2313754 (Refugee)

2313754 (Refugee) [2023] AATA 4753 (3 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2313754
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Christine Cody
DATE:3 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 3 November 2023 at 2:22pm

CATCHWORDS
REFUGEE – protection visa – Vanuatu – victim of domestic violence – no response to s.56 invitation – lack of detail and supporting evidence – claims disavowed at hearing – economic hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 56, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 August 2023 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 Vanuatu, applied for the visa on 7 April 2022. The delegate refused to grant the visa on the basis that the claims were not credible.
Relevant law is set out in Annexure A.
The application before the Department[1]
[1] There are no non-disclosure certificates on the Departmental file.
The applicant lodged a protection visa application form on 7 April 2022 and provided a copy of her passport issued [in] 2020.
Protection visa application form
According to the protection visa application form, the applicant was born in [Location 1], [Province 1], Vanuatu, in [year]. Her ethnicity is “Vanuatu”, and her religion is Anglican. Her status is married (since [date in] October 2010). She speaks, reads and writes in both Bislama and English.
She resided at a single address in [Province 1] from [year] to [date in] January 2021, until she left Vanuatu for Australia. She provided no education details. She was unemployed during her life although she grew her own food and raised animals and grew [specified crop].
She provided the names of 4 children[2].
[2] The Tribunal notes that although 3 children were stated to be deceased in the application form, the applicant confirmed that this was not the case, and that she actually has 5 children.
She departed Vanuatu legally [in] January 2021 and arrived in in Tasmania as a seasonal worker.
Her protection visa claims were set out in the form as follows:
Country from which the applicant is seeking protection:
Vanuatu
Provide reasons why this applicant left the country?
I left Vanuatu to work to earn the Australian dollar to support my kids back home in Vanuatu to support for schooling, clothing, rent and food.
Did this applicant experience harm in that country?
Yes. My husband would beat me all the time. He would bash me, abuse me verbally and hit me. I was put in hospital admitted broke my right arm. He bruised all over my back. Police were involved.
Did this applicant seek help within the country after the harm?
Yes, the police in Vanuatu and then the chief.
Did this applicant move, or try to move to, to another part of that country to seek safety?
Yes, I moved to be around my family when I was bashed up and broken bones to get help with my children.
Explain what the applicant thinks will happen to them if they return to that country?
I am scared he will beat me to death because till today he says his going to kill me.
Does this applicant think they will be harmed or mistreated if they return to that country?
Yes. My husband would beat me all the time. He would bash me, abuse me verbally and hit me. I was put in hospital admitted broke my right arm. He bruised me all over my back. Police were involved.
Does this applicant think the authorities of that country can and will protect this applicant if they go back?
No because he is a police officer himself.
Does this applicant think they would be able to relocate within that country to an area where they would not be harmed?
Yes, I moved to be around my family when I was bashed up and broken bones to get help with my children.
Consideration by the delegate[3]
[3] This is sourced from the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant.
On 19 July 2023 the applicant had been sent correspondence inviting them to provide additional information about their claims under s 56 of the Act. The s 56 invitation advised the applicant that their statement of claims lacked substantiating details such as dates and locations, and supporting documentation, in regard to their claims, and that no further evidence to support their claims had been provided. This correspondence also invited the applicant to provide more information about what happened to them in Vanuatu, including dates, and locations of events, in order for the Department to be satisfied that the applicant’s claims for protection were genuine. The applicant was advised that if they did not respond to the invitation within the specified time frame, the Department could decide the application with the information it had at that time without asking them again. The correspondence also advised the applicant that, if they could not respond to the invitation within the specified time frame, they should contact the Department through email or their ImmiAccount, attaching a letter explaining the reason, and requesting more time to provide the information.
The decision record stated that no response was provided.
On 25 August 2023 the delegate refused to grant the visa, providing reasons in the decision record. The delegate found that the written claims did not provide a sufficient basis to be satisfied that the claims were genuine. The delegate considered that the applicant’s protection claims in the application lacked detail and there was a lack of supporting evidence for their claims, and this lack of detail and supporting evidence had not been addressed, given their failure to provide further information and comment. The delegate noted that the applicant had been given opportunities to provide all of the details of their protection claims. These opportunities were specified in the decision record as follows:
·The application form that they completed informed them that they should provide all of their claims for protection and all documentation or other evidence to support their claims. It also informed the applicant that a decision could be made on the information provided in their application.
·On 9 May 2022 the applicant was sent an acknowledgement of valid application correspondence, which advised them they could provide additional information relating to their claims and specified how they could provide this. The correspondence also informed the applicant that the decision on their application could be made without another opportunity for them to present any further information.
·On 19 July 2023 the applicant had been sent correspondence inviting them to provide additional information about their claims under s 56 of the Act, but they had not responded.
The delegate was not satisfied that the applicant’s claims were made out.
The Tribunal
On 5 September 2023 the applicant lodged an application for review to the Tribunal, providing a copy of the delegate’s decision record and the biopage of her passport[4].
[4] The Tribunal had access to the offshore Departmental file which did not contain information directly relevant to the claims.
The applicant appeared in person before the Tribunal on 24 October 2023 to give evidence and present arguments. The hearing was conducted with a Bislama language interpreter appearing by MS Teams.
Some of the applicant’s evidence is set out below:
·     When asked if her protection visa application was true and correct, she said that someone did it for her. When asked if she read it, she said that she doesn’t understand the terms in English or some words in the English language. She did understand some words. She thought that the application said that she had come here to work and support the family (her relative’s house had burned down, and they were helping support the children of her relative who had died).
·     Her husband is [Mr A], born in [year]; they married in 2010 and have 5 children together, aged [age], [age], [age], [age] and [age] years of age. He is a farmer. She loves and misses her family including her husband, and she came here to work. She wants to be able to stay for a further 6 months so that she can buy a piece of land.
·     Her husband had hit her when he was drunk, on one occasion, before they were even married. This was more than 20 years ago. He had broken her elbow. She did not report it to the police; however, they did attend a reconciliation meeting together with the local chief and he promised never to do it again. She accepted this, they got married and this behaviour has not been repeated. They are still married, it is a good relationship, she is wearing her wedding ring and she loves him. He is responsible (looking after the children of her sister who passed away) and their own children. He is employed as a farmer on a plantation. Their family lives in a farmhouse on the plantation owned by the employer. Their plan was that she would come to Australia, and this would enable them to be able to purchase their own plot of land and then they would not have to work for an employer but instead they could farm their own land.
·     She said that she believes that she will have enough money to go back in 6 months’ time which will allow her to buy the land. She wants to go back in 6 months’ time and she will live with her husband and children on the land. The applicant confirmed that she has no worries her husband will hurt her, as this was sorted a long time ago.
·     When she was back in Vanuatu, she was selling at the market and her husband was working on the farm. The farmer was not giving him regular pay, so she grew food to sell it and make money. She and her husband managed to pay for school fees. Currently her [age] year old is learning to ride a horse to enable him to get work and the [age] year old is not employed but is doing gardening. The other 3 children are at school.
·     The Tribunal asked how she could afford to come overseas and she said that she used funds from gardening and harvesting food and selling it at the market to get a passport. The contractor paid for her flight and the visa; these costs were deducted from her salary here. She has paid off the debt while working in Australia.
·     When asked if there was anything that concerned her about going back home to Vanuatu, she said that she had made a lot of savings but she hasn’t purchased the land. If she stays for 6 months then she will make enough money to buy land and build a house. She confirmed that her only concern is money.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant produced her passport issued by the government of Vanuatu to the Department, and the Department accepted that she was a citizen and national of Vanuatu and assessed her claims against Vanuatu. The passport was also produced at hearing, and the Tribunal accepts that the applicant is a national of Vanuatu, and that the appropriate country of reference for the assessment of the refugee claims, and the receiving country for the purposes of the complementary protection claims, is Vanuatu.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal considered the applicant to be a generally credible witness.
Findings on the applicant’s claims
The Tribunal accepts that the applicant did not know the details of what was in her application form, and that she has disavowed the following claims: that her husband would beat, bash, verbally and physically abuse her all the time; that the police were involved and she tried to relocate to get help; that he has said he will kill her; that she was unable to get help/protection when it was needed.
The Tribunal accepts the claims she made at hearing as follows:
·     Her husband is not a police officer, he is a farmer, like the applicant.
·     He has not beaten her except for that one incident before the marriage, about 20 years ago. He got drunk, he hit her and broke her elbow. She did not accept this behaviour but she did not approach the police, instead they used the conciliation system and he apologised and said he would not do it again. They married, and since that time there has not been a problem. She considered that the conciliation system worked well.
·     She has no fear of harm from her husband. They have a good ongoing relationship and when she returns, she will live with him and the children.
The Tribunal accepts that although the applicant had experienced harm 20 years ago from her husband, this has not since occurred and she does not have a concern that this would occur again. The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in the form of violence or abuse from her husband.
The Tribunal notes that in her protection visa application form she stated that she left Vanuatu to work to earn the Australian dollar to support my kids back home in Vanuatu to support for schooling, clothing, rent and food. This is consistent with her evidence at hearing and the Tribunal accepts that she came to Australia to work and earn money and not because she had a fear of harm.
The Tribunal noted at hearing the law relating to serious harm (noting that the instances set out in s. 5J(5) of the Act are not exhaustive) and significant harm (as set out in Annexure A). The Tribunal put to the applicant that it did not appear that she faces significant economic hardship that threatens her capacity to subsist, denial of access to basic services, where the denial threatens her capacity to subsist, or a denial of the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist. It also noted that she did not appear to face a real risk of significant harm in the form of arbitrary deprivation of life, the death penalty, or intended torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The applicant agreed and thanked the Tribunal for explaining the terms; she said she thought she was going for work rights[5]. The Tribunal put to her that it did not appear that she meets the criteria as a refugee or for complementary protection and she did not disagree, nor did she suggest that she was a refugee or entitled to complementary protection.
[5] This was supported by two letters she had produced to the Tribunal which had supported that she be given work rights in Australia. The Tribunal suggested that the applicant contact the Department in this regard, noting that it was not in a position to grant work rights.
The Tribunal accepts that the applicant and her husband had found it difficult to be able to afford to purchase a house and land when the applicant was still in Vanuatu. They did however pay for their living expenses (even though, as the applicant said, it was difficult during the COVID-19 pandemic), and the applicant was able to obtain a passport. At that time their children were all 18 or younger; now [number] of them are over 18 years and should be able to contribute to the family expenses. The applicant has accumulated savings while in Australia, and it is hoped that she will have enough to afford to buy a plot of land and house before she returns to Vanuatu. However, even if they cannot buy the land, her husband has a job and they have a place to live; she has worked before in Vanuatu and there is no reason why she cannot work again.
The Tribunal finds that the applicant (and her husband) were able to support themselves and their family in Vanuatu, even if there were difficulties sometimes, and it finds that they will be able to do so again.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reason of her race, religion, nationality, membership of a particular social group, or political opinion in the reasonably foreseeable future in Vanuatu, nor that there is a real chance she would be persecuted for one or more of those reasons anywhere in Vanuatu.
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 a receiving country, namely Vanuatu, there is a real risk that she will suffer significant harm, for financial reasons or any other reason.
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A- 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 below.
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 below.
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.
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 4753

3 November 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction