2116076 (Refugee)

2116076 (Refugee) [2023] AATA 4312 (16 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2116076

COUNTRY OF REFERENCE: Philippines
MEMBER:Luke Hardy
DATE:16 October 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
I refer this matter to the Minister, having regard to s.417 of the Act.

Statement made on 16 October 2023 at 3:09pm
CATCHWORDS
REFUGEE – protection visa – Philippines – no Convention nexus – lengthy period of unlawful residence – family ties in home country – fear of gang members – health issues – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65, 417, 423A
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [named] (an alias), is a citizen of Philippines. He entered Australia as a visitor [in] August 1988. He overstayed his visa, becoming an unlawful non-citizen on 26 February 1999. He was encountered by authorities in 2021 when approached in an Opal card check on NSW transport. He was then detained. He applied for the visa on 29 September 2021. The delegate refused to grant the visa on 15 October 2021.
[The applicant] sought merits review by this Tribunal and the matter was constituted to me. I set the matter for hearing on 16 October 2023. There followed a request for postponement for the hearing pending response to an FOI request. I released relevant documents upon receiving that request but decided not to postpone the hearing as requested, advising that if there were a need to adjourn or await further submissions then that could be discussed and decided at the hearing.
[The applicant] appeared before the Tribunal on 16 October 2023 to give evidence and present arguments. He comfortably gave evidence in English. An interpreter in the Tagalog-English medium stood by via video but was generally not required.
I am satisfied that [the applicant] was not prevented from giving cogent evidence by any factor beyond his control.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims to the Department of Home Affairs (the Department)
[The applicant’s] original claims are brief. He claimed to the Department that he had been in Australia for 30 years and had no interest in returning to the Philippines. He claimed he had lost all his family members. He claimed he came to Australia because he was looking for a good country. He indicated that he liked Australia being a “big island.” He said he thought that he would have nothing to go back to in the Philippines and would feel lost.
Evidence to the Tribunal
At the Tribunal hearing, [the applicant] qualified his earlier claim about having lost all of his family members: he said he left behind a [sibling], [number] children and an estranged wife when he left the Philippines 35 years ago. He said his children were living with their mother last time he heard from anyone back home. In this way, his evidence was different from, and far less definitive than, the claim about having lost his whole family. I put to him that family members can be traced through agencies like the red Cross and he said he did not know who was still alive because he had previously lost his father and his brother.
[The applicant] introduced a new claim in evidence before the Tribunal. He said he left the Philippines because of a problem he had when he was there. He told me he was asked to sell a car on behalf of a vendor for commission, the vendor turning out to be a member of a criminal gang and the car having been stolen. He said he received his commission. He said he is not a criminal. He went on to describe the police interviewing him, presumably after the car had been traced to its buyer. He said the police asked him who had sold the car. He indicated he told the police that he had been duped into acting as a “middle man” for criminals. He confirmed that the police never charged him and left him at liberty. He said he feared the gang members might harm him in future for having told the police about them. He said this happened in 1984 or 1985. I put to him that on this evidence that he remained unharmed in the Philippines for an arguably significant period before leaving the country legally. In reply, he said it may in fact have happened in 1986 or 1987. I put to [the applicant] that either way his not having been charged by the police indicated that they did not consider him liable, or their target, in the matter. [The applicant] then said that it was not until three or four years after he came to Australia that the gang started looking for him. I asked him if the gang members might all be dead by now, [the applicant] himself being [age] years old and the gang members, according to his evidence at the hearing, being his age or older (in their [age range]). He did not appear to agree with this postulation.
I asked [the applicant] why he did not apply for protection back in that time, three or four years after he had arrived in Australia, and he said he had had no idea what to do at that time. He said his mind was not good.
I asked [the applicant] why he did not mention any of these claims in his original PV application, and he said he had forgotten to tell it to the person who helped him fill out his form. I asked him how he could have forgotten to describe such harm if he feared it. He had claimed not to have suffered any potentially relevant harm in the past. In reply, he said again that he had forgotten. He went on to say her had never killed anyone.
[The applicant] said he has no material to support his new claims.
[The applicant] discussed his sight loss and the need for ongoing ophthalmic attention. He sad he is nearly blind and provided medical evidence of this and other afflictions including high blood pressure and diabetes. He indicated that in the event of a negative decision he would like the Minister to consider favourably substituting the Tribunal’s decision under s.417 of the Act.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220 .
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] is old and infirm. I accept that he would have difficulty finding work he could perform. I accept that he would have difficulty subsisting. I am not satisfied on the evidence before me, however, that this would be for any reason cited in s.5J(1)(a) of the Act.
I am not satisfied on the evidence before me that [the applicant] has “lost” all of his family. However, he may be forever estranged from them and may not be able to rely on any of them for support. Still, I am not satisfied that this gives rise separately or cumulatively to a real chance of suffering serious harm for a reason in s.5J(1)(a) of the Act.
I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in the Philippines due to the length of time he has been away from the country or for having sought asylum here.
I accept that the Philippines has changed in the decades since [the applicant] was last there, but I am not satisfied that this gives rise separately or cumulatively to a real chance of suffering serious harm for a reason in s.5J(1)(a) of the Act.
I will now address [the applicant’s] new claims.
Relevant to this matter, I am aware of s.423A of the Act:
SECT 423A
How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision), the applicant:
(a)raises a claim that was not raised before the primary decision was made; or
(b) presents evidence in the application that was not presented before the primary decision was made.
(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
Looking at them on their own, I have concern as to the veracity of [the applicant’s] new claims. They are vague, for a start, and no harm evidently befell him during the period when the police purportedly investigating him and the gang, whether that period was a year or four years prior to his departure. Then there is the vague claim about the problems for him starting three or four years after he came here. In addition, the harm [the applicant] claims to fear is not for any reason cited in s.5J(1)(a) as it is criminal revenge for the discrete act of aiding the police in their investigation of the gang. Meanwhile, there is no evidence of this past issue having occurred or of it having any implications for [the applicant] in the reasonably foreseeable future. I find on the evidence before me that [the applicant] has invented this story, or embellished one, for the sake of the review outcome in this matter being different from that of the primary assessment. Given these findings, there is no need simply to fall back on s.423A of the Act. However, to be clear I am also satisfied that [the applicant] does not have a reasonable explanation why the new claim was not raised before the delegate made the primary decision. Either way, I give no weight to [the applicant’s] new claims.
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of the Philippines, I find that the Philippines is the receiving country in this matter.
[The applicant’s] claims to complementary protection are essentially the same as his refugee claims.
[The applicant’s] claims about age, alienage, lack of family support and infirmity affecting his capacity to subsist were found to be credible but lacking in any nexus to s.5J(1)(a) of the Act. I must therefore reassess those claims through the lenses of “significant harm”. The problem here, however, is that I am not satisfied they involve a real risk of “significant harm” as exhaustively defined in s.5(1) of the Act. I am not satisfied that they will involve the death penalty, or meet the “intentional” requirement of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. I have heard [the applicant’s] testimony about the cost and lack of availability of appropriate therapy for his advancing blindness, but am not satisfied on the evidence before me that this, or any other deficiency in medical responses to him in the Philippines, involves a real risk of arbitrary depravation of life.

As to [the applicant’s] claims about the car and the gang, those claims have failed due to their lack of credibility. In view of the “real risk” test imposing the same standard as the “real chance” test, those claims can no more succeed as complementary protection claims than they have as refugee claims.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to the Philippines, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusions
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, he does not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. Accordingly, the applicant does not satisfy the criterion in s 36(2).
S.417 referral
[The applicant] has asked that his claims be considered by the Minister on humanitarian grounds. There is one ministerial guideline that appears relevant here:
Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
Hence I refer this matter to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…

[2023] AATA 4312

16 October 2023

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