2317429 (Refugee)

2317429 (Refugee) [2024] AATA 1962 (29 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2317429
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:Peter Haag
DATE:29 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 February 2024 at 1:56pm
CATCHWORDS
REFUGEE – Protection Visa – Timor Leste – in debt – escape creditors – economic problems – avoid drunken youth in TLS – applicant did not claim he borrowed money from loan sharks – no evidence that anyone in Timor Leste would cause him significant harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 19 October 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 Timor-Leste (TLS), applied for the visa on 13 September 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 24 January 2024 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). 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–5LA, 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 36(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.
Section 5AAA of the Act
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision to the assessment of the applicant’s evidence and claims.
Applicant’s background
In his written application for the protection visa the applicant stated he was born in TLS on [date], and claimed to be a national and citizen of TLS.[1]
[1] Department file, [DELETED].
The applicant stated in his visa application that he does not have family members who are in Australia or overseas. The applicant also stated that between 17 May 2002 and 4 September 2013, he was a school student in Dili. During that period, he successfully completed primary school, middle school and secondary school education.[2]
[2] Ibid.
The applicant stated he was unemployed between [date] (the date of his birth) and 10 May 2023.[3]
[3] Ibid.
At the time of application, the applicant stated that from 11 May 2023 he resided at [address], Australia. Previously, between [date] and 10 May 2023 the applicant resided in Dili, TLS.
The applicant’s identity
The applicant provided to the Department as part of his visa application a copy of the biodata page of a passport issued on [date] 2021 in the name of [name], the country of issue being TLS. The delegate of the Minster accepted this document as proof of the applicant’s identity, nationality and citizenship.
There is no evidence that the copy of the passport the applicant provided to the Department in proof of his identity, nationality and citizenship is a bogus document pursuant to s 5(1) of the Act.
The documents the applicant provided to the Department are consistent with his evidence to the Tribunal in relation to his identity, nationality and citizenship. Excepting the applicant is residing in Australia on a temporary visa pending the final determination of this application, there is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any country other than TLS. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of TLS, and as such his protection claims will be assessed against TLS as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant departed TLS from Dili on [date] May 2023 and arrived in Darwin on the same day. The applicant informed the Tribunal that he arrived in Australia on the visa he applied for in TLS, and he had applied for a work visa. The applicant has never applied for a visa to enter any country other than Australia.[4]
[4] Ibid.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
On 19 October 2023 the delegate of the Minister refused to grant the applicant a protection visa (primary decision).[5] The Tribunal has read the copy of the decision record the applicant provided to the Tribunal. On 29 October 2023 the applicant applied to the Tribunal to review the Minister’s decision. The Tribunal now reviews the merits of the applicant’s protection visa application.
[5] Tribunal file, Doc ID 11701410.
The claims
Before the delegate of the Minister the applicant relied on these claims:[6]
[6] Department file, [DELETED].
·He owes a lot of money to friends, his neighbours and many of his acquaintances.
·By borrowing money, he created ‘bad financial problems’ for himself.
·He was ‘threatened and harmed when [he] couldn’t return the money’.
·He was beaten repeatedly.
·His wife left him as a result of his debts.
·He was unable to relocate within TLS because he had ‘no place to go’; it is a poor country and to move to another location would cause worse problems.
·If he returned to TLS he would be subjected to revenge attacks and ‘beaten worse.’
·The authorities in TLS would not protect the applicant as there is ‘nothing they can do’.
·He would not be able to relocate to another part of the country to an area where he would not be harmed.
·To escape his creditors and the beatings they were inflicting on him because he was unable to repay them, he left TLS seeking protection from them in Australia.
The hearing
At hearing the applicant did not give evidence that supported the claims he relied on before the delegate of the Minister.
The applicant said he applied for a visa to work and earn money in Australia. He accepted his only reason for coming to Australia was to work and earn money to improve his financial circumstances. The applicant also gave evidence that he came to work in Australia to support his mother and younger siblings’ education; he is working in construction and sending money home to help his mother to purchase food and to help his siblings attend school. He reiterated that he needs to work to help supply necessities into the household at home.
The Tribunal asked the applicant if there were any reasons relating to his personal safety preventing him from returning to TLS, if so, what are they? In reply the applicant said Australia is safer than TLS where the young face many problems. There is no work, drunkenness means it is not safe in TLS and it is difficult get a job because unemployment is high and there are no jobs. Australia is safe, he is grateful to work and he wants to continue working to improve his future.
The Tribunal again asked the applicant if there are any more problems that will cause risk to his safety. In response the applicant said if he returned, he would be like any other young person without work: there will be problems, it would not be safe for him and there is no decent work in TLS.
The Tribunal asked the applicant if he had any personal financial problems in TLS before coming to Australia. He said his only problem was there was no work.
Later in evidence the applicant said he needed a visa to stay and work in Australia and resolve his problems. The Tribunal asked the applicant what problems he wanted to resolve. He explained he wanted to resolve his family’s problems in life, by working in Australia to help his family and younger siblings. The Tribunal then asked the applicant if there are any other problems he wants to resolve through working in Australia. In response, the applicant said he wants to help his mother and his younger siblings by providing household necessities to them and helping his younger siblings to attend school because his father passed away in 2015.
The Tribunal asked the applicant who supported the family after his father passed away and before the applicant came to Australia. The applicant responded as the eldest son he needs to work and provide for the family’s needs.
The applicant gave no evidence about borrowing money from his neighbours and acquaintances, that they were repeatedly beating him because he was unable to repay them and that he came to Australia to escape from them. He gave no evidence at hearing that he feared he would be harmed by creditors if he returned to TLS, and for what reason he was seeking protection in Australia.
The applicant provided no specific information about the creditors, such as their names and when he borrowed money from them, and how much money he owed each of them. The applicant’s evidence about borrowing money and being ‘beaten and beaten’ by creditors is general in nature, lacking compelling specificity and it is unsupported by concrete evidence, such as oral evidence or documentary evidence from his mother in TLS to whom he is remitting funds from Australia, and therefore with whom he is in communication.
The Tribunal has considered the applicant’s evidence at hearing that after his father’s death in 2015, as the eldest son, it became his responsibility to provide for the upkeep of his mother’s household and to pay for the education of his younger siblings.
Additionally, the Tribunal has also considered the applicant’s evidence that his purpose for applying for a visa which permits him to remain in Australia is to enable him to avoid drunken youth in TLS, overcome scarcity of work opportunities and to remit money to his mother to support his family and pay for his siblings’ education.
The Tribunal has also considered the general nature of the claims the applicant made about being indebted to various violent creditors who repeatedly assaulted him, that the claims lack cogent specificity and that they are unsupported by concrete evidence.
The Tribunal has considered country information available to it that establishes martial arts groups and ritual rites groups (MRAGs) operate in TLS, which use intimidation and violence to commit crimes and extort money from targeted individuals. These groups are illegal in TLS.[7] This information does not advance the claims the applicant relied on in his written visa application because his claims asserted his problems were with neighbours and acquaintances rather than a member or members of a crime group(s), namely MRAGs.
[7] ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy’, Fundasaun Mahein, 27 September 2022, 20230222133207.
Relevantly, the applicant did not claim he borrowed money from loan sharks.
The open-source country information available to the Tribunal states TLS’s economy was severely affected by the COVID-19 pandemic and it is one of the poorest countries in Asia. The UN Country Team’s assessment on the economic impact of COVID-19 has revealed:
the COVID-19 crisis has magnified many of the underlying vulnerabilities within the country including lack of basic infrastructure, climate hazards, limited access to services as well as ongoing budget and political impasses. COVID-19-related negative impacts on small‑scale farmers, people living in remote areas and urban settlements, and MSMEs, have been exacerbated by these compounding climate, development and governance factors. Intra‑household inequalities have deepened, specifically regarding unpaid care work, with the burden carried by women. The poor and vulnerable households are among the worst hit by the COVID-19 crisis. Across results, where there is no breakdown by gender, the findings did not show significant differences between women’s and men’s experiences.[8]
[8] UN conducts socio-economic impact assessment of COVID-19, United Nations in Timor-Leste, 26 August 2020, 20201107141700.
The Tribunal accepts that TLS is a poor country in which employment opportunities are significantly limited.
On balance, having considered the totality of the applicant’s evidence, the Tribunal is not persuaded that:
·the applicant owes money to neighbours and acquaintances in TLS;
·he was assaulted or otherwise harmed by neighbours and acquaintances, or anyone else in TLS.
Additionally, the evidence considered alone and in conjunction with the cited country information is insufficient to establish to the satisfaction of the Tribunal that the applicant was subjected to systematic and discriminatory conduct by state or non-state actors that caused him to suffer economic hardship that threatened his capacity to subsist, or denied him capacity to earn a livelihood of any kind, where the denial threatened his capacity to subsist, or otherwise subjected him to serious harm as defined in s 5J(5) of the Act.
Findings
Having considered the applicant’s claims individually and cumulatively, the evidence before the Tribunal considered alone, and in conjunction with the DFAT report, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if he is removed to TLS now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Complementary protection
The Tribunal now turns to consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘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’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246], [297] and [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to TLS now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.

Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
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 1962

29 February 2024

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Immigration

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