2301956 (Refugee)

2301956 (Refugee) [2023] AATA 1993 (15 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sally Szmerling
CASE NUMBER:  2301956
COUNTRY OF REFERENCE:                   Sudan
MEMBER:Alison Murphy
DATE:15 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 April 2023 at 3:15pm
CATCHWORDS
REFUGEE – protection visa – Sudan – secondary applicant to father’s visa application – own claims raised and separated review constituted – jurisdiction to determine claims – membership of particular social group – young unmarried woman – past gender-based violence and sexual assaults and fear of future violence and forced marriage – physical and mental health – decision made without hearing necessary after consideration of applicant’s evidence in father’s review and country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(b), (5), 36(2)(a), 65, 425(2)
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sudan, was included (along with her two siblings) as a secondary applicant in the visa application made by her father [Mr A] on 8 March 2018. The applicants were represented by the same representative and the claims made in that visa application related only to the applicant’s father. The delegate refused to grant the visa on the basis that the applicant’s father was not a person owed protection by Australia.
The applicant’s father sought a review of that decision from this Tribunal and that matter was constituted to a member of the Tribunal (AAT proceedings 1904084). The applicants subsequently appointed a new representative from [Organisation 1], and on 8 March 2023 the Tribunal in related proceedings 1904084 was advised by [Organisation 1] that the current applicant and one of her siblings wished to give evidence as to their own claims for protection of which their father was not aware and which they did not want disclosed to him.
Apparently unbeknownst to [Organisation 1], [Organisation 2] lodged an appointment of representative for the applicant and corresponded with the Tribunal advising that they were representing the current applicant, that she intended to make separate claims for protection and that she requested her matter be considered separately from her father and siblings. The Tribunal was asked to separate her review application from that of her family due to privacy issues and this was actioned by the Tribunal, with the current applicant being given a new case number, 2301956. That matter was subsequently constituted to me.
By the time of constitution of 2301956, the related matter 1904084 had been listed for hearing and the presiding member advised that the applicant would attend the hearing and give evidence. On 9 March 2023 the Tribunal wrote to the applicant in the current review, noting that if her claims were determined in the related case as appeared to be anticipated then the Tribunal in the current review may be functus officio and unable to consider her claims further and seeking her clarification as to whether she wished to proceed with the administratively separated review. On the same date [Organisation 2] advised that the applicant wished to proceed with the administratively separated review and that any miscommunication with her family members would be rectified.
On 16 March 2023, [Organisation 1] advised the presiding member in matter 1904084 that the applicant wished to be represented by [Organisation 1]; to be re-joined matter 1904084 and for her case to be heard together with her family. The hearing in that matter proceeded on 21 March 2023 and the applicant attended the hearing and gave evidence along with her family members.
On 24 March 2023 the applicant lodged a further appointment of representative form with the Tribunal, appointing [Organisation 1] as her representative in the administratively separated review. The Tribunal was advised that the applicant had given evidence at the hearing of her family members on 21 March 2023 and that the matter had been remitted to the Department for reconsideration on 24 March 2023. The Tribunal was asked to consider determining the current review on the papers on the basis of the oral evidence given by the applicant at the hearing of that matter and the supporting evidence of her family members, noting the sensitive nature of her claims and her medical conditions.
Jurisdiction
The Tribunal was initially concerned that it may not have jurisdiction to consider the applicant’s claims in the current review, given the history outlined above and the decision of the Tribunal in the related proceeding 1904084.
However upon consideration of the submissions received on this issue, I accept that while the applicant sought to be re-joined to that proceeding and was permitted to give evidence about her claims at that hearing, she was not in fact re-joined. Nor was she the subject of the Tribunal’s decision, rather the member determined that she was not an applicant and heard her evidence only as a witness in support of the claims of her family members. As the Tribunal in the related case did not make any determination in relation to the applicant, I am satisfied this Tribunal retains jurisdiction to determine her claims in the current review.
Decision to proceed without a hearing
As noted above this matter has had an unusual administrative history, resulting in the applicant giving evidence about her claims in the related proceedings of her family members without her claims having been determined.
This Tribunal has been provided with a statutory declaration and submissions and supporting documents setting out the applicant’s claims for protection in the related matter 1904084 as well as a statutory declaration from the applicat’s sister [Ms B]. I have also obtained a transcript of the applicant’s evidence at the hearing in the related proceeding. I note that in the related proceeding 1904084, the Tribunal found each of the applicant’s father and siblings to be refugees and remitted the matter back to the Department with a direction that they satisfied the requirements of s 36(2)(a).
In respect of the applicant’s two sisters [Ms B] and [Ms C], the Tribunal in the related proceeding 1904084 found they had a well-founded fear of persecution for reasons of their membership of the particular social group ‘unmarried women and girls in Sudan subject to past gender-based assault and violence from male members on a repeated basis who face the likelihood of a repeat of this violence either within marriage or outside marriage if forced to return to South Sudan’.
The Tribunal is also mindful of the report of the applicant’s youth worker, [Ms D], who expresses her increasing concern about the applicant’s acute trauma, deteriorating mental and physical wellbeing and risk of suicide. [Ms D] reports that the applicant has been diagnosed with major depression, generalised anxiety and adjustment disorder, impacting on her ability to meaningfully engage in the refugee status determination process.
Having considered the written and other documentary evidence of the applicant and her sister as well as the oral evidence given by them at the hearing of the related proceeding 1904084, the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it pursuant to s 425(2).
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
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
There is no dispute that the applicant is a national of Sudan. The delegate’s decision records that her father produced a Sudanese passport which included the details of the applicant and her siblings and that there were no concerns as to the identities of the applicant or her family members. The Tribunal finds she is a citizen of Sudan and has assessed her claims against that country as her country of nationality and the receiving country.
The applicant’s personal background
The applicant is a [Age]-year-old female. The material before the Tribunal indicates that her father was born in Omdurman, Sudan. He studyied in [Country 1] before relocating to [Country 2] after war broke out in Sudan. The applicant was born in [Country 2] but spent periods of her childhood living with relatives in Sudan while her parents were living in [Country 2]. She arrived in Australia along with her father and sisters in 2014, graduating from high school in [Year]. Since their arrival in Australia, her father’s residency permit in [Country 2] has expired.
The applicant moved out of the family home in Australia in 2019 with the assistance of a women’s refuge and has worked as [an Occupation] and in [Work sector]. Despite living separately from her family, she remains close to and emotionally dependent on her father and sisters.
The Tribunal accepts the above matters to be true.
The applicant’s claims for protection
The applicant claims that if returned to Sudan, she faces a well-founded fear of persecution on the basis of her membership of the particular social group ‘unmarried women and girls in Sudan’; her female gender and her imputed political opinion. In particular she claims to have in the past been subjected to gender-based violence including sexual assault and female genital mutilation (FGM) and fears in the future that she will be subjected to further gender-based violence including sexual assault and forced marriage. The applicant’s claims are consistent with country information about the situation for women and girls in Sudan and the evidence given by her family members in the related case.
For the following reasons, the Tribunal finds the applicant has a well-founded fear of persecution for reasons of her membership of the particular social group ‘women and girls in Sudan’.
Harm on the basis of gender
The applicant has set out in detail the sexual assaults that were perpetrated upon her as a child and young adult during periods she lived in Sudan, the details of which do not need to be recounted here. She confirmed those events in her oral evidence to the Tribunal in the related proceeding 1904084.
Country information confirms that women and girls are still at significant risk of gender-based violence and harm in Sudan. While the Sudanese Council of Ministers announced its intention in April 2021 to ratify the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Sudan has still not signed that convention.[1]
[1] United Nations, “8. Convention on the Elimination of All Forms of Discrimination against Women” United Nations Treaty Collection (Web page, 8 March 2023)
DFAT reports that despite their active role in Sudanese society, women face a high risk of discrimination and violence in Sudan. Laws directly discriminate against women, including by stating that the legal age of marriage for girls at 10 (15 for boys) and that they must obey their husbands. While there is a lack of accurate data about the prevalence of child marriage, surveys suggest that with 36% of women married before the age of 18 and 12% before the age of 15. Women require the consent of a male guardian to validate their marriage and laws treat any sexual contact outside of marriage as a crime, with the majority of those accused and prosecuted being women.[2]
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sudan 27 April 2016 at 3.56
DFAT reports that accurate data on the prevalence of violence against women does not exist, but it is widely acknowledged to be both common and accepted, including the wide-spread use of rape as a tactic in conflict-affected areas. Criminal laws do not criminalise domestic violence or include protections for women.[3]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sudan 27 April 2016 at 3.54 – 3.56
More recently the United Nations and Sexual and Reproductive Health Agency reported that domestic is very common in Sudan and is not considered to be a severe violation of a woman’s rights; that sexual violence is very common and goes unreported unless it results in a pregnancy; that the movement of women and girls is severely restricted and they must seek the permission from the household head anytime they want to leave the house; and that forced marriage and child marriage are widespread, mostly arranged by family members often without the girl’s consent or knowledge.[4]
[4] United Nations sexual and reproductive health agency, ‘Voices from Sudan’, Domestic violence, forced marriage, have risen in Sudan: UN-backed study (2020)
Consistently with the applicant’s evidence as to her reasons for not reporting the assaults on her, DFAT reports that women are fearful of reporting instances of physical or sexual violence due to conservative legislation that can lead to those women being charged with adultery. Rather DFAT reports that it may be dealt with through the informal justice system, which has at times resulted in women being forced to marry the accused.[5]
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sudan 27 April 2016 at 3.56
The applicant was subjected to FGM/C at about [Age] years old. She states that the damage that caused her has been confirmed by [a] Hospital in Melbourne. DFAT confirms that FGM/C in both prevalent and legal in Sudan, with up to 88% of women having undergone FGM/C.[6] The United Nations and Sexual and Reproductive Health Agency confirmed in 2020 that FGM is widespread across Sudan with tribal affiliation as a key determinant of prevalence. The practice is taboo and rarely discussed openly and old women are the main promoters.[7]
[6] Ibid at 3.58
[7] United Nations sexual and reproductive health agency, ‘Voices from Sudan’, Domestic violence, forced marriage, have risen in Sudan: UN-backed study (2020)
The UNHCR’s Guidance Note on Refugee Claims Relating to Female Genital Mutilation establishes that a girl or woman seeking asylum because she has been compelled to undergo or is likely to be subjected to FGM can qualify for refugee status under the 1951 Convention relating to the Status of Refugees. The UNHCR considers FGM to be a form of gender‑based violence that inflicts severe harm, both mental and physical, and amounts to persecution.[8]
[8] UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation May 2009 at Microsoft Word – Note on FGM May09.doc (refworld.org)
The Guidance Note cautions that all forms of FGM/C are considered harmful, although the consequences tend to be more severe the more extensive the procedure. It reports that ‘almost all those who are subjected to FGM experience extreme pain and bleeding and other health complications include shock, psychological trauma, infections, urine retention, damage to the urethra and anus, and even death’. Importantly the Guidance Note cautions that the consequences of FGM do not stop with the initial procedure, rather the girl or woman is permanently mutilated and can suffer other severe long-term physical and mental consequences.[9]
[9] Ibid at paragraph 5
Importantly the UNHCR Guidance Note emphasises that FGM/C is a continuing form of harm and should not be characterised as a one-off act that cannot be repeated on the same girl or woman. Rather, the permanent and irreversible nature of FGM supports a finding that a woman or girl who has already undergone the practice before she seeks asylum may still have a well-founded fear of future persecution. For example, that same girl or woman may be subjected to another form of FGM/C or suffer particularly serious long‑term consequences of the initial procedure.[10]
[10] Ibid at paragraph 14
As to the essential and significant reason for the FGM/C, it is widely recognised that FGM/C is performed on girls and women ‘because they are female, to assert power over them and to control their sexuality’ and that it ‘forms part of a wider pattern of discrimination against girls and women in a given society’.[11]
[11] Ibid at paragraph 22

For all of the above reasons, the Tribunal finds that the applicant faces a real chance of harm if returned Sudan, now or in the foreseeable future. That harm includes gender-based and sexual violence, the harmful and continuing effects of FGM/C and forced or coerced marriage. The Tribunal is satisfied the feared harm constitutes serious harm for the purposes of s 5J(5). It follows that the Tribunal accepts that the applicant meets the requirements of s 5J(1)(b).
The Tribunal considers that the harm feared by the applicant will be directed at her for the essential and significant reason of her membership of the particular social group ‘women and girls in Sudan’ for the purposes of s 5J(1)(a). The Tribunal considers that the group of ‘women and girls in Sudan’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution.
The country information referred to above indicates that the laws in Sudan discriminate against women; that sexual violence and FMG/C are prevalent throughout the country is very common and that women are fearful of reporting instances of physical or sexual violence due to conservative legislation that can lead to repercussions for the victims rather than the perpetrators.[12] In such circumstances, the Tribunal accepts that effective state protection is not available to the applicant and the harm she fears extends across all areas of Sudan for the purposes of s 5J(1)(c).
[12] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sudan 27 April 2016 at 3.56
For these reasons, the Tribunal finds that the applicant meets the definition of a refugee. Therefore she is a person in respect of whom Australia has protection obligations and they satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Alison Murphy
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 1993

15 April 2023

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