2011497 (Refugee)

2011497 (Refugee) [2024] AATA 2629 (3 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2011497
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Amy Faram
DATE:3 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the Applicant a protection visa.

Statement made on 03 April 2024 at 10:00am
CATCHWORDS
REFUGEE – protection visa – Malaysia – decision on the papers – particular social group – whistle blower – attempting to raise attention about harm caused via environmental pollution by a government owned factory – political opinion – against the authorities responsible for the factory and the harm caused – Malay-Chinese ethnicity – religion – Christian – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 866.221
CASES
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 June 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 Malaysia, applied for the visa on 12 February 2020. The delegate refused to grant the visa on the basis that the harm they feared was not for one of the refugee reasons, and that they could be protected by the authorities in Malaysia from the harm they fear, and therefore did not face a real risk of significant harm, per the complementary protection criteria.
On 13 February 2024, the Tribunal wrote to the Applicant and requested that he complete a pre-hearing form. No response to this email was received.
On 27 February 2024, the Tribunal wrote to the Applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Applicant was invited to appear before the Tribunal to give oral evidence and present arguments relating to the issues arising in his case.
On 8 March 2024, the Tribunal sent the Applicant a message, reminding them their hearing was on 18 March 2024 and requesting that that they reply to the hearing invitation if they had not already done so.
On 10 March 2024, the Applicant emailed the response to hearing invitation form to the Tribunal. The correspondence was from the email address on record with the Tribunal and included a copy of his passport. The form was signed digitally. 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 further steps to enable him to appear, that is ‘on the papers’.
On 12 March 2024, a Tribunal officer, using an interpreter in the Mandarin-English languages called the Applicant. The Applicant provided his date of birth, but a different email address and physical address than what was on record with the Tribunal. He also said he did not know about the Administrative Appeals Tribunal and asked what the call was about. The Tribunal officer asked if he or someone on his behalf had lodged an application with the Tribunal. The Applicant seemed unable to hear the Tribunal officer, and the call was disconnected.
On 14 March 2024, the Tribunal emailed the Applicant at the address on file, confirming that it had received a request for a review on the papers, explaining there had been some confusion in a recent phone call, and asking the Applicant to contact the Tribunal as soon as possible to update his contact details if necessary and to confirm his wishes with respect to the course of the review proceeding.
On 15 March 2024, an SMS reminder about the Tribunal hearing was sent to the Applicant.
On 18 March 2024, the Applicant did not appear at the hearing scheduled for that day. The Tribunal officer called the Applicant and left a message, requesting that he call the Tribunal back as soon as possible.
Also on 18 March, the Tribunal wrote to the Applicant at the home address on record, copying the email address on record. The letter set out that the Tribunal had received notice that he did not wish to attend a hearing, and explained this would mean a decision would be made without the Tribunal taking into account his oral evidence, and on the basis of information before the Tribunal. It invited the Applicant to provide anything further he would like the Tribunal to consider as soon as possible. It also asked the Applicant to tell the Tribunal by 2 April 2024, if he would in fact like to attend a hearing at the Tribunal or if he had any questions about the Tribunal or the review proceeding.
On 25 March 2023, the Tribunal forwarded a copy of the letter sent to the Applicant on 18 March 2024, to the different email address provided by the Applicant during 12 March 2024 phone call. The email confirmed the Tribunal’s intention to act on the request for an on the paper decision after 2 April 2024, and asked the Applicant to contact the Tribunal if he had any questions or concerns before then. The Tribunal later that day received notification that the email had not been received by the Applicant.
The Tribunal has spoken to the Applicant with an interpreter and has provided him with the contact details and opportunity necessary for him to make enquiries of the Tribunal about the review application.
The Tribunal has before it a copy of the hearing invitation from the email address on file, requesting that a decision be made on the papers, and notes that when this request was communicated to the Tribunal it was accompanied by a copy of the Applicant’s passport.
The Tribunal is troubled by the Applicant’s earlier indication that he did not understand the review process, but in light of the opportunity he has had to clarify or counter the request that the Tribunal not take his oral evidence, and the fact that he or someone on his behalf has requested a decision on the papers, the Tribunal now proceeds to make such a decision.
No further information has been received by the Tribunal and the matter has been determined on the materials available.
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or they are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criteria
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.
Complementary protection criteria
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’).
A real risk (as with a real chance, per the refugee criteria) is one that is not remote or insubstantial or a far-fetched possibility.[1]
[1] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34).
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Sections 5(1) and 36(2A) and (2B) 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. The Tribunal notes that the most recent DFAT report is from 2021 (the 2021 DFAT report) and that where relevant more recent country information has also been considered.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, on account of the Applicant’s experiences at and in relation to his former work place, he is owed protection obligations under section 36 of the Migration Act and clause 866.221 of Schedule 2 to the Migration Regulations.
While the Applicant declined to give oral evidence to the Tribunal, the Tribunal, with reference to his form and copy passport, is satisfied that he is a citizen of Malaysia and that Malaysia, for the purposes of this protection eligibility assessment, is the ‘receiving country’ against which his claims are to be assessed.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Applicant was born on [date], in Pahang and came to Australia in 2016.
In his protection visa application form, the Applicant stated they were of Malay-Chinese ethnicity and Christian faith. His claims, set out briefly here, were:
-    He had worked in a state-owned factory, situated near [location], and local people nearby were suffering and dying from cancer. His own health was getting worse and he spoke with his manager but was threatened and told he would be in trouble if he reported the problem any higher.
-    He felt he should report the concerns to the government but were prevented from doing so by gangsters, sent by the head of the factory, who kicked him and threatened to kill him.
-    The gang smashed windows at his house. No one protected him and he was often threatened and hurt.
-    He tried to move but was found by the gangsters.
-    He felt they needed to leave to be safe: if he returns he feels he will be kicked and threatened by the gangsters, and possibly killed.
-    The government is so powerful and connected with the local authority and the authority profits from the factory: he will not receive protection.
The Applicant was not interviewed by the delegate. They sought review of the delegate’s decision but have not provided any further evidence or information in support of their protection claims to the Tribunal.
The Applicant’s claims relate to a risk of harm on account of being a member of a particular social group (whistle blower, attempting to raise attention about harm caused via environmental pollution by a government owned factory), and/or because of his actual or imputed political opinion against the authorities responsible for the factory and the harm caused.
The Applicant has not provided details about his experiences such as what factory he worked for, where it was and what his role there was. The Tribunal notes that the application form did not list any past employment in Malaysia, and indeed stated the Applicant had never been employed.
The application form also does not include details about how the Applicant came to be aware of the localised health issues or how he knew the factory was responsible for them. The Applicant has not provided details about the gangsters targeting him, and what injuries he sustained and whether he ever required medical treatment as a result.
The Act places certain obligations on applicants to provide sufficient evidence to establish their claims (section 5AAA) and it is established that, while an inquisitorial process, it is for an applicant to make their case.[2] The fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that the statutory elements are made out and a decision-maker is not required to make the applicant's case for them.
[2] SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 at [57];
The Applicant has provided inconsistent information and insufficient details about his claims. The Applicant has also not provided any evidence of his employment at the factory, or any evidence going to his experiences of harm, such as photos of damage or injury or medical records. The Tribunal makes this observation accepting that it is sometimes not possible or safe for an Applicant for a protection visa to provide additional evidence to corroborate their claims. There is no information, however, before the Tribunal to indicate that that is the case here.
The Tribunal does not accept that the Applicant has in the past experienced serious harm or been targeted for the reasons he has provided. Further, the information provided is not sufficiently coherent or detailed for the Tribunal to be satisfied that the Applicant faces a real chance of serious harm in the future.
The Tribunal is not satisfied, on the evidence before it, that the Applicant has in the past been persecuted or that they have a well-founded fear of persecution for the essential and significant reasons of their membership of a particular social group being whistle blowers, and/or their actual or imputed 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 a receiving country, there is a real risk[3] that they will suffer significant harm.
[3] A real risk, as with a real chance, being one that is not remote or insubstantial or a far-fetched possibility, Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
The Applicant has not claimed that on account of his Christian religion or Malay-Chinese ethnicity, considered together or alone and apart from their whistle blower / gang / political opinion claim, he would face a real chance of serious harm in Malaysia. Country information considered by the Tribunal, including as set out in the 2021 DFAT report, does not satisfy the Tribunal that there is a real chance of serious harm to the Applicant for either or both of these reasons.
Malaysia is a multi-religious and multi-ethnic country.[4] While race has ‘historically been a prominent issue in Malaysia’ (there were race riots primarily between ethnic Malays and Chinese Malaysians in the late 1960’s)[5], and positive discrimination in favour of the Bumiputera continues, Chinese Malaysians ‘tend to be wealthier than other ethnic groups in Malaysia’. DFAT assesses they experience low levels of official discrimination in education, the civil service or when opening business.[6]
[4] DFAT Country Information Report – Malaysia, 29 June 2021 (DFAT report).
[5] DFAT report at [2.3], [2.5], [section 3].
[6] DFAT report at [3.12].
Christians account of 9.2% of the population, and are 20% of the Chinese Malaysian community.[7] Freedom of religion is guaranteed by the Constitution[8] and DFAT assesses that Christians generally live free from societal discrimination, but that a moderate risk of harassment, in some cases extending to serious harm, is faced by those who proselytise to Muslims.[9] More recent country information seems broadly consistent with these observations.[10]
[7] DFAT report at [3.23], [3.53]
[8] DFAT report at [3.21].
[9] DFAT report at [3.58].
[10] 2022 Report on International Religious Freedom: Malaysia, Malaysia - United States Department of State; Lutheran World Federation, Asia: Witnessing to Christ in a minority context in Malaysia, 21 June 2023, Asia: Witnessing to Christ in a minority context in Malaysia | The Lutheran World Federation
In the event that it might be said a claim regarding the Applicant’s ethnicity and/or religion does in fact arise on the materials before the Tribunal, and as set out above, the Tribunal has considered these aspects of their profile, and finds that on the information before it – including country information and the absence of any express claims about these matters - it is not satisfied the Applicant would face a real chance of serious harm for either or both of these reasons.
In summary, the Tribunal is not satisfied that the Applicant faces a real chance of persecution in Malaysia for any reason. 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 ‘real risk’ test imposes the same standard as the ‘real chance’ test considered above.[11] The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. The Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[11] MIAC v SZQRB (2013) 210 FCR 505.

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).
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).
For the reasons given above, the Tribunal is also 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.
Amy Faram
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.
…

[2024] AATA 2629

3 April 2024

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction