2402656 (Refugee)

2402656 (Refugee) [2024] AATA 1362 (12 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402656
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Mia Bailey
DATE:12 April 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 April 2024 at 10:56am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – natural disasters – house destroyed by cyclone – land dispute – family subject to eviction order – vague claims and evidence – country information – harm from natural disasters not systematic and discriminatory conduct amounting to persecution – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34
SZSPE v MIBP [2013] FCCA 1989; [2014] FCA 267
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 (delegate) on 24 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 October 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 8 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama 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. Relevant provisions of the Act are extracted in the attachment to this decision.
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 engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act.
The mere fact that a person claims to fear 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 is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[1]
For the following reasons, I have concluded that the decision under review should be affirmed.
Background and receiving country
The applicant, a [Age]-year-old male, last arrived in Australia [in] November 2019 on a Temporary Work (International Relations) (subclass 403) visa under the Pacific Australia Labour Mobility scheme.
The applicant provided a copy of the biodata page of his Vanuatu passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Vanuatu and there is no information before me to the contrary. I find that the applicant is a citizen of Vanuatu, and that Vanuatu is his receiving country for the purposes of assessing his claims for protection.
Evidence before the delegate
According to the applicant’s protection visa application, he was born in Santo and resided in [Town]; has never married; did not undertake any educational studies in Vanuatu and was never employed in Vanuatu. No details are provided of any family members.
Regarding his protection claims, he states that he fears the frequent occurrence of natural disasters, including hurricanes, cyclones, earthquakes, and volcanic eruptions. The unpredictability and severity of these events has caused him anxiety. He finds it challenging to contemplate returning to Vanuatu where his safety and well-being are at risk due to natural disasters. His previous place of residence was destroyed. If he were to return, he would need to purchase land in the capital city and build a new house which he can’t afford. The government is not providing substantial assistance to those who lose their homes due to natural disasters.
In support of his claims, the applicant submitted screenshots of the headline and photo from 2 articles regarding Cyclone Lola and one article regarding Cyclone Kevin, which impacted Vanuatu in 2023.
The applicant was not invited to attend an interview with the delegate. The delegate found the applicant’s claims to not be for any of the reasons in s 5J(1)(a) and to not amount to any of the types of significant harm in s 36(2A) of the Act.
Evidence before the Tribunal
At his Tribunal hearing, the applicant stated that he did not complete the protection visa application himself. He sent his documents to a third party, whom he paid $700, and they completed the application. He only received a copy of the application after it was lodged.
Regarding his family, his father passed away in 2019 due to natural causes. His father owned land on Malo Island, near Santo, on which he grew coconuts. His mother and [brother] live on Malo Island in the village where he grew up. His [sister] is married and lives on Santo with her husband. He has never married and has no children.
He attended high school on Santo but had to leave in 2016 because his father was unwell, and his family could not afford the school fees. He first came to Australia on the seasonal worker program in 2017 to earn money to help pay for his siblings’ education. Prior to his last arrival in November 2019, he has been to Australia under the seasonal worker program on 2 other occasions.
Asked why he feels unable to return to Vanuatu, he stated it is because of cyclones and a land dispute regarding the land owned by his father on Malo Island. Asked for further details about the land dispute, he stated that 4 people are claiming the land and ‘taking him to court’. Asked when this started, he stated that he doesn’t exactly know but it had started at the time he was in Vanuatu. Asked when the court proceedings began, he referred to 2012, 2016 and last year (2023). He was unable to provide further details regarding the court proceedings.
Asked about the persons claiming the land, he named 2 parties. He doesn’t know why they are claiming the land, which was originally owned by his grandfather. He referred to a post on social media dated 27 March 2024 from one of the persons he had named as claiming the land which refers to a court order that people from his village must be ‘removed’. When asked for further details about the court order, he stated that he has no details because he is not in the village. Asked what his mother and brother have told him, he said they have mentioned it to him. He confirmed that his mother and brother are still residing in the family home in his village and are waiting to see when they will need to move. They have not taken any steps to challenge the court order. He is not aware of whether his family will receive any compensation for having to leave their land. He is in the process of purchasing land on Santo for his family to move to.
I discussed with the applicant that it was unclear how the land dispute would affect his ability to return to Vanuatu and explained that it was his responsibility to provide sufficient evidence to support his protection claims. He responded that if his family has to leave their land, he will have no home to return to. I raised with the applicant that he had said he was purchasing land on Santo for his family to move to, which he agreed was correct. He stated that it would be financially difficult for his family if they have to leave Malo Island and he is the only one supporting the family.
Asked whether there was anything else he wished to tell me about why he feels unable to return to Vanuatu, he referred to cyclones and specifically to Cyclone Harold which caused damage to his family home.
I discussed with the applicant the concepts of persecution and serious harm for the purposes of the refugee criterion and significant harm for the purposes of the complementary protection criterion. I explained that, based on his evidence, I may not accept that his claims satisfy the requirements to be a refugee or engage complementary protection. He responded that he understands but applying for a protection visa was the only option that he was aware of that would allow him to stay in Australia.
Assessment and findings
Given the applicant’s evidence to the Tribunal that he did not prepare the protection visa application, I have given weight to his oral evidence to the Tribunal and have not drawn any adverse inferences based on inconsistencies with his protection visa application.
Land dispute
While the applicant’s evidence to the Tribunal was vague and lacking in detail, I accept that his family land on Malo Island is subject to a land dispute and that a removal or eviction order has been issued which will require his family to leave their home. Country information indicates that land disputes form an integral part of Vanuatu history; disputes occur between members of a custom owning group, between different land-owning groups and with outside parties such as the government or developers. Disputes may be taken to multiple forums and can last decades.[2]
[2] Olul B, Land disputation in Vanuatu, University of the South Pacific School of Law, available on the Pacific Islands Legal Information Institute website; The Policing and Justice Support Program, Conflict Management and Access to Justice in Rural Vanuatu, 2016
Based on the applicant’s evidence, I find the land dispute to not be for any of the reasons in s 5J(1)(a) of the Act. I therefore find that the applicant does not have a well-founded fear of persecution for this reason.
I have therefore considered the complementary protection criterion in s 36(2)(aa), which requires there to be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Vanuatu, there is a real risk that he will suffer significant harm. Significant harm is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The applicant claims that leaving their land on Malo Island and establishing a new home will cause him and his family financial difficulty. I accept that moving to another area would place financial burdens on the applicant and his family. However, I find this to not amount to any of the types of significant harm defined in s 36(2A). I am satisfied that it does not amount to arbitrary deprivation of life or the application of the death penalty. I find that any financial hardship experienced by the applicant would not amount to the infliction of severe physical or mental pain or suffering or extreme humiliation which is unreasonable. I therefore find that it would not satisfy the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in s 5(1) of the Act.
Natural disasters
The applicant’s claims relating to natural disasters in Vanuatu are generally supported by country information. Vanuatu has a vulnerable economy which is highly susceptible to natural hazards. It has been referred to as the most risk prone place on the planet due to the impacts of natural hazards, with severe effects on the island nation’s economy.[3]
[3] Asian Development Bank, Asian Development Bank Member Fact Sheet Vanuatu, 30 December 2020; United Nations Capital Development Fund, Economic Impacts of Natural Hazards no Vulnerable Populations in Vanuatu, December 2020; and Vanuatu Business Resilience Council, Business Network Brief Vanuatu June 2021, June 2021
In April 2020, Tropical Cyclone Harold, the most powerful storm to hit Vanuatu in the last two years since Cyclone Pam in 2015, ravaged Vanuatu’s islands and caused significant damage to the communities while the country was on COVID-19 pandemic lockdown. Thousands of families were severely affected and displaced. Buildings were damaged and flattened, cutting off electricity and water.[4] Tropical Cyclone Harold hit Vanuatu’s centre, directly impacting Santo’s large island with its second-largest city, Luganville, and many number of populated islands. As estimated by the Vanuatu National Disaster Management Office (VNDMO), around 160,000 people were affected by the cyclone. With at least 95 per cent of houses destroyed, a total of 10,000 families were affected. Overall, the VNDMO projected an estimate of US$100 million worth of damages to the agriculture and tourism sectors.[5]
[4] Vanuatu Business Resilience Council, Business Network Brief Vanuatu June 2021, June 2021
[5] Vanuatu Business Resilience Council, Business Network Brief Vanuatu June 2021, June 2021
According to a December 2020 United Nations Capital Development Fund report:
Tropical cyclones, with associated storm surges and flooding, are the principal hazard affecting Vanuatu, but the country is also exposed to earthquakes and tsunamis, volcanoes, and droughts. Climate change is expected to exacerbate weather-related hazards.
Vanuatu’s relatively small economy, dominated by tourism and subsistence agriculture, is highly vulnerable to natural hazards. Tourism is nature-based and dependent on coastal and inland ecosystems which are vulnerable to damage from natural hazards. Agriculture is vulnerable to damage from cyclones and droughts, and the majority of the population relies heavily on subsistence agriculture for livelihoods and food security. Climate change is expected to adversely affect agriculture through increased frequency to extreme weather events, sea level rise, and disruption of aquatic ecosystems. Natural hazards disproportionately affect poor people, workers in the informal economy, women, and youths. Poor people tend to be more exposed to hazards than wealthier people, are more severely affected by hazards and have fewer resources available to them to cope when disasters do occur. Poverty is a significant issue in Vanuatu, although there is a lack of recent data to confirm the current situation, and the country has high levels of informal and vulnerable employment and subsistence economic activity.[6]
[6] United Nations Capital Development Fund, Economic Impacts of Natural Hazards no Vulnerable Populations in Vanuatu, December 2020
Tropical Cyclone Lola, a Category 5 Cyclone, made landfall in Vanuatu on 25 October 2023, causing damage to houses, schools, infrastructure, plantations, and roads. The devastation left by the cyclone was reported to be ‘immense, especially in the northern provinces of the country’. According to a Red Cross media release, Lola was the third cyclone in Vanuatu in seven months, and ‘meant that communities only just beginning to recover from the twin cyclones, Judy and Kevin, are now reeling in the wake of their compounded impact.’[7]
[7] IFRC, Cyclone Lola leaves trail of destruction in Northern Vanuatu, warning for cyclone season, 26 October 2023
Considering the above, I find that there is a real chance that the applicant will experience harm from natural disasters, including cyclones, in the reasonably foreseeable future if he returns to Vanuatu. However, I find this to not be for any of the reasons in s 5J(1)(a) of the Act. I find that harm arising from natural disasters does not amount to persecution. It follows that the requirements in s 5J(4)(a) and s 5J(4)(c) – that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct – are not satisfied. I find that the applicant does not have a well-founded fear of persecution for this reason.
I have therefore considered these claims under the complementary protection criterion. The applicant has not claimed to fear being subjected to the death penalty and I find that this does not arise on the facts. As noted in the Department’s Complementary Protection Guidelines, while ‘arbitrary deprivation of life’ is not defined, it contains elements of unlawfulness and injustice, as well as capriciousness, lack of predictability, unreasonableness, or a lack of proportionality.[8] The Guidelines note, in the context of medical claims, that where the deprivation of life is due to natural causes, it will not amount to arbitrary deprivation of life.[9] I find that any threats to the applicant’s life arising from natural disasters do not amount to arbitrary deprivation of life.
[8] Department of Home Affairs, Complementary Protection Guidelines, 3.4.1
[9] Department of Home Affairs, Complementary Protection Guidelines, 3.4.1
The definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[10] Any harm that the applicant may experience due to natural disasters in Vanuatu would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions. As such, I find that the claimed harm does not amount to any of the types of significant harm in s 36(2A) and therefore the applicant does not satisfy the complementary protection criterion.
Conclusions
[10] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).
The applicant has not raised any other reason why he fears returning to Vanuatu and I find that none arise on the facts.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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.
Mia Bailey
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 1362

12 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction