2314665 (Refugee)

2314665 (Refugee) [2024] AATA 2369 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2314665
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Katherine Harvey
DATE:12 March 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 March 2024 at 3:58pm

CATCHWORDS
REFUGEE – protection visa – Tonga – conflict with uncle and cousins – verbal abuse – physical fights – employment opportunities – work history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Background

The applicant is a [age]-year-old national of the Kingdom of Tonga (Tonga). He travelled to Australia six times [between] May 2018 [and] May 2023. He most recently arrived in Australia [in] June 2023 as the holder of a Temporary Work (International Relations) visa (subclass 403) Pacific Australia Labour Mobility (PALM) stream. He applied for the protection visa on 11 August 2023.
On 24 August 2023, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of the decision to refuse to grant the applicant a Protection visa.
CLAIMS AND EVIDENCE
Protection visa application
The applicant’s claims are set out in his application for protection.
The applicant claimed he came to Australia to work and provide for his family as he and his mother did not have any land to settle on, so they have been moving from house to house. His parents had separated and as a result he was bullied at school and judged by the community and some of his close family members, and he could be mistreated again. He claimed that he did not seek help because their island is a small one and people might make fun of family matters, and he did not try to move because people see his parents’ problems as his mother’s fault.
He claimed he did not want to return to Tonga because he wanted to stay in Australia and work for his mother to have land and build a house. He claimed that the authorities can and will protect him.
The delegate’s decision
The delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Tonga on the basis of his claims. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act.
The review application
On 18 September 2023, the applicant applied for a review of that decision.
In an attachment to his application for review, the applicant made additional claims.
He claimed his father left when he was young and came to Australia and remarried. His mother is residing in a house that belongs to her brother and it is in an extremely rough neighbourhood that is well-known for ice and a nesting place for ice smokers. His uncle was about to kick his mother out of the house and she would become homeless. He has promised his uncle he will get her out soon so he has allowed her to stay for the time being.
He claimed he tried to get work in Tonga but was shunned as his mum is a single parent and work is scarce. There is not much work he can do in Tonga and it is a third world country and it is extremely hard to make any sort of a living when you have no connections, not much education and you are judged. He is the sole earner and he and his mother would be pushed onto the streets if he goes back now. He wanted to buy a small piece of land and build a small house for his mother to live in and to put food on the table.
On 3 January 2024, the Tribunal emailed the applicant requesting a copy of the delegate’s decision.
On 9 and 10 January 2024, he provided copies of the delegate’s decision.
In pre-hearing submissions, the applicant provided:
·a reference dated 25 January 2024 from [Mr A], owner of [Company 1], for whom the applicant has worked as a skilled labourer sub-contractor since 4 September 2023. He described the applicant as a valued member of the team, reliable and hard working.
·a letter dated 5 February 2024 from [Ms B], an Australian citizen who identifies as Aboriginal and who has been the applicant’s partner for six months. She advised that they have been living together for three months.
The applicant appeared before the Tribunal on 13 February 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tongan and English languages. Where relevant, the oral evidence given at the hearing is referred to below.
In post-hearing submissions, the applicant provided a copy of his parent’s Australian marriage certificate and a copy of his father’s death certificate, which showed that he had resided in Australia for 40 years.
The applicant was not represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes that DFAT has not prepared a report for protection status determination purposes in relation to Tonga.
Country of reference
The applicant claims that he was born in [location], Tonga and he brought his Tongan passport to the hearing.
The applicant thought that his late father was an Australian citizen but he was unsure. At the time of the decision being finalised, the applicant was seeking information about his father’s citizenship status and he confirmed that he did not have any other information to provide to the Tribunal.
Based on the information provided, the Tribunal is satisfied that the applicant is a citizen of Tonga and that Tonga is the receiving country for the purpose of s 36(2)(aa) of the Act.
Analysis, reasons and findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence at the hearing regarding preparation and contents of application
The applicant gave evidence that he had paid a woman in Sydney to help fill out his application. He said he asked a classmate from school in Tonga to give him someone’s name and she gave him the woman’s details. The applicant could not remember the woman’s name and, since applying for the review, he said she had blocked him. He said she charged him $800 to for the Protection visa application and $1200 for the review application. He said she sent him questions in Tongan on Messenger and he answered them in Tongan and then she filled in the form with his answers. However, she did not read the answers back to him in Tongan.
He claimed that he stood by his claims and did not want to change any claims. He said his girlfriend was now helping him.
Applicant’s family
At the hearing, the applicant gave evidence that his mother and father, who were both from Tonga, had married in Australia. His mother subsequently returned to Tonga to care for her parents and the applicant was born in Tonga. When the applicant was 18 his parents divorced. He said his father had remained in [City 1], NSW and had a new partner. He has one half-sister on his paternal side and three half-sisters on his maternal side.
The applicant said he thought that his father was an Australian citizen but he was unsure. He explained that he was having difficulty getting a copy of his father’s death certificate from his late father’s partner, which he needed to effect the transfer of his father’s land in Tonga. As discussed at the hearing, in Tonga ‘inheritance rights pass through male heirs only; a male child born out of wedlock has precedence over the deceased’s widow or daughter.’[1] The applicant agreed with the country information that as his father’s son he is the heir to his father’s land in Tonga. The applicant gave evidence that his aunts had previously lived there but that the house on the land had been wrecked in Cyclone Gita and all that was left was the cement slab. He said he was working in Australia to raise money to build a new house.
[1] US Department of State, ‘2022 Country Reports on Human Rights Practices: Tonga’
The applicant said that he and his mother had resided with his maternal grandparents and his cousins until the grandparents died in 2016. Ownership of the house transferred to his mother’s brother, who returned from living overseas to claim the home in 2018 or 2019. The applicant’s mother has continued living at the house with her youngest daughter, who is [age]. One of his cousins also lives there, while his uncle lives on his bush allotment.
Based on the applicant’s evidence, I am satisfied that the applicant’s parents married in Australia, that they separated before he was born, that he was raised by his mother in her parents’ home in Tonga, and that his uncle inherited the home where the applicant lived until he came to Australia and where his mother and half-sister currently live. Based on the applicant’s evidence, including his father’s death certificate that shows he is the only son, and the country information, I am satisfied that the applicant is heir to his father’s land in Tonga. Based on the applicant’s evidence at the hearing and my findings of fact, I do not accept that the applicant and his mother have been moving from house to house or that his father left when the applicant was young.
Reasons for protection
When asked why he feared returning to Tonga, the applicant said the violence in the house and that it would be hard to get a job. He said that he does not see a bright future back in Tonga.
The applicant gave evidence that if he returned to Tonga before he had finished renovating his home, there would be no place for him, his mother and his sister to move into. He claimed that his uncle wanted them to move out and that he did not want to live in his uncle’s house as there were drugs there as his cousin who lives with them is a user. He explained that his uncle comes to check when they are moving out and sometimes threatens to beat them up and when he’s drunk he breaks things. When asked if his uncle had ever beaten him, the applicant said he used abusive language. He said that his uncle had verbally abused him and his mother. The applicant said he manages the situation by apologising, remaining calm and asking his uncle to give him time to sort things out.
The applicant said that in the past, there were lots of cousins in the house as their parents were residing overseas. As his cousins grew up, they started verbally abusing his mother and she could not control them. They would also run around naked, which was culturally inappropriate. Sometimes he could not take it anymore and he would try to fight them but he would get thrown to the floor. The applicant said he feared his cousins since they started doing drugs because, when they are under the influence of the drugs, they pick fights and it is difficult to get through that time with them. He also said they stole things from the house, including materials he had purchased to rebuild his home. He said they started smoking marijuana and moved on to methamphetamine. The applicant explained that four older cousins used to live in the house and three have moved out, and the remaining one is taking drugs and there’s nothing he can do about it. I put it to the applicant that he could get help from the police. He variously claimed that he could not report his cousins because they are his cousins, because it would be difficult as they all live together, and because he feared for his life as his cousins would work out he had reported them and seek retribution. On the evidence before me, I do not accept that the police would deny the applicant assistance if he sought their assistance.
The applicant gave evidence that he had worked as a shop assistant in a [shop] and in a restaurant. He thought that the pay was not good and the hours were long. He then worked and trained as an [Occupation 1] for a year-and-a-half or two years but he did not see any improvement in his pay, so he joined the PALM scheme and came to Australia as a fruit picker. He said after being in Australia with the seasonal workers, they were told to go back and he went home but could not earn a living and his visa was still valid so he decided to come back to Australia. He claimed in Australia he just kept looking for things to do to still make a few dollars to send to his mother. He gave evidence that he is currently working as a subcontractor [completing work] on buildings for $45 an hour and he earns ‘$2000 something’ a fortnight and sends $1500 a fortnight home.
As discussed with the applicant, the conditions for a PALM scheme worker include having the right qualifications and/or work experience and having an intention of returning to their participating country.[2] The applicant said he did return when they said, [in] May 2023. Noting the applicant returned to Australia about six weeks later [in] June 2023, I asked what had changed that meant he no longer wanted to return to Tonga. The applicant said the only reason was recently the issue with his uncle has happened again.
[2] PALM Pacific Australia Labour Mobility [Web Site]
I put to the applicant that he had completed year [level], he has been employed in both Tonga and Australia, he is fit, healthy and able to undertake strenuous labour, as evidenced by his current role, and he would be returning to live with his mother and sister in [location]. I explained that there was no evidence before the Tribunal that he would not be able to find work to subsist in Tonga. The applicant said that he did not wish to comment or respond.
I asked the applicant about his claim that he tried to get work but was shunned because his mother is a single mother. He said that he was not so sure about that and thought it was probably the interpretation of the woman who filled in his application of him explaining that he did not want to shame his mother. Regarding his claim that it is hard to make a living without connections and education and that he is judged, the applicant explained that was why he did the [Occupation 1] training and it did not help because his employer pleased himself about what he paid.
The applicant said that he had asked his partner [Ms B] if she would go to Tonga with him and that she said she’s willing to follow him if he goes back. He said that if she went with him to the place where he lived, he was concerned there would be no chance of finding a good job to support them. The applicant claimed, and I accept, that he would not experience harm in Tonga because of his relationship with [Ms B], whether [Ms B] remained in Australia or went with him to Tonga.
Considering the evidence before me, I accept that the applicant’s uncle has verbally abused him and his mother and that the applicant has had physical fights with his cousins. I accept that the applicant would like to move out of his uncle’s house and provide an alternative home for his mother and sister. However, I do not accept that his uncle’s verbal abuse and the physical fights with his cousins considered separately and cumulatively amount to serious harm or significant harm. I do not accept that there is a real chance that the applicant will experience serious harm or a real risk that he will suffer significant harm living in his uncle’s house.
I am satisfied that the fact that the applicant returned to Tonga six times between 2018 and 2023 raises serious doubts about the genuineness of his fear. I am satisfied that his mother and half-sister continue to reside in his uncle’s home and that, given the applicant is sending $1500 a fortnight home, they have the means to leave if they so desired.
Based on the evidence before me, including the applicant’s work history, I do not accept that the applicant tried to get work in Tonga but was shunned because his mother is a single parent, that he may be mistreated, that work is scarce, that there is not much work he can do, or that he cannot make any sort of living with no connections, not much education and because he is judged. I am satisfied that the applicant would be able to find work to subsist in Tonga.
Does the applicant meet the refugee criterion?
Having considered the claims singularly and on a cumulative basis, I am not satisfied that if the applicant returns to Tonga now or in the reasonably foreseeable future that he faces a real chance of persecution for a refugee nexus reason.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[3]
[3] Chan Yee Kin v MIEA (1989) 169 CLR 379.

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

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

[2024] AATA 2369

12 March 2024

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