2017877 (Refugee)
[2024] ARTA 725
•5 December 2024
2017877 (REFUGEE) [2024] ARTA 725 (5 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2017877
Tribunal:General Member Matthew Currie
Date:5 December 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
General Member M. Currie
Statement made on 5 December 2024 at 2:31 PM CATCHWORDS
REFUGEE – protection visa – China – political opinion – human rights protest – physical assault – detention – charge of assaulting a police officer – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 December 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 national of China, applied for the visa on 26 February 2019. The visa was refused because the delegate was not satisfied by the applicant’s claims for protection, or that the applicant had participated in the activities, or suffered the kinds of adverse treatment or harassment he had claimed in China. The delegate was not satisfied the applicant met the refugee criteria, or the complementary protection criteria.
On 14 December 2020, the applicant lodged an application for review with the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 11 November 2024, the Tribunal sent the applicant a Notice of Hearing (the Hearing Notice) which indicated that he was invited to attend a hearing before the Tribunal on 6 January 2025. In a response to the hearing notice, signed by the applicant on 1 December 2024, he indicated that he did not intend to participate in the Tribunal hearing and requested that the Tribunal make a decision in relation to his case on the papers and without holding a hearing.
BACKGROUND
This applicant arrived in Australia in January 2019. In the application, the applicant claimed to be a citizen of China who was born in [specified year]. He submitted his protection visa application in February 2019. As part of his application, the applicant provided a photocopy of a genuine Chinese Passport issued in his own name.
Evidence before the Department
The Departmental delegate considered the applicant’s protection visa application and the photocopy of his Chinese Passport. In his protection visa application, the applicant outlined the following claims for protection:
·He is Chinese citizen who was born in [year]. Throughout his life in China, the applicant lived in Quzhou County, Handan City, Hebei Province. He attended school in Handan between [specified years].
·In China, the applicant took part in a protest for human rights outside a Government building in Hebei. The Chinese police attended the protest and attempted to disburse the protesters. The protestors refused to disburse and told the police they had a right to express their views. In response, the police fired tear gas into the crowd and began arresting people. The applicant was arrested and taken to a prison. During his arrest, he was hit with a riot shield and a baton by police.
·While detained, the applicant was questioned about his motives and accused of betraying China. He was told that it was illegal to attack police officers and was beaten again. He was informed that if he protested again, he would be arrested and sent to a labour camp.
·He was released with [an amount] yuan fine for injuring a policeman. The applicant denies that he ever assaulted a police officer.
·Several months later the police visited his house. They arrested him in order to intimidate him against participating in further protests. The applicant was afraid and travelled overseas to visit friends. His friends advised him to return to China, wind up his affairs there and escape otherwise he would not be safe.
·The applicant is not safe in China. he has been arrested on three occasions there. The authorities in China have identified him as a protestor, intimidated him, and manufactured claims about him assaulting police. He cannot seek assistance in China and would not be safe anywhere in that country.
In November 2020, the Departmental delegate wrote to the applicant under s 56 of the Act and invited him to provide further information relating to his claims for protection (the s 56 letter). In the s 56 letter the delegate indicated that the information provided by the applicant in his protection visa application lacked substantiating details such as dates and locations and did not include any supporting documentation about his claims.
The s 56 letter asked the applicant to provide evidence in support of his claims for protection including specific requests for evidence showing his involvement in protests in China and copies of any documents pertaining to his arrest for that reason. The letter noted that if the applicant was unable to provide further information about these issues, then he should provide a detailed explanation for why he cannot provide such information, and details of what attempts the applicant had made to obtain the information. The letter warned the applicant that he may not be given another opportunity to provide information about his claims for protection.
The applicant did not respond to the s 56 letter and on 9 December 2020, the delegate made a s 65 Decision in relation to his case.
In the s 65 Decision, the delegate accepted the applicant was a Chinese citizen and found that China was his receiving country. In the decision the delegate noted the lack of detail in the applicant’s claims, the lack of any supporting evidence the applicant’s failure to provide such material, even when given an opportunity to do so (the s 56 letter). The delegate was not satisfied by the applicant’s claims for protection, or that the applicant had participated in the activities, or suffered the kinds of adverse treatment or harassment he had claimed in China. The delegate was not satisfied the applicant met the refugee criteria, or the complementary protection criteria.
Evidence before the Tribunal
The Tribunal has considered the applicant’s protection visa application and the photocopy of his Chinese Passport. The Tribunal has also considered the s 65 Decision.
In August 2024, the AAT sent an email to the applicant. That email notified the applicant that his case file was being prepared to be issued to a Member of the AAT. The email asked the applicant to complete a ‘Pre-hearing information form’ which, among other things asked the applicant to provide any additional information about his claims for protection. The applicant completed the Pre-hearing information form or and returned it to the AAT on 8 August 2024. The returned Pre-hearing information form was signed by the applicant but did not contain any further information about the applicant’s claims for protection.
In November 2024, the Tribunal sent the Hearing Notice to the Applicant. Two additional documents were attached to the Hearing Notice. These were a ‘Response to hearing notice’ (the hearing response form) and factsheet titled ‘Information About Hearings’ (the hearing factsheet).
The Hearing Notice indicated that the applicant could use the hearing response form to request that the Tribunal make a decision without a hearing. The Hearing Notice contained a warning that if such a request was made, and the Tribunal proceeded to make a decision in the applicant’s absence and without holding a hearing, there was no guarantee that he would receive a favourable decision. The hearing information factsheet explained the purpose of the hearing and noted that a hearing was an opportunity for the applicant to give evidence and present arguments relating to the issues arising in his case.
The applicant returned the hearing response form to the Tribunal. In the hearing response form, he clearly indicated that he would not participate in a Tribunal hearing and requested that the Tribunal make a decision on the papers without holding a hearing.
Decision without a hearing
For the following reasons, the Tribunal has decided to make a decision without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) outlines the circumstances in which the Tribunal may reach a decision without conducting a hearing.
Section 106(3)(b)(ii) of the ART Act provides that the Tribunal may make a decision without holding a hearing when the applicant requests the Tribunal to do so.
The Hearing Notice provided to the applicant indicated that he could use the hearing response form to request that the Tribunal make a decision without a hearing. The Hearing Notice also indicated that if the Tribunal proceeded to make a decision in the applicant’s absence and without holding a hearing, there was no guarantee that he would receive a favourable decision. The hearing information factsheet explained the purpose of the hearing and noted that a hearing was an opportunity for the applicant to give evidence and present arguments relating to the issues arising in his case. The Tribunal considers the applicant’s hearing response form, to be a clear request for the Tribunal to make a decision without a hearing, fulfilling the requirements of s 106(3)(b)(ii).
Section 106(3)(c) of the ART Act requires that the Tribunal be satisfied that the proceeding can be ‘adequately determined’ in the absence of the applicant. The Tribunal considers this term to have its ordinary meaning, rather than being term of art. In this case, the issues that the Tribunal is required to determine are:
·Whether the applicant would face a real chance of persecution for one or more of the reasons in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act; or,
·Whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to his receiving country, there is a real risk the applicant would suffer significant harm for the purposes of s 36(2)(aa) of the Act.
In this case, the Tribunal is satisfied that the issues for determination can be adequately determined without conducting a hearing. The Tribunal considers that this applicant has been provided with an opportunity to attend a hearing where he could provide further evidence and information about his claims for protection. The Tribunal notes that the hearing factsheet advised the applicant that a decision made on the papers would not necessarily be a favourable decision. The applicant’s signed hearing response form also indicated that even if he did attend a hearing, he did not intend to rely on any documents, witness statements, written submissions, country information or other evidence.
As noted earlier, the Tribunal has copies of the applicant’s protection visa application which outlined his claims for protection, and a photocopy of his Passport. The Tribunal also has a copy of the s 65 Decision. The Tribunal is able to determine the applicant’s identity, citizenship and his receiving country. The Tribunal is satisfied that it has enough information to make findings about whether he meets the criteria in ss 36(2)(a) and 36(2)(aa) of the Act without obtaining further information, evidence or submissions from the applicant.
In the circumstances, the Tribunal is satisfied that the conditions of s 106(3) of the ART Act are met and has decided to determine the matter on the papers before it.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
The issue in this case is whether this applicant meets the refugee criteria, or the complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
As part of his protection visa application, this applicant provided a photocopy of his genuine Chinese Passport. The applicant’s application also contained a range of biographical information about him and an explanation for how he obtained the Passport. The Tribunal has reviewed this material and the applicant has established his identity to the Tribunal’s satisfaction. The Tribunal accepts that the applicant is a Chinese citizen who was born in [year]. For the purposes of this decision, the Tribunal finds that China is his receiving country.
Analysis & Reasons
This applicant’s protection claims all derive from his assertion that he attended a protest in China. However, the applicant has only provided very limited details about this activity. He has not explained when this protest occurred, or beyond stating that have occurred outside an unspecified government building, where it occurred. He is not explained who organised the protest, or how many people attended, or the purpose of the protest, or who else attended, or how he learned about it or why he became involved. He has not provided any information about his role in the protest, or whether he had played any part in organising it, or whether he had spoken publicly during the protest, or whether he was merely a participant in the protest. He has not provided any supporting evidence that a protest occurred. Given the applicant’s failure to provide any evidence about these issues the Tribunal considers his claims to lack detail.
The applicant also says that after the protest he was arrested. He says he was detained in a prison and mistreated. He says that later he was released but was required to pay [an amount] yuan fine. He says he was falsely accused of assaulting a police officer who had attended and dispersed the protest. However, the applicant has only provided very limited details about these events. He has not provided an explanation for when he was detained, or which prison he was detained in, what how long he was detained, or whether he faced formal charges, or other relevant details. Though he says he was arrested, imprisoned, and later released he has not provided any supporting evidence for these assertions. Though he says he received [an amount] yuan fine, is not provide any supporting evidence that he ever received such a fine, or that he paid one. The applicant’s failure to provide any further details about these issues or any supporting evidence for these claims concerns the Tribunal.
The applicant has been on notice since at least 2020, when the Department sent the s 56 letter which advised him that there were concerns about the lack of detail in relation to his claims for protection and a lack of evidence for his claims. The Department gave the applicant the opportunity to provide further detail and evidence to support his claims, but applicant did not respond to the s 56 letter or provide any further information or evidence to the Department. Despite the passage of a further four years, the applicant has not provided any further information about his claims for protection, or any supporting evidence for his claims to the Tribunal. All of these factors weigh against accepting applicants claims.
Section 5AAA of the Act, clearly specifies that it is the responsibility of the applicant to specify the particulars of his claim for protection, and to provide enough evidence to substantiate the claim. It is not the Tribunal’s responsibility to identify claims on behalf of the applicant or to obtain evidence to support such claims. The Tribunal is not required to accept the applicants claims uncritically.
Taking all these factors into account, the Tribunal is not satisfied by any of the applicant’s claims for protection. In the absence of any further detail from the applicant, or any independent supporting evidence for any of his claims, the Tribunal is not satisfied that this applicant ever participated in a protest in China, or that he was ever arrested for that reason, or that he was imprisoned or mistreated by the Chinese authorities. The Tribunal is also not satisfied, that the applicant was fined [amount] Yuan, or was accused of assaulting police, or that he faced ongoing harassment for these reasons by the Chinese authorities. The Tribunal is not satisfied that this applicant was ever known to, or of interest to, the Chinese authorities for these reasons. The Tribunal is not satisfied that this applicant has the profile of an activist in China or would be perceived to have that profile by the Chinese authorities, or by anybody else in that country.
Does the applicant satisfy the refugee criterion for protection?
For the reasons provided above, the Tribunal is not satisfied that this applicant was ever of interest to the Chinese authorities in the past or was perceived to be an activist or a dissident, or to have any political profile. The Tribunal is also not satisfied that the applicant was ever detained or imprisoned or mistreated by the Chinese authorities in the way he claims.
This in the circumstances, the Tribunal is not satisfied that this applicant would face a real chance of any harm wary to return to China now, on the reasonably foreseeable future for any of the reasons he has put forward in his protection visa application. The Tribunal is not satisfied that he would face a real chance of harm for any other reason.
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).
Does the applicant satisfy the complementary protection criterion for 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 found that this applicant would not face a real chance of harm arising from any of his claims for protection. As ‘real chance’ and ‘real risk’ have been found to meet the same standard[1], if follows that he would not face a real risk of significant harm for these reasons. The Tribunal is not satisfied he would face a real risk of significant harm for any other reason.
[1] MIAC v SZQRB (2013) 210 FCR 505
In the circumstances, the Tribunal is not satisfied therefore 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 of 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.
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.
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36 Protection visas – criteria provided for by this Act
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(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.
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