2321167 (Refugee)

2321167 (Refugee) [2024] AATA 4300 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2321167
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Denny Hughes
DATE:8 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 April 2024 at 5:02pm

CATCHWORDS
REFUGEE – protection visa – Tonga – resident in another country from young age – wife a citizen of that country – separation after wife’s affair with applicant’s relative – no current contact – formerly a permanent resident of wife’s country, status there now unclear – new marriage, and wife’s application for Australian citizenship in progress – no fear of serious or significant harm in country of birth except from general conditions – forthright, consistent and credible evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 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 12 October 2023. The delegate refused to grant the visa on the basis that he did not meet the criteria for grant of a protection visa.
The applicant appeared before the Tribunal on 23 February 2024 to give evidence and present arguments.
CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL
Visa application
The applicant’s claims for protection can be summarised from his visa application as follows:
·He travelled from Tonga to [Country] to see his family, including his parents and some of his siblings. He was there for a couple of years and he met his (now) ex-wife. They were married and had beautiful children.
·He later found out his ex-wife was having an affair with his [relative]. He did not expect his marriage to end in such a horrible situation, but he went crazy. His wife decided to leave him and take the children.
·He received spiritual and physical help from his parents and family. He had shared his emotional problems on social media because he was hopeless knowing he had lost his opportunity to stay in [Country]. His parents helped him out by seeking immigration advice to get him a visitor visa to travel to Australia to relax, reduce his anxiety and get over things.
·He moved to Australia right after his visa was granted. He came to stay with his family and explore the country and live his life without being overstressed and depressed. He was happy to make new friends and new memories. He met his (now) wife on social media. She moved to Australia from [Country] and they married.
·The applicant does not want to go back to Tonga as he has no close family to look after him and stay with him if he had to go back there. There is nothing left for him in Tonga.
·He does not think he will be harmed or mistreated if he returns to Tonga. He believes the authorities will protect him if he goes back. They are doing their jobs very well.
·Relocating in Tonga or [Country] would not work for him. He is happy here and his wife is taking good care of him. It is sad he cannot work and help his wife, but he is hopeful he can get validation to carry on living in this beautiful country with many memories and love with his beautiful family.
Hearing
At the hearing, the applicant provided the following information in terms of his claims for protection:
·He was married in Australia in 2019 to a [Country] citizen. His wife is in the process of applying for citizenship.
·His ex-wife lives in [Country]. He has [children] with her. They divorced in 2018. She is also a [Country] citizen.
·He was a permanent resident in [Country]. He may still have permanent residency, but he would need to apply for return residence status. He has not applied for citizenship. He does not want to go back to [Country].
·He has [brothers] that live in Australia. He has [sisters] and one brother living in Tonga. He is not always in contact with them. The network is not very good in Tonga. He speaks with them around every two or three months. He is not very close to them.
·He moved from Tonga to [Country] in [Year]. He spent most of his life away from Tonga. His parents were in [Country]. They applied for him and his brother to travel to [Country]. He did not apply for citizenship.
·He finished high school in [Country]. After which he worked in several [jobs], including as [an occupation]. He does not work in Australia as he has no work rights. His wife works two jobs to support them.
·He had previously travelled to Australia for holidays on three or four occasions to visit family. He had not planned to come to Australia again. His brother had provided money for him to visit Australia because of his issues in [Country].
The applicant provided the following evidence and details about his life in [Country] before coming to Australia:
·In 2017, he had been having issues with his ex-wife. He found out that she had been having an affair with his [relative]. He had heard rumours from his family, but he had believed his wife’s stories. He later found out his family members were correct.
·In the last month before leaving [Country], he was confused and not eating. He had not been talking to other people and tried to deal with his issues on his own, but it had become a bigger problem.
·He said on his final night in [Country], his ex-wife would not talk to him. He thought she might want to settle the issue and told him everything about the affair was true.
·He had called his [relative] many times to ask if the story was true. He also lied. His [relative] would come to their home two or three times a week. He would confront him and tell him that everyone was wrong. He was much bigger and the applicant had no energy.
·His [relative] never hurt him, but he used his words. He was worried that his [relative] might hurt him when he gets drunk.
·Everyone in his family and church community were shocked about the affair. He was head of the [church group] and so was his father. His family and community supported him.
·They are now divorced and he does not communicate with her. His children had visited him in Australia in 2022. His current wife contacted his ex-wife to make these arrangements. There are no longer issues between them.
·The issues with his second cousin are also not ongoing. In terms of his second cousin, if he went back to [Country], he is not sure how they are going to see each other. He has not heard from him and there have been no threats.
·The sad feelings and stress about what happened before are why he cannot return to [Country]. There is nothing he fears in returning to [Country]. Although he is worried about how people will look at him and his children.
·There was nothing else he feared in returning to [Country].
The applicant provided the following evidence and details about his life in Tonga and what he feared on return to the country:
·He had not lived in Tonga for a long time. He last travelled to Tonga in 2005.
·Tonga is different from before. Drugs have changed everything. They are able to run the drugs on the street very easily. These things are policed in Australia, but over there it is normal.
·He said it would be hard to get a job, and most of his family is in [Country].
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 Tribunal found the applicant to be a credible and forthright person. He was clear and consistent about his travels and status between Tonga and [Country], as well as his past travels to Australia.
The applicant has provided a copy of his Tongan passport issued in February 2023. He has consistently claimed to be a citizen of Tonga. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Tonga.
The applicant also indicated that he spent a considerable period of his life living and working in [Country]. He said that he did not obtain [Country] citizenship, but believed he had permanent residency status in the past.
The Tribunal sought to clarify whether the applicant currently has residence or status in [Country]. The applicant said that he did not know, but he believed he would need to apply for a visa to return to live in [Country].
Several years have passed since the applicant left [Country] and the Tribunal accepts the applicant does not understand what his status is. While his status in [Country] is uncertain, the Tribunal is satisfied that the applicant is not a citizen of [Country].
The Tribunal is satisfied the applicant has citizenship of one country (Tonga) and that this is his receiving country. In the assessment below, the Tribunal is satisfied that the applicant is not owed protection in terms of Tonga.
In these circumstances, it is not necessary to consider s 36(3) or (4) of the Act. However, for clarity, the Tribunal is also satisfied the applicant is not owed protection in terms of [Country].
Tonga
The applicant lived in Tonga until his last semesters of high school in the mid-[Decade]. He had travelled to Australia during his schooling as part of [an activity group]. He later travelled to live in [Country] with his parents and some of his siblings. He has [sisters] and a brother in Tonga. He is in contact with them every few months, but they are not particularly close. The applicant has not lived in Tonga for nearly [Number] years, and he last visited Tonga in 2005.
In his written application, the applicant indicated no fears in returning to Tonga. He states that he left Tonga to be with his family in [Country]. He states that he does not want to go back to Tonga as he has no close family that would look after him and stay with him. He said there was nothing left for him back home. He wants to remain in Australia with his wife.
In his written application, he indicated he did not think he would be harmed or mistreated if he returned to Tonga, and that he considered the authorities would protect him and that they are doing a good job.
The applicant’s evidence at the hearing related primarily to his experiences in [Country] and his reasons for leaving the country and travelling to Australia. Given the length of time he was in [Country], this is understandable.
When asked what he feared if he had to returned to Tonga, the applicant said everything in Tonga is different from before. He said drugs have changed everything. Young people are able to sell drugs on the street very easily. He said it was not like in Australia with the police. Over there it is normal.
The Tribunal acknowledged that the country may have changed and that youth crime may be higher, but noted that the criteria for grant of a protection visa related to whether he would face serious harm or significant harm on return to Tonga. The Tribunal asked him whether he feared harm on return to Tonga. The applicant said it would be hard to get a job, and most of his family is in [Country].
The advice before the Tribunal from DFAT indicates that Tonga is a small, open economy that is reliant on remittances from Tongans working overseas, tourism, agriculture and foreign aid. Despite its economic challenges, DFAT states that Tonga remains one of the best performers in the Pacific.[1]
[1] DFAT, Tonga Country Brief, March 2024
Consistent with the applicant’s evidence, there is some indication in the country advice about the growth of drugs in Tonga. The country advice indicates a methamphetamine epidemic in the country, with consumption believed to have reached all levels of Tongan society. There are also indications that Tonga is seeking to address these issues. The police department's budget was increased almost tenfold to address the methamphetamine epidemic. Tonga has also implemented a programme to support young people who want to start their own businesses to support their families rather than turn to crime. Community structures and non-state actors are also strong in Tonga due to its homogenous and religious make-up.[2]
[2] Global Organized Crime Index, Tonga, March 2024.
The Tribunal accepts that Tonga is a small economy and reliant on overseas remittances. The Tribunal also accepts that Tonga has ongoing issues with drugs, although the advice also suggests that it is taking steps to address those concerns.
However, as indicated to the applicant, the information before the Tribunal does not indicate that he would be at risk or a chance of harm for any of these reasons. There is nothing to suggest he would have any proximity to drugs or drug related issues. And while crime and drug use may have increased, the Tribunal is not satisfied the applicant is at any chance or risk of harm in connection with these issues or criminality more generally.
The Tribunal accepts that he may face challenges in finding work, and he may not have the same level of family support that he does in Australia and [Country], however the Tribunal is not satisfied that he would be unable to find work or accommodation or access services, or that he would be denied the ability to make a living for any reason. He has several years work experience, including in [occupation]. And he has some family in Tonga, who he remains in contact with and visited in 2005. On the evidence before it, the Tribunal is satisfied the applicant could resettle in Tonga, find work and accommodation, and access any services and support he requires.
As indicated to the applicant at the hearing, the question before the Tribunal is whether he would face a real chance or risk of serious or significant harm if he returned to Tonga. It was the Tribunal’s impression that he understood he may not meet the protection criteria as it related to his circumstances on return to Tonga.
The Tribunal is sympathetic to the applicant’s circumstances. He has lived outside of Tonga for nearly [Number] years. In many respects he has moved on from his past life in the country. However he remains a Tongan citizen, indeed his Tongan passport was reconfirmed in 2023 when his passport was re-issued. As he did not obtain [Country] citizenship, he is to be assessed against the country of his citizenship.
In all the circumstances, the Tribunal is satisfied there is no real chance of the applicant facing harm or serious harm, and no real risk of the applicant facing harm or significant harm, if he returned to Tonga now or in the reasonably foreseeable future.
[Country]
The applicant travelled to [Country] to live with his parents in the mid-[decade]. He completed high school in [Country], and worked in a range of [jobs], including as [an occupation]. He was heavily active in his church, and eventually married a [Country] citizen and had children.
The Tribunal found the applicant’s evidence about his ex-wife’s affair to be credible, and it accepts that his ex-wife was in an extramarital relationship with his [relative]. It also accepts his family and community told him of the affair, but his wife denied it. The Tribunal accepts that his [relative] would at times visit their house and deny the allegations of any affair. While he was never violent, the Tribunal accepts the applicant was intimidated by his [relative] and that he knew him to be violent.
The applicant also provided a credible account of the breakdown of his relationship, his wife’s admissions and his decision to leave for Australia, which was supported by his family. The applicant accepts the continuing emotional impact of these events, his concerns about how he (and his children) will be looked at if he returns to the country, and that he does not want to return to [Country].
While the Tribunal accepts the applicant continues to feel the emotional impact of the breakdown of his relationship with his first wife, the Tribunal is satisfied the relationship with his ex-wife has ended and that they divorced in 2018. There is no suggestion of any threat from his ex-wife and the Tribunal accepts his evidence that while they do not communicate with each other, there are no longer any issues between them.

The Tribunal accepts the applicant’s [relative] was threatening and intimidating in the past, however the Tribunal is also satisfied there is no ongoing threat from his [relative]. The catalyst for their past tensions was the affair, which ended several years ago. The Tribunal accepts the applicant is not certain how any future interaction between them would be, but there has been no suggestion of any threat over the years, and the Tribunal finds there is no continuing threat from his cousin.
The Tribunal accepts that any potential return to [Country] would be difficult for the applicant, but in terms of any emotional impact (including his fears about the perception of others) the Tribunal is satisfied he would be able to obtain support from his family, church community and any available mental health support. The Tribunal does not consider any emotional impact on return to [Country] would involve serious or significant harm, or relevant harm in any sense.
To remove any uncertainty, the Tribunal is also satisfied there is no real chance of the applicant facing harm or serious harm, and no real risk of the applicant facing significant harm, if he returned to [Country] now or in the reasonably foreseeable future.
The Tribunal again notes that the applicant’s wife is a [Country] citizen and is seeking citizenship in Australia. It is not clear to the Tribunal whether there are other visa pathways open to the applicant to remain in Australia, whether processed onshore or offshore, but as noted at the hearing, these are matters the applicant may wish to seek further advice about.
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 also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The applicant is married to a [Country] citizen and permanent resident in Australia. However, 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.
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 4300

8 April 2024

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Immigration

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Statutory Interpretation

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Statutory Construction

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