2102432 (Refugee)

2102432 (Refugee) [2021] AATA 4643 (30 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2102432
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Amanda Paxton
DATE:30 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 September 2021 at 3:16pm
CATCHWORDS
REFUGEE – protection visa – Nepal – political opinion – supporter of Congress Party – fear of harm from members of Maoist political parties – family members’ membership and activities – no appearance at hearing or other response – country information – improved security situation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Luu v Renevier (1989) 91 ALR
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 February 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Nepal, applied for the visa on 30 April 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Act.
On 27 February 2021, the applicant validly applied for review of the delegate’s decision to the Tribunal, attaching a copy of the delegate’s notification to the application.
On 23 July 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing of the Tribunal on 30 September 2021. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice.
On 6 September 2021 the Tribunal telephoned the applicant twice on his mobile phone number to advise that the Tribunal had decided to hold the hearing by MS Teams video conference due to COVID-19 restrictions and providing the video conference details, but the applicant did not respond. On the same day, MS Teams video hearing requirements were sent to the applicant by email. In response, the applicant emailed the Tribunal on 6 September 2021 enquiring whether he needed to provide any documents to the Tribunal for his hearing. The Tribunal responded on 9 September 2021 including an invitation to attend a test session of MS Teams to be held on 23 September 2021.
On 22 September 2021 an SMS reminder of the hearing was sent to the applicant’s mobile number. On 22 September 2021 the applicant responded to the hearing invitation by email indicating that he would attend the hearing and referring to an attachment, however there was no attachment with his email. The Tribunal confirmed receipt of his email and advised that there no attachment.
The applicant did not join the scheduled MS Teams Test Dial on 23 September 2021 and three attempts to contact the applicant on the listed number were unsuccessful, all going to an unnamed message bank. A further SMS hearing reminder was sent to the applicant’s mobile number on 29 September 2021.
However, the applicant did not appear before the Tribunal on the day and at the time of the scheduled hearing on 30 September 2021 at 9:00 am. The applicant did not otherwise contact the Tribunal either before or after the time of the hearing to explain his lack of attendance. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to attend a hearing.
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 (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 (DHA), and country information assessments prepared by the Department of Foreign Affairs and Trade (DHA) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Nepal, 1 March 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Tribunal can be satisfied of the applicant’s claims and whether protection criteria are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant claims to be a national of Nepal. He has provided the Department with a copy of the bio-page of his Nepal passport.[1] The applicant’s passport indicates it was issued [in] 2012 and expires [in] 2022.[2] On the available evidence, and in the absence of any contrary information, the Tribunal finds that he is a national of Nepal. This is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country when assessing his eligibility for complementary protection.
[1] Dept file [Number], Doc ID [numbers].
[2] Dept file [Number], Doc ID [numbers]
The following information is apparent from the applicant’s application for protection. The applicant was born on [Date] in Sindhuli, Janakpur Zone, Nepal and is a citizen of Nepal by birth. The applicant is Hindu and of Nepalese ethnicity who speaks, reads and writes Nepalese and English. The applicant was married [in] July 2015 in Australia. The applicant’s mother, father and brother reside in Nepal, and the applicant is in contact with them by phone. The applicant lived at one address in Chitwan, Narayani Province, Nepal until coming to Australia as a student in 2013. In Australia he has been employed as [an occupation].
Written claims for Protection
The applicant’s claims for protection are first put forward on his Application for protection and can be summarised as follows. The applicant claims to have left Nepal to obtain higher education and states he did not experience harm in Nepal nor tried to move to another part of Nepal as he and his family had not been threatened at that time.
He claims that if he returns to Nepal he will likely be physically harmed, kidnapped, or killed by those loyal to Maoist parties in Nepal as his family is heavily involved in politics as supporters of the opposing Congress Party. He claims Maoists have threatened to harm him on return to Nepal. He further claims some members of his family and relatives have been threatened and harmed by Maoists.
The applicant thinks that the Nepalese authorities cannot or will not protect him as he claims that the authorities will not take his situation seriously. He also claims that he is unable to relocate within Nepal as Nepal is a very small country and that it is very difficult to do so without being found out by Maoist.
Claims for protection at interview with the Departmental delegate
The Tribunal notes the applicant gave the following evidence at his interview with the delegate as set out in the delegate’s decision record provided to the Tribunal by the applicant.[3] The applicant claimed his mother is an advisor for the Congress Party and has been involved in politics since he was a child. He stated that his mother had told him not to return to Nepal because his family have been threatened by Maoists; that the Maobadi is the opponent party. He claimed his uncle was also politically active in the Congress Party, in a role to cause ‘chaos’ and that after his uncle was targeted and hit by a truck, the driver was jailed. The applicant stated he fears that his family will be harmed. He claims the men in his family, including the applicant, will be targeted. He claims his brother, who lives with his family, has avoided harm only because of the COVID-19 lockdown.
[3] AAT 2102432, Doc Id 8159613, 27 February 2021.
In respect of third country protection, the applicant stated he would not have any social support in India, nor can he speak the language.
The applicant has not provided any documents to the Tribunal or Department in support of his claims.
Relevant Country information
The Tribunal has considered the country information provided by the DFAT Country Information Report for Nepal, dated 1 March 2019, which reports the following: [4]
[4] DFAT Country Information Report Nepal, 1 March 2019.
Recent History
…
In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.[5]
[5] Ibid, para 2.3
…
Security Situation
The overall security situation throughout Nepal has dramatically improved since the end of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. Recent elections including in November 2017 were affected by violence including political candidates being shot at, improvised explosive devices and landmines being planted and violent protests. Political protests and demonstrations occur regularly and can turn violent without warning. Political parties have been known to enforce strikes (bandhs see Private Sector/Business Community), which can close down transport and business operations for extended periods, although these have occurred less frequently in recent years.
In September 2015 protests began in the Terai and continued until early 2016. Led primarily by the Madhesi and Tharu groups, (see ‘Ethnicity’ below), these protests arose in part because of concerns about the demarcation of provincial boundaries under the 2015 Constitution. [6]
[6] Ibid, para 2.41 – 2.42
Political Opinion (Actual or imputed)
All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.
Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.
A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.
Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.[7]
Fear of Maoists
Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.
Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.
While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.
Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.[8]
[7] DFAT Country Report – Nepal, 1 March 2019, paras 3.38 - 3.41
[8] Ibid, paras 3.42 - 3.45
CONSIDERATION OF CLAIMS AND FINDINGS
In the circumstances of the applicant’s nonappearance at the hearing, the Tribunal has proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
There are many issues that would need to have been explored by the Tribunal with the applicant at the hearing in order to enable it to be satisfied of the truth of the claims made.
The Tribunal would have explored with the applicant the basis for his very broad claim that if he returns to Nepal, he will likely be physically harmed, kidnapped, or killed by Maoists as his family is heavily involved in politics. The Tribunal would have taken the opportunity to seek details about his mother’s and family’s involvement in politics, including her role and position as an advisor for the Congress. The Tribunal would have sought to obtain evidence about the nature of threats made to him, what they were, when and how and who made them. The Tribunal could expect the applicant to provide details as he stated he is in telephone contact with this family. The Tribunal would have made enquiry about the claimed Maoist source of the threat, noting he has made a reference to the Maobadi party, and the nature of threats received by some members of his family. Further, noting the applicant does not provide details of the perpetrator who it is claimed was jailed, the Tribunal would have explored the credibility of the applicant’s claim that his uncle had been targeted and hit in a truck incident. The Tribunal would also have explored the plausibility of the applicant’s claim that his brother had only avoided harm because of the COVID-19 lockdown. The applicant’s evidence in all these matters would be very relevant to an assessment of the risk of harm to the applicant himself on return.
At hearing, the Tribunal would have noted to the applicant that there was independent DFAT information before it that the overall security situation throughout Nepal has dramatically improved since the end of the conflict in 2006. The Tribunal would have discussed with the applicant DFAT assessment that the political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected, and that a return to violence was low. The Tribunal would have noted that this information is adverse to the applicant’s claims to be at risk of harm for reason of his and his family’s political opinion.
In regard to the applicant’s claims to fear Maoists, the Tribunal would have noted to the applicant that the independent DFAT assessment above indicates that Maoists no longer need to resort to violence to progress their political agenda, and that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.[9] The Tribunal would have noted that this information does not support the applicant’s claim that he is at risk of harm from Maoists because he and his family oppose Maoist policies.
[9] DFAT Country Report – Nepal, 1 March 2019, paras 3.38–3.45

In light of these outstanding questions and issues, the Tribunal is not satisfied as to any of the applicant’s substantive claims. The Tribunal is not satisfied that the applicant has been threatened with harm on return to Nepal by Maoist supporters. The Tribunal is not satisfied that any of the applicant’s family have been threatened with, or suffered, harm from Maoists because of family involvement in Congress Party politics, or that he and his family have a risk of harm from Maoists arising from his mother’s role in the Congress Party. The Tribunal is not satisfied that the applicant’s uncle was targeted by anyone including Maoists because of his involvement in the Congress Party, or that his brother has only avoided harm because of COVID-19 lockdown.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for a reason set out in s.5J(1) of the Act or for any of the reasons claimed, now or in the foreseeable future. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that the applicant will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton
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.
…

[2021] AATA 4643

30 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice