2116956 (Refugee)

2116956 (Refugee) [2022] AATA 4751 (5 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Steven Xiang Feng Wang (MARN: 0637238)
CASE NUMBER:  2116956
COUNTRY OF REFERENCE:                   China
MEMBER:Mark Bishop
DATE:5 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 05 October 2022 at 10:15am
CATCHWORDS
REFUGEE – protection visa – China – race – ethnic Korean – posted online about North Korean nuclear explosion – detained by police – applicant did not appear before Tribunal – insufficient evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 56, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 201 FCR 505
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 28 October 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China applied for the visas on 20 March 2017. The delegate refused to grant the visas.
On 16 August 2022 the Tribunal wrote to the review applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicants to give evidence and present arguments at a hearing on 5 October 2022. The Tribunal advised the applicant the hearing would be contacted by video. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may decide on the case without further notice. The Tribunal sent two reminder texts to the review applicant’s mobile phone number on 28 September 2022 and 4 October 2022 (see Case Notes numbers 3 and 4). On 4 October 2022 the Migration Agent (MA) for the review applicant advised the Tribunal and advised he had been unable to contact his client and that the MA would not attend the hearing.
The applicant did not appear before the Tribunal.
The review applicant did not appear before the Tribunal for the phone hearing on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with relevant provisions in the Act and the invitation has not been returned to sender. The Tribunal considered the many attempts by the Tribunal to contact the applicant on the day of the hearing, the fact that the representative of the applicant wrote to the Tribunal and provided advice as set out in paragraph 3 above. In these circumstances, and pursuant to the provisions of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
At 9.35am Tribunal hearing room staff did a final check to see if the applicants had turned up for the scheduled review hearing. See Case Note number 6.
The applicant provided a copy of the decision record to the Tribunal. The applicant was assisted in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed..
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
In his Application for a Protection Visa (Form 866) dated 17 March 2017 the applicant declared as follows:
·He had previously applied to migrate to [another country] but this application was refused.
·I have great worry that once I go back to China, I might be prosecuted, go to jail. I am sure I will be discriminated, harassed, bullied, and attacked any time.
·He could not move to another part of the country because “we didn’t feel that would help”.
·We fear we might be formally prosecuted and sent to jail by police. We will also be bullied, harassed, and attacked by other unofficial organization or thugs. One reason is because we are Korean ethnic. the other reason is we spread the information about nuclear bomb tests by North Korea, we worried about its consequences. we also worried about the nuclear conflict and radiation disaster. the government didn't like our involvement.
·The government is the main source of harm.
In addition the first applicant provided a personal statement and statement of claims summarised by the Tribunal as follows:
·He came to Australia in 2013 on a tourist visa. He recently (2017) was told about protection visas and retained a Migration Agent (MA).
·His MA advised him “according to my situation, the reasons for protection are not sufficient and the possibility for granting the protection visa is very low. He suggested me not to lodge the protection visa application.”
·After seriously thinking of that, I decided to apply for it.
The second applicant provided a statement summarised by the Tribunal as follows:
·After arrival in Australia the applicants were in desperate financial and personal circumstances.
·A friend suggested they seek protection.
·She worked awhile, saved some money, sought assistance and could not work during lockdown.
·She wishes to apply for a tax file number and not borrow money from friends. Her husband cannot work
In response to a s56 Natural Justice letter the applicant advised as follows:
·In mid-August 1996, the applicant got into an argument about an entry ticket into a park. After a while, more than 20 soldiers from the army came and surrounded the applicant and three of his colleagues. They were handcuffed, pressed to the ground and beaten.
·They were taken to a small house by a car and handcuffed together. They could not look up or stand up. They could only squat, or they were beaten.
·They were held like this for eight hours, and then the applicant was allowed to go home.
·They were ordered to report to the police station.
·The applicant didn’t go to the police, couldn’t stay home anymore, and wandered around for a few years.
·They were persecuted like this because they are ethnic Koreans.
·In 1999, the factory where the applicant worked went bankrupt.
·His colleagues disappeared, and he later heard from his friends that they had gone abroad.
·He contacted a few people who knew about this at the time to help him write a certificate, but they refused to write it for fear that it would cause them trouble.
·There was also the North Korean nuclear explosion. He posted some posts and information at that time. He asked someone he spoke to all the time to give him evidence, but they refused and deleted his post immediately. Their voice message told him not to make trouble. Not only would that person be in trouble, but the applicant may never be allowed to come back. He could not find anyone to prove it for him.
On 16 August 2022 the Tribunal (for the second time) wrote to the applicant and invited him to attend a hearing on 5 October 2022. As part of that invitation the Tribunal advised the applicant “Enclosed with this letter is a further copy of the factsheet ‘Information about hearings and a new ‘Response to hearing invitation’ form. Please read and complete the form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written arguments sent to us should be in English or be translated by a NAATI or equivalent accredited translator.”
The applicant did not respond to the above invitation and did not provide any further information or documents to the Tribunal. See paragraph 3 above.
The applicant did not appear before the Tribunal. See paragraphs 3 to 5 above.
The applicant claims to be unable to return to China as he is ethnically Korean, and because he has spoken publicly about a North Korean nuclear explosion. The applicant claims to have posted information regarding a North Korean nuclear explosion publicly and was warned not to make trouble.
It is common knowledge in both China and North Korea that North Korea has shown an interest in developing nuclear weapons since the 1960’s.[1] The nuclear program can be traced back to about 1962, when North Korea committed itself to what it called "all-fortressization", which was the beginning of the hyper-militarized North Korea of today.[2] A UN Security Council sanctions committee report stated that North Korea operates an international smuggling network for nuclear and ballistic missile technology, including to Myanmar (Burma), Syria, and Iran.[3] On September 9, 2022, North Korea passed a law to declare itself a nuclear weapons state and rejected any possibility of denuclearisation.[4] China’s reaction to North Korea’s nuclear weapons first-use law was considered to be muted.[5]
[1] Jackson, Van (2018). On the Brink: Trump, Kim, and the Threat of Nuclear War (1 ed.). Cambridge University Press. p. 23
[2] Samuel Ramani (February 18, 2016). "These 5 things help make sense of North Korea's nuclear tests and missile launch". The Washington Post
[3] McElroy, Damien (November 12, 2010). "North Korea 'runs international nuclear smuggling network'". The Daily Telegraph. UK.
[4] "North Korea declares itself a nuclear weapons state". BBC News. September 9, 2022. Retrieved September 9, 2022.
[5] 13 September 2022
The Tribunal is of the view the existence of the North Korean nuclear weapons and missiles programs have been common knowledge for decades in nearly all parts of the world. On many occasions China has been involved in discussions with the government of North Korea as to the existence and spread of these programs and ancillary matters. The Tribunal is of the view that few if any in the Chinese government would be aware of any short term posts by the applicant relating to nuclear issues many years ago.
In regards to the ability of a person with an adverse profile with the Chinese authorities to depart China, DFAT states that the government maintains a system of border controls that prevents persons of interest departing the country. The government uses exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents and persons employed in sensitive government posts.[6] China’s passports use sophisticated technology and its authorities have a high surveillance capability, particularly at train stations, airports and ports.[7] An ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[8]
[6] Country Reports on Human Rights Practices for 2019 – China, including Tibet, Hong Kong and Macau', US Department of State, 11 March 2020, p. 55,
[7] DFAT Country Information Report: People's Republic of China', Department of Foreign Affairs and Trade, December 2021, para 5.61
[8] DFAT Country Information Report: People's Republic of China', Department of Foreign Affairs and Trade, December 2021, para 5.61
The government monitors internal movement and maintains an exit control list (ECL). The ECL is used at airports and other border crossings to deny foreign travel to some people considered to be a political threat or who work in sensitive government posts.[9] Major airports as well as sea and land checkpoints have a centralised system that can match names and faces.[10] Little is known about the operation of the ECL, although one academic did tell Chinese media that many different government agencies, including tax, customs, policing and judicial authorities can add a person to the list.[11] There has also been at least one case of a person on the list being able to leave the country.[12]
[9] Country Reports on Human Rights Practices for 2019 – China, including Tibet, Hong Kong and Macau', US Department of State, 11 March 2020, p. 55,
[10] DFAT Country Information Report: People's Republic of China', Department of Foreign Affairs and Trade, December 2021, para 5.61
[11] China’s mysterious ‘Bian Kong’ system that can bar anyone from entering or leaving the country', South China Morning Post, 5 August 2019,
[12] China’s mysterious ‘Bian Kong’ system that can bar anyone from entering or leaving the country', South China Morning Post, 5 August 2019,
There is little evidence before the Tribunal that the applicant is a high profile citizen of China in any way or has conducted himself in recent decades to be a person of interest to relevant authorities in China. Based on the information currently before it, the Tribunal does not find the applicant to be a citizen of a significantly high profile which may enable him to exert influence over border officials and to bypass established controls.
A refugee is a person who has, as defined in s5J(1)(a), a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.
As noted above, the applicant claims to fear being subject to bullying, discrimination, harassment and attacks on account of being ethnically Korean in the People’s Republic of China (China). In accordance with s5L of the Act, the Tribunal is satisfied that ‘ethnic Koreans’ are a race.
DFAT China Country Information Report (CIR) dated 22 December 2021 addresses issue relating to race and or nationality in China. It also addresses issues relating to control and exit processes. The Tribunal gives weight to this material.
Ethnic minorities may experience race discrimination. The government acknowledges 55 different ethnic groups.[13] Government policy allows members of ethnic minorities to receive preferential treatment in family planning, university admission, access to loans and employment.[14] However, discrimination against minorities is widespread and implementation of preferential policies is poor.[15] Han Chinese sometimes benefit from government programmes directed at ethnic minorities, particularly in the regional areas where ethnic minorities live, which may lead to resentment or violence.[16]
[13] DFAT China Country Information Report (CIR) December 2021 para 3.1
[14] Country Reports on Human Rights Practices for 2020 - China', US Department of State, 30 March 2021, p. 64,
[15] Country Reports on Human Rights Practices for 2020 - China', US Department of State, 30 March 2021, p. 64,
[16] DFAT Country Information Report: People's Republic of China', Department of Foreign Affairs and Trade, December 2021, para 3.2
While the Tribunal note that ethnic minorities in China may experience race discrimination, there is nothing before the Tribunal to indicate that ethnic Koreans are subjected to discrimination which would constitute persecution or serious harm. In response to the s56 invitation sent to the applicant, he spoke of one incident which took place in 1996 where he claims that he was discriminated against due to his ethnicity. Considering the passage of time, and the fact that the applicant has not spoken of any other incidents, the Tribunal finds that the applicant would not experience persecution or harm as a result of his ethnicity if he were returned to China.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as defined in s5J of the Act as a result of their ethnicity or for any of the reasons in s5J(1)(a) in China.
The evidence, considered in totality, is insufficient to establish to the satisfaction of the Tribunal, the existence of a real chance the applicant would suffer serious harm for reasons as claimed if he is returned to China now or in the reasonably foreseeable future.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied the applicant is a refugee for the purposes of the Act, and therefore the applicant is not a person in respect of whom Australia has protection obligations, and the applicant does not satisfy the criterion in s 36(2)(a).
Complementary protection
The Tribunal now turns to consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act. A person will satisfy the criterion if there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case China, there is a real risk the applicant will suffer significant harm. The definition of significant harm is stated in s 36(2A) of the Act which is reproduced in the attachment to this decision.

In view of the Tribunal’s findings outlined above that it is not satisfied that the applicant experienced persecution as an ethnic Korean in China as claimed, or that he has a profile that would be of adverse interest to the Chinese authorities or anyone else if he returns to China in the foreseeable future the Tribunal finds there is not a real risk the applicant will suffer significant harm as set out in s 36(2A).
In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246], [297], [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a) of the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk she will suffer significant harm.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa).
There is no suggestion that the applicant meets the family member criterion in s 36(2)(b) or (c) of the Act.
[The Second Applicant]
The [second applicant] claim to be a member of the same family unit, as defined in s5(1) of the Act, of [the applicant]. However the Tribunal need not determine this issue since it have refused a Class XA - Protection visa (subclass 866) (PV) to [the applicant]. The applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and the applicant does not satisfy s36(2)(b) or s36(2)(c) of the Act as they are not a member of the same family unit as a non-citizen who holds a Protection visa of the same class applied for in this application and who is a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) or s36(2)(aa) of the Act.
Therefore, [the applicant] and [the second applicant], are refused a Class XA - Protection visa (subclass 866) (PV) under s65 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Mark Bishop
Senior 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.
…

[2022] AATA 4751

5 October 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction