2005778 (Refugee)

2005778 (Refugee) [2023] AATA 1627 (31 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2005778
COUNTRY OF REFERENCE:                   Ghana
MEMBER:Katherine Harvey
DATE:31 March 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 March 2023 at 11:44am

CATCHWORDS
REFUGEE – PROTECTION VISA – GHANA – FEAR OF HARM IF FORCED TO BECOME LOCAL CHIEFTAIN – ONGOING DISPUTE WITH AND THREATS FROM FULANI HERDSMAN – REQUESTS AND THREATS FROM OTHER UNSPECIFIED PEOPLE – ECONOMIC HARDSHIP – COUNTRY INFORMATION – NEWS REPORTS THAT CHIEFTAINCY NOT VACANT OR HELD BY CARETAKER – NO EVIDENCE OF THREATS PROVIDED – APPLICATION MADE AFTER NOMINATION FOR FURTHER TEMPORARY VISA WITHDRAWN – DECISION UNDER REVIEW AFFIRMED
LEGISLATION
MIGRATION ACT 1958 (CTH), SS 5H, 5J, 36, 65, 411
MIGRATION REGULATIONS 1994 (CTH), SCHEDULE 2
CASE
CHAN YEE KIN V MIEA (1989) 169 CLR 379
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 12 March 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
According to his protection visa application, the applicant is a [Age]-year-old man from the Republic of Ghana.
The applicant first arrived in Australia in January 2016 on a [Specified] visa. The nominator for a further [visa] requested their nomination be withdrawn on 29 April 2016 and he applied for a protection visa on 26 May 2016.
Claims
In his protection visa application, the applicant made the following claims.
I left to [do an Activity] in Australia. I came sponsored by [Mr A] on [a Specified visa].
I was born in Accra, Ghana. My family comes from [Town 1]. I belong to the Akan tribe. I am Christian. I am [an Occupation 1] and I am [an Occupation 2]. I play music and sing in church every Sunday. I fear for my life from the Fulani group if I go back the Fulani group would kill me.
I was threated many times by members of the Fulani group. I informed the police.
The police is corrupted and they have not done anything.
I moved to Accra however the threats continued.
I would be harmed by the Muslim group Fulani.
The authorities would not protect me because they are corrupted.
The group members of Fulani live in any city in Ghana and they are very powerful.
As detailed in the decision record, a copy of which the applicant provided to the Tribunal, during his protection visa interview with the Department, the applicant explained that members of the Ashanti and his immediate and extended family wanted him to be the Tribal Chief in [Town 1].
On 12 December 2019, the Department wrote to the applicant inviting him to comment on an article that did not support his application.
On 18 December 2019, the applicant provided a statutory declaration referring to the article.
On 12 March 2020, a delegate of the Minister refused the applicant’s protection visa application.
The review application
On 23 March 2020, the applicant applied for a review of the delegate’s decision. The applicant provided a copy of the delegate’s decision with his application for review. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 6 October 2022, the Tribunal received:
·   a pre-hearing submission responding to the delegate’s concerns
·   a letter of support from the applicant’s Australian spouse who is also his representative
·   photos of the applicant in Australia, and
·   chapter 14 of S Gramley and K-M Pätzold, A Survey of Modern English,[1] about West-African English.
[1] S Gramley and K-M Pätzold, A Survey of Modern English, 2^nd ed, Routledge, 2004.
The applicant appeared before the Tribunal on 13 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s representative. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
On 28 October 2022, the applicant’s representative provided a letter dated 27 October 2022 with additional information and links to three news articles to support his claims.
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
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or he is owed complementary protection, or he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s personal details are set out in his protection visa application. He claims that his family come from [Town 1] and that he belongs to the Akan tribe and is of Christian faith.
The applicant has [sisters] and [brothers] living in Ghana and [brothers] living in [Country]. He has [sons] and a daughter living in Ghana with their mother, and a son and step-son in Australia. He trained as [an Occupation 3] and had roles including as [Occupations] in Ghana.
Country of reference
The applicant claims he was born in Accra, Ghana and is a citizen of Ghana. He provided a copy of his Ghanaian passport with his application and the Tribunal sighted the applicant’s current passport at the hearing.
The Tribunal is satisfied that the applicant is a citizen of Ghana and that Ghana is the receiving country for the purpose of 36(2)(aa) of the Act.
Assessment of claims and evidence
Chieftaincy
At the hearing, the applicant said that, if he returned to Ghana, his life will be miserable as he will not be able to do what he wants to do because he will be forced to take up the chieftaincy of [Town 1]. He believes that he will be forced to do things he does not want to do, which is one of his issues about the chieftaincy. He is concerned that the chieftaincy will be imposed upon him and he will be made to follow the traditions of the palace, whether he likes it or not. He will be told what to do and he will not be independent. He explained that becoming a chief means that you are the custodian of the stool lands and he does not want to get involved. He said that the chieftaincy is about being a land guard and that is very, very dangerous.
The applicant claimed that, when he was a child, his mother would take him to his hometown of [Town 1] in the holidays and the traditional fetish prophesied that he would be chief. He said that this is his lineage from his mother’s side and he does not want to get involved. The applicant said that he and his family lived in Accra and that he stopped visiting [Town 1] when he was about [age] when he started working.
The applicant was concerned that he would be forced to take the chieftaincy. He said that [the job he does] is a social job and these people will come and get him. He said that he does not know exactly where they come from but any where he goes, he would not be comfortable. He said that his family is spread in Ghana, some in [Town 1], some in Accra and also in other areas.
The applicant said that around the time he [did a job task] in Ghana he received threats on his mobile phone from people who said that he was blocking their chances (by not taking the chieftaincy) and they said that they were going to kill him. He reported these threats to the police who tried to call the numbers that the threats came from, but the numbers were not working. The police said that the people could have removed their SIM card so that the police could not trace them. He also said that the police cannot handle chieftaincy issues because there is a lot of corruption and bribes.
The applicant said that he continues to receive threats through [social media] in Australia and he has blocked a lot of people because it becomes pressure. He did not expand on the nature of these threats. He said that they are mainly asking him for money and things that they need that he does not have. He said that people also want help from him with their custodian issues because of his age as most of the elderly people have died. If he were in Ghana, they would want money and advice from him. He said that he has now blocked most of the people on [Social media] but that there are one or two still on [Social media] and he will submit evidence.
The applicant was asked how he maintained ties with the church, his children and his [Occupation 1] career from 2013 to 2016, when he said he was in hiding. He said that he normally worked in the private sector, he [did a job task] without publicity and he worked in [a Workplace 1], which does not involve many people.
The applicant said that his [children] in Ghana are safe because he has made sure that they do not associate with his family. Their mother is Ga, not Ashanti, and they live in the Ga community He does not know of anyone threatening them.
As discussed at the hearing, media reports that the chieftaincy in [Town 1] is not vacant and that the current Chief of [Town 1] is [Mr B].[2] The applicant responded that he did not know the Ashanti chief and he did not know his name but that there would definitely be a caretaker. He said that there were lots of grades of chief; there are paramount chiefs and they have stool chiefs and they have grades. He also said that he does not follow what is happening in Ghana. He was invited to provide further information to support his claims.
[2] [References deleted].
After the hearing, the applicant’s representative provided information after speaking with applicant’s brothers in [Country] and undertaking further research. She said they understood that the evidence that the applicant is not fabricating his recollections does not necessarily mean that he will be successful in his claim, but she hopes the information will help validate his account of historical matters. She advised that the applicant’s mother’s family came from [Town 2], which is some distance from [Town 1]. She advised that the [Tribe] people are the tribe who are the custodians of the [Tribe] tribal land, including [Town 2]. She advised that the previous paramount chief of [Town 2], [Mr C], died [in] September 2013 and the village had caretaker chiefs until 2017, when a new chief [Mr C] was installed. She advised that the legitimacy of the chief had been challenged and that there had been civil unrest but she said that the information was vague. The representative provided links to three articles:
·the death of [Mr C] was confirmed in the article dated [January] 2014[3]
·the article dated [May] 2017 reported tension over the enstoolment of [Mr D] as Chief and said that about [Number] candidates were contesting the stool,[4] and
·the article dated [March] 2018 reported that a chieftaincy crisis looms at [Tribe], with one claimant challenging the legitimacy and eligibility of [Mr C].
Fulani herdsmen
[3] [Reference deleted].
[4] [Reference deleted].
At the hearing, the applicant said that the Fulani normally use the land in his hometown ([Town 1]) for their farming and their animals. As chief, he would be expected to release land for them for their farming and cattle. He said that they can kill him because he is not becoming the chief and releasing land for them. The applicant said that his concerns are all about the chieftaincy. He can’t live in Ghana because his life is in danger there.
The applicant said he had received threats to kill him via text message, telling him that he is blocking their chances by not accepting the chieftaincy. He said that he did not respond because he did not want to have a conversation with them and give them information about where he is. The applicant could not remember when he had received these messages but said that it had been a few times.
When asked if anything had happened in the past, the applicant spoke of a clash between the Fulani and the Agogo people about land issues. He clarified that nothing had happened to him in the past. He said that when he hears information it helps him to protect himself.
As discussed at the hearing, there are estimated to be 4,800 Fulani in Ghana and the main conflict between farmers and Fulani herders is in Northern Ghana, while [Town 1] is in the south of Ghana. The applicant had provided an article[5] in his pre-hearing submissions about climate change and Fulani migration into Agogo, which supported his claim that the Fulani now live across Ghana.
Employment in Ghana
[5] Adbul Karim Issifu, Francis Diawuo Darko, Sebastian Angzoorokuu Paalo, Climate change, migration and farmer–herder conflict in Ghana, Conflict Resolution Quarterly V 38 Issue 4 421–439.
The applicant said that he does not have a job in Ghana and it will be very hard for him to earn an income or do anything. He also does not have any property.
As discussed at the hearing, the applicant is a highly experienced [Occupation 1] who supported himself in Ghana as [an Occupation 1] and [Occupation 2] before coming to Australia. In Australia, he works as [a related Occupation 1]. When asked why he could not support himself in Ghana, he said that he was concerned that he would end up being a land guard because the chieftaincy. He also said that nobody knows him (as [an Occupation 1]) in Ghana.
Threat in Australia
The applicant said that he had received a threat from a church elder in Adelaide via text message about four or five days before the hearing. As discussed at the hearing, as this matter did not relate to his return to Ghana it is outside the protection visa review process and the applicant was advised to take up his concerns with the police in Australia.
Fear of harm
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The applicant claimed to fear harm because he will be made to take the chieftaincy of [Town 1], which he does not want to do, because members of the Ashanti and his immediate and extended family want him to be the Tribal Chief in [Town 1], because the Fulani herdsmen could kill him for not taking the chieftaincy and releasing land for them, because he received threats on his phone from people saying he was blocking their chances by not taking the chieftaincy and they were going to kill him, and because people may come and get him while he is [doing an Activity] and force him to take up the chieftaincy. As discussed at the hearing, the chieftaincy of [Town 1] is currently held by [Mr B]. As submitted by the applicant’s representative after the hearing, the paramount chief of [Town 2] is [Mr C]. The Tribunal does not accept that the chieftaincy of [Town 1] or [Town 2] are vacant or held by a caretaker chief. Given this, the Tribunal does not accept that the applicant will be pressured to take up a chieftaincy role for [Town 1] or [Town 2]. As the chieftaincies of [Town 1] and [Town 2] are occupied, the Tribunal does not accept that members of the Ashanti or his family, the Fulani or anyone else will seek to compel the applicant to take up the position of chief, nor does the Tribunal accept that members of the Ashanti or his family, the Fulani or anyone else will harm the applicant if he does not take up the position. The Tribunal does not accept that the applicant faces a real chance of serious harm from members of the Ashanti or his family, the Fulani or anyone else and the Tribunal does not accept that the applicant faces a real risk of significant harm from members of the Ashanti or his family, the Fulani or anyone else.
The applicant claimed that he would find it hard to support himself in Ghana as he does not have a current job, nor does he own land. Given the applicant’s extensive work experience in Ghana and Australia as [Occupations], the Tribunal finds that the applicant could support himself by working as [Occupations] if he returned to Ghana. Based on the information before it, the Tribunal does not accept that there is a real chance that the applicant will face significant economic hardship that threatens his capacity to subsist or that he will be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist.

The Tribunal considered the applicant’s claim that he will be pressured by his community to provide advice, including on their custodian issues, because of his age. He claimed that he will also be asked for money and things that he does not have. The applicant said that he would submit evidence of these threats from [Social media] but no information was received in the post-hearing submissions or by the time this decision was finalised. Based on the evidence before it, the Tribunal does not accept that there is a real chance of serious harm or a real risk of significant harm from members of the applicant’s community.
Considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ghana, that there is a real risk that the applicant will suffer significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
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 1627

31 March 2023

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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Natural Justice

Appeal