2312268 (Refugee)

2312268 (Refugee) [2024] AATA 4450 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2312268
COUNTRY OF REFERENCE:                   Czech Republic
MEMBER:Dr Greg Weeks
DATE:9 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 October 2024 at 5:05pm
CATCHWORDS
REFUGEE – Protection Visa – Czech Republic – involved in anti-Communist movement – homeless for 20 years – physical impairments and medical condition – compassionate circumstances – Ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 417, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 20 July 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [age]-year-old man and is a citizen of the Czech Republic. He was born in the former Czechoslovakia and resided there until coming to Australia.
The applicant obtained a tourist visa to enter Australia on [date] January 1997 and arrived in Sydney on [date] February 1997. The applicant thereafter obtained a visitor visa, which ceased on [date] February 1998. He did not hold a valid visa between that date and 28 April 2017, when he was granted a bridging visa subsequent to his application for a protection visa (PV application).
The Tribunal has been provided with a copy of the applicant’s PV application dated 19 April 2017.
The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations. The delegate gave reasons for that decision in a document dated 20 July 2023 (decision record).
Claims for protection
In the PV application, the applicant claimed that he left the Czech Republic for a “change of life”. The applicant claimed that, if he returns to the Czech Republic, he will have to live on the streets with no support. He fears returning to the Czech Republic because Communists there have remained in government. The applicant claimed that the government in the Czech Republic does not care about old, disabled and sick people and that social welfare is insufficient for basic living.
The applicant was not invited to attend an interview with the delegate but was sent a letter dated 11 January 2023 under s 56 of the Act inviting him to provide further information (s 56 letter). In response to the s 56 letter, the applicant raised further claims:
(a) The applicant claimed that he finished school at the age of 15 due to financial hardship. He subsequently learnt a [trade]. At the age of 19, he was forced to join the army. He served in the army for six months in [named] section.
(b) The applicant claimed that, after leaving the army he worked for a few years so he could save money to leave the Czech Republic. He wanted to leave because the government was under Communist rule and he was afraid of living in a country where he was not free to be himself, where freedom of speech was a crime and military service was compulsory.
(c) The applicant obtained a three-month tourist visa for Australia and left the Czech Republic in 1997. He did not want to leave Australia when his visa ended, but he had no money left and life became difficult. He lived on the street and only had minor jobs. Although life was difficult in Australia, the applicant regarded it as better than returning to the Czech Republic.
(d) Due to his homelessness and lack of a stable income, the applicant lost all relationships with family and friends in the Czech Republic. He has not spoken to his mother, siblings and friends in the Czech Republic for over 25 years. He did not have a good relationship with his siblings and claims that they would not welcome him back or support him. He does not know if his mother is still alive or whether his family remember him or want him.
(e) The applicant’s life on the streets has resulted in him sustaining a brain injury. He became ill and he was in and out of hospital. Each time he was discharged from hospital, he went back to living on the street or in a boarding house. He was admitted to [a hospital] in 2021. After three weeks, he was transferred to [Facility 1].
(f) The applicant claimed that the thought of returning to the Czech Republic causes him to be depressed and anxious because his care needs would not be met and his life expectancy would be shortened. He would have to live on the street which is not safe and he fears that he would not survive because of his health and mobility problems.
(g) The applicant has no education beyond primary school and he will no longer be able to work [because] of his health issues. The applicant claimed that the social security system in the Czech Republic is poor and unreliable and that it will not provide for his financial or health needs. It will take years to receive any form of support from the Czech social security system and it is unlikely that he will qualify for financial support because he has been outside the country since 1997. There is a two-year waiting list for social housing, so he would be homeless and will not survive living on the street.
The applicant made additional submissions to the Tribunal in a letter dated 13 August 2023:
(a) The applicant claimed that his father was an alcoholic whose physical abuse caused the applicant emotional harm and has left him traumatised.
(b) While working in a factory, the applicant claimed that he became involved in the anti-Communist movement. The police discovered his involvement. He tried to escape over the Austrian border in 1982 but was caught and imprisoned. He claims to be afraid of harassment and humiliation from ex-communists and prison guards who still live in the Czech Republic and claims that, if he is recognised, he will be subject to humiliation and harm. He claimed that his memories of persecution and torture have caused him mental anxiety.
(c) The applicant claimed that his poor physical health will not allow him to slot into Czech society. He needs a walking frame to move around, can only do so for limited periods and has lost all his family, social and cultural connections with the Czech Republic after living in Australia for 26 years.
(d) The applicant has brain damage and mental issues and claimed that he would suffer more mental harm if he were to return to the Czech Republic. He strongly believes he will die in his first winter on the street in the Czech Republic. He claims that he did not come to Australia to seek economic advantage, but for political freedom in a democratic country.
(e) The applicant claimed that, due to his mental health issues, he ended up living as a homeless person for 20 years on the streets of Sydney. As a homeless person, he had no access to medical care or mental health care.
(f) The applicant claimed that his social worker spoke to the Czech embassy and they told her that he will not receive support upon his return to the Czech Republic. He claimed that a lack of accommodation or support means he will most likely freeze on the street.
(g) The applicant claimed that he has possibly only a few years to live.
The hearing
The applicant was not represented in relation to the review. His authorised recipient, Mr [A], assisted the applicant to deal with the Tribunal. I thank [Mr A] for his contribution to these proceedings.
The applicant indicated that he would prefer to attend a hearing in person. A hearing was scheduled for 21 August 2024 but was cancelled due to an outbreak of illness at the facility in which the applicant resides ([Facility 2]). Another hearing was scheduled for 16 September 2024. When [Mr A] arrived at the applicant’s residence to collect him, he was advised by the nursing staff that the applicant was bedridden and had shooting pains in his head and back. The applicant had asked to be taken to the hospital.
On 16 September 2024, the Tribunal conducted a case management hearing with [Mr A] and [the] head nurse at [Facility 2]. After discussion, I decided to invite the applicant to attend a hearing online because he has limited mobility. That course of action was chosen to reduce the amount of time for which the applicant would need to be removed from pain relief in order to take part in a hearing.
A hearing was scheduled to take place on 24 September 2024 for the applicant to give evidence and present arguments. Immediately prior to that hearing, the applicant reported that he felt very unwell and asked to see a doctor. He reported suffering from head and neck pain. In the circumstances, I decided to commence a hearing which could be adjourned in the event that the applicant was no longer able to take part in a meaningful way.
The hearing lasted less than half an hour. I formed the opinion that the applicant was capable of taking part in the hearing for its duration. The applicant gave evidence which confirmed that he has physical injuries, including to his brain, and that he has no capacity to hold down a job.
I offered the applicant the opportunity to take part in a further hearing on another date in which he could give more extensive evidence. I noted that the applicant has been in Australia for almost 28 years and that the evidence before me did not indicate that there is a real chance that the applicant will suffer harm for one of the reasons in s 5J(1)(a).
I advised the applicant that I could refer his case to the Minister under s 417 of the Act on the basis of the evidence before me as to the applicant’s health and psychological state. I told the applicant that I could not guarantee the outcome of such a referral.
I adjourned the hearing in order for the applicant to have a chance to discuss his options with [Mr A], who undertook to write to the Tribunal in order to say what course of action the applicant wished to take.
Post-hearing submissions
[Mr A] wrote to the Tribunal by email on 26 September 2024. He stated that he had spoken to the applicant after the hearing on 24 September 2024 and that the applicant had asked that I make a decision on the evidence before me and then refer his case to the Minister for Home Affairs (Minister) to consider making a decision that is more favourable to the applicant. [Mr A] stated that such a decision should be considered “on compassionate grounds”.
[Mr A] again wrote to the Tribunal on 2 October 2024 to report that [Facility 1] had become concerned about the applicant’s constant headaches and a bulge on his neck. They referred him to [a hospital], where he was diagnosed with cancer and subsequently underwent radiation therapy.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 (the refugee criterion).
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 (the Department), 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.
Analysis, reasons and findings
For the following reasons, I have concluded that the decision under review should be affirmed.
At the hearing, I asked the applicant whether he fears harm for one of the reasons in s 5J(1)(a) of the Act if her returns to the Czech Republic. He replied that he will receive no support there and that he will need to live on the street.
I put to the applicant that the former communists and prison guards who knew him before he left the Czech Republic would now be very old if they still live there. Given that the applicant has been gone for a very long time and the incidents which he described took place over forty years ago, I put to the applicant that I might conclude that there is no real chance that those people will cause him harm if he returns. The applicant replied that he has been advised to stay in Australia because it is a better place to live than the Czech Republic.
The Communist party was removed from power in Czechoslovakia in the ‘velvet revolution’ of 1989 and the Czech Republic is now a democratic free-market economy. I do not accept that there is a real chance that the applicant will face harm in the Czech Republic from ex-communists or prison guards who knew him at the time of his attempted escape in 1982.
I put to the applicant that his written submissions to the Department and the Tribunal do not indicate clearly that he fears persecution for one of the reasons in s 5J(1)(a). The applicant was given an opportunity to give evidence about the reasons for which he fears that he will suffer persecution if he is returned to the Czech Republic. He did not give evidence of anything which has occurred since the Communist Party lost power in 1989.
The applicant did not apply for a protection visa until more than 20 years after he arrived in Australia. That delay causes me to doubt strongly that the applicant feared harm in the Czech Republic at the time that he left. Further, while the applicant gave evidence that he suffered persecution in or about 1982, I do not accept that he will suffer persecution for the same reason or from the same people if he returns. The passage of time and the fact that the Communists lost power 35 years ago cause me to find that there is not a real chance that the applicant will be persecuted for his former or imputed political opinions which are opposed to communism.
The applicant did not claim, and I do not accept, that he will suffer harm if he returns to the Czech Republic for the reason of his race, religion or nationality. The applicant did not submit, and I do not accept, that he will face persecution or suffer harm as a member of a particular social group if he returns to the Czech Republic.
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa).
I put to the applicant that, while I accept that he may not benefit from any support if he returns to the Czech Republic, his written submissions do not indicate clearly that he will suffer significant harm which is intentionally inflicted on him. The applicant did not dispute that understanding.
I accept that the applicant has no friends or family in the Czech Republic who would support him on his arrival there. I further accept that the applicant is unwell and suffers from a range of physical and mental illnesses. I have country information that the Czech Republic offers a high standard of health (including mental health) care and that there are also protections in place for disabled persons. Country information also indicates that the Czech Republic offers extensive social security, including social housing and temporary accommodation for homeless persons. As a citizen, the applicant would have access to the health and accommodation services offered in the Czech Republic.
The definition of significant harm under the complementary protection criterion in ss 5(1) and 36(2A) of the Act is exhaustive. Each of its elements require that harm be intentionally inflicted on an applicant by another party. The applicant did not give evidence, and I do not accept, that that will be the case if he returns to the Czech Republic.
I do not accept that the applicant will be arbitrarily deprived of his life, be subjected to the death penalty or torture, or be subjected to punishment of the relevant character if he is returned to the Czech Republic. I do not accept that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to the Czech Republic. I am 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).
Referral to the Minister
Section s 417 of the Act gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if this Minister thinks it is in the public interest to do so.
I have considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy.[1] I have decided to refer the matter to the Minister for consideration for the following reasons.
[1] ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)’, type="1">
I note the following exceptional circumstance identified in the ministerial guidelines:
Compassionate circumstances regarding [an applicant’s] age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
The applicant has physical impairments and has suffered a brain injury which has left him with cognitive and / or neurological impairments. He is unable to walk without aid. Homelessness and abuse of alcohol have caused him to require greater support than he could expect in the Czech Republic. He lives in an aged care facility and has been diagnosed with cancer.
On the basis of the considerations above, I find that the applicant would experience irreparable harm and continuing hardship from the process of returning him to the Czech Republic and from having to obtain medical care and housing without support once there.
The applicant does not currently have access to Medicare and [Facility 1] have undertaken his ongoing residential and medical care on a pro bono basis. [Mr A] asked that those matters also be brought to the Minister’s attention.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Dr Greg Weeks
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4450

9 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction