1600102 (Refugee)

1600102 (Refugee) [2017] AATA 2665 (30 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1600102
COUNTRY OF REFERENCE:                  China
MEMBER:Angela Cranston
DATE:30 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 October 2017 at 2:29pm

CATCHWORDS

Refugee – Protection visa – China – Religion – Catholic – Underground Catholic Church – Physical violence – Police – Detention – Religious knowledge

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 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 [in] December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China applied for the visa [in] December 2014. The application stated the following:
According to [the applicant], he was a member of Underground Catholic Church in China. He was baptised as a Catholic when he was born. He left China in November 2014 to escape persecution by authorities in China.
According to [the applicant], police from the police station of [Town 1 in] Hu county often searched his home, detained him and beat him up.
According to [the applicant], if he goes back to China he would be subject to random home search, detention and beating by the police of [Town 1]
According to [the applicant] the police harmed him only because he was a member of the Underground Catholic Church which is not approved by the Chinese government.
According to [the applicant] the police harmed him only because he practised his religion not in the way approved by the Chinese government.
According to [the applicant] the Chinese government will not protect him because the Chinese government considers his Underground Catholic Church as illegal
In departmental interview [in] November 2015 the following orally recorded answers at interview are recorded:
Q. Do you understand the interpreter?
A. Yes….
Q. Can you tell me who is the current Pope?
A. I don’t remember, its Paul something.
Q. Do you remember the last Pope?
A. I don’t remember his name it’s too long. But I know his story. I understand that the last Pope was about age of 80, 90 but he did not die, but he still transferred his position to the new Pope, Well this has never happened in this religion, so this is a very bold position made by this last Pope. Normally when an old Pope dies, a new Pope will take his position.
Q. So can you tell me some significant dates in the Christian calendar?
A. Last Sunday was a very big religious day for us.
Q. Why was that?
A. That date is for the people pray for ceremony for members who have already died.
Q. what other dates?
A. and also the day the holy mother goes to Paradise
Q. what other important dates are there in the Christian calendar?
A. catholic
Q. yes catholic?
A. And also the sufferings by Jesus and also for a period of time we have to go to church to read these books about Jesus suffering.
Q. Can you give me the date of something annually that happens that is important to you?
A. I don’t have with me now, it’s back in my room.
Q. So for instance, when did Jesus die?
A. next month is Jesus suffering day
Q. Do you know what date that is?
A. I don’t remember the exact date
Q And do you remember when he was reborn?
A. three days later he revives
Q. when in the year, what month would that be?
A. Christmas Day
The delegate refused to grant the visa and the applicant applied for review:
The hearing before the Tribunal was held on 24 October 2017 when the applicant appeared to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant confirmed he understood the interpreter.
The applicant stated if he returned to China he would be persecuted because he was a Catholic in China since 8 days from his birth. He stated his [Relative A] was recently arrested and the police broke his leg.
He stated he had applied for a protection visa with the help of a friend who had written his answers in English. He also stated he had written some of the answers. He confirmed that his friend had read the English answers back to him in Mandarin, they were correct and he did not want to change anything. He also stated he wanted to add that if he went back to China he would be arrested.
The Tribunal asked what sorts of things he did because he was Catholic. He stated he was baptised. The Tribunal asked how he practised Catholicism and he stated every Sunday morning he listened to the Godfather’s gospel. The Tribunal asked who was the Godfather and he stated that Godfather was the leader of their group in China.
The adviser then stated that a better interpretation of what the applicant said was ‘priest’, ‘pastor’ or ‘reverend’ and the interpreter agreed with that submission.
The applicant stated he went to Church in [Suburb 1] all the time since he came to Australia and he also went in China. He also stated he read the Bible all the time and had done so since he was little.
The Tribunal asked if the applicant had heard of the Pope and the interpreter indicated that she did not know that word. The Tribunal then rephrased its question and asked who the head of the Catholic Church in Australia was. The applicant stated he did not know and that there were a lot but in [Suburb 1] church it was [name]. The Tribunal then asked who the head of the Catholic Church everywhere was and the applicant stated there was no fixed leader in [Suburb 1]. The Tribunal asked where the head of the Catholic Church in the world was located and he stated the Vatican. When asked what the name of head of the Catholic Church in the world was there was an unintelligible interpreted response followed by the word ‘the sixteenth”. The Tribunal then put to the applicant that the Department had asked him exactly the same question and he had not known the answer. He stated Catholics did not call the Pope by his name but by his saint’s name. The Tribunal put to him that his name was Francis.
The Tribunal asked if he could identify any important Catholic dates. He stated Christmas when Jesus was born. The Tribunal put to him that when the Department asked him a similar question he thought that was when Jesus died. He disagreed. The Tribunal also put to him that when the Department asked him if he could identify any important Christian dates he said he did not have them with him now, he had them in his room. He stated when the Department asked him for important Catholic days, he said Christmas, when Jesus was born and the day Mary went to heaven. The Tribunal indicated it had listened to the oral recording of the Department’s interview with him [in] November 2015 and did not remember listening to him talking about when Mary went to heaven and stated it heard he had been asked when did Jesus die and he answered next month but did not remember when, he had also been asked when was he reborn and he said three days later and when asked what month he said Christmas Day. The applicant stated the interpreter had asked when was Jesus’ birthday and he had said 25 December.
The Tribunal asked the applicant if he knew any of the miracles Jesus performed and asked the interpreter if she knew that word. The interpreter indicated that she thought the word meant stories. The Tribunal put its question in another way and asked can you tell the Tribunal any of the amazing feats that Jesus performed that amazed everyone. The applicant asked did the Tribunal mean any of his acts as God and the Tribunal agreed adding ‘on earth’. The applicant stated Jesus treated people who had suffered from measles and blind people. The Tribunal asked where those stories were found in the Bible. The applicant stated it was when Jesus talked to his students. The Tribunal again asked if he knew what part of the Bible that was called and the applicant stated they were separated in different parts and one of the stories happened when Jesus was on earth. The Tribunal put to him that if he had been reading the Bible then he should know where to find these stories in the Bible. The Tribunal then asked if he knew whether it was in the old or new part of the Bible and he stated in the old. The Tribunal indicated they were in the new.
The Tribunal asked why the applicant could not return to China and he stated the local police would harm him because he was an underground Catholic. He stated they went to his workplace and family almost every week since he was at high school. The Tribunal put to him that it was not sure whether it had read anything like that in his application. He stated he had previously been asked that question and he thought he had included that in the application.
The Tribunal put to him that it may find that his knowledge of Catholicism and the Bible as displayed at hearing was very poor which may lead it to find that it did not accept that he was Catholic or that he had been to Church in China or in Australia.
The applicant stated he was confused by the questions and the Tribunal indicated that it was testing his knowledge because he had said he was Catholic since birth and that he had read the Bible but he did not know who the head of the Catholic Church was and could not say where the stories Jesus told were in the Bible and that if he had been a Catholic since birth he may know these things. The applicant stated that in the Catholic Church there were strict classifications about leaders, that there were cardinals and the holy patriarchs so he did not know who the Tribunal was referring to. He also stated they only called the leader by a holy name. He also stated he did not understand because when he was asked by the Department what were the important days for Catholics he answered Christmas, Easter and when Mary went to heaven and he thought he gave all the correct answers and did not know why the whole conversation became like that.
The Tribunal then put its concerns pursuant to section 424AA and indicated that the applicant could comment immediately, or ask for some time to think about his response or he could comment in writing. The Tribunal put to him that at departmental interview [in] November 2015 it was recorded that the Department asked the applicant who is the current Pope and he said I don’t remember and said it’s Paul. They also asked him can you give me important Catholic dates and his answer was I don’t have it with me now, I have them in my room. They also asked when did Jesus die? and he stated next month. They also asked what date and he said I don’t remember. They also asked when he was reborn and he said three days later. They also asked what month and he said Christmas day. The Tribunal put to him that this was relevant because it may find that his answers did not reflect knowledge of Catholicism or Christianity and if it found that then subject to his comments it would affirm the decision under review.
The applicant stated the interpreter was male and that when he was asked what was the date Jesus died he said three days before Easter. He also stated Easter was not a fixed date and only Christmas day and when Mary went to heaven were fixed dates.
The Tribunal also put to him that the Department had also asked at interview did he understand the interpreter and his answer had been yes. He stated he was very confused at the end when he found out that the interpreter had given this interpretation. The Tribunal asked if he did anything as result and he stated he was told today was the only chance he had. The Tribunal put him to that he had not expressed this at the beginning of the hearing when the Tribunal had asked if there was anything he wanted to say and he agreed.
The adviser then stated he thought there may be some misunderstanding due to the interpreting. The Tribunal asked if there were any specific interpretation issues that he had heard because other than the one issue he had raised during the course of the hearing, he had not raised any other interpreting issues. He stated he should review the whole conversation before making a submission. The Tribunal asked again if he could raise any specific interpretation issue. He stated in the end he thought the applicant understood, for example the amazing act of God had been how the word miracles had been explained to the applicant.
The Tribunal then held an adjournment.
The applicant stated he had no idea why the conversation become like that at the Department of immigration interview. He stated he knew about the miracles of Jesus and was surprised his answer was that he did not know who the Pope was. He stated regarding important dates he knew Christmas, Easter, when Mary went to heaven and the Pentecost date.
The adviser stated that if the word Pope had been translated into Chinese then he thought the applicant would say it was the Pope of the Vatican and the interpretation given to the applicant was who is the leader of the Catholic world which had confused the applicant. He stated when the applicant finally understood the question he answered Pope Paul.
When the interpreter was asked to comment on the advisor’s submission, she stated she did not understand the word Pope and asked for the Tribunal’s clarification and the Tribunal had rephrased its question as “who is the leader of the Catholic world” which she had interpreted. When asked to comment on the applicant’s answer, she stated he did say a Chinese word which she did not understand and had asked the applicant to write down the name but he could not. She stated he gave another name and she had checked and that name was Pope Benedict XVI.
The Tribunal then spoke to the applicant and stated that his advisor had indicated that he may have been confused by the question “who is the leader of the Catholic world”. He agreed. When asked why he was confused he stated because there were a lot of leaders in different classifications and in terms of Pope, there was only one Pope. The Tribunal then put to him that his advisor had said when he understood the question he had answered Pope Paul. The applicant then stated his answer was Pope Benedict XVI. The adviser then said he thought the applicant’s answer to who was the head of the Catholic Church was Pope Paul and maybe he mentioned Benedict somewhere else.
The adviser then asked how should priests be addressed? The Tribunal put to him it would take that question as a submission and look at it in the decision.

Country Information

According to the Catholic Encyclopaedia, the Popes from the following years are as follows:
Paul VI (1963-78)
John Paul I (1978)
St. John Paul II (1978-2005)
Benedict XVI (2005-2013)
Francis (2013—)
According to the Catholic Church hierarchy is as follows:
The hierarchy within the body exercising authority in the Catholic church is stipulated in the Canon Law of the Catholic Church. The Roman Catholic Church is led by the pope, who oversees the entire welfare of the church with the help of other leaders of the Church. The members of the administration of Catholic Church are the pope, cardinals, archbishops, bishops, priests and deacons. Every individual at each hierarchy level is assigned with overseeing specific functions of the church and has to coordinate with other leaders of the church to lead the Catholic believers they are representing.
The Pope
The Pope is the head of the Catholic Church and he is based at the Vatican. The pope is responsible for the general leadership of the church. However as well as being the head of the Catholic Church, he is also the head of the Vatican; which is an independent state within the city of Rome, Italy. The pope also makes numerous appointments of persons who occupy various administrative and religious offices both in Vatican and representing the Church in different parts of the world.
The Cardinals
The cardinals are appointed by the pope. They are situated in different parts of the world and they represent the pope and the Roman Catholic Church as a whole. The body encompassing all cardinals is the College of Cardinals, whose main responsibility involves advising the pope and electing a new pope in case the pope resigns or dies. When the position of the pope falls vacant, the cardinals assemble at the Vatican for the conclave elections which leads to electing a new pope. The successor of the outgoing pope comes from the cardinals. Cardinals are also referred to as the princes of the Church and not all cardinals are bishops.
Archbishops
An archbishop is simply a bishop of a main or metropolitan diocese or an archdiocese. A cardinal can also concurrently hold the title of an archbishop.
Bishops
A bishop is ordained to his station, just like a priest. The bishop is the teacher of church doctrine, a priest of sacred worship and a minister of church government. A typical role of a bishop is to provide pastoral governance for a diocese and represent the Church. The pope himself is a bishop and that is why he uses the title “Venerable Brother” when addressing formally another bishop.
Priests
A priest is an ordained minister who is responsible for administering most of the sacraments, including the Eucharist, baptism and marriage. A priest can belong to a specific religious order or be committed to serving a certain congregation.
According to Catholic Exchange, since the earliest times of the Church, the Catholic church has used the title “Father” for religious leaders and that in the English-speaking world, addressing all priests as “Father” has become customary.

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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself 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.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.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Definition in Article 1 of the Refugees Convention in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his application, the applicant stated that he was baptised and Catholic since birth, that he escaped China in November 2014, that the police often came and searched his home and detained and beat him up, and that he would be harmed if he returned to China because he was Catholic.
The Tribunal accepts that at interview [in] November 2015, it is orally recorded the applicant stated that last Sunday was a big religious day to pray for those who had already died, that when the Holy Mother went to Paradise was another day, and also spoke about Jesus’ suffering, however it is also orally recorded that he stated he could not give the date of something annually that happened that was important to him because he did not have that with him and it was back in his room, that next month was Jesus’ suffering day although he did not remember the exact date, that Jesus was reborn three days later and that was known as Christmas day. When this was put to the applicant at hearing, he stated that the interpreter asked what day Jesus was born and he had said 25 December however at a subsequent stage of the hearing, he also stated that he was asked what was the date Jesus died and he said three days before Easter.
While the Tribunal has considered this, it has also considered that at that departmental interview, he was asked whether he understood the interpreter and his answer was yes. The Tribunal has also considered his knowledge of Catholicism as displayed at the Tribunal hearing. At hearing, the applicant had difficulty answering many of the Tribunal’s questions. He did not know who the current head of the Catholic Church was and could not state where miracles would be found in the Bible even though he said he had followed Catholicism as well as read the Bible since he was little. Although the adviser subsequently stated that the applicant had been confused by the question who was the leader of the Catholic world, the Tribunal does not accept this is the case given that the applicant himself stated that the leader was located in the Vatican. In addition, the interpreter subsequently stated that when the applicant had answered, he had said Pope Benedict XVI. While the adviser has submitted that the applicant said Pope Paul, the Tribunal rejects this on the basis of the interpreter’s comments and the oral recording of the departmental interview that identifies that at that stage, he said it was Paul. While the Tribunal accepts that the applicant stated that Pope Benedict XV1 was the leader of the Catholic world, he is not, and has not been the Pope or the leader of the Catholic Church since 2013.
The Tribunal is of the view that these matters are significant, if not central, to the Catholic belief and the applicant’s inability to answer these questions, combined with his statement at interview that he understood the interpreter, leads it to find that the applicant is not credible and rejects his claim that there was an interpreter issue at interview [in] November 2015. It also rejects his claim that he did not say at that interview that next month was Jesus suffering day and that he was reborn or revived three days later on Christmas day.
The Tribunal finds that at Departmental interview [in] November 2015, the applicant was unable to answer basic questions about his alleged Catholic faith such as who was the current Pope, who was the last Pope or significant dates in the Catholic calendar.
The Tribunal also finds that the applicant's knowledge of Catholicism as displayed at hearing and Departmental interview was extremely poor and not consistent with someone who was born Catholic or has attended church or underground Catholic or Christian gatherings in China and Australia. Although the applicant knew some things, such as that the last Pope did not die, the Tribunal finds the applicant's evidence is indicative of someone who has learned aspects of Catholicism for the purposes of the protection visa application, but he in fact has no genuine interest or commitment to Catholicism.
The Tribunal does not accept that the applicant is credible or that he is Catholic or Christian or has practised his religion in Australia or in China as claimed. In reaching these conclusions, the Tribunal has considered the photos the applicant gave to the Department and to the Tribunal, some of which appear to be somewhat staged since they show the applicant kneeling in front of what appears to be a priest. While the applicant has stated that these allegedly prove he is Catholic, the Tribunal gives greater weight to the problems it has identified with regard to the applicant’s lack of credibility and does not accept they are evidence of his alleged Catholic practice.
Neither does the Tribunal accept that police often searched his home, detained him or beat him up or arrested his [Relative A] and broken his leg. Neither does it accept that he believed he needed to escape China. Given that the Tribunal does not accept that any of the events the applicant alleges occurred in China have occurred or that he is Catholic or Christian, or has attended Church in Australia, the Tribunal finds the applicant will not be perceived as a Catholic or Christian or participate in underground Catholic or Christian gatherings if he returns.
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in 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 has rejected the entirety of the applicant's claims.
Accordingly, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to the receiving country, China, there is a real risk that the applicant will suffer significant harm.
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.

Angela Cranston
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

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.
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.
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.
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.
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.
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

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.
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.
…

[2017] AATA 2665

30 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction