2400638 (Refugee)

2400638 (Refugee) [2024] AATA 2389 (21 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2400638
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:James Lambie
DATE:21 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 March 2024 at 1:20pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – non-appearance before the Tribunal – insufficient information before the Tribunal – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA [1998] FCA 305
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 8 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 Vanuatu, applied for the visa on 8 January 2024. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
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 refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [age] years old and a national of Vanuatu.
The applicant entered Australia [in] October 2022 as the holder of a Temporary Pacific-Australia Labour Mobility (subclass GD 403) visa, which ceased [in] July 2023
On 16 October 2023, the applicant lodged an application for a Class XA, Subclass 866 (Protection) visa. He was subsequently granted a Class WC, Subclass 030 (Bridging C) visa in association with the lodgement of his protection visa application.
On 8 January 2024, the applicant was notified that the Department of Home Affairs had refused to grant his application for a protection visa in a decision made on the same date.
On 16 January 2024, the applicant applied for merits review of the Department’s decision of 8 January 2024 to refuse to grant his application for a protection visa.
Claims
The applicant’s claims are summarised in the delegate’s decision and the applicant’s protection visa application.
The applicant claims are:
·His father is a soldier in Vanuatu. The applicant felt his family did not have a good quality of life and opposed his father and his father’s supervisor ‘by any means’;
·He will not be protected by the authorities because he is a member of the Sudra caste, which is ignored and unfairly treated by the authorities;
·He feels the same harm he had previously experienced in Vanuatu if he returns; and
·He ceased working for [Employer 1] because his employment contract was unfair. His former employer has been intimidating his family in Vanuatu because the employer lost enormous benefits. The employer has threatened the applicant he would be killed if he returned to Vanuatu.
Evidence
The Tribunal has a range of material before it, including, relevantly:
·     The applicant’s protection visa application;
·     The applicant’s identity documents being a copy of his passport issued by the Republic of Vanuatu provided to the Department;
·     The protection visa decision record dated 8 January 2024 (the delegate’s decision record);
·     The application for review form dated 16 January 2024;
·     Department file [number] concerning his protection visa application; and
·     Country information on Vanuatu, referred to below.
Country of reference / receiving country:
The applicant claims to be a citizen of Vanuatu. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Vanuatu is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
On 19 February 2024, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 21 March 2024. The letter advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response.
On 29 February 2024, the Tribunal wrote to the applicant inviting him to participate in a test call on 15 March 2024 to ensure that the hearing to be conducted on 21 March 2024 using the Microsoft Teams application ran smoothly. That correspondence had not been returned from the applicant and the Tribunal received no response.
On 14 March 2024, the Tribunal sent a hearing reminder to the applicant by SMS to the telephone number provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response. On 15 March 2024, seeking to conduct the test call referred to above, Tribunal staff called the telephone number provided to the Tribunal in the application for review. They were advised that the number belonged to the applicant’s former employer and that he is no longer in contact with the applicant.
The applicant did not appear before the Tribunal on the day and at the time and place she was scheduled to appear. The applicant failed to provide any reasonable explanation as to why he could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
Accordingly, this matter has been determined on the evidence available to the Tribunal,
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal also notes the decision of the Federal Court in BZADA v MIC andRRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of
satisfaction to grant the applicant a visa given his failure to attend the hearing and
the Tribunal’s inability to test and examine his claims in evidence. The relevant
statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach
a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the
criteria for the grant of a protection visa depends not on a particular matter being
established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has carefully considered the applicant’s claims as detailed in his application for a protection visa, both individually and cumulatively. The applicant did not take the opportunity to attend the hearing and did not provide additional information in support of his claims, even after having been advised of the delegate’s decision. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
The applicant’s written claims were very brief, general and confusing. They relate to the applicant fearing his father and/or his father’s supervisor and/or his former employer, that they or one of them had threatened him with death, and that the authorities would not assist him because he belongs to the lowest caste in Vanuatu society. There is some indication in the text of the protection visa application that it was prepared by reference to another application by an applicant from Nepal.
Had the applicant attended the hearing, the Tribunal would have asked him for further detail about his claims, which would have afforded him an opportunity to address its internal inconsistency and lack of specificity and to respond to the decision of the delegate. He would also have been able to provide further information and evidence.
On the material presented, the Tribunal has insufficient evidence as to:
·whether his father was a soldier in the army of Vanuatu, as he claimed, and in what way he failed to take care of the family;
·the identity and rank of the supervisor, and in what way the applicant opposed both his father and the supervisor;
·whether the applicant entered Australia to study, as he claimed, and how this is to be reconciled with his entering Australia as the holder of a Temporary Pacific-Australia Labour Mobility (subclass GD 403) visa;
·whether he maintains his claims to be of the Sudra caste, and of the existence of the caste system in Vanuatu;
·details and evidence of his contract with [Employer 1], the wages he was paid, and the manner in which the contract, or its purported performance, was unfair to him;
·details and evidence of the threats or allegations he claims his former employer communicated to his family;
·details and evidence as to why he says his family would act on these threats or allegations, the nature of the harm he claims to fear, and why the authorities would be unable to protect him; and
·why, if he fears his former employer to the extent he claims, he provided his former employer’s telephone number as his contact number for this application.
I have also noted that the applicant, despite having arrived in Australia [in] October 2022, did not apply for a protection visa until 16 October 2023. Had he attended the hearing, I would have asked him why he had not lodged his protection visa application for almost a year after arriving in Australia and did not respond to the Department’s request to provide an explanation for the delay.
A delay in seeking protection can support an adverse credibility finding as well as finding that the applicants fear is not well-founded[1]. In Subramaniam v MIMA[2], the court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. While a delay in making protection visa application by itself is not conclusive, it reasonably remains an indication in the applicant’s case that claimed fear of harm in this regard is not genuine. Had the applicant attended the hearing, the Tribunal would have asked whether he had a reasonable explanation for the delay in making the protection visa application.
[1] See Zhang v RRT and Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
[2] [1998] FCA 305.
The Tribunal has had regard to the following country information on Vanuatu relevant to the applicant’s claims:
No information was found specifically relating to state protection for citizens of Vanuatu in terms of policing and judiciary within the context of personal disputes and money lenders. General information was found relating to policing and the judiciary in Vanuatu. According to the United States (US) Department of State country report on human rights practises in Vanuatu for 2020, the national police maintain internal security and generally complied with court decisions on human rights violations.[3]
[3] Vanuatu 20220316150648 (sharepoint.com)
…
The Policing and Justice Support Program (Vanuatu) (PJSP) paper on ‘Conflict Management and Access to Justice in Rural Vanuatu’ provided information on the role of Chiefs as community leaders traditionally endowed with authority in managing conflict. Whilst the paper’s findings are specifically in relation to the Malekula island (second largest island in Vanuatu’s island chain group), they still reflect issues across the nation. The findings of the report highlight key issues around access to the judiciary system and the influence of chiefs on outcomes:
Summary of Findings and Key Issues
·There are significant issues around physical access – the highest use of court services were in central and north Malekula (72% of people who had used an island court justice and 77% who had used a magistrate were located in Central, Northwest or Northeast Malekula).
·Women and men rated magistrates as more fair than other individuals who are involved in managing conflict (74% of women said magistrates were fair compared to 41% who said chiefs were fair, and 63% of men said magistrates were fair compared to 49% who said chiefs were fair).
·Chiefs and community leaders who are involved in managing conflict are used more frequently than state justice options. Chiefs often find their work difficult.
·Most chiefs (95%) who were interviewed felt there were some things that should only be dealt with by state justice: mainly criminal matters, rape, and incest (and 26% said land should only be dealt with by the state).
·There is a relatively low level of knowledge of the laws of Vanuatu.
·The main concerns about court services and state justice included: issues around punishment and reconciliation, cost, potential damage to relationships, that it can take too much time, and issues around ‘communication’.
·Courts have had complex engagement in land issues and chiefly title issues, (which are often related to land).
·There are a number of issues that are specific to island court and island court justices (primarily jurisdictional issues, use of Kastom versus law, and training).
·Women are significantly disempowered compared with men and chiefs, and this impacts their ability to access the courts and state justice effectively (28% of women had no idea what justice meant, 44% of women had no knowledge of human rights and 60% of women had no knowledge of the law).[4]
[4] Ibid
Because the applicant did not appear and provide evidence as the nature and reason for the harm he claims to hear and if or when he had sought assistance from the authorities, the Tribunal is unable to be satisfied that there is a real chance that on return to Vanuatu, either now, or in the reasonably foreseeable future, that the applicant would suffer serious or significant harm.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution, if he returns to Vanuatu now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Vanuatu. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

The Tribunal has considered the applicant’s claims in terms of complementary protection.
Having regard to the findings of fact above, the Tribunal cannot accept that he left Vanuatu because he feared for his physical safety or that he cannot return to Vanuatu out of fear for his physical safety.
In view of these findings, I am not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Vanuatu now or in the reasonably foreseeable future. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, I am not satisfied that the applicant will be arbitrarily deprived of her life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment, or he will be subjected to degrading treatment or punishment if he returns to Vanuatu now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the circumstances above, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s. 5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu that there is a real risk that he will suffer significant harm.
Overall conclusion
For the reasons 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 of 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.
James Lambie
Senior 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 2389

21 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice