2317858 (Refugee)

2317858 (Refugee) [2024] AATA 1562 (9 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2317858
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Catherine Carney-Orsborn
DATE:9 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 February 2024 at 10:33am
CATCHWORDS
REFUGEE – protection visa – Fiji – political instability, cost of living and lack of employment opportunities – subsistence farming – work history in Australia – supporting parents and younger siblings – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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 dependants.
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 27 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 Fiji, applied for the visa on 15 September 2023. The delegate refused to grant the visa on the basis that he did not meet the criteria for a protection visa.
The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department and the Tribunal files.
The Department file contains a copy of the application form for a Protection visa, a copy of the applicant’s passport and copy of the delegate’s decision record.
The Tribunal file contains a copy of the application for review and a copy of the delegate’s decision record, a support letter from applicant, statement from applicant, payslip, educational certificates and cards relating to work sites.
The support letter set out the applicant’s claims in relation to the financial difficulties his family face in Fiji. The letter outlines why he wants to stay in Australia so he can earn money to assist his family in Fiji.
Applicant’s background
The following information was provided by the applicant in his application for a Protection visa with the Department.
He is from [Town], Fiji. He is a fluent speaker, reader and writer of the English and Fijian languages. He completed high school in Fiji. He states has not been employed and was supported by subsistence farming and family.
Applicant’s claims for protection
In his application for protection, the applicant stated the following.
The applicant came to Australia on the PALM program, that program has now expired. He does not want to return to his home country as he feels there is no future for him there. He is thankful for working in Australia and has managed to support his parents in Fiji. If he returns it will be very hard for him to find employment. He claims that even though there has been a change of government it will take years for the country to recover, and poor people suffer due to the cost of living. He claims he cannot move to another area as Fiji is an island nation and people know each other. He claims he will be mentally affected if he returns as there will be no job for him.
He wants to stay in Australia as there are greater opportunities for him to find employment and therefore support his family in Fiji.
The delegate’s decision
The delegate found that the applicant’s claims that they cannot return to Fiji due to the cost of living and being unable to find employment do not relate to any of the reasons in s5J(1)(a) of the Act. The delegate found there was no other information before them to indicate that the applicant will be subject to harm on their return to Fiji for one of the convention reasons.
The delegate found that the applicant would not suffer significant harm if returned to Fiji. They found there was no perpetrator who intentionally would inflict the required level of harm on the applicant if he was returned to Fiji.
Applicant’s migration history
Departmental records indicate that the applicant first arrived in Australia [in] November 2020 as the holder of a GD 403P PALM program visa. He applied for a protection visa on 19 September 2023 and was granted a Bridging visa.
Applicant’s statement provided to the Tribunal is set out below.
[Date] - I was born at the [Town] hospital. My parents are [Mr A] (Father) and [Ms B] (Mother).
I grew up in up the village called [Village], located in [District], in [Province], Fiji. It is 25 – 30 kilometers away from [Town]. I lived with both parents and my [siblings] and [nephews]. My parents are both unemployed and we only rely on coconut or copra for our source of income.
[Year] – [Year]: I attend [School 1] from classes 1 through 8
December [Year]: My Father and I had to spend 3 weeks in another village (far from home) to look for work in order to buy my secondary school uniform, sandals, and stationaries.
[Year] – [Year]: I attended [School 2] from year 9 through year 13. It was challenging attending secondary school. Most of the time I only have breakfast from home, I don’t have any lunch since most of time there no proper lunch to take to school since my parents can afford to provide,
[Year]: I attend year 13 again at [School 3] Secondary School, because I want to pass my examination with good results. [Year] I did not get the marks I desired because I was absent from school most of the time due to no bus fares to school.
[Year] - [Year]: Was enrolled at [University]. I studied Diploma in [Subject 1]. I spend 2 and half years studying before completing all my Diploma courses.
[Year]: I did my practical in [Occupation 1] at [Workplace 1] for 9 weeks
[Year]: My second and final practical was at [Workplace 2] in [Town]. I completed my studies, but I could not graduate because my parents cannot afford to pay the remainder of my fees.
[Year] – [Year]: Since I can’t graduate from [University], I returned back to the village to help my parents with farming, selling copra and support my younger siblings that were still in school. Beginning of year 2020 I applied for work through the Pacific Labour Scheme program, I was one of the many to come and work here in Australia. November 2020, I arrived in Sydney and started working in [Employer 1], [City].
2021: worked at [Employer 1] with the pay rate of $19.40 per hour. Started work at 4am finish work at 2:30pm. For almost 1 year working in the same company, pay rate was still the same. I worked 10 hours are day. 4 days are week.
The month of October, I was terminated from work, the reason was I did not turn up to work for 1 week due to having covid symptoms, I was given a 1-week sick sheet by the doctor. I submitted my medical certificate to the HR, but still I got terminated.
October 11, I moved to Sydney to look for job opportunities,
-First Job – I was employed by [Employer 2]; I left the job because there was no steady hours.
-Second job – [Employer 3], it was a one and half month contract December 2021, I obtain my white card, First aid and CPR card.
2022: In the month of February, I secured a job in [Employer 4], working as [Occupations 2 and 3].
2023: In the month July, I started building our family home, continue helping my parents with the family needs, supporting my small siblings that are still in primary and secondary school. I completed [a] course, to which I obtained my [Industry] card.
2024: Still currently employed with [Employer 4]. I am currently enrolled in Tafe doing certificate III in [Subject 2].
The Tribunal hearing
The following is a summary of the oral evidence taken on 6 February 2024 from the applicant at hearing with the Tribunal.
The Tribunal went through the purpose of the hearing before the Tribunal. The Tribunal explained the issues and criteria it was considering and that the hearing was the applicant’s opportunity to provide information and evidence on his claims to fear harm if returned to Fiji.
The applicant confirmed the information in his protection application. He first came to Australia in November 2020. He was on a working visa. He has family in Fiji including his parents, sibling, and their grandson. He was educated in Fiji however left tertiary education as his parents could not afford to pay the fees.
His parents are farmers who make a living in the copra industry. He said when he finished school, he was unemployed and worked with his family on their farm.
The Tribunal asked the applicant why he feared returning to Fiji. The applicant responded that he did not want his sibling to go through what he has gone through and not complete their education. He further wanted to help his parents with the completion of their house and support them financially.
The Tribunal responded with words to the effect that while these aims are admirable, they may not meet the requirements of the convention and complementary protection.
He was asked to expand on how his claims relate to the Convention.
The Tribunal asked him to expand on his fears. He responded with words to the effect that due to political instability it is hard to find employment and his parents find things difficult.
The Tribunal then discussed with the applicant country information which indicated that Fiji is stable and there is a coalition in power which appears to be backed by indigenous Fijians.
The Tribunal asked if the applicant wanted to put anything further to the Tribunal for its consideration. He responded with words to the effect that his family are solely dependent on him for support and if he returns to Fiji, he will not find work and his family will suffer hardship.
The Tribunal then indicated that if there was nothing further the applicant would like the Tribunal to consider it would end the hearing. He responded he had nothing further to add.
Nationality
The applicant claims to be a citizen of Fiji and has provided a copy of his Fijian passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Fiji and that he is outside his country of nationality. As such, the Tribunal finds that Fiji is the applicant’s receiving country for the purpose of assessing his claims for protection.
There is no evidence before the Tribunal to suggest that the applicant holds any other citizenship or has any third country visas.
Country Information
DFAT Country Information Report Fiji May 2022
As of 2022, DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei. Statistics on ethnicity were not released by the Fiji Bureau of Statistics for the 2017 census due to problems when collecting the data. The largest opposition party in Parliament is currently the Social Democratic Liberal Party (SODELPA) which polled well in the 2018 election and largely draws its support from iTaukei. FijiFirst is popular among Indo-Fijians, who support its multi-ethnic platform.
Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups. iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.
DFAT has reported in its latest cable that following the December 2022 Fijian general election, no political party won a clear majority of seats in Parliament to form Government. After ten days of inter-party negotiations, a coalition of three parties (The People’s Alliance, National Federation Party (NFP) and Social Democratic Liberal Party (SODELPA)), led by Prime Minister Sitiveni Rabuka, formed government. The change of government ended the prime ministership of Josaia “Frank” Bainimarama who assumed leadership in Fiji following a coup in 2006. Since the formation of the new government, there has been no significant political unrest or deterioration of government functions. The political situation in Fiji remains stable.
Mental healthcare in Fiji
The mental healthcare services are similar to those in most upper- middle income Asia-Pacific countries. Mental health care in Fiji is integrated with general health care. Free and generally effective government health care is generally available in Fiji, and Fiji has a government Free Medicine Scheme for low-income individuals under which some drugs are available.
Consideration of Claims
The applicant claims that he is supporting his family financially. He claims that his family are dependent on his income. He is helping them build a new house and would like to assist his sibling complete their education. He claims that if he cannot find work in Fiji it will impact on him mentally.
At hearing the Tribunal provided several opportunities for the applicant to expand on his claims. The Tribunal explained what the criteria for a protection and complementary protection were. The applicant continued to state he wanted to stay in Australia so he could work.
When pressed by the Tribunal to identify where his claims fit the convention. He responded that due to political instability he will find it hard to get work.
The Tribunal discussed country information which indicated that Fiji was currently stable. He did not respond to that information.
The applicant’s evidence is that his family make a living out of copra farming in Fiji. They have a small farm which supports them. While the Tribunal may be sympathetic to the fact that the applicant wants to continue to provide financially for his family in Fiji it is not satisfied that his claims meet the protection criteria.
The applicant in his written claims stated that if he returns, he will not have work, and this will affect him mentally. He did not expand on this at hearing and no evidence other than this assertion in the written claims was provided to the Tribunal. The Tribunal accepts he may find it stressful when he returns to Fiji however accepts country information that there are services available for his mental health if he should need them.
The Tribunal accepts that he may find it difficult if he cannot find employment on his return to Fiji however his evidence is that his family have an income from copra farming which they rely on. The applicant’s evidence is that he had previously helped them with farming copra.
The Tribunal finds that he and his family will be able to be provided with the necessities of life from their farming. The Tribunal accepts that the applicant would like to finish building his parents their home however is not satisfied that his claims to need employment in Australia to support his family meet the criteria of serious harm that is required by the convention.
The Tribunal explained to the applicant that it was only looking at his protection claims and could not grant any other visas.
He indicated he understood this.
There is nothing before the Tribunal which would indicate that the applicant if returned to Fiji would suffer serious harm for a Convention or any other reason. The applicant referred to political instability however there is no evidence before the Tribunal that he is a leader of any organisation or an outspoken critic of the authorities. The applicant at hearing stated that political instability would impact on his ability to work. He made no claim that there was any intention to stop him working or deprive him of an opportunity to make a living. His claims are that he wants to work in Australia to provide financially for his family in Fiji.
The Tribunal finds he will not suffer serious harm if returned to Fiji now or in the reasonably foreseeable future.
After considering the applicant's claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to Fiji now or in the reasonably foreseeable future, there is no real chance that he will be persecuted for the reason of his race, religion, nationality, political beliefs, being a member of a particular social group or for any other Convention reason.
Does the applicant meet the complementary protection criteria?

The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
A person meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s 5(1) that the applicant could suffer if he returned to Fiji. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk he will suffer significant harm. Therefore, the applicant does not satisfy s 36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Catherine Carney-Orsborn
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 1562

9 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction