1517548 (Refugee)

1517548 (Refugee) [2018] AATA 4010 (28 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517548
COUNTRY OF REFERENCE:                  China
MEMBER:Ms Christine Long
DATE:28 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 August 2018 at 12:44pm

CATCHWORDS
Refugee – Protection Visa – China – Social group – Falun Gong practitioner– Confused and inconsistent evidence –Credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Immigration on 25 November 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of China, applied for a protection visa on 2 April 2015. 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 the Act.
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 (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, that person is outside the country of his/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: s.5H(1)(a). In the case of a person without a nationality, that person is a refugee if he/she is outside the country of former habitual residence and, owing to a well-founded fear of persecution, is 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/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/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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
CLAIMS AND EVIDENCE
The Tribunal has before it the applicant’s departmental file which includes her application for protection visa, a CD of an interview between the delegate and the applicant and a copy of the delegate’s decision record. The Tribunal also has before it a copy of the applicant’s on line application to the Tribunal for review; a copy of the delegate’s decision record is provided by the applicant with the application for review.
Claims in Application for Protection Visa
In the application for protection visa the applicant states that she was born in Quzhou in Hebei Province in China in [year]. She indicates that she has lived at the same address which she gives in Hebei since [birth]. She indicates that she left her country legally through Beijing airport on 8 January 2015 and arrived in Australia on 9 January 2015. She states that she travelled to Australia using a passport in her name issued by the Exit and Entry Administration in her country [in] 2014; the passport expires in [2024]. She entered Australia as a [temporary visa holder]; her [temporary] visa was issued [on] 30 December 2014 valid until April 2015. She indicates that she was refused a visa for entry to [Country 1] in July 2014. The applicant indicates that she married in Quzhou in [2003]; her partner and her [children] reside in China as do her mother and father. The applicant provides details of her education noting that she completed a [qualification]. She indicates that from November 2003 she worked as [an occupation] in Quzhou Town and from August 2010 until December 2014 she worked as [an Occupation 1] at a [workplace] in Quzhou Town.
The applicant states in her application that she left her country and cannot return there because she is an underground Falun Gong practitioner. Because she was worried that she might be persecuted in her country she left China and came to Australia. The applicant states that she started practising Falun Gong around 2010 when she heard about its benefits from a [client] at the [workplace] where she was working. She then heard from the [client]’s husband around April/May 2014 that the [client] was detained by local police after she was “dobbed in” by a neighbour for her underground Falun Gong practice. The applicant then decided to leave China for her own safety. She fears if she returns to China she will not be able to practice Falun Gong freely; the local police have been arresting Falun Gong practitioners. Falun Gong has been banned by the Chinese government since 1999 and even if she moved to another part of China she would still be unable to practice Falun Gong freely. Falun Gong is against the law in China and people are gaoled for practising Falun Gong. The government has announced that it is an evil cult. She will not be able to get protection from the harm she fears in her country; the Chinese government has not lifted its ban on Falun Gong. Implicit in the applicant’s claims is that she cannot get protection from the harm she fears in China.
The applicant was interviewed by the delegate about her claims on 28 October 2015. Details of the delegate’s interview with the applicant about her claims are referred to in delegate’s decision record a copy of which she provided to the Tribunal in support of her application for review.
Application for Review
In her application for review the applicant makes no new claims. The applicant provides a copy of the delegate’s decision record dated 25 November 2015 with her application for review.
Tribunal Hearing
The Tribunal attended a hearing before the Tribunal on 14 March 2018 to give evidence and present arguments in support of her application for review. The applicant and the Tribunal were assisted by an interpreter in the Mandarin language at the hearing. At the hearing the applicant produced her Chinese passport noted as issued by the Exit and Entry Administration authorities in Hebei in China in [2014].
The Tribunal spoke with the applicant about her claims for protection including her application for her passport issued in her country in 2014; her employment in her country including at a [workplace] which she names; her prior application for a visa for [Country 1] refused in July 2014; her exit from China using a passport and visa in her name; her intention to remain in Australia and not return to China when she left China in January 2015; her contact with Falun Gong practitioners in her country; her application for a [temporary] visa for Australia; the trouble she claims that she had in her country which caused her to leave there; her application for protection visa including how that application was prepared and whether she knew what was in that application; why she did not apply for protection in Australia sooner if she left her country because she was afraid of harm there due to her Falun Gong activities; what she claims she did as a Falun Gong member or supporter in China; the claimed arrest of a friend in China for Falun Gong activities; her family in China; her claim that she moved to another area to live/work in China to avoid harm in her home area; that she does not practise Falun Gong in Australia; her knowledge of Falun Gong; what she claims will happen to her on her return to China.
FINDINGS AND REASONS
Essentially the applicant claims that she left her country and cannot return there because she was and will be harmed because she has practised Falun Gong in China and was involved with Falun Gong activities and a Falun Gong practitioner in China. She claims that she fears harm in her country, including being arrested on return to her country, because she helped distribute leaflets in support of the practice of Falun Gong in China and because she had an association with a friend who was a Falun Gong practitioner and who was arrested in China for her Falun Gong practice/activities. She claimed before the Tribunal that before she left her country people from a department came to her house often and called her often as they had her number and people lodged a report to the government that she was Falun Gong. She said that she spread Falun Gong to others. She claimed before the Tribunal that people came to her often in China, when she was not there/at home, and requested that she not practise Falun Gong and not spread leaflets or she would be arrested. While the applicant initially told the Tribunal that she had trouble getting her passport and visa because the Chinese government has banned Falun Gong and she was spreading leaflets to others about Falun Gong and was involved with Falun Gong through her [client]/friend, she then said that there was no exact trouble but they came to her often at her house and again later she said that she did not have trouble getting her passport and visa. She told the Tribunal that she had no difficulties exiting her country using her passport and visa.
Country Information
The Tribunal accepts that there is independent country information available which indicates that there is sometimes persecution of Falun Gong practitioners in China. For example, the DFAT Thematic Report in relation to Unregistered religious organisations and other groups in the People’s Republic of China, dated 3 March 2015, states as follows-
3.26 The CCP maintains a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults to eliminate the Falun Gong movement and to address “evil cults”. This group maintains an extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong), to eradicate Falun Gong activities. The 6-10 office has reportedly created specialised facilities known as “transformation through re-education centres” to force practitioners to relinquish their faith. Since the general abolition of re-education through labour centres was announced in late 2013, Falun Gong practitioners have reportedly been sent to black gaols, sentenced to other forms of administrative punishment, or have been released after receiving propaganda training. According to Duihua’s Political Prisoner Database (PPDB), the number of Falun Gong prisoners known or believed to be in custody has nearly halved since 2009 and approximately 2,369 cases were documented for 2013. The United States Commission on International Religious Freedom stated there were 486 known Falun Gong practitioners serving prison sentences as at the end of 2013. According to Freedom House, the Chinese government launched a new, three-year crackdown against Falun Gong practitioners in 2013.
Clearly however the Tribunal must determine whether, for the purposes of the ‘refugee’ criterion, the applicant before it has a genuine fear founded upon a real chance of persecution for one or more of the reasons of her race, religion, nationality, membership of a particular social group or political opinion, if she returns to China, or, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, in this case China, there is a real risk that the applicant will suffer significant harm.
Identity and Country of Reference
For the purposes of this decision, the Tribunal finds that the applicant is who she claims to be. She produced her PRC passport issued in Hebei in [2014], valid until 2024, to the Tribunal.
The Tribunal finds that the country of reference for this application is China.
Applicant’s credibility
The Tribunal does not accept as true that the applicant is or was at any time a Falun Gong practitioner or that she was, or will be, involved with Falun Gong activities in her country. The Tribunal does not accept as true that the applicant left her country and cannot return there for the reasons that she claims, including because she is a Falun Gong practitioner/supporter and spread Falun Gong to others, and/or because she has been involved in Falun Gong activities and/or involved with a Falun Gong practitioner. It does not accept as true that the applicant feared or fears harm in her country, or cannot return to her country, for the reasons that she claims. The Tribunal does not accept as true the applicant’s claims that she was, or will be, threatened, arrested, ill treated and/or harmed in her country. It does not accept as true that people were asking about her, going to her house, calling her, in her country and/or asking her to stop practising Falun Gong and/or to stop distributing leaflets or that the applicant went into hiding or moved to live and work in another place outside her home area at any time in her country to avoid harm, for the reasons that she claims. It follows that the Tribunal does not accept as true that her family members in China have been approached or spoken to in China for the reasons that the applicant claims.
As discussed below the Tribunal finds that the applicant did not give credible evidence about her claims.
Falun Gong practice/activities.
The applicant told the Tribunal that she was introduced to Falun Gong through a [client] when she worked in a [workplace] in China in 2010/2011.The [client] told the applicant that her symptoms of ill health had disappeared through the practice of Falun Gong. The applicant said that she started to practise then but did not practise Falun Gong often. When the Tribunal asked the applicant what she did to practise Falun Gong in China from that time in 2010/2011 until she left China in 2015 she said that because her understanding was not good she watched the person/friend practise and stood beside her. She then said that she did not practise Falun Gong in China because she needed to look after her children. When the Tribunal asked her again by way of clarification if she practised Falun Gong in China she said that it was just when her friend practised; she watched her practise. When the Tribunal asked the applicant for what period, and when, she watched her friend practise Falun Gong she said that she just watched because she was busy and it was each 2 to 3 weeks; she felt the atmosphere was good. The applicant also told the Tribunal that she did not exactly practise Falun Gong in China.
When the Tribunal asked the applicant if she had practised Falun Gong in Australia she said “no, I did not practise in Australia”. When the Tribunal asked her if she could tell the Tribunal anything more about Falun Gong she said that she does not understand Falun Gong well.
The applicant told the Tribunal that she applied for a visa for [Country 1], which was refused around July 2014, because she was having trouble in her country because she spread Falun Gong to others; she distributed leaflets. She said that her friend was arrested at the end of April/May 2014 so she (the applicant) wanted to go abroad. The applicant told the Tribunal that she followed/went with her friend in China when she spread leaflets about Falun Gong and she spread the leaflets with her friend. She said that she secretly distributed the leaflets during the night. She said that she folded the leaflets and put them in gates. The applicant initially said that she did this once a week but then said that she did this twice per month and did it “for a long time”. When the Tribunal queried that she had said she distributed the leaflets once a week but then said it was twice a month she said that she did it when she was available. The Tribunal asked the applicant what was in the leaflets that she distributed over a long time. She said that there was something in the leaflets about truthfulness, forbearance and compassion and they were anti-communist she thinks. When the Tribunal asked her more about what was in the leaflets, given that she said that she had distributed them for a long time, she said that she could not remember because she is nervous and stupid. When the Tribunal referred to her education and the employment details set out in her application for the visa, including her employment as [an Occupation 1] at a [workplace] before she left China, and told her that it did not accept that she was stupid, she said that her work was simple as [an Occupation 1]. When the Tribunal told the applicant that in its view if it were true that she had been distributing these leaflets over a long period in China as she claims she would be able to tell the Tribunal more about what was in them, the applicant said that she spread the leaflets at night.
The Tribunal asked the applicant when she first mentioned spreading/distributing leaflets in connection with her visa application. The applicant said that the first time she had mentioned it was in the interview with the delegate (on 28 October 2015). When the Tribunal queried why she had not mentioned it before, in her application for the visa, given the importance of the claim as a reason that she left, and cannot return to, China, she said that she did not mention it in the application because she is not familiar with Australia and she was nervous. She also said that when she filled in the application for visa she was only asked questions. When the Tribunal pointed out that one of the questions on the application is why she left her county the applicant said that she did not mention there that she was in trouble in her country because she was distributing leaflets because she forgot; she mentioned it to the delegate.

Given that the applicant had little knowledge of what was in leaflets that she claims the she distributed in China over a long time, and also given that the applicant told the Tribunal that she did not mention this very important claim about distributing Falun Gong leaflets in China until her interview with the delegate, the Tribunal does not accept as true that the applicant spread leaflets about Falun Gong in China, including with a friend who was later arrested. The Tribunal considers that this is an embellishment of the applicant’s claims to give her a better chance to remain in Australia.
Enquiries/contact by authorities/police/others about the applicant in China
The applicant told the Tribunal that she was in trouble in her country because of her Falun Gong activities from around/before the time she lodged her application for a visa to travel to [Country 1] which was before/around July 2014 when [Country 1] visa was refused. She said that she was in trouble because people from the department approached her at her house; she does not know which department they were from. She said that they went to her house often/many times and called her often as they had her number. When the Tribunal raised with the applicant that there was nothing in her application for visa about people coming to her house and contacting her in China many times about her Falun Gong activities which she said happened before May 2014, and in 2013, she said that she only answered the questions that were asked; she then said that she mentioned this in her protection visa application. The Tribunal asked the applicant about the preparation of her protection visa application, whether she signed the form and whether what was in it was read back to her in her language. The applicant said that she was introduced to the person who filled in the form for her by a friend; she dictated the reasons and he completed the form, she signed the form and it was read back to her in her language. The Tribunal confirmed with the applicant that there is nothing in her application about being approached in China about her Falun Gong activities as she claims. In the Tribunal’s view if this very serious claim were true the applicant would have mentioned it at the first opportunity, in her application for visa.
In the Tribunal’s view the applicant also gave confused and inconsistent evidence when the Tribunal asked her about whether her family are having any difficulties in China. The applicant told the Tribunal that in China her husband is looking after the [children]; the children are at school. Her husband works [in a certain field] and her parents live about 10 kilometres away from her family home. When the Tribunal asked the applicant whether her family were still living in the family home in China she said that was correct. When the Tribunal asked the applicant if her family members were having any difficulties in China she said that when “they” noticed she was not there “they stopped” going to the home. She also said that “they” went to her husband’s workplace after she left China but he told them that his wife had left; this was in about September/October 2014. She told the Tribunal that her husband/her family are not having any difficulties in China since she has left; if she is not there, there is no trouble for them. When the Tribunal reminded the applicant that she had told the delegate something different at the interview as is recorded in the delegate’s decision record a copy of which was provided to the Tribunal in support of her application for review. As recorded in the delegate’s decision record, the applicant told the delegate at the interview, held on 28 October 2015, that police came to her house on three occasions and asked about her whereabouts and that this happened several days prior to the interview with the delegate. The applicant agreed that she said this to the delegate; she said that she was sorry and she did not realise the meaning.
The Tribunal does not accept as true the applicant’s claims that police/authorities/people from a government department have come to her house at any time to enquire about the applicant for the reasons that she claims; the Tribunal finds accordingly.
In Hiding
Further when the Tribunal asked the applicant about her family in China and where she was living in China before she came to Australia, putting to her the information in her application for protection visa forms that she lived in the same place in Hebei Province from birth until January 2015 when she left China to come to Australia, the applicant then said that she moved to another city, which she named, to work, “because I thought I might be in trouble”. She said that she was in the other city from May until July when she lodged her application for the visa to [Country 1]. She also said that she went back to the house later before she came to Australia. When the Tribunal asked the applicant to write down for it where she had lived and worked during the period, she said that it was a long time ago and it was a small workshop; she forgets it but she named the district. She said that it is a small place in a remote area and she was working in a cake shop. When the Tribunal pointed out to the applicant that there was no reference to this job in her application for protection visa forms and reminded her of the details of her employment that she had included in her forms she said that those details were correct and that she had not mentioned this claim before. She said that she was not asked the question. She also said that she left her job at the [workplace] in May 2014 when her friend was arrested but agreed her application for visa forms indicate that she worked at the [workplace] until December 2014; she did not mention that she left that work when her friend was arrested. She told the Tribunal that the first time she had mentioned she had to move somewhere else to live and work to avoid harm was “today”. When the Tribunal queried why she had not mentioned in her protection visa application that she had to move to avoid harm she said that she was not asked the question. The applicant actually ticks the box “no” to the question in her application form which asks, “Did you move, or try to move, to another part of that country to seek safety?” explaining in her response that even if she moved to another part of that country she still could not practise Falun Gong freely because it is banned in China. The Tribunal told the applicant that in its view if this claim were true, namely that she had to move to another part of her country to live and work for a period to avoid harm, she would have mentioned it before today. The Tribunal considers that this is recent invention and an embellishment of the applicant’s claims to give her a better chance to get a visa to remain in Australia.
CONCLUSION
The Tribunal finds that the applicant was not at any time, and will not be, a Falun Gong practitioner or supporter in China. The Tribunal also finds that the applicant has not practised Falun Gong in Australia since arriving here in January 2015. The Tribunal finds that the applicant has not been involved or associated with any Falun Gong activities, including the distribution of leaflets, and/or Falun Gong practitioners in China, including a [client]/friend who was arrested in China, as she claims. The Tribunal finds that the applicant did not move to live and work outside of her home area in China to avoid harm there as she clams for the reasons that she claims. The Tribunal finds that the applicant is not, and will not be, of interest to authorities/police/government officials in China for the reasons that she claims. The Tribunal finds that there is not a real chance or real risk that the applicant will suffer harm in her country on return there for the reasons that she claims.
For the purposes of the ‘refugee’ criterion the Tribunal finds that the applicant does not have a genuine fear founded upon a real chance of persecution for one or more of the reasons of her race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if she returns to her country.
Further the Tribunal finds that, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), there are not substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to a receiving country, in this case China, there is a real risk that the applicant will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Ms Christine Long
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 4010

28 August 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Jurisdiction