2013743 (Refugee)

2013743 (Refugee) [2024] AATA 4182 (31 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013743
COUNTRY OF REFERENCE:                   Indonesia
MEMBER:Peter Haag
DATE:31 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 July 2024 at 2:29pm
CATCHWORDS
REFUGEE –
protection visa – Indonesia – debts for businesses and agent’s fees – different debts consolidated into one loan from legitimate institution – advice from agent to enter on visitor visa then apply for protection visa to gain work rights – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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 dependants.
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 2 September 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 Indonesia, applied for the visa on 18 January 2019. 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 pursuant to s 36(2)(a) or s 36(2)(aa) of the Act, and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations, and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 24 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal has no responsibility or obligation to specify or assist the applicant in specifying particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.
Applicant’s background
In seeking protection, the applicant states he was born on [Date] in Bali, Indonesia and he was [Age] years old when he arrived in Australia. He can speak, read and write Indonesian and English. His ethnicity is Indonesian, and his religious faith is Hindu.
His relationship status is ‘never married.’ At hearing the applicant said he was living in Denpasar, Bali, before he came to Australia.
The protection visa application form asked the applicant to provide his employment history. In this regard the applicant answered ‘No’ to the question ‘Has the applicant ever been employed?’ This answer is contradicted by evidence given by the applicant during the hearing.
Next the applicant was asked to provide details of how he occupied his time and financially supported himself during unemployment, and the activities he undertook during that time. For activities undertaken the applicant stated, ‘stay with friend’ and for financial support he stated ‘cash.’
The protection visa application form asked the applicant about his study history. In this regard the applicant answered ‘No’ to the question ‘Has the applicant ever studied?’ This answer is contradicted by the applicant’s oral evidence.
Migration history
[In] November 2018 the applicant arrived in Australia as the holder of a temporary Visitor (FA-600) visa, valid until 10 February 2019.
On 18 January 2019 the applicant applied for a permanent Protection (XA-866) visa. Consequently, the applicant was granted a temporary Bridging (WA-010) visa for the purpose of enabling him to remain in Australia lawfully pending the final determination of his protection application.
On 2 September 2020 the delegate of the Minister (the primary decision maker) refused the application for a protection visa (the primary decision). The applicant provided a copy of the Record of the decision to the Tribunal. The Tribunal read the decision.
Applicant’s identity and country of reference
In applying for protection, the applicant provided to the Department a copy of the biodata page of an Indonesian passport issued in his name. The information contained in the passport document is consistent with other information the applicant provided in the visa application and his oral evidence.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any country other than Indonesia. The evidence satisfactorily establishes the applicant’s identity, and that he is a citizen of Indonesia, as such his protection claims will be assessed against Indonesia as the country of reference and receiving country respectively.
The written claims made prior to the primary decision
The applicant claimed before the primary decision was made that he is seeking protection in Australia, and cannot return to Indonesia for these reasons:
·He has ‘a lot of debt’ and he is stressed to the extent he was contemplating suicide.
·The applicant claimed to have experienced harm in Indonesia. In specifying the harm he claimed to have experienced before coming to Australia he stated: ‘All people that I own money’ […] always push me to pay back. I need time but they do not understand. And its make me stress and got depressed.’
·The authorities will not assist him because his problem is a personal problem.
·His life is worse because he needs more than 2 jobs to repay his debts and survive in Indonesia.
·His creditors are always pushing him, and for that reason he decided to come to Australia to find a better life.
·If he returned to Indonesia no one will look after ‘his condition.’
·He would be unable to relocate to another part of Indonesia where he would not be harmed because he will face the same problem there.
The hearing
Contrary to the information the applicant provided in the written protection application about his education, the applicant said he successfully completed high school in [Year] when he was 17 or 18 years old. In [year] he enrolled in a university course to qualify to be [an occupation 1]. After about 20 days he left the university because he was unable to pay the course fees. He had to earn money to support his parents, and younger sister and brother, and his grandparents.
The applicant said his father was a farmer who lived in a village and raised [stock] for sale on farmland owned by his father, being the applicant’s paternal grandfather.
Contrary to information the applicant provided in the written protection application about his employment history, at hearing the applicant said in response to the Tribunal’s questions that he was employed in various roles before he came to Australia, namely:
·[Occupation 2].
·[Occupation 3].
·[Occupation 4].
·[Occupation 5].
·[Occupation 6].
·[Occupation 7].
·[Occupation 8].
·A permanent employee of a business that supplied [products] to [businesses].
·During the period he was supplying [products] to [businesses], he had sufficient funds to support members of his immediate family. He borrowed a substantial but unspecified sum of money to open two businesses that were next door to each other. One was a small [business] and the other one was a [shop]. He said he established these businesses in partnership with his brother and a friend.
In evidence the applicant said both businesses failed after a short but unspecified period. The failure of the business left him and his brother in debt. Their business partner and friend died; hence, responsibility for the debt was left to the applicant and his brother.
The applicant described meeting an agent in 2013 in respect of whom he provided no specific information, such as his name and address, and whether he was qualified to give assistance in relation to Australian migration law and visa requirements. The applicant said he borrowed 180 million Rupiah to pay the agent to assist him to obtain an Australian tourist visa. The applicant said it took a long time for the visa to be granted.
The applicant also said in evidence that the agent advised him that he could use a visitor visa to enter Australia, then he would be able to find employment and earn much more money than he could earn in Indonesia. The applicant also said the agent advised him he could extend his stay in Australia after his visitor visa expired and continue working by applying for a protection visa.
The applicant said in evidence that he followed the agent’s advice and applied for a protection visa to extend his stay in Australia because he wanted to continue working and earning money to pay off his debts in Indonesia.
The Tribunal is satisfied the applicant applied for a protection visa to extend his stay for the purpose of working and earning more money in Australia than he would earn if he continued to reside and work in Indonesia.
The applicant said he is working in Australia for the purpose of repaying the debts of the two businesses that failed and his debt to the agent who arranged his Australian visitor visa.
The applicant explained that around January 2014 he consolidated his debts into a single loan that was obtained from a cooperative lending institution. That money was used to pay out the creditors, and now his only creditor is the unidentified cooperative. The applicant said the cooperative is a legitimate lending institution. He also said that, together with his father and brother, he borrowed the money from the cooperative, and that they are all parties to the loan agreement. The applicant asserted that he has a particular responsibility to repay the debt because he is the oldest son.
The applicant said he did various jobs after the loan was obtained from the cooperative in 2014 and before he travelled to Australia in November 2018. There is no evidence that satisfies the Tribunal that during the 2014–2018 period, agents of the cooperative, a legitimate lending institution, threatened to harm or harmed the applicant, his father or brother, for the purpose of enforcing the terms of the asserted loan agreement.
In response to the Tribunal’s questions, the applicant said he can’t return to Indonesia because he wants to stay in Australia to earn money to repay the cooperative. If he returns to Indonesia debt collectors will try to find him and the cooperative will take the land he used as security for the loan. The evidence does not persuade the Tribunal that the debt collectors the applicant referenced, being agents of a legitimate lending institution, would use unlawful means to recover money owed to the cooperative.
There is no evidence that the cooperative would be in breach of the loan agreement if it sought to seize land used as security for the loan, if the loan is not repaid.
The Tribunal has considered the letter written by [Mr A], who describes his position as [Workplace] Manager – [Town 1]. He states that the applicant was first employed by [Employer] in 2021 and that he is a key employee of the business.
The Tribunal has also considered the letter written by [Mr B] dated 15 July 2024 that is addressed to the Registrar of the Administrative Appeals Tribunal. He refers to the applicant being a team leader on a nearby [workplace]. He attested to the good character of the applicant, that he is a hardworking person, kind to others and committed to supporting his parents and siblings who live in Bali, Indonesia.
[Mr B] holds several community positions, and he is also the current Director of a labour hire company, namely, [Company], situated in [Town 2], Queensland.
Neither correspondent indicates any awareness of the applicant being fearful of being persecuted if he returned to Indonesia, or that he is working in Australia to pay down a debt or debts in Indonesia.
The Tribunal has considered the information in the DFAT Country Information Report Indonesia – 24 July 2023 (DFAT report) including the part of the report about victims of loan sharks. Relevantly, the evidence establishes the unidentified cooperative, being the applicant’s creditor, is a legitimate lending institution.
Based on the totality of the evidence, the Tribunal is satisfied the DFAT report does not advance the applicant’s evidence and protection claims, and the Tribunal gives it neutral weight.
Findings – refugee criteria
The evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for the reason of being indebted to a cooperative in his home country, or otherwise in debt, if he is removed to Indonesia now or in the reasonably foreseeable future.
Having considered the applicant’s claims individually and cumulatively, the evidence considered alone, and in conjunction with the DFAT report, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subject to serious harm for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if he is removed to Indonesia now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
The Tribunal notes separately from the foregoing findings, that the evidence indicates the applicant, by his application for a protection visa, knowingly misused the Australian protection visa system to extend his stay in Australia for the reason of financial betterment, and that he did not apply for protection because he feared he would be persecuted if he returned to his home country.
Complementary protection criteria
The Tribunal now turns to consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246], [297] and [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Indonesia now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.

Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4182

31 July 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction