2016978 (Refugee)

2016978 (Refugee) [2022] AATA 1357 (29 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2016978
COUNTRY OF REFERENCE:                   China
MEMBER:James Silva
DATE:29 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 April 2022 at 3:54pm
CATCHWORDS
REFUGEE – protection visa – China – hospital worker’s refusal to participate in organ harvesting – coercion, threats and attacks by colleagues, police and thugs – no appearance at hearing – vague claims and no supporting evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 56, 65, 426A
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

The applicant is a man [age] from China (PRC). He arrived in Australia [in] September 2019, as the holder of a visitor visa. He applied for a protection (class XA) visa on 26 September 2019. On 10 November 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).
This is an application for review of that decision.
The applicant was invited to a Tribunal hearing on 29 April 2022 but did not attend.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is in the attachment to this decision.
CLAIMS AND EVIDENCE
Protection claims
The applicant set out his protection claims in his protection visa application, on Form 866C, questions 75 to 80. They are, in summary:
§ The applicant worked in a hospital (in [City 1], Guangdong) that illegally harvested organs from: (a) patients who died in their care; and (b) persons brought in by the police, as punishment. He learned that the hospital made huge profits from this activity.
§ The applicant (who gave his occupation as ‘[Occupation 1]’) refused to take organs out of people who were living, and had not agreed to or authorised for the removal. He declined the ‘huge sum of money’ that his superiors had offered him to participate.
§ After he refused to cooperate, the applicant’s supervisor and the police started to threaten him. The police called on his home, pressing him to participate in the practice. They bashed him in the face and on his body. After the assault, the applicant returned to work, but stuck by his refusal to participate in the organ harvesting.
§ One night after his shift after work, a group of men followed the applicant, started screaming at him to participate in the organ harvesting, and then punched and kicked him. They warned that they will continue to pursue him, and that the police would als come after him.
§ The applicant knows that the police and these thugs are working together.
§ The applicant fears that the police and criminals will find him and harm him throughout China. He fear that they will pursue him if he returns there, because he refused to participate in their activities, and also because he has information about these practices (and the police and criminals may fear that he will inform the media).
Background
According to his protection visa application form, the applicant is a [age] year old man from Guangdong province. He lived at one address in his village up to the time of his departure for Australia in September 2019.
The applicant attended primary and secondary school in [City 1], up to [year] (age [age]). From 1991 to June 2019, he worked as an [Occupation 1] in [City 1].
The applicant did not give details of any family members.
The applicant holds a PRC passport issued in Guangdong in [2014]. He indicated prior travel to [Country 1] and [Country 2] in August 2014, and further visits to [Country 2] in September 2014, and December 2014 – January 2015. The photocopy of his passport shows stamps confirming this travel. As noted above, the applicant obtained an Australian visitor visa and departed China (Baiyuen) [in] August 2019.
Evidence
The evidence before the Tribunal includes the following relevant material: -
§ The protection visa application form, which includes the applicant’s protection claims (set out in his replies to questions 75-80 of Form 866C). The applicant also provided a photocopy of his PRC passport, issued in Guangdong [in] 2014. It shows visas and entry/exit stamps for [Country 1] and [Country 2].
§ The Department invited the applicant to provide additional information under s.56, but he did not reply. The delegate proceeded to a decision without inviting the applicant to attend an interview.
§ The delegate’s protection visa assessment record (‘delegate’s decision record’) of 10 November 2020, a copy of which the applicant attached to the application for review.
§ The application for review contains no new information.
On 11 April 2022, the Tribunal wrote to the applicant, via the email address provided with the application for review, advising that it had considered the material before it but was unable to make a favourable decision on that information alone. It invited him to give oral evidence and present arguments at a hearing on 29 April 2022 at 2:30pm. The invitation advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The applicant did not reply to the hearing invitation. The Tribunal sent two SMS reminders to the applicant’s mobile telephone number, five and two days before the hearing. In both cases, the delivery of the SMS failed.
The applicant did not appear at the scheduled time and place and has not contacted the Tribunal to explain why he did not attend.
(Earlier, on 30 November 2021, the Tribunal had invited the applicant to appear at a hearing on 15 December 2021, to be conducted by videoconference or by telephone (depending on the applicant’s access to appropriate technology). The applicant responded to the hearing invitation on 8 December 2021, indicating that he did intend to participate in the hearing. However, the Tribunal decided to cancel the hearing and instead invite the applicant to an in-person hearing when COVID-19 measures permitted.)
Pursuant to s.426A of the Act, the Tribunal has decided in the circumstances of the applicant’s non-appearance on 29 April 2022 to make a decision on the review without taking any further action to enable him to appear at a hearing.
Receiving country
The applicant claims that he is a PRC national. A copy of his PRC passport is on file. The Tribunal is satisfied, on the available evidence and in the absence of any suggestion to the contrary, that he is a PRC national. It therefore assesses his protection claims against China, as the receiving country.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
The Tribunal has before it only the applicant’s statement of claims. It is vague and lacks context and supporting evidence. The applicant’s appearance at a hearing would to have provided an opportunity to address the various gaps, and to discuss what further information and details are available. Among the claims on which the Tribunal has insufficient evidence are the following:
§ Details of his personal and family circumstances, in particular his work, and also his living arrangements and family (as the claimed pursuit of him by the police and criminals may have affected these).
§ Details of his role as an [Occupation 1]; the extent of his knowledge of or participation in organ removals (both of patients who had died in the hospital, and those who allegedly had organs removed while still alive, without their consent); and what he knew about the hospital administrators’, police or criminal involvement in the commercial operations linked with this.
§ Information about the demands placed upon him to participate in these activities, eg. the timeline of such pressure, what role he was expected to play, the financial incentives he was offered, and how this related to his other work.
§ Detail of the claimed pressure, threats and assaults (once by the police, and another time by some thugs), including when these occurred, the injuries suffered, and any other consequences, particularly given his continued work at the hospital until June 2019.
§ The basis for the applicant’s belief that the police and criminals will be able to find and harm him throughout China.
§ Details of the applicant’s past travel, and how his decision to leave China in August 2019 relates to his experiences at the hospital.
§ Updated information as to why the applicant fears returning to China, eg. whether he has information about the hospital’s current practices, and/or whether his knowledge of the organ harvesting remains current (and therefore of ongoing concern to the hospital administration, police and/or criminals); and whether any of these actors have the motivation and resources to pursue him throughout China.
On the limited available material, the Tribunal is unable to be satisfied that the applicant was involved in any aspect of ‘organ harvesting’ in the [hospital], whether in an administrative or surgical capacity; or that he gained any knowledge about such practices that might make him a person of adverse interest to hospital administrators, criminal groups, the police or others. It is also unable to be satisfied that he came under pressure to participate in such activities (in particular, those which the applicant believed to be unethical); that he experienced pressure and threats; or that he was assaulted, once by the police and once by a group of thugs. The Tribunal is also unable to be satisfied that the applicant believed that the police and criminals were colluding in their pursuit of him, and that the police could enlist the support of colleagues throughout China. It follows that the Tribunal is unable to be satisfied that the applicant left China for any reasons associated with his protection claim as set out in the protection visa application form, or that he has any genuine fears arising from his past work in a hospital.
Refugee criterion
In light of the above findings, as well as the Tribunal’s lack of information about the applicant’s current circumstances, the Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution from the police, criminals, hospital administrators or anyone, if he returns to China. As such, it is not necessary for the Tribunal to determine whether the claimed fear of harm from the police, criminals or others is for one or more of the reasons referred to in s.5J(1).
The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1) should he return to China.
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). Based on the information before the Tribunal, and the assessment of facts above, the Tribunal is not 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 would be a real risk that he will suffer significant harm.
The Tribunal is therefore 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.
James Silva

Member
ATTACHMENT - 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
[Right click to insert additional paragraphs here, or in the context of your consideration, from ‘Optional standard paragraphs - Refugee and CP Law’ on these and other aspects of the refugee criterion.]
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.
[Right click to insert additional paragraphs here, or in the context of your consideration, from ‘Optional standard paragraphs - Refugee and CP Law’ on aspects of the complementary protection criterion.]
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 [insert brief description]. For the following reasons, the Tribunal has concluded that the [decision under review should be affirmed OR matter should be remitted for reconsideration].
Describe the relevant issues, then discuss the claims and relevant evidence, make findings on material questions of fact and apply the law to these findings. Where relevant, refer to elements of the Refugee Law Guidelines and Complementary Protection Guidelines, and any DFAT country information reports. If you are departing from these Guidelines, include reasoning to explain why.
CONCLUDING PARAGRAPHS
If deciding matter on an additional basis to s 36(2)(a) or s 36(2)(aa) (e.g. if finding grant of visa prevented by s 91WA), additional concluding paragraphs may be required.

For the reasons given above, the Tribunal [is OR is not] satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
[Insert only if finding that the applicant does not satisfy s 36(2)(a) (refugee criterion): 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 OR is not] satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).]
[Insert only if affirming: 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
Choose relevant option(s) and delete the others, ensuring consistency with concluding findings:
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies [s 36(2)(a) OR s 36(2)(aa)] of the Migration Act.
AND/OR
The Tribunal remits the matter for reconsideration with the direction that the grant of the visa is not prevented by [s 91W OR s 91WA OR s 91WB].
OR
The Tribunal affirms the decision not to grant the applicant a protection visa.
[NOTE: if remitting the matter in circumstances where the evidence raises potential exclusion issues (eg, s 36(2C)), replace the above Decision direction with that available in the ‘Optional standard paragraphs - Refugee and CP Law’. Modifications may be needed if there are multiple applicants.]
James Silva
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.
…

[2022] AATA 1357

29 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Jurisdiction

Appeal