2317939 (Refugee)

2317939 (Refugee) [2024] AATA 2140 (7 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2317939
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:Peter Haag
DATE:7 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 March 2024 at 4:57pm
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – economic circumstances – credibility concerns – knowingly submitted non-genuine claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 3 November 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 24 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) of the Act 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 12 February 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 (2B), which are extracted in the attachment to this decision.
Section 5AAA of the Act
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 when considering the applicant’s claims and evidence.
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.
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 3 November 2023 the delegate of the Minister refused to grant the applicant a protection visa (the primary decision).[1] On 6 November 2023 the applicant applied to the Administrative Appeals Tribunal for merits review of the Minister’s decision.[2]
[1] Tribunal file, Doc Id 11736639
[2] Ibid
The task of the Tribunal is to review the merits of the applicant’s application for a protection visa.
Applicant’s background
In applying for a protection visa the applicant declared he was born on [date] in TLS. He also declared that he resided in the town of Dili in TLS from [date] to [June 2023].
The applicant stated in his written application that from 3 February 2015 to 3 February 2017 he studied at the high school level and successfully completed his high school education at [School 1], which is in [Suburb 1] in Dili. The applicant also stated he speaks, reads and writes in three languages: English, Tetum and Indonesian.
In describing his employment history, the applicant declared that he had never been employed in TLS; that he was a student, and at the time of application he was employed as a seasonal worker in Australia. He also stated that he received financial support from his parents when he was unemployed.
Applicant’s identity and country of reference
As part of the written application, the applicant provided a copy of the biodata page of a passport issued [in] 2022 by the authorities in TLS to [the applicant].
The copy of the passport provided to the Department is consistent with his evidence to the Tribunal. Excepting the applicant is residing in Australia on a temporary visa pending the final determination of this application, there is no evidence to suggest 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 the applicant 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 [in] February 2023 and arrived in Australia on the same day as the holder of a visa that permitted him to remain in Australia temporarily as a seasonal worker.
On 24 September 2023 the applicant applied for a protection visa.
The claims
The applicant submitted his protection claims in writing as part of his written protection visa application.[3]
[3] Department file, [number]
The applicant claimed in the written visa application he submitted to the Department that he left TLS for the following reasons:
·He was unemployed.
·His family was suffering economically, and it is very ‘hard to survive.’
·After graduation from high school, he borrowed about $20,000 US from his neighbour.
·The loan was to be repaid at the rate of $250 US per week.
·The applicant borrowed the money for two purposes, being to finance his own [business], and to support his sister’s university education.
·The business became bankrupt, and for that reason he came to Australia to work to solve his problems.
·He did not experience harm in TLS.
·He did not try to relocate to another part of the country to seek safety, because ‘[he] did not have any information about it’.
·If he were to return to TLS the person who lent him the money would ‘send [him] to jail, … take everything that [he] has, and also torture him or and kill him [sic].’
·His time in Australia has been insufficient to repay the debt.
·He applied for the protection visa to have more time in Australia to work to repay his creditor and thereby solve his problem in TLS, whereupon he will return to his home country.
·His problems in TLS are ‘all about debt’. ‘No person in his home country will help him’ and that is why he cannot relocate to another part of the country.
On 6 November 2023, the applicant submitted to the Tribunal a written statement in which he expressly abandoned the claims that were unsuccessful before the primary decision‑maker; he said those claims are ‘wrong’.[4] He then replaced those claims with a new set of claims.[5]
[4] Tribunal file, Doc Id 11736638
[5] Ibid
In substance, the applicant said in the first paragraph of his new statement of claims that what he said in his written application for a protection visa is wrong. He then set out his new protection claims.
The Tribunal will now summarise the applicant’s new claims:
·His family is Muslim by faith and he adopted their faith.
·He converted to Catholicism.
·His parents and brothers disapproved of his rejection of Islam and conversion to Catholicism. His father and brothers subjected him to humiliating treatment and violently assaulted him.
·He was expelled from his place of residence, being the family home.
·His family members refused to communicate with him.
·His mistreatment was traumatic and induced a state of depression.
·In October 2021 he made a complaint to police about the ill treatment his family subjected him to; the police did not act on his complaint.
·In 2022, in a state of depression he almost killed himself.
·He tried seeking safety in another part of the country, but he was overcome by trauma and depression to the degree that he thinks his mental health was destroyed.
·TLS is a small country, and it would be easy for his family members to find him and for him to find them.
·Consequently, he relocated to Australia to seek safety from his family and to feel well again with the freedom Australia would afford him to practise his religion openly and freely without any of risk of persecution and harm.
The hearing
The applicant said in evidence that he came to the Tribunal to declare his true circumstances. He admitted he did not borrow money in TLS, and that he did not fear harm for any reason relating to borrowed money.
In substance the applicant admitted the claims he relied on before the primary decision‑maker were false. He said he paid someone to write his protection application for him. He said he did not know what reasons were written on his visa application form. He admitted that he knew the purpose of the visa application was to extend the time in which he would be able to stay in Australia and he believed the application would achieve that purpose.
In response to the Tribunal’s questions, the applicant admitted he paid someone to write the new statement of claims he submitted to the Tribunal for the purposes of this proceeding. He also said he doesn’t know what is in the statement. Additionally, in response to the Tribunal, the applicant admitted he did not change his religion from Muslim to Catholic. In making this admission the applicant admitted that the essential claim made in the new statement of claims, namely that he would be harmed in TLS by members of his family for the reason of religious conversion, is a false claim.
In oral evidence the applicant informed the Tribunal that he arrived in Australia as the holder of a visa that permitted him to stay onshore for 9 months and to work as a seasonal worker. He said his reason for being in Australia is to remain here until he has earnt sufficient money to open his own [business] which would sell foods and other household necessities. He also wants to purchase a building he described as an accommodation building for renters.
The applicant also said in evidence if he returned to TLS , the harm that he would experience would be difficulty in finding employment which would enable him to support his family, comprising his wife and baby daughter from whom he is separated for economic reasons, elderly parents and younger siblings.
The totality of the evidence available to the Tribunal is sufficient to establish to the satisfaction of the Tribunal that the applicant knowingly:
·Submitted or caused to be submitted to the Department an application for a visa without regard to whether the information written into the application by his paid agent was genuine, and that he had no reason to believe the basis upon which he applied for the visa was genuine.
·Submitted or caused to be submitted to the Tribunal the statement of claims, written by his paid agent for the purpose of obtaining a visa that would enable him to extend his stay in Australia, without regard to whether the information in the statement was genuine, and with no reason to believe the information to be genuine.
On balance, the evidence is sufficient to establish to the satisfaction of the Tribunal that the applicant has knowingly misused the Australian visa system for the purpose of extending his stay in Australia, and that he did so without due regard to the truthfulness and accuracy of the information upon which he relied in the visa application that was submitted to the Department, and the new written statement of claims that was submitted to the Tribunal for the purpose of obtaining an Australian visa.
On the basis of the forgoing considerations and findings, the Tribunal is not satisfied the evidence that the applicant gave at hearing concerning the economic circumstances he claimed he would face if he is removed to TLS is true and accurate evidence, because the Tribunal is satisfied the applicant is willing to say whatever he thinks may improve his prospects of obtaining an Australian visa and extending his stay in Australia, without regard to the accuracy and reliability of the basis upon which he claims he meets the requirements for a protection visa.
In giving regard to the Tribunal’s findings about the accuracy and reliability of the applicant as witness, and the Tribunal’s findings at paragraphs [31]–[33] in these Reasons, it is unnecessary to apply the information in the DFAT TLS country brief, and the linked information about the present circumstances in TLS including the TLS country/economy fact sheet or other open source country information on that topic, because the Tribunal is satisfied the applicant is a wholly unreliable witness; and the evidence he relies on to establish he meets the requirements for a protection visa is unreliable evidence.
Therefore, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant would be subject to systematic and discriminatory conduct by state or non-state actors, amounting to:
·a threat to his liberty;
·significant physical harassment;
·significant ill-treatment;
·significant economic hardship that threatens his capacity to subsist;
·denial of access to basic services, where the denial threatens his capacity to subsist;
·denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist; and
·that he has a well-founded fear of persecution for any of the forgoing reasons, or for any other reason.
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 subject 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 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 2140

7 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice