2007484 (Refugee)

2007484 (Refugee) [2020] AATA 2260 (12 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007484
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:Christopher Smolicz
DATE:12 June 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 June 2020 at 9:11am
CATCHWORDS
REFUGEE – Protection visa – Vietnam – anti-government political activist – unlawful non-citizen – no evidence – legally departed Vietnam – delay in lodging protection application – credibility – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, r 2.08, 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 22 April 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 7 April 2020.
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 (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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
On 15 May 2020 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.
On 10 June 2020 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
The applicant provided the Tribunal with the delegate’s decision refusing to grant him the protection visa.
Issue
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds because he claims to be an anti-government political activist.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [an] [age]-year-old single male born in Quang Binh Province, Vietnam. According to his protection visa application form he completed his schooling in Vietnam in June 2012.
[In] September 2012 he arrived in Australia on a temporary student visa which was valid until March 2017. The applicant was enrolled in a [course] at [an institute].
The applicant arrived in Australia legally on a validly issued Vietnamese passport. Since arriving in Australia, he has applied for a new Vietnamese passport which was issued by the Vietnamese Consulate General in Sydney and remains valid.
In October 2013 the applicant was issued with a notice by the Department informing him that his visa was to be cancelled because he was not enrolled. The visa was cancelled on 29 May 2014. The applicant subsequently became an unlawful non-citizen and disappeared into the community until he was arrested by the WAPOL. The applicant declared in his protection visa application that he was involved in a [criminal activity] and was arrested and convicted and jailed from [October] 2018 to [March] 2020.
[In] April 2020 he was placed in immigration detention upon his release from [Prison].
Summary of claims
The applicant provided the following brief evidence in support of his application for protection. He did not provide any supporting documents or witness statements.
·     When he was at school, he formed a group with other students advocating for human rights and democracy in Vietnam.
·     The school principal warned him about his actions. He was banned from school on several occasions. His family was threatened, and funds were “corrupted”.
·     He was taken to the station by the authorities and fined. He was threatened that if he continued his actions he would be sent to jail.
·     He came to Australia to seek a better life and to learn about human rights and freedom of speech so that he could educate people in Vietnam about these issues.
·     If he returns to Vietnam, he will be considered a traitor and spy by the authorities for educating people in Vietnam about democracy, human rights and freedom of speech and for posting anti-government content on [social media].
·     He fears he will be arrested at the airport should he return to Vietnam.
The delegate had regard to country information which indicates that political activists in Vietnam who have been identified as being anti-government or human rights defenders are likely to be monitored by the Vietnamese authorities and are frequently prevented from leaving the country.
The delegate found the applicant’s description of his experiences in Vietnam and ability to freely leave the country and travel to Australia was not consistent with an individual who is a high-profile political activist.
The delegate also noted that there are about 52 million [social media] accounts in Vietnam out of a population of about 96 million. The delegate accepted that the authorities in Vietnam monitor online content, including social media, however the delegate was not satisfied that if the applicant posted content it would have come to the attention of the authorities in Vietnam.
Country information
In considering the applicant’s claims the Tribunal has had regard to DFAT’s most recent report on Vietnam which provides country information in relation to failed asylum seekers and the exit and entry procedures applicable to Vietnamese citizens returning from abroad:
Article 23 of the Constitution provides for citizens to ‘freely travel abroad and return home from abroad in accordance with the provisions of the law’. In practice, the government imposes limits on the movement of some individuals, particularly foreign travel by high profile political activists or critical journalists. Authorities often confiscate passports or deny issuance of passports for people the government deems a threat to national interests, including their family members.
The Department of Immigration, part of the MPS, is responsible for the issuance of passports and visas, as well as monitoring citizen migration to and from Vietnam. The Immigration Department, under the MPS, is responsible for controlling the entry and exit of citizens and foreigners at airports. Vietnam’s three main international airports in Hanoi, HCMC, and Da Nang account for the vast majority of airborne entry and exit into and out of the country. Several other international airports elsewhere in the country primarily operate domestic flights. There are a number of land crossing points on the borders with Cambodia and Laos, which are for nationals of Cambodia, Laos and Vietnam only. Other passport holders are not able to cross at these points of entry/exit. In 2018, the government established an anti-human trafficking taskforce to improve law enforcement in border areas with a high prevalence of crime.
…..
Articles 120 and 121 of the Penal Code states that ‘Fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration’ is a criminal offence. Organisers of such movements face imprisonment of between five and 15 years, and those found to have committed particularly serious crimes can be imprisoned for 12 to 20 years, or life. Individual travellers face imprisonment of between three and 12 years, or between 12 and 20 years in serious cases.
DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returned from Australia. Returns to Vietnam are usually done on the understanding that the individuals in question will not face charges as a result of making an application for protection. In 2016, a Memorandum of Understanding was signed between the Australian Department of Home Affairs and the MPS, which provides a formal framework for the return of Vietnamese nationals ‘with no legal right to enter or remain in Australia, including those intercepted at sea’.
….
DFAT understands that authorities occasionally question returnees from Australia upon their arrival in Vietnam. The interview process generally takes between one to two hours, and focuses on obtaining information about the facilitation of any illegal movement on their part. DFAT is not aware of any cases in which returnees from Australia have been held overnight for this purpose.[1]
Consideration of claims and evidence
[1] DFAT Country Information Report, Vietnam (December 2019) p.42–43
Section 5AAA of the Act makes clear that it is the applicant’s responsibility 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 his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant declined the opportunity to present evidence and arguments in support of his application at a hearing. The Tribunal has considered the applicant’s claims in his protection visa application and finds them vague, lacking in detail and not supported by country information. The Tribunal’s findings are detailed below.
The applicant claims to have been a leader of an anti-government human rights group when he was a school student in Vietnam. The Tribunal has had regard to the evidence and finds the applicant has not provided any evidence about what political group he was involved in, its name, size or membership. No evidence was provided to explain how or when the applicant became involved in an anti-government group when he was at school. It is unclear if the group was confined to his school friends or affiliated with organisations outside of the school. There is no evidence about his parents’ political activity or if they came to the attention of the authorities.
The applicant declared that his involvement in the group came to the attention of the school principal and he was banned from school on several occasions. The Tribunal notes that the applicant declared that he graduated from school in June 2012. It is unclear what actions the applicant took part in which brought him to the attention of the principal or when this occurred. No evidence was provided about what he did that got him banned from the school. He claims he was taken to the police station and fined. The applicant has not provided any evidence to explain when or why he came to the attention of the police. It is unclear if he was charged with any offence or what fine he had to pay.
He claims his family were threatened and “funds corrupted”. No evidence was provided to explain when or why his family were threatened or by whom. The Tribunal notes the applicant was able to secure a student visa to enable him to travel and study in Australia. The Tribunal also notes that the eligibility criteria for a student visa requires the applicant to have access to funds to pay for tuition fees, travel, accommodation and living costs in Australia. The Tribunal finds that the applicant had access to funds and this does not appear consistent with his claim that funds were corrupted because of his actions in Vietnam.
Importantly the Tribunal finds the applicant was issued with a Vietnamese passport by the government of Vietnam that enabled him to legally depart Vietnam from Tan Son Nhat International Airport. DFAT reports that Vietnamese passports are obtained in Vietnam by application to the Immigration Department of the MPS (Ministry of Public Security). Applicants must provide their identity card or birth certificate (for children under 14 years of age), an application form and two recent passport photos. The MPS reviews the application in consultation with authorities in the province who verify the applicant’s identity. [2]
[2] DFAT Country Information Report, Vietnam (December 2019) [5.49]
The Tribunal has had regard to DFAT’s country information detailed above and finds that if the applicant was a political activist who was a person of interest to the authorities he would not have been issued with a passport and would not have been able to legally depart Vietnam to study in Australia.
The applicant has claims that he educated people about democracy, human rights and freedom of speech and posting anti-government content on [social media]. The applicant has provided no evidence when this occurred or what he posted online. There is no evidence of the applicant being politically active since he arrived in Australia.
In assessing the credibility of the applicant’s claims the Tribunal has also had regard to the timing and delay in the applicant lodging his protection visa application. The Tribunal finds that the applicant arrived in Australia in September 2012 on a temporary visa. The Tribunal would have expected that if the applicant had a genuine fear of harm in Vietnam because he was an anti-government political activist who came to the attention of the authorities in Vietnam he would have applied for the protection visa soon after arriving in Australia or at least after his student visa was cancelled in May 2014. He did not.
The applicant became an unlawful non-citizen and only applied for the protection visa after he was placed in immigration detention in April 2020. The Tribunal finds that the seven-and- a-half years between the time the applicant arrived in Australia and when he applied for the protection visa is a significant and relevant factor in assessing the credibility of his claims for protection.
In conclusion the Tribunal finds the applicant’s evidence vague and lacking in detail. The Tribunal does not accept the applicant was a political activist who has come to the attention of the authorities in Vietnam. The Tribunal does not accept the applicant was involved in a group advocating human rights, freedom of speech and democracy when he was a school student in Vietnam. The Tribunal does not accept he educated people and posted anti-government material online in Australia or Vietnam. The Tribunal does not accept he was banned by his school in Vietnam and came to the attention of the authorities and was fined and threatened with imprisonment. The Tribunal finds the applicant was issued with a Vietnamese passport and able to legally depart Vietnam International Airport by plane. The Tribunal finds that his ability to obtain a passport and depart Vietnam does not support his claim that he was a person of interest to the authorities. The Tribunal finds the delay and timing of his application does not support the applicant’s claim that he fears returning to Vietnam. The Tribunal does not accept the applicant’s claim that he would be perceived to be a spy by the authorities and face imprisonment if he returns to Vietnam.
The Tribunal accepts that if the applicant returns to Vietnam in the reasonably foreseeable future, as a failed asylum seeker, the Vietnamese authorities may well infer the applicant was in Australia seeking protection, even though this information was not released and is confidential. The Tribunal has therefore considered relevant country information in respect of the treatment of failed asylum seekers in Vietnam detailed above.
The Tribunal finds that the applicant travelled to Australia to study after he completed his schooling in Vietnam. Having found that he is not a political activist who has come to the attention of the authorities the Tribunal does not accept there is real chance the applicant would be suspected by the Vietnamese authorities of being a spy or “fleeing abroad or defecting to stay overseas with a view to opposing the people’s administration”. Having regard to the applicant’s profiles the Tribunal also does not accept that he will be imputed with political opinion that is opposed to the Vietnamese government because he has sought asylum in Australia. The Tribunal does not accept the applicant would be charged under Articles 120 and 121 of the Penal Code. As detailed above DFAT is unaware of any cases where these provisions have been used against failed asylum seekers returning from Australia.
Having considered the applicant’s claims individually and cumulatively the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm because of his actual or imputed political opinion or because he will be returning to Vietnam as a failed asylum seeker.

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Next, the Tribunal has considered the applicant’s claims having regard to the complementary protection criterion.
The Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk he will suffer significant harm, as set out in s.36(2)(aa).
Having regard to the findings above the Tribunal is not satisfied that there is any evidence that the applicant has breached or would have been suspected of breaching the Vietnamese Penal Code (fleeing abroad or defecting to stay overseas).
Relying on the country information referred to above, the Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm because he left Vietnam legally over seven years ago and is a failed asylum seeker.
The Tribunal accepts the possibility he may be questioned at the airport upon return for the reason of having been deported from Australia, but in the absence of any information to suggest such questioning routinely occurs or involves any level of mental or physical harm, the Tribunal does not accept that being questioned amounts to cruel and inhuman treatment or punishment, or degrading treatment or punishment, and does not amount to significant harm.
Having considered the claims both individually and cumulatively, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.
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.
Christopher Smolicz
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.
…

[2020] AATA 2260

12 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies