2017186 (Refugee)

2017186 (Refugee) [2024] AATA 1787 (16 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2017186
COUNTRY OF REFERENCE:                   China
MEMBER:Rosa Gagliardi
DATE:16 February 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 February 2024 at 3:11pm
CATCHWORDS
REFUGEE – Protection Visa – China – applicant failed to attend tribunal hearing – applicant failed to provide the requested information – land dispute – compulsive land expropriation – a profile as an objector to the building of a highway in his village – applicant is not a witness of truth – no real chance that the applicant would be persecuted or face significant harm in China – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 November 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 China (a matter the Tribunal accepts) applied for the visa on 26 October 2017.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant’s engagement with the Tribunal
On 30 January 2024 the Tribunal wrote to the applicant at an email address provided by him for the purposes of the review to invite him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The Tribunal explained that it had considered the material before it but was unable to make a favourable decision on this information alone.
Accordingly, the Tribunal set out that a hearing was scheduled for 15 February 2024, at 12:00pm EST. The hearing invitation also asked the applicant to provide all documents he intended to rely on to support his case by 8 February 2024. The invitation advised the applicant he should have regard to the Departmental decision which should set out the reasons for the decision and that he should consider communicating any changes to his circumstances in providing documents and preparing for the hearing.
The applicant did not respond to the hearing invitation. It had not been returned to sender. On the day and time of the scheduled hearing the applicant did not appear. Nor did he provide any additional information. The applicant did not contact the Tribunal to postpone the hearing.
The Tribunal’s records demonstrate that an SMS reminder was sent to him to a phone number provided to the Tribunal for the purposes of the review, on 8 February 2024 and again on 14 February 2024. There is no indication that these messages did not reach the applicant.
The applicant did not appear on the scheduled date and time and did not liaise with the Tribunal about the possibility of an adjournment. He has also not provided any additional material to the Tribunal to support his claims.
In passing, the Tribunal notes that the Departmental decision states that on 5 December 2017, the applicant was sent an acknowledgement of valid visa application by the Department which advised the applicant he could provide additional information relating to his claims and that there were three ways to provide such information: ImmiAccount, mail or in person at the time of the collection of personal identifiers.
In addition, on 25 August 2020, the Department sent the applicant a letter inviting him under s.56 and s.57 of the Act to provide additional information about some of the claims in his application and to provide clarification on particular points. The s.57 invitation also advised the applicant that his statement of claims lacked substantiating details such as dates and locations and supporting documentation and that no further details or documentary evidence to support his claims had been provided. The letter stated that to assist the delegate in deciding whether to accept that his claims were genuine, he was invited to provide more information about what happened to him in China, including dates and locations of events and supporting documents relating to his claims. At the time of writing its decision on

19 November 2020, the applicant had not provided any further information to the Department.
The Tribunal acknowledges that the ability to proceed to a decision on the papers is discretionary and that such a decision should not be taken lightly. Having considered that the applicant has been placed on notice that the Tribunal could not make a favourable decision on the information before it alone, and given that the applicant has provided a copy of his decision for the purposes of the review, the Tribunal considers it reasonable to make a decision on the material before it.
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 decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and whether there is a real chance that if the applicant was returned to China now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
In his statement of claims the applicant wrote in summary:
·At the end of 2016, the village committee informed the villagers that the government was to expropriate some land from their village as the government’s highway was going to go through their village.
·The villagers whose land was to be expropriated were to be compensated with 20,000 RM per mou of land.
·Because the town government’s compensation was too low, the villagers were opposed to the land expropriation.
·The town government occupied the land by force and started the road construction.
·The villagers were also beaten and arrested by the armed police in resistance.
·To prevent the construction of the road, hundreds of villagers guarded the site in turn.
·[In] March 2017 at about 2.00am, five other villagers and the applicant found they had started the construction. So they threw firecrackers at them and clashed with them.
·Those construction workers threw stones at them and drove the excavators towards them.
·The applicant’s head was hit by a stone and started to bleed immediately. More than 10 minutes later twenty policemen arrived. The villagers also arrived.
·The town government then sent dozens more police to suppress the villagers. The town government officials also arrived.
·However, they did not give the villagers any explanation, but threatened them. The villagers eventually failed to resist the heavily armed police and their land was occupied by the town government like this.
·The other five villagers and the applicant were arrested and detained for three days.
·[In] March, more than 50 villagers and the applicant went to [a] District Government to complain about [Town 1] town government’s violent law enforcement and compulsive land expropriation.
·They demanded the government give the villagers reasonable compensation. The district government officials told them they would hold a meeting to discuss the matter and let them go home to wait for the news.
·They did not receive any reply from the district government, on the contrary they were “revenged by the underworld people”.
·[In] March more than 20 underworld thugs came to the places of the villagers who went to report the matter and beat the villagers, which resulted in many villagers being wounded. The applicant was bleeding so badly that his whole body was full of bruises and his mouth and nose were bleeding.
·The villagers became angrier because of the government’s repression. They were determined to fight against the dictatorship and the violent government to the end.
·
In April, more than ten villagers went to petition the Shijiazhuang government. On

20 May police from [Town 1] town police station took the applicant from his home.
·At the police station the police forced the applicant to admit that he was a nearopathy (sp?) and full of nonsense. When he denied this, they beat him and kicked him.
·The applicant’s face was full of blood, and he got to know that these police officers were just like rogues and bandits who could do anything they liked.
·The applicant was required to sign a guarantee letter they had prepared and asked his father to give them 5,000 Yuan before he was released.
·The applicant fled to Australia on [date] August 2017.
The applicant chose not to attend a hearing or communicate with the Tribunal even though it was made clear that on consideration of all the material before it relating to his application, the Tribunal was unable to make a favourable decision on that information alone.
The Tribunal has significant concerns regarding the claims of the applicant that the government had expropriated land to build a highway through his village and that the applicant along with other villagers were opposed to such expropriation; that he and the villagers were beaten and arrested by the armed police; that the applicant in protest with others threw firecrackers at the construction workers who approached them with excavators and threw stones at them; and that the applicant was hit with a stone causing his head to bleed. The Tribunal has serious questions about all the claims that flow from this claimed set of circumstances as referred to above.
Had the applicant attended a hearing it would have asked the applicant to provide details about the claimed events and whether he could provide supporting documentation such as confirmation of the events claimed through the media, for example. Similarly, the Tribunal would have asked whether the claimed offer of 20,000 RM per mou of land (Chinese land measurement) had been provided as a written offer to the applicant and the other villagers, and if so, whether the applicant could make such documentation available to the Tribunal. The Tribunal would have also asked the applicant how the village was going to be affected at a practical level if it had been planned that a highway was going to be built through it. For example, were people offered alternative accommodation, were local businesses and government essential services going to be affected, and roughly how many homes would have been in the direct path of the highway to be constructed.
The Tribunal would have also asked the applicant what areas the highway was going to link up and why the authorities considered that such a highway was necessary. There is little detailed information about this proposed highway and the land that was to be expropriated.
Had the applicant availed himself of a hearing the Tribunal would have also liked to ask him what the applicant had done when he claims he was hit in the head. Did he attend a medical service provider at any time, for example, and would he have medical evidence that his injury was caused by a stone that had been hurled at him to gauge where precisely the stone hit the applicant in the head, and whether there had been serious ramifications for the applicant’s health.
Other unanswered questions involve the threats made to the applicant and the villagers by the government officials who arrived on the scene and what the nature of such threats when the police officers were sent to suppress the villagers in March 2017.
The applicant has claimed that he was arrested and detained for 3 days together with 5 other villagers. The Tribunal would have liked the opportunity to ask the applicant about what had occurred during his detention and the conditions he was detained in, and whether he had suffered any serious harm during those 3 days at the hands of the authorities. Other matters the Tribunal would have raised with the applicant is whether there had been conditions attached to his release and whether he had been provided any paperwork in relation to that term of detention which could be submitted to the Tribunal.
The Tribunal also has very little detailed information about the “underworld people” who it is claimed wrought revenge on the applicant and the villagers who reported the matter to the district authorities. The applicant claims that many villagers were wounded by them as they were beaten. It is not known, however, whether the 20 underground thugs were armed. The Tribunal at a hearing would have asked the applicant to place this claim in context and to provide realistic detail, for example, about the extent of people’s wounds and whether any persons had suffered life threatening injuries, and to what extent the villagers and applicant had fought back. The applicant claims that on this occasion he too was beaten so badly that he was bruised all over his body, and his mouth and nose bled but the Tribunal has no information about how the applicant’s process of recovery from such injuries might progressed.
The Tribunal would have given the applicant at a hearing the opportunity to elaborate on claims that on 20 May police officers took him to the local police station and beat and kicked him. It is unclear whether, and if so, for how long the applicant might have been detained and what might have happened in detail, apart from the beating and kicking the applicant claims to have received during that time. The Tribunal would have also asked the applicant what the terms of the guarantee were and whether he had intended to honour such terms.
The Tribunal has considered the material provided by the applicant to the Department and Tribunal (which is limited) and the information in the delegate’s decision and finds the information provided by the applicant to be general and lacking in detail, particularly in relation to his claimed role in clashing with the authorities and persisting to give himself a profile as an objector to the building of a highway in his village, and being harmed by the authorities and detained. As it is the Tribunal has many unanswered questions about the matters in which the applicant has only set out in a broad-brush manner.
The Tribunal finds that the applicant has failed to establish his claims. Therefore, on the very limited evidence he has provided, and considering his decision to decline to attend a hearing where he would have been able to flesh out his claims in a meaningful manner, the Tribunal does not accept that:
·At the end of 2016 or at any time, the village committee informed the villagers that the government was to expropriate land from their village to build a highway running through it and that they would be compensated 20,000 RM per mou of land.
·The villagers and applicant considered the compensation too low and became opposed to the government’s expropriation of their land.
·The town government occupied the land by force and started the road construction, and villagers were beaten and arrested by the armed police because they resisted.
·Hundreds of villagers tried to prevent the construction by keeping guard over the site in turn.
·When the applicant and others found that construction had commenced, they threw firecrackers at the construction workers and clashed with them.
·In retaliation the construction workers threw stones at them and drove the excavators towards them.
·The applicant’s head was hit by a stone and twenty police arrived 10 minutes later and the villagers arrived also.
·The town government sent dozens more police to suppress the villagers and town government officials also arrived and they were threatened, and failed to resist the heavily armed police and their land was occupied in this way.
·The applicant was arrested and detained together with 5 other villagers for three days.
·The applicant and others demanded to be given reasonable compensation but were sent away by the district government officials and told to wait for a response, but they never received such response and in revenge, 20 underworld thugs were sent to beat the villagers who had reported the matter to the district authorities.
·The applicant was beaten so badly his entire body was bruised and he bled from the nose and mouth and the villagers became angrier and were determined to fight the government.
·About 20 villagers attended the government with a petition and the applicant was taken from his home by the police who beat and kicked him, and the applicant’s face was full of blood.
·The applicant was required to sign a guarantee letter they had prepared and asked his father to give them 5,000 Yuan before he was released, and the applicant fled to Australia.

Having rejected the applicant’s claims in their entirety, the Tribunal does not accept that the Chinese authorities, including the police and other non-state actors, have ever harmed the applicant due to expropriation of land to build a highway, or that he has come to the authorities’ adverse attention for any reason. The Tribunal therefore does not believe that the applicant has made out any claims that he will come to the attention of the authorities or for any reason on return to China now or in the reasonably foreseeable future on account of any political or imputed political opinion. The Tribunal does not accept that the Chinese authorities or any of its instruments or other non-state actors would interrogate, mistreat or persecute the applicant for any reason discernible on the evidence before the Tribunal.
The Tribunal finds that there is not a real chance that the applicant will face persecution for reasons of his political opinion or imputed political opinion, or any other s.5J reason if he returns to China now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The Tribunal has had regards to the applicant’s claims, as above, regarding complementary protection, but has the same concerns which it wished to explore with him at hearing. The Tribunal is not satisfied that the applicant has established that he will suffer serious harm for his actual or imputed political opinion or for any other reason.
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from the Chinese authorities or anyone else for any reason if he returns to China, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the definition. Having found above that the Tribunal is not satisfied that the applicant has engaged in the activities as claimed, and that there is no real chance that the applicant will face persecution for any reason, it follows that 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 is a real risk that the applicant will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
Rosa Gagliardi
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 1787

16 February 2024

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Immigration

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Procedural Fairness

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