1927977 (Refugee)

1927977 (Refugee) [2023] AATA 1314 (24 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1927977
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Mark Bishop
DATE:24 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 February 2023 at 2:05pm
CATCHWORDS
REFUGEE – Protection visa – Lebanon – applicant was forced to join Syrian Social Nationalist Party – fears harm from father – kidnapped and beaten by his father – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
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 on 18 September 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 Lebanon applied for the visa on 26 September 2018. The delegate refused to grant the visa. The applicant provided a copy of the decision record to the Tribunal.
The applicant appeared before the Tribunal on 24 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
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 details of the applicant’s migration history are set out in the decision record[1]. The decision record sets out the following:
·The applicant arrived in Australia on [date] May 2018 as the holder of a Business Visa.
·On 24 June 2018 the applicant lodged onshore a further Application for a Visitor Visa which was granted on 28 June 2018 with a cease date of 27 September 2018.
·On 26 September 2018 the applicant lodged an Application for a Protection Visa.
[1] Decision record page 1
Noting the applicant lodged his Application for a Protection Visa the day prior to the expiry of his Visitor Visa the Tribunal requested the requested the applicant provide an explanation as to why he took 4 months after his arrival to lodge this Application for a Protection Visa. The applicant advised the reason he took so long to apply for a Protection Visa was that he was hopeful of some form of reconciliation with his father. He advised further he had not had any contact or discussion of any kind with his father post 2016. He had not spoken to his father since 2016 and subsequent to his arrival in Australia had not spoken with his father.
The Tribunal has concerns as to the genuineness of the claims behind the Application for a Protection Visa. The Tribunal has considered the reasons advanced by the applicant in his “My Story” written submission.[2] The applicant had 4 months in Australia to consider the likelihood that his family in Lebanon might be concerned as to his apparent sudden departure to a foreign country. At least in some of this period he was in direct contact with his brother who communicated the feelings of his father. The Tribunal notes the delegate made a finding the applicant’s lengthy delay in lodging an Application for a Protection Visa called into question the genuineness of his claims. The Tribunal expresses concerns as to the lengthy period of residence of the applicant in Australia prior to lodging an Application for a Protection Visa. The Tribunal does not accept the reasons advanced by the applicant. It is difficult, if not impossible, to achieve a reconciliation when you ae not in some form of direct communication, no matter how transitory with the person you are estranged from as is the case in the current review application as far as is relevant to the applicant. The Tribunal finds the applicant has not advanced a reasonable explanation that explains his delay in Lodging his Application for a Protection Visa.
[2] Se paragraph 15 below.
The applicant declared he did not receive any assistance[3] in the filling out of his Application for a Protection Visa. The applicant declared he could speak, read and write Arabic.[4]
[3] [File number] [File number] page 22
[4] [File number] [File number] page 11
In his Application for a Protection Visa[5] dated 26 September 2018 the applicant declared he was making a claim for protection and in response to all questions relating to reasons for his claim said “See my letter”.[6]
[5] [File number] [File number]
[6] [File number] [File number] page 18
This letter[7] may be found in the Departmental file. Under the heading “my story 25 September 2018” the letter outlines the following:
·His father is a member of the Syrian Social Nationalist Party a political party in Lebanon. Most of his uncles and relatives are members of this party.
·He did not wish to join this party and wished to have a normal life.
·His father and uncles are looking to make their children join this party. He shifted to Beirut to avoid joining this party.
·His father and uncles threatened him with death. He decided to come to Australia. After his arrival in Australia he was in contact with his brother so he could return to Lebanon. As his visa was about to expire he needed more time to get his affairs in order. His father and uncles are furious about him coming to Australia so he decided to apply for a protection visa. He asserts his father had made it clear to his siblings it is best he remain in Australia.
·If he returns to Lebanon his father will harm or kill him as he feels embarrassed he has not joined the party.
·It will be difficult to relocate to another area as Lebanon is a small country and everyone knows everyone there.
·If he does not join the Syrian Social Nationalist Party he will be harmed or killed.
[7] [File number] [File number]
The delegate summarised the applicant’s claims[8] as outlined at interview on 24 July 2019. Details are as follows:
·The applicant claims that he lived in Akkar in North Lebanon. He claims that his father and uncles are members of the Syrian Social Nationalist Party (SSNP) and his father was pressuring him to join the party. The applicant did not want to join the party so he moved away from his family home in Akkar and he moved to Beirut. However through family and friends his father made him return to the family home in Akkar.
·After returning home and being threatened with death from his father the applicant decided to travel to Australia because Australia is a free country. The applicant was hoping that his problems back in Lebanon would ease while he was on a temporary visa in Australia and he was hopeful of returning home. He kept contact with his brother in Lebanon and he learnt that his father and uncles were angry with him for travelling to Australia and he believes that his father will harm or kill him if he returns to Lebanon.
·The applicant claims that his father could locate him at any location in Lebanon.
[8] Decision record page 2
The decision record summarises in considerable detail repeated attempts by the applicant in “…not making an effort to attend the interview provides reason to doubt that his claims are pressing and genuine.”[9]
[9] Decision record page 3
The applicant provided a copy of a reference[10] from [Company 1] dated 16 May 2018 that stated the following:
·This is to certify that [the applicant], date of birth [date], passport number [deleted], has been employed in our foundation since the first of January 205 till present in the function of [Occupation 1] earning the monthly salary of [amount].
·We grant him one month vacation for purpose of visiting Australia starting 22 May 2018 in condition to return back to his job at the end of the period, therefore we issue this certificate for any necessary use.
[10] [File numbers]
In his Application for a Protection Visa the applicant declared he was employed as a [Occupation 1] worker at [Company 1] from 1 January 2015 until 25 May 2018. The Tribunal notes this address is the same as the address to be found at the bottom of the reference outlined at paragraph 16 above.
The applicant was interviewed[11] at length by the Department as to his work and residence history from 2014 until May 2018 when he departed Lebanon for Australia. The delegate made the following finding:
·The applicant’s initial testimony about working for [Company 1] from January 2015 until coming to Australia was clear and it was clarified with him. I find it incomprehensible that the applicant could have genuinely worked in Beirut for [a] company and he lived in the back of the factory for about 2 years sometime between 2014 and 2018 but at the same time he provided testimony indicating that he worked for another company at his home location for that entire period.
· His testimony was inconsistent and I am satisfied that he has provided false information about his employment and residence in Beirut in an attempt to bolster his claims for protection.
·The applicant made repeated conflicting statements as to living and working in Beirut from 2014 until the second half of 2016 and in the [Company 1] from 2015 until 2018. The delegate made a finding the applicant’s testimony “…was inconsistent and I am satisfied that he has provided false information about his employment and residence in Beirut in an attempt to bolster his claims for protection.[12]
·The applicant raised new information towards the end of the interview concerning an alleged kidnapping from Beirut organised by his father. He claimed to have been assaulted, escaped and lived with a charity organisation before fleeing to Australia.
·The delegate made a finding “… the applicant to be generally not credible and I do not accept that he was forced into any political party or group by his father. I do not accept that he relocated to Beirut or that he was kidnapped and beaten by his father or that he has credible reason to fear being harmed by his father or uncles or anybody else on return to Lebanon. I am satisfied that the applicant has provided false and unreliable claims and I find the claims for protection are not credible.”
[11] Decision record page 3
[12] Ibid
On 19 December 2023 the Tribunal wrote[13] to the applicant and invited him to attend a review haring scheduled for 24 February 2023. In that invitation the Tribunal advised “…Please use the ‘Response to hearing invitation’ form attached to this letter or attach additional information if you have any requests or any new information which you wish us to consider” and “…Please provide all documents you intend to rely on to support your case by 17 February 2023.”[14]
[13] Doc ID number 10567919
[14] Ibid page 2
On 24 December 2023 the applicant provided a copy of a signed invitation form advising he would attend the scheduled review hearing and provided a copy of his parent socialist party ID.[15] Attached to this response was a copy of a document headed “Extract Translation of Identification Card” in the name of [name] issued by the Al Baath Arab socialist [Party].
[15] Document ID number 10596690
The applicant did not otherwise provide any further documents to the Tribunal. The applicant did not attach a written submission to the invitation form. The applicant did not provide a written submission to the Tribunal 7 days prior to the hearing.
The applicant did not provide a written submission to the Tribunal prior to the hearing. The applicant did not provide a written submission during the hearing or post the hearing.
In evidence the applicant advised the Tribunal as follows:
·The applicant had a lot of trouble remembering dates, times and sequences of events or occurrences. His evidence was often contradictory and inconsistent with prior interviews and statements provided to the Department
·He was born in [year] and left school after [a specified grade]. He did not get on with his family and was placed in an Islamic boys orphan home where he lived until about 2006 or 2007. From the time of leaving the orphans home he was generally employed and earned sufficient income to support himself. He worked factories and retail and wholesale in different parts of Lebanon. He was often provided with accommodation as part of his employment contract.
·He has been self-supporting since approximately 2006 or 2007 although he can no longer remember the exact dates.
·He has not lived in his family home since 2007. He rarely visited his family at the family home after 2007. His contact with his father post 2007 was minimal and post 2016 there has been no contact in any form.
·He confirmed he was employed at the [Company 1] from 2015 until 2018 on a full time basis as a [Occupation 1] worker and had supervisory responsibilities. He received a high salary paid in US$.
·He stated that at some time in 2016 or 2017 (he couldn’t remember and was unable to be specific) he was forced to return to his parents’ home. Later in the same discussion he advised the Tribunal he thought this incident may have occurred in 2015 whilst he was living in Beirut. He remained there for a week and his mother facilitated his departure from the family home after a week. He has not returned since this time and has not spoken to his father since this time. He was unable to explain the contradiction between being forced to leave Beirut in 2016 or 2017 to return to the family home and his then residence at the [Company 1] located at [address].
·He is employed in [occupation] as a subcontractor in Sydney, lives with a relative, earns about $2,500 per week and remits approximately US$300 per week or per month depending on his income to his mother for her medicines and to support the family. He advised the Tribunal this sum provided for a good living for his family in Lebanon.
·He advised he had wished to remain in Australia because it was a free country. He had not spoken to his father for many years and his communication with his family in Lebanon was with his mother. He advised he thought his father still intended to kill him or harm him if he returned to Lebanon.
The Tribunal addressed in questions all of the integers of claims as set out in the Application for a Protection Visa as well as the inconsistencies and contradictions set out in the decision record. Almost without exception the applicant was unable to give specific details of events or occurrences. He changed years of events on a regular basis. He couldn’t recall the detail of previous employment. He back tracked on evidence when inconsistencies were addressed by the Tribunal.
The applicant gave evidence that shortly after he left school [he] was given residence in an Islamic boys orphan home where he remained for about 2 years. Thereafter he worked and cared for himself in different parts of Beirut and Lebanon more generally. He rarely returned home and has not returned home since 2016. He thought his father wanted him to join the Syrian army circa 2009 or 2010, travel to Syria and engage in the fighting that was a feature of the middle east in that period. At that time he would have been aged [age] or [age] and still only a boy. That particular bout of fighting or war has been superseded by more recent developments and the imperative to travel to Syria is not as critical as it was in the earlier period.
As the applicant has not lived with his parents since 2005 or 2006, has looked after himself from that at time until the present, rarely returned to his parents’ home after 2007, has had only rare contact with his father in the period 2007 until 2016 and post 2016 has not had any contact with his father it is difficult to understand how threats as serious as raised by the applicant have any degree of truth at all. Certainly the applicant did not lead any evidence the threats were carried out in any way.
He was unable to explain the timing of a critical event when he said he was forced to leave Beirut in 2015 or 2016 or 2017 to return to his father’s home and with his mother’s assistance departed after a week. He affirmed on two occasions to the Tribunal he was fully employed at the [Company 1] [and] lived on the premises as accommodation was provided to the workers yet at the same time was insistent he was taken against his will from Beirut. The Tribunal notes the written reference provided by the applicant and affirmed in evidence to be accurate states the applicant worked at the [Company 1] from 2015 until May 2018 when they granted him leave for a 1 month visit to Australia.

The applicant’s written statement as part of his Application for a Protection Visa as was his evidence to the Tribunal expressed in the most general of terms. It lacked specifics and his evidence was similarly limited. It lacked particulars. The threat of murder from your father if you do not join a political party or go off to a foreign war is it must be observed a most serious matter. The potential consequences are mostly horrific. To be unable to remember the date or time of this threat, who was party to the conversation, whether there were any witnesses (uncles or other family members) whether there were follow up threats from the initiator are all matters that are the subject of reasonable inquiry and it is not unreasonable to assume an applicant would have considered these issues prior to lodging the Application for a Protection Visa. The applicant was unable to assist the Tribunal with relevant detail or particulars.
The Tribunal finds the applicant to be generally not credible and does not accept that he was required to join or was forced to join any political party or group by his father. The Tribunal does not accept that he relocated to Beirut or lived in Beirut in the period 2015 until 2017 or that he was kidnapped and beaten by his father or that he has credible reason to fear being harmed by his father or uncles or anybody else on return to Lebanon. The Tribunal is satisfied that the applicant has provided false and unreliable claims and the Tribunal finds the claims for protection are not credible.
The Tribunal finds that the applicant does not have a well-founded fear of persecution and his claims do not have a credible basis.
The Tribunal finds there is little chance that he will be harmed for any of the reasons he has claimed either on an individual basis or in aggregation. The Tribunal does not accept that he would be significantly harmed on the basis of things he has claimed. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk 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 section 36(2)(a). Having concluded that the applicant does not meet the refugee criteria, the Tribunal has considered the alternative complementary protection criteria. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark Bishop
Senior 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.
…

[2023] AATA 1314

24 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction