2314026 (Refugee)

2314026 (Refugee) [2023] AATA 4817 (15 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2314026
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Paul Noonan
DATE:15 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 December 2023 at 2.04pm
CATCHWORDS
REFUGEE – protection visa – East Timor – fear of a moneylender – credibility concerns – two other applications with identically worded claims for protection – implausible evidence – fear of economic hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Selvadurai v MIEA (1994) 34 ALD 347
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 4 September 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 East Timor, applied for the visa on 8 January 2023. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for the grant of a protection visa.
The applicant appeared before the Tribunal on 13 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
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. There is not currently a country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes with respect to East Timor.
Country of reference and third country considerations
The delegate was satisfied that the applicant’s country of nationality is East Timor, and the Tribunal is also satisfied of this. A copy of the applicant’s East Timor passport is retained on the Department file. The Tribunal has accordingly assessed the applicant’s claims with respect to East Timor as the country of reference or receiving country for the purposes of this appeal. The applicant has not made claims nor is there any evidence to indicate that he has a right to enter and reside in any third country. The Tribunal finds the applicant has no such right.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia owes protection to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his written application for protection the applicant stated that he owed a debt to and was threatened with death if he could not pay the debt back. He had borrowed ‘540.00’ and every week had to pay ‘250’ in interest. They are looking for him and will torture him. He also fears he will not be able to find a job should he be required to return to East Timor.
The applicant arrived in Australia under the seasonal worker’s program [in] October 2022. The applicant told the Tribunal that he had completed the subsequent protection application himself. The applicant said he came to Australia to earn money to pay a debt and to earn money for himself.
Claimed fear of a moneylender
When asked for specifics about the claimed debt the applicant informed the Tribunal that in 2019 he borrowed money from his ‘big brother’ (not related) who owned a small kiosk and sold petrol. He borrowed US$5,400 to help sustain the family and pay for his siblings’ schooling. When asked what work he was doing at the time the applicant stated that he was not working. He has no documentary evidence of the debt because they are from the same village and have trust in each other. He did not provide the lender with any security for the debt. He has not been able to pay the debt and the lender has threatened him with his life.
When asked how much he now owes the applicant claimed that he still owes US$4,500. When asked what the terms of the loan are the applicant stated that for every $1,000 he borrowed he must pay $100 in interest. He did not know how much in total he had to repay or how long the loan was for. He just said he had to repay it little by little.
When asked for more specifics about the repayment terms attached to the claimed loan the applicant claimed he had to pay $100 for every $1,000 borrowed every week amounting to an implausible amount of $23,400 per year in interest. The Tribunal put to the applicant that it may find it implausible that the applicant would not have a clear understanding of the terms of the loan and how much in total he would be required to repay. The applicant simply responded that he does not know how much he must repay as he has already paid back some of the loan. The applicant then stated that he had told the lender that if he goes to Australia he should be able to repay it by 2025.
The Tribunal put to the applicant that it may find it highly implausible that a lender would agree to lend him US$5,400 when he was not working and had no means to repay the amount and also that he would not be required to provide some form of security. The applicant simply responded that he really needed the money and the lender agreed on the understanding he could repay it in small amounts.
Following the hearing, the Tribunal became aware of two other protection applications before it (as presently constituted) from East Timor with identically worded claims for protection. The Tribunal wrote to the applicant on 16 October 2023, under s 424A, as follows:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
You outlined your claims for protection in the protection visa application form lodged on 8 January 2023. You stated that you borrowed money and were threatened with death when you could not pay the money back and you maintained those claims in your interview with the Tribunal conducted on 13 October 2023. You also gave evidence that you completed your claim form yourself and without assistance.
The Tribunal now has before it two other review applications containing identical written claims for protection as those in the visa application lodged by yourself.
In particular the applicants in the other review applications made identically worded claims as yours (in summary):
·They borrowed money specified as “540.00” and that every week, they had to pay 250 dollars in interest.
·They did not have the money to pay that much money because they had no work if they went back to east Timor, so they were threatened with death if they could not pay their debts and “currently they are looking up to me”.
·They will daily be tortured, whenever they go back to Timor-Leste, because they will be jobless and unable to pay the interest every month as the interest and capital will keep increasing every month.
·They want to kill them even if they manage to pay the interest every six months while working in Australia but once they return to East Timor, they will be jobless, so could not make payment to them, and the interest keep increasing every month, and make them keep torturing them in their daily life so they feel insecure when they return to East Timor.
·The authorities will not protect them, because they do not want to get involved in this problem.
This information is relevant to the review because it may cause the Tribunal to find that you have lodged identically worded claims to at least two other applicants for protection visas, which may cause the Tribunal to doubt that those claims relate to your own experiences, rather the Tribunal may form the view that somebody else prepared those claims and used them for a number of protection visa applicants.
If we rely on this information in making our decision, this may cause the Tribunal to doubt the credibility of your claims and the truthfulness of your evidence. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 30 October 2023.
The applicant has not responded to the Tribunal’s letter.
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
… care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
Overall, the Tribunal is satisfied that the applicant’s claim to owe money to a moneylender who has threatened him with torture and death for not paying the debt back is not credible. This is for the following reasons:
·Firstly, the applicant has lodged an identically worded claim to at least two other applicants for protection visas currently before the Tribunal. As put to the applicant this causes the Tribunal to doubt that those claims relate to the applicant’s own experiences and, rather, it may form the view that somebody else prepared those claims and used them for a number of protection visa applicants. The Tribunal would expect that if the applicant actually owed money, which had resulted in him being threatened with harm such that he fled the country, that he would carefully recount his own individual experiences and not use a generic set of claims replicated by other people. This causes the Tribunal to have serious concerns about the credibility of the applicant’s evidence.
·Secondly, the applicant gave highly implausible evidence that a moneylender agreed to lend him a sizable amount of money in US dollars when he had no employment and no security and as such no discernible way to repay the money. The Tribunal simply does not accept as plausible that a moneylender would agree to do this and that he would also not require some form of documentation with respect to the loan just because he trusted the applicant.
·Thirdly, the applicant gave implausible evidence that he had no clear idea as to the terms of the loan. He did not know how long the loan was for and did not provide plausible or consistent evidence with respect to the repayment terms which the Tribunal would expect to be clear to the applicant should the loan actually exist.
The above credibility concerns cause the Tribunal to reject the applicant’s claim to have borrowed US$5,400 from a moneylender. The Tribunal therefore also finds that the applicant has not been threatened with torture and death by a moneylender and rejects this claim in its entirety as not credible.
Accordingly, the Tribunal does not accept that there is a real chance the applicant would suffer persecution involving serious harm from a moneylender should he return to East Timor, either now or in the reasonably foreseeable future.
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to East Timor, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[2] It follows that there is also no real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to East Timor, for reason of his claim to have a debt to a moneylender.
[2] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Claimed fear of economic hardship
The Tribunal accepts that the applicant wishes to remain in Australia because he has been able to find employment in Australia.
At the hearing, the Tribunal put to the applicant that such economic harm would not appear to be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion, for the purposes of the refugee assessment. The applicant simply stated that he wanted to keep working in Australia to sustain his family and repay his debt.
The Tribunal finds the economic harm feared by the applicant is not for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion. Therefore, he does not meet the criteria set out in s 5J(1)(a) of the Act.
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa) for economic reasons, the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to East Timor, there is a real risk that he will suffer significant harm. ‘Significant harm’ is exclusively defined in s 36(2A), as follows: (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.
As discussed with the applicant at hearing, the Australian courts have held that complementary protection obligations are concerned with intentional acts or omissions by third persons.[3] The applicant simply stated that East Timor is new and poor and that people find it difficult to find work there.
[3] GLD18 v MHA [2020] FCAFC 2.

The Tribunal accepts that the economic situation in a country impacts differently on different people according to their circumstances. However, the applicant does not suggest that any economic harm he might suffer in East Timor would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor is it suggested that the death penalty will be carried out upon him.
For these reasons, the Tribunal does not accept that any economic harm to which the applicant may be subjected if returned to East Timor would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A).
CONCLUSIONS
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.
Paul Noonan
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 4817

15 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness