2015131 (Refugee)

2015131 (Refugee) [2024] AATA 4262 (25 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2015131
COUNTRY OF REFERENCE:                   China
MEMBER:J Horsley
DATE:25 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 September 2024 at 4:35pm
CATCHWORDS
REFUGEE – protection visa – China – scam victim who organised petition to police – arrested, warned and threatened, materials confiscated and family extorted – scam gang’s connections with local authorities – vague claims and lack of supporting evidence – consent to decision without hearing – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 425(2)(b)
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 28 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 the People’s Republic of China (herein China), applied for the visa on 1 August 2017.
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 is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they 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.
CLAIMS AND EVIDENCE BEFORE THE DELEGATE
Protection visa application
According to his Protection visa application, the applicant is a married [Age]-year-old Chinese national of Han Chinese ethnicity. He claimed to have no religion. He was born in Yantai, Shandong Province, China. He claimed to have departed from China [in] July 2017, arriving in Australia on the following day. The applicant’s wife resides in Yantai, Shandong Province.
In response to questions in the Protection visa application in relation to his reasons for claiming protection, the applicant provided an unsigned and undated Statement, which he attached to the form. In the Statement, the applicant claimed, in essence that:
·He was a member of the [Business facility], which opened in 2015 and had a formal business registration;
·The applicant purchased a membership card, and pre-loaded money onto the card, which enabled him to participate in [facility] activities;
·In January 2017, the applicant, along with ‘other residents’ (herein ‘scam victims’) noticed that the [facility] was closed, and there were no staff members present;
·After a few days, the applicant and other scam victims could still not contact any staff members from the [facility], and they realised they had been ‘cheated’;
·In response, the applicant and other scam victims, reported the [facility] to the Government’s Subdistrict Office, which said they did not have responsibility for such matters;
·The applicant and other scam victims reported the [facility] to the police station, but the police refused to handle the case;
·The applicant and other scam victims discovered that some 1,000 people had purchased and pre-loaded membership cards with money;
·The applicant and other scam victims learned that the boss of the [facility], [Mr A], and his group, had engaged in similar practices in other areas, and that they were a ‘scam gang using such fraud trick’;
·On 1 March 2017, ‘nearly hundreds of victims’ went to the Laishan District Government to petition, asking the police to arrest the ‘[Mr A] group’;
·The applicant was one of the petition organisers;
·On 2 March 2017, while working at a [workplace], the police arrived and arrested the applicant, taking him to the [Police] Station;
·The police confiscated the applicant’s mobile telephone and 430 yuan (the police never returned the money to the applicant);
·During the Chinese New Year period, the police went to the applicant’s home, conducted illegal searches, and confiscated petition materials, while saying that he and the other scam victims had ‘disrupted social security and [Mr A] was the “big guy” that we should never touch’;
·[Mr B], ‘the team captain in Police Department’ extorted 10,000 yuan from the applicant’s family 3 times;
·After 1 week, the police released the applicant but the police threatened the applicant continuously at home, and the police also extorted the family members of other scam victims;
·After the applicant’s arrival in Australia, he heard that one petitioner, was ‘persecuted after returning home from prison’;
·[Mr B] and ‘his deputy’, [Mr C], ‘initiated a surveillance program to monitor that petitioner’ by placing two police vehicles around his residence, resulting in the petitioner having to ‘leave home and go from place to place to avoid arrest and persecution’; and
·The applicant was ‘lucky to be able to escape from China’ after having been ‘persecuted because of pursuing justice’, and he fears that if he returns to China, the authorities will persecute him.
In support of his Protection visa application, the applicant provided a copy of a Chinese identity card (in Mandarin) and a copy of his Chinese passport.
The decision of the delegate
As stated above, on 28 September 2020, a delegate of the Minister for Home Affairs refused to grant the applicant a Protection visa. The delegate did not offer the applicant an interview.
In essence, the delegate referred to a letter the Department sent to the applicant on 20 August 2020, under s 56 of the Act, requesting that he provide additional information about his claims for protection. The delegate noted that the Department had not received a response from the applicant and found that the applicant’s claims lacked detail or supporting evidence.
The delegate referred to country information from DFAT, which indicates that the Chinese Communist Party (CCP) has ‘little tolerance for public dissent on a wide-range of matters considered politically sensitive.’ The delegate also referred to country information from DFAT about the system of border control in China. Based on this country information, the delegate found that the applicant is not ‘a significantly high profile’ person that would enable him to ‘exert influence over border officials and to bypass established controls.’
The delegate referred to country information on the treatment of political dissidents in China. The delegate concluded by stating the applicant provided a lack of detail on his protection claims and a lack of evidence to support his claims. The delegate again highlighted that the applicant had not responded to a request for additional information. The delegate noted that the applicant obtained a Chinese passport and departed the country lawfully, ‘without any apparent problem despite their protection claims, which would make them of adverse interest to the Chinese authorities.’
Given the lack of detail the applicant provided, the delegate did not accept that the applicant’s claims to have participated ‘in the activities, or suffered the kinds of adverse treatment or harassment in China as claimed.’ The delegate found that the applicant does not have ‘any profile that would be of adverse interest to the Chinese authorities or anyone else if they return to China in the foreseeable future.’
Accordingly, it was assessed that Australia does not have protection obligations to the applicant under ss 36(2)(a) and (aa) of the Act.
CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL
On 12 October 2020, the applicant applied for a review of the delegate’s decision. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
On 17 June 2024, the Tribunal sent the applicant an email with a link to a ‘Pre-hearing Information Form’, requesting that he complete the form within 7 days. The Tribunal did not receive any such form from the applicant.
On 4 July 2024, the Tribunal sent the review applicant via email an invitation to attend a hearing under s 425 of the Act, scheduled for 26 July 2024. The invitation stated, ‘[w]e have considered the material before us but we are unable to make a favourable decision on this information alone.’ The invitation also requested that he complete and return an enclosed ‘Response to Hearing Invitation’ within 7 days.
On 24 July 2024, two days before the scheduled hearing, the Tribunal received an email from the applicant, in which he attached a ‘Response to Hearing Invitation’ form. In the covering email, the applicant stated, ‘I do not want to take the hearing.’ In response to a question in the form about whether he will take part in the hearing on 26 July 2024, the applicant marked the box with the following wording:
‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear.’
In the form, the applicant provided his mobile telephone number and email address, which both matched the contact details on the Tribunal’s file. The applicant did not respond to all other questions in the form (e.g., whether there are any issues that would impact on his ability to participate in the hearing; whether he requires an interpreter; whether he would be relying on any documents at the hearing; and whether he wanted the Tribunal to take oral evidence from any witnesses).
On 24 July 2024, the Tribunal sent the applicant a letter to his email address, which stated:
‘I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.
Thank you for your email dated 24 July 2024.
On 4 July 2024, the Tribunal sent you an email with an invitation to attend a hearing, scheduled for 26 July 2024 at 9.30am, as required by 425(1) of the Migration Act (the Act). The invitation letter stated, ‘We have considered the material before us but we are unable to make a favourable decision on this information alone.’
Under section 425(2)(b) of the Act, the requirement to hold a hearing does not apply if an applicant consents to the Tribunal deciding the review without the applicant appearing before it.
On 24 July 2024, you emailed the Tribunal with a ‘Response to Hearing Invitation’, in which you indicated that you do not want to participate in the hearing. You indicated that you consent to the Tribunal making a decision on the papers without taking further steps to allow you to appear.
The Tribunal has taken your email of 24 July 2024 as your consent to the Tribunal deciding the review without you appearing before it. The Tribunal will make a decision without holding a hearing in accordance with s 425(2)(b) of the Act.
If this was not your intention, and you do want a hearing, contact us immediately at [email protected], or call 1800 228 333.’
The Tribunal sent this email to the email address registered on the Tribunal’s file. The Tribunal notes that the applicant has used the same email address since lodging his Protection visa application. There are no indications that the Tribunal’s email of 24 July 2024 was returned to sender or failed to be delivered to the applicant. At the time of writing, there are no indications that the applicant responded to the above email from the Tribunal. In fact, there are no indications that the applicant has engaged with the Tribunal since 24 July 2024 when he sent an email requesting a decision on the papers (see above). Finally, there are no indications that the applicant appeared at the Tribunal premises on the day of his scheduled hearing, on 26 July 2024.
In these circumstances, the Tribunal is satisfied that the applicant has consented to the Tribunal deciding the review without the applicant appearing before it, pursuant to s 425(2)(b) of the Act.
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 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Ethnicity and religion
In his Protection visa application, the applicant claimed to be of Han Chinese ethnicity, and claimed that he had no religion. There are no reasons to doubt the applicant’s claims in this regard, and the Tribunal accepts that he is of Han Chinese ethnicity and has no religion. Despite this, the applicant has not claimed to have suffered any past harm, including any discrimination or harassment, for reasons of his ethnicity and/or lack of religion. Therefore, the applicant has not expressed any subjective fears of harm for reasons of his ethnicity and/or religion if he returns to China now or in the reasonably foreseeable future, and he does not meet the criteria in s 5J(1)(a) of the Act, as he does not fear persecution.
Even if the Tribunal accepted (which it does not) that the applicant holds a subjective fear of harm for reasons of his ethnicity and/or lack of religion, the Tribunal finds that there is not a real chance he would be seriously harmed for these reasons if he returns to China now or in the reasonably foreseeable future. The Tribunal makes this finding on the basis of country information from DFAT, which indicates that the Han ethnic group comprises some 92% of the population and is ‘socially, politically and economically dominant.’[1] Further, according to the United States Department of State’s 2023 Report on International Religious Freedom, published in June 2024, some 52% of the total population in China are atheists or unaffiliated persons.[2] The abovementioned DFAT report contains no information about atheists or persons with no religion in China being discriminated against or harassed from the authorities or society generally for this reason alone.[3] The Tribunal could not locate any country information to indicate that persons of no religion in China face any adverse interest by the authorities or society generally.
[1] DFAT, Country Information Report: China, 22 December 2021, at [3.1].
[2] US Department of State, 2023 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang), available at:
[3] See: DFAT, Country Information Report: China, 22 December 2021, at [3.22]-[3.78].
For these reasons, the Tribunal finds that there is not a real chance the applicant would be seriously harmed for reasons of his ethnicity and/or lack of religion, if he returns to China now or in the reasonably foreseeable future.
Scam victim and past harm from authorities
The applicant’s claims for protection are summarised in detail above. In essence, the applicant claimed to be a scam victim at the hands of a [facility] in China, which operated similar scams in other areas. The applicant claimed to have organised with other victims to petition to the local authorities about the scam, and suffered repercussions in the form of arrest, detention and extortion at the hands of the local police. The applicant claimed that one of the scam victims was subjected to state surveillance and forced to relocate to another area. The applicant claimed that the head of the [facility] operated a ‘scam gang’, who had connections with the local authorities.
The applicant has provided insufficient information regarding his claims for protection. It is unclear what the applicant meant by him being a petition organiser. He did not explain how he organised the other victims, how they communicated with each other, nor how many victims he organised. The applicant did not provide any information on how much money he lost, and why he decided to take on such a high-profile organising role over losing some money from a [facility] membership. The applicant did not explain what happened when he and hundreds of other victims approached the Laishan District Government in March 2017, including, for example, how the authorities reacted on the day and what happened to the other victims.
The applicant did not provide any information about his treatment in detention, other than having his mobile telephone and 430 yuan confiscated. The applicant did not provide any information about any release conditions nor why the authorities decided to release him. The applicant did not explain why the authorities would remain interested in him if they had released him. The applicant did not give any information about whether the hundreds of others he claimed also petitioned to the local government were arrested or detained.

The applicant provided no information on how he was able to leave China, without attracting the attention of the authorities. The applicant did not provide any information on why the authorities would remain interested in him now, over 7 years since he left China. The applicant did not provide any information on whether the authorities have approached, threatened or harassed his wife, parents, or other family members in his absence from China.
The delegate found that the applicant’s claims lacked detail and supporting evidence, noting that the applicant did not respond to a Department letter to the applicant requesting that information, under s 56 of the Act. Since his application for review, the applicant has not provided any further material or evidence to the Tribunal to support his claims for protection.
The evidence presented by the applicant to the Department is not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of serious harm for reasons of his race, religion, nationality, political opinion, or membership of a particular social group if he returns to China now or in the reasonably foreseeable future.
Similarly, the evidence presented by the applicant to the Department is not sufficiently detailed to enable the Tribunal to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
CONCLUSIONS
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 Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
J Horsley
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 4262

25 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Appeal

Natural Justice