2305892 (Refugee)

2305892 (Refugee) [2023] AATA 2464 (9 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2305892
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:9 June 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 June 2023 at 8:38am

CATCHWORDS
REFUGEE – protection Visa – Fiji – ex-husband’s life had been threatened by the police – emotional and verbal abuse does not reach the threshold of serious or significant harm – applicant does not have a subjective fear of persecution – economic hardship – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of Fiji (Fiji) and is [age] years old. She arrived in Australia on [date] December 2018 travelling on a Fijian passport as the holder of a visitor visa.
On 24 January 2019, the applicant was the second named applicant in the application for a protection visa by her then husband.
On 25 July 2019, a delegate of the Minister refused to grant the visas.
The review application
On 19 August 2019, the applicant’s then husband applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 20 October 2022, the applicant’s former husband advised the Tribunal that he and the applicant had divorced.
The Tribunal accepts that the applicants are divorced and determined to consider the applications of the applicant and her former husband separately. This decision only relates to the applicant’s application.
On 10 May 2023, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 29 May 2023 and to provide all documents she intended to rely on to support her case by 22 May 2023.
On 23 May 2023, the applicant submitted a five-paragraph pre-hearing submission.
The applicant appeared before the Tribunal on 29 May 2023 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video. The Tribunal determined that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on her behalf. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicant was not represented in relation to the review.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
consideration
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if she is owed complementary protection, or if she is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s personal details are set out in the application for protection. She is a [age]-year-old woman who was born in [City 1], Fiji. The applicant completed a variety of vocational training in Fiji including obtaining a Certificate as a [Occupation 1], training in [Occupation 2], undertaking a [specified] course, an [specified] program, level 2 [specified] training, a professional [Occupation 3] course and front office and administration skills. She commenced but did not complete a Diploma in [Discipline 1].
Country of reference
The applicant claims that she was born in [City 1], Fiji and she provided a copy of her Fijian passport with her application.
The Tribunal is satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purpose of s 36(2)(aa) of the Act.
Summary of claims
The applicant’s claims are set out in the application for a protection visa, in which she made her own claims for protection.
She claimed that life is hard in Fiji as her husband is the only bread winner in the family.
She claimed that her husband had been visited by a group of policemen once and, while in Australia, a couple of men and another vehicle full of men with surveillance clothes had visited their home and asked for him, according to their daughter in Fiji.
She claimed that she had not experienced harm in Fiji.
She claimed that they had moved to [City 2] in 2017 because of the instability of the Government since the coup in 2006. She claimed moving from [City 1] brings relief but not total relief.
She claimed that she did not want to be a young widow who saw her husband taken away for questioning and was later called in to identify his body.
She claimed that she did not want to be taken in for questioning by police if they are not able to locate her husband. She claimed policemen in Fiji take people in for questioning and even beat them up when they don’t cooperate.
She claimed that Fiji is a small country and she could not relocate.
In her pre-hearing submission, the applicant claimed that she had [number of children].
She claimed that she and her ex-husband did not return to Fiji because his life had been threatened by the police.
She claimed that they separated in 2020 and he does not help support the three younger children in Fiji. She claimed that she is single-handedly raising her three children in Fiji, sometimes with the help of her oldest son who is working in Perth.
She claimed that she finds it difficult to communicate with her ex-husband as he either blocks her calls or takes months to respond.
She claimed that he once withdrew money from her bank account until she changed her password and pin code.
She claimed he would disrespect her mother by telling his brother and another relative to take the children away, until her mother got a court order that the children stay with her. Her mother died in January 2022 and custody of the youngest two children is currently before the court, which traumatises her children.
Assessment of claims and evidence
At the hearing, the Tribunal asked the applicant if she stood by her claims in her application. She said that she did at that time, when the country was controlled by Frank Bainimarama, but now everything is going back to normal since the new coalition government has been in power.
The Tribunal read the applicant’s claims from the protection application to her. When asked if she still held those fears, the applicant said ‘I don’t’. She said the only thing now is that she has three children at home who she is supporting and she won’t be able to find a job in Fiji. She said that she is the only one supporting them, with the help of her son in Perth, as her ex-husband is not supporting them.
At the hearing, the applicant expressed interest in a new visa that would allow her to work in Australia and bring her children over to stay with her. The Tribunal advised that the hearing was only about her protection visa application and that she could contact the Department of Home Affairs or a migration agent for advice.
Employment in Fiji
At the hearing, the applicant confirmed that in Fiji she had worked as a [Occupation 1] at [various workplaces]. She agreed that her husband was not the sole bread winner in Fiji and that she had also worked.
In Australia, she worked as a [Occupation 3] and completed a Certificate III in [specified work sector] and since 2020, she has worked in [specified work sector] in regional New South Wales and Victoria. She said that her children are under her care and she supports them. She said their father does not support them and she does not think he would ever do so.
At the hearing, when talking about what would happen if she returned to Fiji, the applicant said that ‘there’s not much work back home’ and that ‘it might be difficult to get a job’. She said that, according to what she reads in the paper, the country is struggling. The country information was discussed, including that the World Bank defines Fiji as an upper-middle income country and its economy is one of the largest in the Pacific region,[1] and that ‘after the sharp contraction due to the COVID-19 pandemic, the economy is experiencing a strong recovery driven by the return of tourism’.[2] The Tribunal places greater weight on the country information from DFAT and the IMF than on the information from the applicant about the Fiji economy.
[1] Department of Foreign Affairs and Trade DFAT Country Information Report – Fiji 20 May 2022 7.
[2] International Monetary Fund Press Release 23/86 ‘IMF staff completes 2023 Article IV Mission to Fiji’, 21 March 2023.
The applicant was concerned that without a job, they would not be able to pay their rent. The applicant was asked if she could live with her half-sister, who is the [Occupation 1] in a [workplace], her children and her sister’s children in [City 1] while she was looking for a job. She said that house is a two-bedroom house but she agreed that she could live with her half-sister.
When asked why she would find it difficult to get a job, given her extensive work experience and training in Australia and Fiji, she said that in the past, when she lost her job in Fiji due to moving from one place to another, she could not find a steady job because there were a lot of graduates. The applicant was reminded that she had told the Tribunal that she left her job when the family moved from [City 1] to [City 2], not that she had lost it. The Tribunal does not accept that the applicant previously lost her job. The applicant then said that there would be a delay between applying for a job and receiving a reply to her email. The Tribunal accepts that there will be a period while the applicant is seeking employment after her return.
Based on the country information, the applicant’s work history in Fiji and Australia and the applicant’s evidence at the hearing, including that her oldest son is providing financial support to his family from Perth, the Tribunal finds that the applicant would be able to live with her sister and find employment. The Tribunal finds that the applicant’s economic circumstances on her return would not threaten her capacity to subsist or otherwise amount to serious harm or significant harm now or in the foreseeable future.
Risk from police and others
The applicant said as soon as she and her ex-husband arrived in Sydney in 2018, on the day they left Fiji, their daughter called and said there were people looking for her father. The daughter said it was a police vehicle, a ute, with two people sitting in the front and four in the back. The applicant said that she had no idea why they were looking for her ex-husband. She said after that first visit, her mother said someone had subsequently come two or three times asking for her ex-husband’s cell phone contact. She said the man did not identify himself and he did not say why he wanted to talk to her ex-husband. She said he was in civilian clothes but her daughter though it was the police. She thinks that was in 2018 and 2019.
The applicant said that nothing had happened since. She said that her family had moved house, but she agreed that the police would have been able to find them if they were looking for them.
The applicant was asked why she claimed her ex-husband’s life had been threatened by the police. She said it was because they were looking for him and she did not know what would happen to him. She said that she had no idea why they were after him. She agreed that the people had just asked where he was and had not made any threats.
The applicant said that she was not at risk of harm from the police. She said that she did not still hold those fears. She agreed that there was no reason that someone would target her. The Tribunal accepts that the applicant is not at risk of harm from the police and that there is no reason that someone would target her. Based on the country information and the evidence from the applicant, the Tribunal finds that there is no real chance and no real risk that the applicant will experience serious harm or suffer significant harm from the police or others in Fiji.
Emotional abuse
At the hearing and in her pre-hearing submission, the applicant said that her ex-husband had been emotionally abusive. In her submission, she claimed that he always verbally abuses her when things do not go his way. She said that she last spoke to her ex-husband in August 2022. She tried to call him before the Tribunal hearing but they did not speak. She said he now calls their children directly. The Tribunal accepts that the applicant’s former husband no longer speaks with her.
The applicant was asked about her claim that her ex-husband’s behaviour had traumatised her children. She said that her ex-husband’s brother came in 2021 and took the younger children away from her mother, with whom they were living. Then her mother had to get a court order to get custody for the children.
The applicant claimed that her ex-husband and his family always try to belittle her. When asked what she meant, she explained that they are currently trying to take custody of the two youngest children. After her mother’s death, her three children in Fiji have been living with her half-sister. They were living in [City 2] and then moved to [City 1]. In 2022, she thinks in November, her ex-husband’s family applied for custody of the two minor children. She said she thinks the case is before the High Court in [City 1] and they are waiting for a hearing date. Her sister is contesting the action.
The applicant was asked what would happen if both she and her ex-husband were back in Fiji. She said he would make sure that she does not exist. When asked what she meant by that, she said that once, when they were separated in Fiji and before they subsequently reconciled, he called her and told her that she would never exist in his life, she will never have the children and he will make sure she does not get a job. The Tribunal notes that the applicant’s ex-husband told her this many years ago. The applicant was unable to explain how her former husband could prevent her getting a job. The Tribunal explained that there was no information before it suggesting her ex-husband has any power or influence to be able to prevent her getting a job. The applicant said just saying it is really hurtful. The Tribunal accepts that the applicant’s former husband has said hurtful things to her in the past. The Tribunal does not accept that the applicant’s former husband can prevent her getting a job. The Tribunal notes that custody of the two minor children is currently before the court in Fiji. The Tribunal does not accept that the applicant’s ex-husband has the ability to subvert the court case. Based on the evidence before it, the Tribunal finds that the emotional and verbal abuse described by the applicant does not reach the threshold of serious or significant harm. The Tribunal finds that there is no real chance and no real risk of the applicant experiencing serious harm or suffering significant harm if her former husband returned to Fiji.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[3]
[3] Chan Yee Kin v MIEA (1989) 169 CLR 379.
At the hearing, the applicant said that she did not fear being harmed in Fiji. The Tribunal finds that the applicant does not have a subjective fear of persecution.

The Tribunal considered whether there was a real chance of persecution if the applicant returned to Fiji now or in the foreseeable future. Based on the evidence before it, the Tribunal finds that there is no real chance that the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds that the applicant does not have a well-founded fear of persecution because she does not have a subjective fear of persecution and there is no real chance that she will be persecuted. As the applicant does not have a well-founded fear of persecution, the Tribunal finds that the applicant is not a refugee within the meaning of s 5H.
Having concluded that the applicant is not a refugee, the Tribunal has considered whether there is a real risk that she will suffer significant harm. Considering all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of torture in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
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.
…

[2023] AATA 2464

9 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction