2320671 (Refugee)

2320671 (Refugee) [2024] AATA 1357 (14 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2320671
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Denny Hughes
DATE:14 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 March 2024 at 2:38pm

CATCHWORDS
REFUGEE – Protection Visa – Tonga – has no fears or concerns in going back to Tonga – fears the struggle to earn a living – applicant was never politically active – environmental situation – economic challenges – not satisfied the applicant is a person in respect of who Australia has protection obligations as a refugee – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 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 Tonga applied for the visa on 14 September 2023. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criteria for grant of a protection visa.
The applicant appeared before the Tribunal via teleconference on 16 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.
CLAIMS AND EVIDENCE
Visa application
In his 2023 protection visa application, the applicant indicated he is a citizen of Tonga. He provided a copy of the biodata page from his Tongan passport.
In addition to identity documentation, the applicant’s protection claims were as follows:
·He left Tonga because of his political opinion. He was in search of better economic stability and was fleeing economic hardship. He was also fleeing climate change and rising sea levels.
·He also left Tonga for freedom of speech and expression as they spoke out against the Tongan government for not providing job security for Tongan citizens and new graduates but instead made deals that they can do labour hire to bigger countries to work on their farms and no direct pathway to residency
·He experienced harm, including psychological, mental, economic and verbal harm and effects.
·He did not seek help out of fear and he did not know where to seek help against the government.
·If he returns to Tonga, he will suffer the same as before. The authorities of Tonga would not protect him as they do not have the resources.
·There is nowhere else to go and no support at all.
On 25 October 2023, the Department of Home Affairs wrote to the applicant and invited him under s 56 of the Act to provide further information about his claims. The applicant did not respond to the invitation. The delegate did not interview the applicant.
Pre-hearing correspondence
On 12 January 2024, the Tribunal wrote to the applicant and invited him under s 425 of the Act to appear before the Tribunal on 9 February 2024.
In response to the hearing invitation, the applicant contacted the Tribunal to advise that he could not attend the hearing in Melbourne because it was too far from where he lived. He said he has no car and does not know how to take the bus or train. He requested that the hearing be undertaken by telephone.
Following communication with the applicant via telephone and email, and after consideration of his circumstances and the available options, the Tribunal agreed to reschedule the hearing for 16 February 2024 at 12:00pm and allowed the applicant to appear before the Tribunal via teleconference.
Tribunal hearing
The applicant provided the following evidence about his identity and claims at the Tribunal hearing:
·His mother, two sisters and a younger brother are living in Tonga. They are well. His father is living in Australia. He had come to Australia with other seasonal workers. He has some other distant relatives in Australia, but he is not in communication with them.
·He completed High School in Tonga and worked a range of various odd jobs. In Australia he has been working at a [farm].
·He did not have any issues with the police in Tonga.
·He did not own his own home. He is the heir to his father’s home, but his father is still alive.
·He has a partner in Australia, and a daughter under the age of [age]. He said his partner has no permanent status. He does not believe his partner has applied for a protection visa as she still has a work visa.
·He decided to come to Australia in September 2019. His family has great financial needs so he came to Australia to help them out.
·He applied for a protection visa so he could have a chance to stay in Australia. His partner was the person who completed the application form.
·He has no fears or concerns in going back to Tonga. He only wanted to help his family.
·He was not politically active and did not express himself politically in Tonga. He does have concerns in terms of the government and job security. His main concern is that he has a means of living. Jobwise, what he fears is that he earned just enough for daily needs of his family. He did not have the means to build a home and no chance to achieve that with the kind of work he was doing in Tonga.
·He has fears about the climate. The island has been greatly impacted by tsunamis and volcanoes, however he does not fear he would be harmed by anyone in relation to such matters. He has no further knowledge of how the government runs and responds to natural disasters.
·In Tonga he would earn around 60 dollars a week. He would need to pay for transport and his family. Transport is 4 dollars per day, and there is hardly anything left after these costs.
·If he returns to Tonga, he is reluctant to go back. He fears the struggle to earn a living. His father does not have a “bush allotment” where he can grow food and farm for himself and family. There is no chance to farm to help his family. The only option is to struggle and find odd jobs again. That is what he fears
·He does not fear the government or anyone else would target him for harm.
·While working in Australia, he has been able to fund the build of a little part house.
·He does not have any concerns related to his father in terms of his return to Tonga.
·If he goes back to Tonga, there would be the problem of distance from his partner and child. He is also not sure if he can afford to remain in contact. It would be an issue for him to come back to Australia. His partner would be able to return back to Tonga, but he may not be able to return to Australia.
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 meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and citizenship
The applicant claims to be a citizen of Tonga. He has provided a copy of the biodata page from his Tongan passport issued in [2019]. He spoke through the assistance of a Tongan interpreter at the hearing. The Tribunal is satisfied the applicant is a citizen of Tonga. The Tribunal finds that Tonga is his receiving country.
There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act has no application in this review.
Claims related to Tonga
In his protection visa application, the applicant’s claims were general in scope, referring to no specific incidents, but indicating the applicant left Tonga because of the political, environmental and economic situation in the country. The claims referred to political freedoms in the country, and speaking out against the government for not providing job security for Tongans and new graduates, instead relying on deals between Tonga and larger countries to provide labour hire work on farms, with no pathway for residency. In the application, he indicated he had experienced harm in the past, including psychological, mental, economic and verbal harm and (other) effects, but referred to no specific instances or incidents of past harm.
While the applicant’s evidence at the hearing was in a general sense consistent with his reasons for leaving Tonga, in contrast to his written claims it was also his evidence that he did not fear harm in returning to Tonga. Other than the difficult economic situation he had experienced in the country, he also did not claim or suggest he had been harmed or feared harm on return to Tonga.
The applicant indicated his partner assisted him in completing his written application. The Tribunal considers that may account for the difference between his written and oral evidence. The Tribunal otherwise had no impression the applicant was intending to mislead the Tribunal in anyway. Indeed, it found the applicant to be honest and forthright in his evidence during the hearing.
Political situation and political opinion
At the hearing, the applicant confirmed he had never had any issues with the police in Tonga. In contrast to the written application, he indicated that he had not been politically active in Tonga and had not expressed himself politically. At the hearing, he said he had concerns in terms of the government and job security, in particular whether he had a means to make a living. However, he also confirmed that he did not fear the government or anyone else would target him for harm on return to Tonga.
On the basis of his oral evidence, the Tribunal finds that the applicant was never politically active. The Tribunal finds that the applicant has never been harmed in Tonga for reasons related to his political opinion or views.
The country advice indicates that the government is not known to monitor personal communications, and Tongans are generally able to discuss political issues without reprisal.[1]
[1] Freedom House, 'Freedom in the World 2022 - Tonga', 28 September 2022.
The Tribunal accepts the applicant has views and concerns about the government (and concerns about the economic and environmental situation) and those views and concerns are genuinely held, but it is satisfied he would not be politically active or outspoken if he returned to Tonga.
In view of everything before it, the Tribunal finds there is no real chance and no real risk of the applicant facing harm, serious harm or significant harm for these reasons if he returned to Tonga, now or in the reasonably foreseeable future.
Environmental situation
The applicant expressed concerns about the environmental situation in Tonga, referring to the impact of natural disasters such as volcanoes and tsunamis on the island. Although he did not refer to climate change and rising sea levels in his oral evidence, the Tribunal accepts they are interlinked.
Significantly, at the hearing the applicant did not claim to fear harm in connection with the environmental issues facing Tonga. He did not know about the government response to environmental issues or natural disasters.
The Tribunal accepts Tonga has been impacted by natural disasters, including the 2023 volcano and tsunami, as well as climate change. As discussed below, Tonga is a small economy vulnerable to external shocks – including environmental concerns – but the advice also suggests it has strong international connections and support, inclusive of foreign aid, and the country has been assisted in responding to environmental (and economic) concerns.[2]
[2] Department of Foreign Affairs and Trade, 'Tonga country brief', undated (2023).
In terms of the environmental challenges in the country, nothing before the Tribunal indicates that the government would not seek to protect the applicant or other Tongans from the threat of natural disasters. The Tribunal considers the only limit in responding to these challenges is the size of the country and its economy and its reliance on foreign assistance.
While the Tribunal accepts that Tonga will continue to face environmental challenges in the future, including from climate change, the Tribunal is not satisfied and does not accept the applicant would face a real chance or real risk of harm either directly from environmental concerns, or indirectly through government response to those concerns, whether he returned to the country now or in the reasonably foreseeable future.
Economic situation
The Tribunal has considered the applicant’s claims and concerns related to the economic situation in the country.
Consistent with the applicant’s claims, the advice before the Tribunal indicates the country’s reliance on seasonal work and remittances from other countries. That advice also suggests that as a small open economy, Tonga is vulnerable to external shocks such as the pandemic. DFAT states that despite Tonga’s economic difficulties, it remains one of the best performers in the Pacific in terms of progress against the Millennium Development Goals.[3]
[3] Department of Foreign Affairs and Trade, 'Tonga country brief', undated (2023).
The Tribunal accepts that the applicant and his family in Tonga have been impacted by the economic challenges facing the country. That rationally explains why both the applicant and his father travelled to Australia as seasonal workers.
In terms of his own experiences, the Tribunal accepts the applicant worked in a series of odd jobs. Due to the costs of transportation, the Tribunal accepts that he often only earned enough to provide for his family, and that he could not afford to build a home. It appears this was part of his motive to travel to Australia and find work.
The Tribunal accepts his family does not have a ‘bush allotment’ in Tonga and that this limits to some extent their ability to self-sustain through a farm. However, it was also his evidence that his family hold some property, which he would inherit in the future if his father passed, and that the applicant has held various jobs in the past. While not highly paid work and not sufficient to enable him to build his own home, it was his evidence that the income from these jobs enabled him to meet the needs for his family.
Beyond the ordinary economic pressures he faced, the Tribunal is satisfied the applicant did not experience harm, including psychological, mental, economic and verbal harm and effects as is contended in his written application.
If the applicant returned to Tonga, the Tribunal accepts he would return to live with his family and he would need to find work. The applicant did not indicate that his partner and child would return to Tonga with him, as she still holds a working visa. He also suggested his daughter may be adopted. Critically, there does not appear to be any obvious barrier to his wife and child returning to Tonga and living with him. The Tribunal accepts they would, at some point, also return to Tonga. The Tribunal accepts any separation from his partner and child would be difficult, but given there is no barrier to them returning, it does not accept that it would be permanent or would amount to harm, serious harm or significant harm in any relevant sense.
If the applicant returns to Tonga, the Tribunal considers he would again be able to find work and provide for himself and his family, albeit not at the level he is able to do so while working in Australia. If his wife returned, the Tribunal has no reason to consider she too could not continue to work in Tonga or otherwise assist in the household and the additional expenses from having other family members.
While the Tribunal accepts the economic position for the applicant would be challenging and in some respects a struggle as he contends, the Tribunal is satisfied he would be able to work and earn a livelihood, as he has in the past. The Tribunal does not consider he would face economic hardship or denied the capacity to subsist or earn a livelihood.
In terms of the economic pressures, the Tribunal is satisfied there is no real chance or risk of the applicant facing harm, discrimination or harassment, or a loss of liberty or freedom, that he would face pain or suffering or humiliation, in connection with the economic situation in the country, or that it would otherwise constitute or give rise to serious or significant harm.

As discussed with the applicant, the Tribunal is also satisfied there is no discriminatory conduct or intention on the part of the Tongan Government, authorities or society to deny him or his family work or a means to make a living. The Tribunal considers that the economic situation is a consequence of the small size of the country and its economy.[4]
[4] Department of Foreign Affairs and Trade, 'Tonga country brief', undated (2023).
It follows that the Tribunal finds that the economic situation he may face on return to Tonga would not constitute serious harm. The Tribunal also finds that it would not involve systematic and discriminatory conduct. The Tribunal further finds there is no intention on the part of the Tongan Government, authorities or society to harm the applicant, such that it would constitute cruel or inhuman treatment or punishment, or degrading treatment or punishment, or otherwise constitute significant harm as defined in the Act.
In view of everything before it, the Tribunal finds there is no real chance and no real risk of the applicant facing serious harm or significant harm if he returned to Tonga, for any of these reasons, now or in the reasonably foreseeable future.
For the reasons above, the Tribunal is not satisfied the applicant is a person in respect of who Australia has protection obligations as a refugee under s 36(2)(a). The Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The applicant has family in Australia, but has not contended that he 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. The Tribunal is not satisfied he meets the criteria in s 36(2)(b) or (c). It follows that 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.
Denny Hughes
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 1357

14 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Remedies