2400246 (Refugee)

2400246 (Refugee) [2024] AATA 2420 (14 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2400246
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Catherine Carney-Orsborn
DATE:14 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 May 2024 at 11:03am
CATCHWORDS
REFUGEE – protection visa – East Timor – leader of martial arts group fearing harm from members after trying to leave group – threats to kill applicant, family and friends – application completed with help of friend – not leader but short-term member, and no threats – working to support family – return visit with no harm – country information – state protection available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 91R(1)(a)
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 January 2024 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 East Timor, applied for the visa on 4 November 2023. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person whom Australia has protection obligations.
The applicant appeared before the Tribunal on 1 May 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) (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.
Nationality
The applicant claims to be a citizen of Timor-Leste and has provided a copy of her passport. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Timor-Leste and that she is outside of her country of nationality. As such, the Tribunal finds that Timor-Leste is the applicant’s receiving country for the purpose of assessing her claims for protection.
There is no evidence before the Tribunal to suggest that the applicant holds any other citizenship or has any third country visas.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed Australia’s protection under either the refugee criterion or the complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The Department file contains the application forms, a copy of the applicant’s passport, and a copy of the delegate’s decision record.
The Tribunal file contains a copy of the application for review and a copy of the delegate’s decision record both provided by the applicant.
The applicant claims in her application form that she will be threatened and harmed, and her life will be endangered if she is returned to her home country. She claims she was involved in a gang of martial arts in Timor Leste. She claims she was the main leader and when she was trying to get out of the group the rest of the gang was threatening to kill her, her family and all her friends.
The following information is provided in the application forms. The applicant was born on [Date] in Timor-Leste, she speaks, and reads and writes Indonesian and English. She speaks and reads Tetum. The applicant stated she was single. The applicant stated that she had no previous travel history.
The applicant entered Australia on a work visa. She had been working in a regional area [doing a job task].
The hearing
On 1 May 2024 the applicant attended a hearing at the Tribunal. The Tribunal had the assistance of a Tetum interpreter. The Tribunal went through the procedure and explained that it was considering the applicant’s claims in relation to the refugee criteria and complementary protection. The applicant indicated she understood.
The applicant gave the following oral evidence. The Tribunal asked the applicant if the information contained in the application for protection was true and correct. The applicant responded that it was. The Tribunal asked if the applicant needed full interpretation as in her application, she lists she can read, write, and speak English. The applicant stated that she felt she needed full interpretation.
She stated she first came to Australia in May 2022. She was on a [Specified] work visa. She returned to Timor Leste in December 2022 and then came back to Australia in January 2023. She has been working in a [workplace] in Perth. After her contract finished, she has been working in Darwin. She is currently not working as she is having treatment to her [body part].
The Tribunal asked what health concerns she had. She responded that she has had an operation to her [body part]. She stated that the operation has gone well, and the doctors are pleased with her recovery.
The applicant provided some background to the Tribunal. She has her parents and [siblings] in Timor Leste. She stated her parents are farmers. She stated that they have always worked on the land. She stated words to the effect that they are living peacefully. The applicant stated that she previously worked in Timor Leste for [an employer].
The Tribunal asked why she returned to Timor Leste in 2022. She stated words to the effect that she went for two weeks. She claims there was a problem and she returned to deal with the problem. The Tribunal asked if she returned for Christmas. She responded she did.
The Tribunal asked what the problem was that she was referring to. She stated words to the effect that there were problems between martial arts groups. She said there was a problem between the applicant and another girl. She claims that the other girl brought a large group to threaten her, and she felt uncomfortable.
The Tribunal asked when this happened. She responded with words to the effect that it was when she was in Australia in 2022. The stated the girl was part of a martial arts group. The Tribunal asked where this girl was. The applicant responded that she was in Timor however she rang the applicant in Australia and said nasty things and the applicant claims she returned to Timor Leste in December 2022 to seek clarification.
She claims that the person threatening her bought a group of people to insult her at the airport however the person she was with saved her and they went away. She claims that the girl did not come to the airport when she was returning to Australia.
The Tribunal asked for further clarification of the applicant’s concerns. The applicant responded with words to the effect that it was all connected to martial arts groups who are harbouring resentment against each other.
She claims she did not feel safe and after two weeks returned to Australia.
The Tribunal asked for further clarification of what happened when she was in Timor Leste.
She responded with words to the effect that she went back and forth between Dilli and her hometown. She claims she tried to solve the problem.
She claims she then returned to Australia and made a decision not to get involved. She stated she made a decision to stay in Australia. She claims she asked her family and they told her she could stay in Australia and they are fine.
She stated words to the effect that when she was young, she was looked after by her grandparents, but they have now passed away. She claims she was working and looking after her [siblings].
The Tribunal asked what her role in the gang was. She responded with words to the effect that she attended training but did not feel comfortable and so stopped. She claims there were people in the gang who were not happy with her. She claims she was only in the gang for two to three months. She claims she made a decision to not be part of the group as she did not want it to impact on her family. She stated words to the effect that in Timor there is a problem of hatred between martial arts groups.
The Tribunal then discussed independent information set out the Department’s decision record that there is a police force in Timor Leste and what she is describing is criminal activity and the police would move to protect her.
She agreed there was a police force which would act however stated that the perpetrators may have disappeared by the time the police get there.
The Tribunal asked for more information. She stated that she was not sure when she joined the group. She stated words to the effect that it could have been between 2021 to 2022.
The Tribunal asked the applicant to clarify the strong motives for revenge.
She said this group want her to join another group however she stated that she had no intention of joining another group and just wants to sustain her family and work.
She said words to the effect that some of her friends were not satisfied and although they did not hurt her, they harboured resentment and when she returned to Australia, she made a decision to stay here.
She stated words to the effect that since she has been in Australia, she feels safe, and people focus on their work. She said words to the effect that in Timor Leste people talk about each other and it is hard to find work, so she decided to stay in Australia.
She responded that going back would not be advantageous to her for her future. She claims she wants to focus on her work in Australia. She stated that she is the oldest daughter, and she has responsibilities to her family.
She stated she is currently living with the family of her grandmother.
The Tribunal put to the applicant there were differences in her written application to her oral evidence. The applicant asked the Tribunal to read out her written claims.
She responded that her English is not good, and she asked a friend to help her with the application. She stated that she was not a leader of the martial arts group, and they did not threaten to kill her family.
The Tribunal discussed with the applicant that it was concerned she was willing to mislead the Department as in her application she stated she could read English and she had earlier told the Tribunal that the information in her original application for protection was true and correct.
She responded that she did not understand.
The applicant then stated that she would like to correct her information. She said there was no harm however she was afraid there could be harm.
The Tribunal discussed that she only applied for a protection application once her other visa expired, and it could look like she made the application to stay in Australia and not because of any fear she faces in Timor Leste.
The applicant then referred to her family needing her support and her father suffering mental illness.
She stated she preferred Australia and if she returns to Timor Leste there may be resentment to her.
FINDINGS AND REASONS
The Tribunal found the applicant’s evidence at hearing to be confused and unpersuasive.
The applicant was given multiple opportunities to express her fears and expand upon them at the Tribunal and to the Department. She had previously been asked to provide any further information both to the Tribunal and the Department. She had not provided any further information.
The Tribunal only has the applicant’s own assertions that she fears harm if she is returned to Timor-Leste.
Her oral evidence was repetitive and inconsistent. She repeated her story about a martial arts group and being in danger as she was in the group for a short period of time. At hearing she stated words to the effect that there was no harm however there could be harm
She claimed she was threatened on the phone when she was in Australia however when she returned to Timor-Leste for two weeks she was not harmed. She claimed that some people came to the airport when she arrived however, they did not cause her any harm as she had another person with her.
The applicant was able to return to Timor Leste visit both the capital and her family and suffered no harm.
In her written statement she referred to herself being a leader of the group and persons from the martial arts groups threatening to kill her, her family and friends.
When this was put to her, she changed the facts and stated that she did not know what was in the application.
It was put to her that in her application she stated she read, writes and speaks English. At the beginning of the hearing, she stated that everything in the application was true and correct.
She at first stated that she did not understand English, she then stated that her friend wrote it out for her.
When it was put to her that the Tribunal was concerned, she was willing to mislead the authorities in Australia. She responded that she wanted to correct the written statement.
She did not expand in any cohesive manner as to why there were those important differences.
At hearing the Tribunal discussed country information as set out in the Department’s decision record which she provided to the Tribunal. she agreed that there is state protection. She agreed that the police offer protection however she said the persons she was afraid of may disappear.
Several times she stated she decided to stay in Australia, she stated she wanted to work and she sent money to her family.
When it was put to her that she claimed her family would be involved and threatened. She stated that they are safe and there are no threats against them. She stated that she was concerned that there are resentments, and she could be harmed.
The applicant spoke of the poor economic situation in Timor-Leste and the lack of economic opportunity.
the applicant’s evidence is that her family own land in the country and are able to provide a living and schooling to themselves and their children. The applicant has language skills and has previously been employed in Timor-Leste with the [employer]. The Tribunal can sympathise with the applicant wanting to continue to work in Australia and wanting to take advantage of the economic opportunities however is not satisfied that she meets the criteria for a protection visa.
The Tribunal accepts that the applicant could face resentments from persons in Timor-Leste as she joined a club for a few months and decided to leave however the Tribunal does not accept that any harm she suffers will be serious or linked to a convention reason or complementary protection. The Tribunal does not accept that she was a leader of any club or there were threats to kill her or her family. Her claims were general in their nature and spoke of resentments in Timor-Leste. Her oral claims and evidence differed significantly to her written claims.
At the hearing the applicant claimed her father suffered from mental illness. No further information was provided and no medical evidence. There is nothing before the Tribunal which would indicate how this would impact on the applicant.
The Tribunal may accept that someone who is involved in gang activity could potentially fall within the terms of the Convention, including as a member of a particular social group, but finds that this particular applicant does not have a well-founded fear of persecution for a Convention-related reason. The Tribunal finds that the Convention grounds are not the essential and significant reason or reasons for the persecution she claims to fear (s.91R(1)(a)).
The applicant claims that she is frightened and does not feel safe due to resentments. On the evidence before it the Tribunal is satisfied that any violence that has been or could be perpetrated against the applicant or her family by gangs harbouring resentment is of a nature that according to Independent Country Information is illegal in Timor-Leste. However, the Tribunal is not satisfied that the applicant or her family have suffered such violence or will be subject to violence if she returns to Timor-Leste. The applicant’s evidence in relation to the harm she suffered was vague, inconsistent and lacked detail. The Tribunal does not accept that the applicant will suffer serious harm if she returns to Timor-Leste now or in the reasonably foreseeable future.
The Tribunal finds that the applicant does not fear persecution for a Convention reason.
After considering the applicant's claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to Timor-Leste now or in the reasonably foreseeable future, there is no real chance that she will be persecuted for the reason of her political opinion, membership of a particular social group or for any other Convention reason.
The Tribunal must also consider whether the applicant meets the criteria for complementary protection.

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

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2420

14 May 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction