2107032 (Refugee)

2107032 (Refugee) [2024] AATA 4471 (8 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Komal Khatiwada (MARN: 0853554)
CASE NUMBER:  2107032
COUNTRY OF REFERENCE:                   Nepal
MEMBER:Alexander Reilly
DATE:8 October 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the pplicant a protection visa.

Statement made on 08 October 2024 at 10:56am

CATCHWORDS
REFUGEE – Protection Visa – Nepal – religion – Hindu – Muslim girlfriend – kidnapped and assaulted by girlfriend’s family – fear of honour killing –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 4 May 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Nepal, applied for the visa on 31 August 2018. On 9 March 2021, he was interviewed by a delegate of the Minister. On 4 May 2021, the delegate refused to grant the visa on the basis that the applicant had the right to enter and reside in India and had not taken all possible steps to avail himself of that right.
On 23 July 2024, the Tribunal contacted the representative for the applicant notifying the applicant that the file was being prepared for allocation to a tribunal member.
On 29 July 2024, the representative of the applicant made Freedom of Information (FOI) applications to the Tribunal and to the Department of Immigration for access to the applicant’s files in relation to his Protection visa application.
On 30 July 2024, the Tribunal released the Tribunal’s file in relation to his protection visa application in response to an FOI application. On the same day, the Tribunal invited the applicant to attend a hearing on 9 September 2024.
On 5 August 2024, the representative of the applicant contacted the Tribunal to confirm that the applicant agreed to attend the hearing via MS Teams.
On 29 August 2024, the representative of the applicant contacted the Tribunal to request an adjournment as the applicant was still awaiting a response to his FOI application to the Department of Immigration. The Tribunal agreed to the request to reschedule the hearing and set a new hearing date of 2 October 2024.
On 24 September 2024, the representative of the applicant made a further request for an adjournment as the applicant had still not received a response from the Department of Immigration in relation to the FOI request of 29 July 2024. The Tribunal did not agree to a further adjournment and advised the applicant that the hearing would proceed as scheduled on 2 October 2024. The Tribunal indicated that it would discuss the application for an adjournment at that time.
The applicant appeared before the Tribunal on 2 October 2024 to give evidence and present arguments via MS Teams. The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The representative of the applicant informed the Tribunal that the applicant had still not received the Department file and requested that the matter be adjourned. The Tribunal confirmed with the applicant that he was relying on the same claims that he had made in his original application and in his interview with the delegate. The Tribunal then indicated to the representative of the applicant that the Tribunal was not minded to grant a further adjournment, and intended to proceed with the hearing. It informed the representative that the only substantive documents on the department file were the original application, the record of interview and the delegates decision. The representative already had the delegate’s decision as it formed part of the Tribunal file already released to the applicant. The Tribunal would read out the applicant’s original claims during the hearing to confirm they were still the applicant’s claims. The only substantive information to which the applicant did not have access was the interview. The Tribunal indicated that if the Tribunal was to rely on any inconsistencies between the applicant’s evidence to the Tribunal and evidence given at the department interview, it would provide the applicant with an opportunity to respond in writing after the hearing.
The Tribunal then adjourned the hearing for 20 minutes for the representative to discuss the Tribunal’s position on the adjournment with the applicant, and to allow the representative to consider his position in relation to the need for an adjournment.
When the Tribunal recommenced, the representative did not object to the matter proceeding.
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.
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
Country of nationality
The applicant travelled to Australia on a Nepalese passport, a copy of which is contained on the departmental file. He has at all times stated that he is a citizen of Nepal, and he has been assessed on that basis by the Department. The Tribunal finds he is a Nepalese citizen and has assessed his claims against Nepal as his country of nationality and the receiving country.
The applicant’s background
The applicant was born in [Nepal] on [date]. He completed secondary school in 2006 and worked as an [occupation] with [a company] from May 2010 to April 2014.
The applicant indicated that his family consisted of his mother and father, [and specified siblings]. His father had passed away approximately one year before the hearing. His sisters are all married. The applicant contacts his family once every one or two weeks. The applicant does not have contact with any other family in Nepal.
The applicant arrived in Australia on a [visa] in September 2014. He worked on a [farm] in [a city] for a year, then on a [farm] in [another city], and was then employed as a seasonal worker in Victoria and South Australia, picking up work where it was available. He presently lives in Sydney.
The applicant stated that he has had no relationship since he has been in Australia.
Applicant’s claims for protection
The applicant made the following claims in his application.
I leave my country Nepal because my life was in danger in Nepal. I was in love with Muslim girl in Nepal. As I am Hindu my girlfriend’s family is not happy with me. So they started to threaten me. If I don’t leave their daughter they will kill me. Because of different they are not agree with me. So I left the country to save my lie.
What will happen if you go back?
If I go back to Nepal, my girlfriend’s family member can kill me. They are very danger people. They can do anything to me. To separate my girlfriend from me. So I don’t want to go back.
Did you experience harm?
I escape from my country otherwise they can kill me.
Did you seek help?
I was afraid and can’t report to police they threat me if I go to police. They will harm my family also. They want me to leave country so they feel secure about their daughter.
Did you move or try to move to another part of that country?
I am interested to visit Australia so I applied for [specified] visa at the same time I got visa, so I came to Australia.
Would you be harmed if you return?
They are still looking for me as my girlfriend is waiting for me. She loves me but her family is against her so they can harm me if I go back to my country.
Could the authorities protect you?
Our police can protect for some days but when they will meet me they can harm me anytime as they are angry with me. So my life is not safe.
Could you relocate?
No I don’t want to relocate in my country because our country is small so they can find me easily.
The Tribunal read aloud these claims to the applicant in full at the hearing, and he agreed that they were still his claims. The applicant elaborated on his claims in answer to questions from the Tribunal.
The applicant stated that he met his girlfriend in Chitwan, Nepal while they were both studying at college in 2011. They had a sexual relationship. They told their families about the relationship after about two years. When his girlfriend’s family found out about the relationship, they assaulted him, causing an injury above his eye. They regularly harassed him.
He tried to relocate to Kathmandu, but the girl’s family found him and kidnapped him, holding him under their control for two days. They made several threats to him, including that if they saw him around there would be consequences. The applicant believed that they intended to kill him.
The applicant made a report to the police, but they did not take it very seriously. They told him that the threats would end after a few days.
The Tribunal asked the applicant about his movements in the 9 to 10 month period after the applicant had been forced to leave his girlfriend, and before he travelled to Australia. The applicant said that in that time he focused all his time on saving his life. He lived with relatives in Kathmandu. After he had been kidnapped, he would stay in the house and only come out when it was necessary.
The Tribunal asked the applicant whether he tried to relocate to India. The applicant stated that he did not. He said that there were large Muslim communities in India, and his girlfriend’s family would still find him.
The Tribunal asked the applicant whether the family of the applicant’s girlfriend had communicated with his mother and sisters in Nepal since he has been in Australia. The applicant stated that the family had asked his mother where her son was, and she said that she did not know. The last time they approached his mother was 12 to 18 months ago.
The Tribunal asked the applicant what he feared would happen to him if he returned to Nepal now? He stated that they would ‘directly kill him’.
The Tribunal asked why he thought the girl’s family would still be interested in him after over 10 years. The Tribunal noted that the applicant was between approximately [age] and [age] during the relationship and that his girlfriend was between approximately [age] and [age]. He is now [age] and his girlfriend would be about [age]. The applicant stated that it was because he had done something wrong according to their religious beliefs. It was against their religion for him to have a sexual relationship with his girlfriend before they were married. He also said that he had ’defamed’ their family.
The Tribunal asked the applicant where he would live if he was required to return to Nepal. He stated that he would not go back to Nepal because they would kill him. He also stated that he could not live elsewhere in Nepal, and could not live in India, as the family would find him. He stated that there is an open border between Nepal and India so he could not ensure his safety by going to India.
The Tribunal pointed out to the applicant that India had a majority Hindu population and that his religion was Hindu, and asked why he could not live in a Hindu area of India and be safe. The applicant responded that he would have no one to protect him. He has heard of many Muslim incidents in India. He also said that Muslims have good connections in India and that the family of his girlfriend could easily find him.
Assessment of the applicant’s claims
The Tribunal accepts that the applicant had a relationship with a Muslim woman in Nepal and that the woman’s family were unhappy with the relationship, and assaulted, harassed and threatened the applicant.
The Tribunal is prepared to accept that the family of the girlfriend detained him for two days and made threats that they would kill the applicant if they saw him around, and that the applicant left Nepal because he feared that they might kill him.
The Tribunal does not accept that the family of the applicant’s girlfriend has continued to ask about his whereabouts. The Tribunal accepts that a male accused of having a relationship with a Muslim woman may be warned to cease having contact with the woman. However, once contact between a Muslim woman and a man has ceased, country information indicates that the cultural practice is to hold the woman responsible for dishonouring the family. Chesler and Bloom describe honour killing as: [1]
the premeditated murder of a relative (usually a young woman) who has allegedly impugned the honor of her family. It tends to predominate in societies where individual rights are circumscribed by communal solidarities, patriarchal authority structures, and intolerant religious and tribal beliefs. Under such conditions, control over marriage and reproduction is critical to the socioeconomic status of kinship groups and the regulation of female behavior is integral to perceptions of honor, known as maryada in many Indian languages and as ghairat in Urdu and Pashto.
In such an environment, a woman who refuses to enter into an arranged marriage, seeks a divorce, or fails to avoid suspicion of immoral behavior will be viewed by her family as having dishonored them so grievously that her male relatives will be ostracized and her siblings will have trouble finding suitable spouses. Killing her is the only way the family can restore its honor, regardless of whether she actually is or can be proven guilty of the alleged offense.
[1] Phyllis Chesler and Nathan Bloom, ‘Hindu vs. Muslim Honor Killings’ Middle East Quarterly, Vol 19, 2012,
Although it is possible that the family would threaten the applicant to stay away from their daughter at the time they were in a relationship, the Tribunal considers it highly unlikely that the family would continue to pursue the applicant once the relationship ended. The Tribunal considers that it is even more unlikely, indeed a very remote possibility, that the family would continue to pursue the applicant over eleven years after the relationship ended, especially given that the applicant has had no contact with the young woman in that time.
Refugee Criteria
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.
Under s 5J(1)(b), there must be a real chance that the applicant will suffer serious harm in the reasonably foreseeable future. A real chance is a substantial chance, as distinct from a remote or far-fetched possibility.[2]
[2] Chan v MIEA (1989) 169 CLR 379.
The Tribunal is not satisfied that there is a real chance that the applicant will suffer harm from the family of his ex-girlfriend if he returns to Nepal. He and is girlfriend were in [age range] during the course of their two-year relationship. They have had no contact since. The applicant’s girlfriend is likely to have made other arrangements for her life. There is no logical reason why the woman’s family would continue to desire to harm the applicant. It would be extraordinary for them to risk committing a serious crime by assaulting him or killing him for a wrong he is perceived to have done to the family 11 years earlier. The Tribunal concludes that the applicant could return to live in Nepal without the risk of harm.
Complementary Protection
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 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.
The ‘real risk’ element of the test in s.36(2)(aa) is the same as the ‘real chance’ test for protection s.36(2)(a).[3] Just as the Tribunal is not satisfied that the applicant faces a real chance of serious harm, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for complementary protection.
[3] MIAC v SZQRB [2013] FCAFC 33
Relocation
Under s 36(3), ‘Australia is taken not to have protection obligations in respect of a non -citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’
Even if the family of his ex-girlfriend is intent on harming, or even killing, the applicant, which the Tribunal does not accept, the Tribunal is not satisfied that the applicant has taken all steps to avail himself of a right to enter and reside in a country apart from Australia.
The applicant’s country of citizenship, Nepal, has a Treaty of Peace and Friendship with India. Article 7 of the ‘Treaty of Peace and Friendship states that:
[t]he Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one county in the territories of the other, the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.[4]
[4] CIS21659 ‘1950 Treaty of Peace and Friendship between India and Nepal’, United Nations - Treaty Series, 01 July 1950.

In MIAC v SZRHU, the full Federal Court found that the operation of the India-Nepal ‘Treaty of Peace and Friendship’ (No. 1302) (India/Nepal 31 July 1950) allowed a Nepalese national the right to enter and reside in India, as provided by s36(3).[5]
[5] MIAC v SZRHU [2013] FCAFC 91.
The applicant acknowledged that there was an open border between India and Nepal. He considered that the open border was a reason that the applicant’s family could continue to pursue him and harm him. The Tribunal does not accept, as the applicant claims, that the family of the applicant’s ex-girlfriend has connections in India that would mean they could track the applicant. India is a large country of 1.4 billion people. The majority of the Indian population is Hindu, the same religion as the applicant.
The Tribunal is satisfied that, if the applicant faces the risk of serious or significant harm from the family of his ex-girlfriend in Nepal, the applicant has the right to enter and reside in India, and that he has access to effective protection there.
Conclusion
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.
Alexander Reilly
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 4471

8 October 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction