2007091 (Refugee)

2007091 (Refugee) [2022] AATA 3951 (5 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chang Liu (MARN: 1281423)
CASE NUMBER:  2007091
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Haag
DATE:5 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 September 2022 at 8:22am
CATCHWORDS
REFUGEE – protection visa – China – particular social group – victim of loan shark – applicant forced from his properties – corruption – state protection – physical violence – detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 201 FCR 505
Subramaniam v MIMA (1998) VG310 of 1997
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 7 April 2020 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 China, applied for the visa on 17 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant was invited to appear at his review hearing by video hearing on 31 August 2022 at 12:00PM. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was properly notified of the hearing date and that a video hearing would have given him a fair opportunity to give evidence and present arguments.
The applicant did not appear at the hearing.
Well before the date and time of the hearing Tribunal staff attempted on 24 August 2022 to conduct a ‘test dial’ using the telephone number the applicant provided to the Tribunal. The applicant did not answer the call.
The Tribunal official who attempted to communicate with the applicant on 30 August 2022 by SMS delivery system linked to the mobile telephone number the applicant provided to the Tribunal, was informed by the service provider that the delivery failed.
The applicant’s representative informed the Tribunal by email on 25 August 2022 that they are unable to contact the applicant by telephone or email.
On 31 August 2022 at 11.46AM, the Tribunal’s hearing attendant telephoned the applicant’s telephone number. The hearing attendant was informed by recorded message that the telephone number he called (the applicant’s telephone number) was disconnected.
At 11.48AM the hearing attendant telephoned the representative’s mobile telephone number: the call was not answered. The attendant was unable to leave a message for the representative because the representative’s voice mail facility had reached capacity and would not take any additional messages.
The hearing attendant made another unsuccessful attempt to contact the applicant using the telephone number he provided to the Tribunal. The hearing attendant was informed by recorded message that the phone number he called, being the applicant’s number, was not connected.
The Tribunal is satisfied the applicant has disengaged from the review process; that the applicant does not intend to participate any further in the review process and that, in the prevailing circumstances, it is appropriate to determine the review based on the claims and materials the applicant provided to the Department for the purposes of the protection visa application and the materials the applicant provided to the Tribunal.
The applicant provided a copy of the record of the delegate’s decision to the Tribunal. The decision was made on 7 April 2020. The Tribunal has read the decision. The delegate was not satisfied the applicant was a person in respect of whom Australia has protection obligations. On 15 April 2020 the applicant lodged with the Tribunal a written application seeking a review of the delegate’s decision.
The applicant was represented in relation to the review.
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) of the Act. 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) of the Act, 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-5LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s identity
The applicant claims to be a citizen of China, born [on date]. He stated in his protection visa application that he was born in China but did not provide the city or town of his birth. He did not state that he belonged to any ethnicity but claimed to be Christian. He stated that he could speak, read and write Mandarin.[1]
[1] Part C - Application for protection, Department file [Number], Doc ID 7203189.
He did not provide any details of his relationship status, previous addresses, employment history or family members, save that both his parents were Chinese citizens. He stated that he attended primary and middle school in Fuqing, Fujian, from [year] to [year].[2]
[2] Part C - Application for protection, Department file [Number], Doc ID 7203189.
The applicant provided the Department with a certified copy of his passport.[3]
[3] Department file [Number], Doc ID 7203188.
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he is a citizen of China, and as such his protection claims will be assessed against China as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant arrived in Brisbane, Australia [in] October 2017, after departing Shanghai on [the previous day] on a visitor visa.[4]
[4] Part C - Application for protection, Department file [Number], Doc ID 7203189.
A movement record check undertaken by the Tribunal on 3 June 2022 indicated that the applicant was onshore on a bridging visa.[5]
[5] Tribunal file 2007091, Doc ID 9839519.
The applicant submitted a valid protection visa (XA-866) application to the Department on 17 May 2018.
The applicant’s protection visa application was refused by the Department on 7 April 2020. The applicant applied to the Tribunal for review of this decision on 15 April 2020.
Section 5AAA of the Migration Act 1958
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant, to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
Claims for protection and other supporting documentation
The applicant submitted his claims for protection with his valid protection visa application, which he had signed and dated on 15 May 2018. The application was lodged on 17 May 2018. The applicant’s claims are as follows:[6]
[6] Part C - Application for protection, Department file [Number], Doc ID 7203189.
Why did you leave that country/those countries? Provide specific details
I fled from China to protect from being seriously harmed because I could not meet the repayments stipulated by the usurers. I was forced out my properties. The usurers had close links to the officials and bribed the police not to provide help to me and not to protect my safety when the usurers had violence on me. The usurers became aggravated in the circumstances when I did not make repayments on time or went into hiding. I was so afraid of hiding somewhere in China. The usurers can easily get me as long as I am in China
What do you think will happen to you if you return to that country/those countries?
I will suffer significantly physical harm when I return to China.
Did you experience harm in that country/those countries?
Yes.
I was detained, abused and assaulted. I was forced to leave my properties.
Did you seek help within that country/those countries after the harm?
No.
The usurers had close tie to the officials and police. The usurers used the police to locate me.
Did you move, or try to move, to another part of that country/those countries to seek safety?
No.
The usurers became more aggravated each time when I was found after going into hiding or failing to comply with their demands.
Do you think you will be harmed or mistreated if you return to that country/those countries?
Yes.
The usurers will significantly mistreat me when I return to China. I am in fear of my life if I cannot pay the loan off. It is foreseeable that I will not let go if I do not pay as demanded.
Do you think the authorities of that country/those countries can and will protect you if you go back?
No.
The usurers had close tie to the officials and police.
Do you think you would be able to relocate within that country/those countries to an area where you would not be harmed?
No.
I am always in fear of being harmed when I was in China. Relocation cannot prevent me from such harms.
The applicant stated in his application for the protection visa that he arrived in Australia [in] October 2017. He applied for a protection visa on 17 May 2018, about seven months after arriving in Australia. In the case of Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
Having considered the applicant delayed applying for protection for a period of approximately seven months after his arrival in Australia, and that he has not provided a reasonable explanation for that delay. There is no credible evidence that establishes to the satisfaction of the Tribunal the existence of circumstances that would have prevented the applicant from seeking protection in Australia at an earlier time. the Tribunal finds the applicant’s unexplained delay in applying for protection casts doubt on the genuineness of his protection claims.
Furthermore, the delay in applying for a protection visa weighs against accepting the applicant’s claim and related evidence that when he arrived in Australia in October 2017, he genuinely feared he faced a real chance of serious harm in China arising from an unpaid debt he owes to an unregistered money lender.
The Tribunal has considered the relevant parts of the DFAT country information report dated 22 December 2022 in relation to the shadow banking sector in China. The report specifically considers in general terms the circumstances that may be faced by persons who owe money to loan sharks, meaning unscrupulous money lenders. The applicant claims to be one such person.
In summary, the applicant claims that in China he borrowed money from a loan shark. He was unable to meet the terms of the loan. He stopped repaying the money lender. Consequently, he was unlawfully detained, abused, and assaulted. He also claims he was forced to leave his properties. In this context the applicant went into hiding. He is unable to obtain protection from the authorities because they are corrupt, and they will not act against the interests of the loan shark. He is unable to relocate to any party of China to escape the loan shark because the loan shark is closely and corruptly connected to the police and authorities in China.
The applicant’s claims are general in nature; they lack compelling specificity, and they are unsupported by concrete evidence specific to his claims about the risk factors he asserts he faces in China, that compelled him to leave the country and live in Australia.
For instance, the applicant has not provided evidence of the identity of the loan shark; how the applicant communicated with the loan shark; the specific evidence about the terms of the loan agreement such as the sum borrowed, how he received those borrowed funds; how he applied the borrowed funds; the rate of interest; the reason for entering into the loan agreement.
The applicant claims the loan shark forced him to leave his properties. This claim is vague in nature. It is unsupported by concrete evidence that identifies the properties he claims he was forced to vacate. The applicant has provided no evidence that satisfactorily establishes he owned or leased property in China, or that he otherwise beneficially owned property in China.
The applicant claims he was detained, abused, and assaulted at the behest to a loan shark. The applicant’s claims are general in nature. The claims lack compelling specificity and they are unsupported by concrete evidence.
The applicant claims he would be mistreated, and his life would be at risk because he is unable to repay the loan, and he would be unable to repay the loan if he is returned to China now, or in the reasonably foreseeable future.
Having considered the applicant’s unexplained delay in applying for a protection visa in the context of his claims to the effect that he entered Australia for the purpose of escaping a real chance of serious harm at the hands of a loan shark; that his claims lack cogent specificity; and, that the claims are unsupported by concrete evidence, the evidence before the Tribunal is insufficient to establish to the satisfaction of the Tribunal that the applicant is indebted to a loan shark in China.
Further, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant was detained, abused and assaulted at the behest of a loan shark.
Furthermore, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant owned property and that he was forced out of his properties in China and that he was forced to go into hiding in China because he feared he would be harmed at the behest of a loan shark.
Additionally, the Tribunal is not persuaded the applicant entered Australia because he had been harmed and he genuinely feared he would be harmed at the behest of a loan shark if he remained in China.
Findings
The evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance that the applicant will be subjected to serious harm due his membership of a particular social group, namely persons who are unable to repay their debt to a loan shark, or for any other reason specified in s 5J(1)(a) of the Act, or for any other reason, if he is removed to China now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out is s 5H of the Act.
Complementary protection
The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘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’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.

The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 201 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to China now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A).
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
In summary, for the reasons given above the applicant does not satisfy the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
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 3951

5 September 2022

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