2012665 (Refugee)

2012665 (Refugee) [2024] AATA 3322 (20 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2012665
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Sophie Manera
DATE:20 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 August 2024 at 4:20pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – loan sharks – violence from debt collectors – effective state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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

The applicant is a [age]-year-old man and an Indonesian national.
[In] September 2016 the applicant arrived in Australia on a valid [temporary] visa.
On 7 September 2018 the applicant applied for a protection visa. In his protection visa application form, the applicant claimed to fear harm from thugs acting on the instructions of loan sharks, as he cannot pay his debt to the loan sharks. He stated that the loan sharks initially called him, then they came and made a mess at his house, and the last threat took place in a marketplace parking lot, where the applicant was threatened with a knife and was told that he had until the end of the month to pay his debt.
The applicant was not invited to attend a protection visa interview with an officer of the Department of Home Affairs.
On 30 July 2020 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). 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) 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).
This is an application to the Administrative Appeals Tribunal (Tribunal) for review of that decision. The applicant made an application for review on 10 August 2020. The Tribunal finds that the applicant has made a valid application for review under s 412 of the Act. The applicant provided a copy of the delegate’s decision to the Tribunal.
On 5 July 2024 the applicant sent the Tribunal a bundle of 6 credit card statements, which it was unable to open as they were password protected.
On 9 July 2024 the applicant provided the Tribunal with a bundle of 6 credit card statements in his name, which the Tribunal was able to open.
The applicant appeared before the Tribunal on 12 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother via telephone from Indonesia. The Tribunal twice attempted to call another witness, [Ms A], who the applicant advised was a neighbour of his parents and could attest to thugs beating on his parents’ door. However, the phone number provided was incorrect and the applicant did not have another phone number to try. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
During the hearing the applicant requested a period of one week to provide further documents in support of his application for review. The Tribunal allowed this, and later agreed to an extension of a further one week to provide documents. The applicant provided further documents to the Tribunal on 25 July 2024. In the applicant’s email of 25 July 2024, he provided:
·A witness statement by [Ms A] dated 18 July 2024 with English translation;
·[Bank 1] credit card statement dated 4 April 2018;
·[Bank 2] credit card statement dated 14 May 2017;
·[Bank 3] credit card statement dated 20 May 2017;
·[Bank 4] credit card statement dated 20 May 2017;
·[Bank 5] credit card statement dated 17 April 2017;
·[Bank 6] credit card statement dated 13 July 2024;
·Detik News article dated 23 June 2021 regarding the shooting of students by debt collectors;
·Kompas.com news article dated 12 March 2021 regarding debt collectors pursuing motorcyclists;
·Kompas.com news article dated 14 April 2011 regarding the death of Irzen Octa at a Citibank office.
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). 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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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.
Nationality
In his application for a protection visa, the applicant claims to be a citizen of Indonesia, born in Jakarta.
The applicant provided a scanned colour copy of his passport bio-data page in support of his protection visa application. This document states the issuing office is [specified office].
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 Indonesia, and as such his protection claims will be assessed against Indonesia as the country of reference and ‘receiving country’ respectively.
Analysis, findings and reasons
Credibility
Overall, the Tribunal found the applicant to be a credible witness. The applicant’s oral evidence given during the hearing was generally consistent with the claims in his protection visa application form. The applicant confirmed that he completed the form himself and he confirmed the contents of the form. The applicant presented as intelligent and well spoken. He was able to clearly articulate the problems he had experienced in Indonesia. He provided credit card statements to support his claims of having debts in Indonesia.
Moneylender claim
The applicant confirmed during the hearing that he feared harm from thugs or debt collectors in Indonesia due to his outstanding debts. He said that his problems started in about 2014 or 2015 when he started taking out credit card loans. He used the credit cards to fund his lifestyle and shopping. He obtained 6 credit cards from 6 different banks. At first, he serviced his debts. As his debts grew, he was unable to make the required repayment amounts. As such, in about 2016 he took out a loan of about AUD 500 from an online loan shark to service his credit card debts. He repaid about AUD 300 to the loan sharks, but could not afford to repay the rest as he also had to service his credit card loans. He believes he last made a payment to the loan sharks in about April 2016. He did not remember exactly when he last made a payment to the banks, but it was before he came to Australia.
In about mid-2016, the applicant started receiving phone calls from various people, seeking recovery of the debts. The applicant believes the calls came from thugs acting on the instructions of the loan sharks, as well as third-party debt collectors who were chasing up the outstanding money on behalf of the banks. At first the calls were polite, however when he did not make any payments, he started receiving threats. People started coming to his parents’ house in Jakarta, asking after him and demanding money. On one occasion the applicant was threatened by a person holding a knife. The incident was reported to a local community leader. The community leader came and told the aggressor to go away, which he did.
The Tribunal has viewed the credit card statements provided by the applicant prior to and after the hearing. The Tribunal accepts that the applicant has debts owing to different banks for his credit cards. The Tribunal also accepts the applicant’s evidence that his father paid off one of the bank debts. While the applicant could not provide evidence of the debt owing to the loan sharks, the Tribunal accepts the applicant’s evidence that he applied for this loan to repay his outstanding credit card debts. The Tribunal accepts that the applicant owes money to a loan shark. The applicant was not sure of the outstanding amount to the loan shark.
The Tribunal has also considered the evidence provided by the witnesses, namely the oral evidence provided by the applicant’s mother, and the written statement provided by the applicant’s neighbour [Ms A]. The Tribunal notes this evidence corroborates the applicant’s claims, particularly regarding the harassment and threats received in Indonesia. On the basis of the witnesses’ evidence, the Tribunal accepts that debt collectors came to the applicant’s house looking for the applicant and shouting for him to pay the debt. The Tribunal also accepts that on one occasion in about August 2016, a man came and threatened the applicant with a knife. The Tribunal also accepts that a community leader came to speak with the man, who then left.
However, the Tribunal does not accept the applicant faces a real chance of serious harm arising from his debts to the banks or the loan shark.
Firstly, the Tribunal notes from the applicant’s oral evidence that he came to Australia with the intention of earning money to repay the debts. However, he experienced difficulties finding work during his first 2 years in Australia and so he did not make any loan repayments. After that, he was too scared to find out how much was owing and he did not make any repayments. The Tribunal asked the applicant whether he would be willing to make repayments if returned to Indonesia. The applicant said it depended on how much was owing. He said he was scared of the interest that had accumulated and did not think he would be able to pay. The Tribunal put to the applicant that he had previously been servicing the debts in Indonesia and, considering he was educated and had work experience as a [Occupation 1] and [Occupation 2], he may be able to return to work in Indonesia and pay off the debts in instalments. The applicant said that he could pay in instalments, but the total amount owing would be very large in comparison to his income. The applicant did not claim that he would be unable to find work in Indonesia, rather that he believes the debt owing is very high and his income would be low. The applicant did not say that he had no intention of repaying the debt.
While the applicant stated that his parents could not afford to help him repay the loans, the Tribunal also notes the applicant’s evidence that his father had repaid one of the bank loans. Furthermore, he said his parents borrowed approximately AUD 5,000 to help fund his travel to Australia. The applicant said that this was a temporary loan to help him get a visa. The applicant said that he also borrowed money from a friend to fund his travel to Australia, which he repaid once he arrived in Australia. On the applicant’s evidence, the Tribunal finds he could obtain some financial assistance in the form of temporary loans from family or friends, to help service his debts.
Considering the applicant has previously worked in Indonesia to service his debts, and given his qualifications, work experience and support from family or friends in Indonesia, the Tribunal finds the applicant would be in a position to pay back his loans in instalments. The Tribunal acknowledges there is a potential for violence from debt collectors contracted by loan sharks.[1] However, the Tribunal does not accept that the debt collectors would harm the applicant if he made payments in instalments, considering, on the applicant’s oral evidence, the threats and harassment only started after the applicant stopped making any loan repayments. Furthermore, the Tribunal notes that while the applicant says his parents continue to receive visits from debt collectors who are looking for him, on his evidence his parents have not suffered harm. The Tribunal finds, on the applicant’s and his mother’s evidence, it appears the debt collectors or loan shark simply want to be repaid.
[1] ‘DFAT Country Information Report – Indonesia’, Department of Foreign Affairs and Trade, 24 July 2023 at 3.119.
Furthermore, as discussed with the applicant at the hearing, country information indicates that police are generally effective at detecting and investigating crime,[2] and police occasionally target usurious lenders, including online lenders.[3] The applicant said that the police only take action after something has happened and an incident has gone viral. The applicant said that he had reported the incident where he was threatened with a knife to the police, but the police said they could not help him if nothing had happened.
[2] Ibid at 5.2.
[3] Ibid at 3.118.
The Tribunal has considered the news articles provided by the applicant after the hearing. The Tribunal notes that in relation to the Kompas.com news article relating to the alleged persecution of Irzen Octa by Citibank’s debt collectors, this incident took place in 2011, approximately 13 years ago. The Tribunal notes that the Indonesian government has strengthened protections for consumers, so that third parties engaged to conduct business activities on behalf of banks must have a relevant licence of approval from the Bank of Indonesia or relevant authorities.[4] The use of force in any debt collection activity is prohibited.[5]
[4] ‘Bank Indonesia Refurbished its Regulation on Consumer Protection’, Lexology (28 August 2023) < ‘Navigating The Debt Collection Landscape In Indonesia – Layanan Penagihan Utang B2B’, MNS Credit Management Group (25 May 2023) <>
More recently, the Tribunal notes country information which indicates that the Indonesian authorities have intervened to arrest unscrupulous debt collectors.[6] For example, in relation to the Kompas.com article dated 12 March 2021, the Tribunal notes that the alleged victim did report the incident to the police, who started an investigation into the matter.
[6] Ardhiyasa Suratman, ‘Debt Collections in Indonesia: Choosing A Debt Collector Services or A Professional Lawyer’, R Global (5 April 2023) <
In relation to the Detik News article dated 23 June 2021, which reports on a shooting of students in West Jakarta by 9 people, the Tribunal notes that according to the article 7 of the 9 people who were arrested worked as debt collectors. However, the article does not state whether the students were shot for reason of being debtors. The article does not provide any motivation for the shooting, nor why students were targeted, nor the ages and profiles of the students. As such, the Tribunal places no weight on this article.
The Tribunal considers the applicant’s evidence that he has previously obtained assistance from the authorities, namely the community leader who intervened on the one occasion when a man threatened the applicant with a knife. The Tribunal notes that, on the applicant’s evidence, the man left after being asked to do so by the community leader.
Considering the country information that the police are generally effective at detecting and investigating crime, stricter consumer protection laws applicable to banks and the availability of assistance from community leaders, the Tribunal finds the Indonesian authorities are able to provide adequate protection to the applicant. The Tribunal also finds that the authorities could provide adequate protection to the applicant if the loan sharks sought to pursue him after the debt was repaid in full.
Considering all the above factors, the Tribunal is not satisfied the applicant faces a real chance of serious harm from debt collectors or loan sharks if returned to Indonesia now or in the reasonably foreseeable future.
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
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). 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.

On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm arising from his outstanding loans in Indonesia. He did not claim harm for any other reasons.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophie Manera
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 3322

20 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction