2403912 (Refugee)

2403912 (Refugee) [2024] AATA 3656 (31 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2403912

COUNTRY OF REFERENCE: Vanuatu
MEMBER:Don Smyth
DATE:31 May 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 May 2024 at 12:10pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – natural disasters – sea level rise – inadequate infrastructure – publishing details of corruption – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 426, 441, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
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
BACKGROUND

The applicant claims to be a citizen of Vanuatu and has provided a copy of the bio data page of her Republic of Vanuatu passport. I accept that the applicant is a citizen of Vanuatu.
According to information provided in the protection visa application the applicant was born in Port Vila in [specified year].
The applicant applied for a protection visa on 22 November 2023. On 13 February 2024, a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
SUMMARY OF CLAIMS AND EVIDENCE
According to information provided in her protection visa application the applicant lived in Port Vila from [birth] to November 2022. She has never married. She indicated that she had never studied and never been employed. With regard to how she supported herself financially, she stated ‘saving’.
The applicant gave her ethnic group as ‘Vanuatu’ and her language as English.
The applicant indicated that she had departed Vanuatu [in] November 2022, arriving in Australia on the same date.
The applicant made written claims in her application. With regard to the reasons for leaving Vanuatu, the applicant stated:
Vanuatu is the world's most at-risk country for natural hazards, according to a UN University World Risk Index. And it's not just storms, earthquakes, volcanoes or tsunamis that are the Problem. Some saw it coming: For four years running, Vanuatu has been ranked the world's most disaster-prone country in an annual World Risk Report published by the United Nations University's Institute for Environment and Human Security (UNU- EHS). According to a 1998 Commonwealth Secretariat Report, Vanuatu is one of the most vulnerable nations in the South Pacific. Hazards include droughts, floods, extreme temperatures, earthquakes, tsunamis, and cyclones.As sea levels rise, some islands - including Tuvalu and Vanuatu – face becoming completely submerged by the end of the century. Tuvalu's capital Funafuti, could be flooded by 2050 if climate change is left unchecked.And along with the other Pacific small island developing States (SIDS), Vanuatu faces existential threats due to rising sea level, ocean acidification, and the increased frequency and severity of natural disasters and is on the front line of the climate crisis.I hope Australia government can approve my protection visa application.
The applicant claimed to have experienced harm in Vanuatu. With regard to the harm she had experienced, she stated that, according to the article, ‘among the factors that make life on Vanuatu so dangerous are high exposure to natural disasters, lack of coping capacities, susceptibility through inadequate infrastructure such as water and sanitation, and lack of societal and policy adaptation to the prevailing environmental conditions’. She stated that she had been harmed ‘by state government agent because public their corruption information details’. She made similar claims in relation to what she thought would happen to her if she returned and in relation to harm or mistreatment. She indicated that she thought she would be harmed or mistreated if she returned.
The applicant indicated that she had not sought help in Vanuatu, stating ‘no way I can go’. She stated also that there was no way she could move because Vanuatu was a small country. She indicated that she did not think the authorities could and would protect her. She stated that no department could protect her. She did not think she would be able to relocate to an area where she would not be harmed. She stated that she believed Australia was a better place for her now and expressed hope that her application could be approved.
The applicant attached a copy of the delegate’s decision to the application for review.
On 25 March 2024 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 26 April 2024 at 1.00pm. The invitation stated that, if they did not attend the hearing, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. The applicant did not respond to the hearing invitation. As the applicant had not appeared, an officer of the Tribunal made contact with the applicant by telephone on the afternoon of the scheduled hearing. The applicant stated that she was working on a farm in [Town 1] so would be unable to attend the hearing in Brisbane. She indicated that she wished to appear at the Melbourne Registry via Microsoft Teams at a postponed date.
In the circumstances, I considered it appropriate to postpone the hearing to facilitate attendance by the applicant at the Tribunal’s Melbourne Registry. By letter of 3 May 2024 (emailed to the applicant), the Tribunal informed the applicant that the hearing had been postponed and rescheduled, and invited the applicant to appear before the Tribunal on 22 May 2024 at 1.30 pm. The invitation gave the place of the hearing as ‘Administrative Appeals Tribunal, Level 4, 15 William Street, Melbourne VIC 3000’. The invitation stated that, if they did not attend the hearing, the Tribunal may make a decision on the case without further notice. On 17 May 2024, the applicant was sent an email confirming details of the time, date and place of the hearing as advised in the letter of 3 May 2024. The Tribunal also sent an SMS reminder about the rescheduled hearing 5 business days before the scheduled hearing. The applicant did not in any way respond to the hearing invitation. The applicant did not appear before the Tribunal on the day and at the time and place of the rescheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5), the invitation has not been returned to sender, and that an SMS reminder was also sent to the review applicant about the hearing. A Tribunal officer sought to contact the applicant by telephone on the afternoon of the rescheduled hearing but was unable to make contact with the applicant. No reason has been provided for the applicant’s non-attendance. In all the circumstances, I consider that it is appropriate to exercise my discretion under s 426A(1A)(a) of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.
In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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 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 itself 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. A decision-maker is not required to make the applicant's case for him or her. 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: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70, Randhawa v MILGEA (1994) 52 FCR 437 at 451).
The applicant’s claims are vague and lacking in detail in a number of respects.
The applicant has referred to a range of natural hazards or natural disasters including storms, earthquakes, tsunamis, volcanoes, cyclones, droughts, floods and extreme temperatures. She has referred to rising sea level, ocean acidification, increased frequency and severity of natural disasters and climate change. She has referred to Vanuatu being disaster-prone and to high exposure to natural disasters as being among the factors that make life in Vanuatu so dangerous. However, she has provided little information in relation to matters such as her own circumstances in Vanuatu, whether she had been affected by such things personally and the impact of such matters on her. There is a lack of detail as to how such matters might give rise to a real chance that she would be persecuted for any of the reasons enumerated in s 5J(1)(a) or to substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A).
The applicant has referred to matters such as lack of coping capacities, susceptibility through inadequate infrastructure, and lack of societal and policy adaptation to the prevailing environmental conditions. However, she has not provided detail in relation, for instance, to how such matters might have affected her or be relevant to her circumstances. As noted above, she has provided limited information in relation to her circumstances in Vanuatu. There is a lack of detail as to how such matters might give rise to a real chance that she would be persecuted for any of the reasons enumerated in s 5J(1)(a) or to substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A). The applicant referred to having been harmed by state government agents and referred to ‘corruption information details’. However, she did not provide detail such as when, how and in what circumstances she had been harmed by any government agents. She did not provide detail in relation to any ‘corruption information’ or how or when it might have been made public. On the very limited information before me, I am not satisfied that the applicant has been in any way harmed by government agents or authorities, or that she has been in any way involved or connected with information on corruption.
I am willing to accept that independent information indicates that Vanuatu is vulnerable to natural disasters and the effects of climate change. I note, for instance, that it has been reported that the 2021 World Risk Index listed Vanuatu as the country with the highest disaster risk in the world.[1] However, I do not accept on the evidence before me that the incidence of natural disasters such as those referred to by the applicant (even if it is increasing), or the impacts of such disasters or matters such as climate change, rising sea levels or ocean acidification, relate to any of the reasons enumerated in s 5J(1)(a) of the Act. I do not accept on the available evidence that they give rise to a real chance that the applicant would be persecuted for any of those reasons.
[1] Australian Humanitarian Partnership, Disaster risk in Vanuatu (2023)
As noted above, with regard to matters such as lack of coping capacities, susceptibility through inadequate infrastructure, and lack of societal and policy adaptation, the applicant has not provided detail in relation, for instance, to how such matters might have affected her or be relevant to her circumstances. She has provided limited information in relation to her circumstances in Vanuatu. There is a lack of detail as to why the applicant could not obtain protection from the authorities of Vanuatu. The applicant did not provide detail in relation to ‘corruption information’ and, as noted above, I am not satisfied on the very limited information before me that the applicant has been in any way harmed by government agents or authorities, or in any way involved or connected with information on corruption. I have considered all of the applicant’s claims. However, on the basis of the very limited evidence before me, I am not satisfied, having regard to the reasonably foreseeable future, that there is a real chance that the applicant would be persecuted for any of the reasons enumerated in s 5J(1)(a). I am not satisfied that she is a refugee as defined in s 5H(1). Accordingly, I am 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), I have considered the alternative criterion in s 36(2)(aa).
As set out above, I accept that independent information indicates that Vanuatu is vulnerable to natural disasters and the effects of climate change.
I note that ‘significant harm’ for these purposes is exhaustively defined in s 36(2A) of the Act: s 5(1). 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. I have had regard to the definitions of those terms. The evidence does not support a conclusion that there are substantial grounds for believing that there is a real risk that the applicant will be subjected to the death penalty or be arbitrarily deprived of life. I do not accept on the evidence before me that the incidence of natural disasters such as those referred to by the applicant (even if it is increasing), or the impacts of such disasters or matters such as climate change, rising sea levels or ocean acidification, involve the intentional infliction of pain or suffering such as to constitute cruel or inhuman treatment or punishment, or torture. Nor do I accept that they involve an act or omission which is intended to cause extreme humiliation, such as to constitute degrading treatment or punishment. On the evidence before me, I do not accept that the occurrence of natural disasters such as those referred to by the applicant, or the impacts of such disasters or matters such as climate change, rising sea levels or ocean acidification, constitute significant harm as defined in s 36(2A). Nor do I accept that such matters give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vanuatu, there is a real risk that the applicant will suffer significant harm.
As noted above, with regard to matters such as lack of coping capacities, susceptibility through inadequate infrastructure, and lack of societal and policy adaptation, the applicant has not provided detail in relation, for instance, to how such matters might have affected her or be relevant to her circumstances. She has provided limited information in relation to her circumstances in Vanuatu. There is a lack of detail as to why the applicant could not obtain protection from the authorities of Vanuatu. The applicant did not provide detail in relation to ‘corruption information’ and, as noted above, I am not satisfied on the very limited information before me that the applicant has been in any way harmed by government agents or authorities, or in any way involved or connected with information on corruption. I have considered all of the applicant’s claims. However, on the basis of the very limited evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that she will suffer significant harm.

I am 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.
Don Smyth
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 3656

31 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction