii.A letter from the applicant’s father.
iv.Letter from the applicant to the Department.
v.The AAT folio.
vi.The Departmental file.
[2] AAT Folio & Departmental file [number]
Claims
The issue in this case is whether the applicant will be harmed in Venezuela because of his political opinion. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicants claims for protection as summarised by the delegate are as follows:[3]
• He grew up in the capital Caracas
• Prior to coming to Australia, he claims to be in opposition against the current ruling government.
• His father is a prominent business owner in Caracas.
• In 2016 his father was kidnapped by people who appeared to be military and police officers who held him captive for over eight hours.
• His father’s captor asked for ransom which was paid by his family.
• While his father was in captivity, his captors told him very personal things that only his father knew such as that he had [family] in Australia and many more details about his business.
• He claims to have suffered psychological damage, threats, intimidation before coming to Australia and was exposed to situations where his life was in danger.
• To his greatest regret he tried to seek help from the police, but he cannot because criminals are part of the same government.
[3] [File number]
• He fears that if he were to return to Venezuela, he will be persecuted on account of his political opinion.
Tribunal Hearing
At the beginning of the hearing, we spoke about the applicant’s education and employment background. He was educated in [Subject 1], and he worked doing [specified roles] for a company. After two years he went on to start his own business. His mother wanted to start a takeaway business, so he helped her set that up. He then worked for [Employer 1].
He then came to Australia in 2013 on a [temporary] visa but it didn’t work out and he returned to Venezuela. He came back to Australia in 2014 and studied English and then went onto get a [two specified qualifications].
The applicant said his father was a prominent businessman [business specified]. The business was owned with his fathers [family members]. One has since passed away and the other one lives in Sydney. He said his father was kidnapped. I asked him if his father was wealthy. He said they didn’t kidnap him because he was wealthy, they kidnapped hi, because of his business and because he has a foreign surname. His father was from [another country] originally.
The applicant said the government blames ‘foreign’ businesspeople in Venezuela they call them nicknames and this was one of the reasons that his father was kidnapped. He said the colectivos and guerrillas work with the government to generate fear and scare the foreign people away. He said his father was coming home from work, and he was going through a tunnel when they pulled his car over. They made him get out, and covered his face, they said we know who you are, and we know you have family in Australia. His father responded that he was not rich. He wet his pants. He spent eight hours in the car while they drove him around threatening him. They contacted his wife and told her to get them $[amount] USD. They just took the money, and his father thinks that it was the police or national guard.
The applicant said his father didn’t go to the police because they knew he had children in Australia. The applicant said it made his father sick. He is only [age] but he looks like he is [much older] now. He has had [specified] problems. He said his father came to Australia in 2016. I asked why he didn’t just stay here, and the applicant said he has properties and had to go back.
The applicant said he attended one protest when the changes started happening between Chavez and Maduro. He was a student. He was not arrested or beaten. He said he was in Australia when the Carnet de la Patria was introduced, and he said you have to sign up to be in the socialist party in order to get assistance.
I asked the applicant what he thought would happen to him if he returned to Venezuela. He said they will know he is coming back; they will judge him and make him disappear, torture him. The people who kidnapped his dad said they would have a big party when he returns.
I asked him if he could move somewhere else and he said it is the same government wherever he goes, and they will find him, and he is scared. They will kill him and there will be no life for him in Venezuela.
The applicant’s sister spoke to the Tribunal of her brothers fear and the life her father is facing in Venezuela.
Country Information
Country information for Venezuela shows the country is in a deep economic and violent era. The smart traveller advice provides the following.[4]
[4] Venezuela Travel Advice & Safety | Smartraveller
- Common violent crime includes murder, armed robbery, drive-by shootings, sexual assault and carjackings. Criminals are often armed. Avoid walking in isolated areas, especially at night. Terrorist groups and criminal gangs are active along Venezuela's borders with Colombia, Brazil and Guyana.
- Kidnapping is a serious threat. The risk is higher along airport routes and in border regions. Only use official taxis organised through your hotel. Avoid kidnapping hotspots.
- Venezuela's political situation is volatile. Demonstrations and protests are common and can turn violent. If you're in an affected area, leave if it's safe to do so.
- Shortages of basic goods can result in long line-ups at stores. This can lead to fighting, looting and theft. Be ready to change travel plans. Keep extra supplies of food, water, medicines and other necessities.
Demonstrations and other civil unrest are common, often in major urban centres, such as:
The political situation is volatile. Since January 2019, unrest has increased, often becoming violent. Many people have been killed, injured or arrested. Disruptions to essential services occur. On-the-spot demonstrations and other ongoing unrest is likely. Violent incidents and military responses are possible. Roads and highways are often blocked during demonstrations, causing disruption in public transport systems. Days of national significance could motivate civil unrest. National strikes can be called at short notice, often causing disruptions to:
Shortages of basic items and long lines at grocery stores have led to:
Public protests and events that draw large groups of people can turn violent. If, despite our advice, you travel to Venezuela:
- Caracas
- Valencia
- Maracay
- Mérida
- San Cristóbal
- Maracaibo
- air travel
- public transport
- banking services
- government services
- fighting
- looting
- theft
- avoid all protests, political activity and large public gatherings
- leave affected areas as soon as it's safe
- monitor the media and other sources for news about possible unrest
- be particularly alert during days of national significance
- follow the instructions of local authorities
- keep spare supplies of food, water, medicines and other necessities
Border areas
Avoid border areas, as they can be dangerous due to the presence of terrorist groups. Some maritime borders are also closed until further notice, including those with:
In border areas, there's limits on the right to:
Terrorism is a threat in Venezuela. Terrorist groups are particularly active in the region within 80km of Venezuela's border with Colombia. This region includes parts of:
Colombian terrorist groups, such as the ELN (Ejército de Liberación Nacional), and criminal gangs are active along Venezuela's borders with:
Hostages, including foreigners, have died after being kidnapped in these areas. The Venezuelan military conducts searches and arrests in border regions, but threats remain. Troop movements and border closures can occur at short notice. Most pharmacies, including in hospitals, no longer stock basic medicine or supplies due to short supply.
Venezuela United States Department of State
- Aruba
- Curaçao
- Bonaire
- free movement
- assembly
- protest
- Bolívar
- Amazonas
- Apure
- Táchira
- Zulia
- Barinas
- Colombia
- Brazil
- Guyana
Significant human rights issues included credible reports of: unlawful or arbitrary killings, including extrajudicial killings by regime forces; forced disappearances by the regime; torture and cruel, inhuman, and degrading treatment by security forces; harsh and life-threatening prison conditions; arbitrary arrest or detention by security forces; political prisoners or detainees; serious problems with independence of the judiciary; unlawful interference with privacy; punishment of family members for offenses allegedly committed by an individual; serious restrictions on free expression and media, including violence or threats of violence against journalists, unjustified arrests or prosecutions of journalists, and censorship; serious restrictions on internet freedom; substantial interference with the freedom of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental organizations and civil society organizations; inability of citizens to change their government peacefully through free and fair elections; serious and unreasonable restrictions on political participation; serious government corruption; serious restrictions on or harassment of domestic and international human rights organizations; lack of investigation of and accountability for gender-based violence; significant barriers to accessing reproductive health; trafficking in persons; crimes involving violence or threats of violence targeting indigenous persons and lesbian, gay, bisexual, transgender, queer, or intersex persons; and the worst forms of child labor. [5]
UNHCR
The outflow of Venezuelan refugees and migrants remains one of the largest displacement crises in the world. To date, over 6.1 million have left their homes, of which 5 million are in the Americas. There are 199,206 Venezuelans recognised as refugees worldwide and 971,170 pending asylum claims. Over 2.7 million regular stay permits have been granted to Venezuelans since 2014. In support to receiving States, UNHCR improves reception conditions, advocates for legal stay and inclusion, mitigate protection risks and boost access to basic services.[6]
Over 6.8 million refugees and migrant from Venezuela worldwide with 190,000 recognised refugees and 2.4 million living legally within the Americas. [7]
Although the flow of refugees appeared to have slowed as the country’s authoritarian government adopted economic reforms and some Venezuelans returned home during the coronavirus pandemic, it has picked up again. At least 753,000 Venezuelans have left since November, the Associated Press reported last week, citing data from the countries receiving the refugees.
Venezuelan migrants are new border challenge for Biden administration
[5] Venezuela - United States Department of State
[6] UNHCR Venezuela Situation Fact Sheet June 2022 - Venezuela (Bolivarian Republic of) | ReliefWeb
[7] UNHCR - Venezuela situation
[8] Venezuela refugee crisis near Ukraine’s in scale but not aid, group says - The Washington Post
“Unlike other forced displacement crises around the world, which are the result of armed conflicts, in the case of Venezuela, multiple factors — including insecurity and violence, lack of access to food, medicine and essential services, as well as loss of income, aggravated by the impact of the covid-19 pandemic — continue to figure into Venezuelans’ decision to leave,” UNHCR spokesperson William Spindler said in an email. [8]
Findings
Overall, the applicant was honest and forthright throughout the hearing. He did not waiver in his evidence from his written claims for protection. Based on his oral and written evidence I accept the following:
·The applicant attended one protest when he was a student.
·That his father was kidnapped and personal details about him and his whereabouts was relayed to his father during the kidnapping.
·That his father paid a ransom to the kidnappers.
·That the applicant would have to sign up to the socialist party in order to obtain a carnet de la patria.
Whist I have some concerns with the timeframe in which the applicant applied for his protection visa, having been in the country for a number of years, I accept the applicant’s explanation as provided in his statutory declaration.
I applied for protection visa about 2 years after the kidnapping of my dad. At that time, I had my student visa. I have [two specified qualifications]. I sought advice from a lawyer, and he told me that I should wait for my Student Visa to expire and then I can apply for Protection Visa. I followed his advice. I waited for my study visa to expire and then went on to apply for a Protection Visa on January 2018. I was unaware and I should have applied as soon as possible for my protection visa.
I have considered that the applicant has a political profile expressed through his attendance at a protest and his willingness to leave the country and based around his father and the colectivos and government sponsored guerrilla groups that have profiled him. I consider that the applicant fears harm for his political opinion and his imputed political opinion.
Conclusion
The subjective fear that the applicant has for his future is objectively made out on the country information. I consider the violence the applicant would face does constitute serious harm. I consider based on all the evidence before me that the applicant has a real chance of serious harm arising from his political opinion and his imputed political opinion.

I find that the applicant has a real chance of serious harm on return to Venezuela as a political opponent and for his political opinion and his imputed political opinion which stems from his father and his father’s business and kidnapping. I find he has a well-founded fear of persecution for this reason.
I have considered whether the applicant has the ability to avail himself of state protection. I note that the actors causing the harm are in fact state actors, and given this, the applicant cannot avail himself of state protection.
With respect to relocation, as above the state actors are responsible for the harm the applicant fears and there is nowhere within Venezuela the applicant can relocate to in order to escape the harm, he fears in his home area.
Having found the applicant to be a refugee there is no need for me to consider the alternative criterion in s.36(2)(aa).
For the reasons above I am satisfied that the applicant is a person to whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
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 4567

10 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

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