1612545 (Refugee)

1612545 (Refugee) [2019] AATA 2433 (20 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612545
COUNTRY OF REFERENCE:                  China
MEMBER:Denise Connolly
DATE:20 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 May 2019 at 3:06pm
CATCHWORDS

REFUGEE – protection visa – China – religion – Christianity – underground church meetings –held in detention centre – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 14 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, a citizen of China, applied for the visa on 8 September 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.
On 2 May 2019, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it on 20 May 2019 at 9:30AM to give evidence and present arguments relating to the issues arising in his case. The letter informed the applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it. The invitation was sent to the applicant’s authorised recipient using the email address provided in connection with the review.
The applicant did not attend the hearing at the scheduled date and time. Having reviewed the material before it, the Tribunal is satisfied that the applicant was properly invited to a hearing, the invitation was sent to the authorised recipient by email using the correct address, and there is no evidence to suggest that the email transmission was unsuccessful. No postponement of hearing has been sought. No satisfactory reason for the non-appearance has been given. Accordingly the Tribunal has decided to proceed to make its decision on the evidence before it.
CLAIMS AND EVIDENCE
When making the visa application the applicant provided the following information. He was born in Fuqing, Fujian Province, China on [date]. He arrived in Australia [in] June 2015 as the holder of a [temporary] visa issued on 2 June 2015. His religion is Christian. He was married [in] August 2014 in Fujian, China. He and his wife have 2 children, born [date] and [date]. His wife and children remain in Fuqing City, Fujian, along with his parents. He provided a copy of his Chinese passport issued [in] 2008. Prior to coming to Australia he was self-employed from June 2006 to June 2015 but gave no other particulars about that employment. Prior to self-employment he was [employed in an occupation]. He received primary, middle and college education. He travelled to [Country 1] and [Country 2] in November 2008.
In a statement provided with the visa application the applicant claims he holds underground Christian faith and participated in underground church meetings. He claims he was brutally persecuted by the local government and fined [amount] for his underground church participation. He believes in God after he miraculously survived an accident. In August 2014 his friend [Mr A] told him about Jesus. He had been struck by a truck which rolled and landed on him. His friends removed the truck and the applicant was left with only bruising. He recalls seeing a ray of light as he was struck and felt that it was God who saved him. Following this he joined an underground church. He claims the public churches are under the control of the Chinese Communist Party and it is not true faith.
The applicant claims that [in] February 2015 he attended an underground church meeting at [Mr A’s] home. Someone reported their activity. Around 30 police surrounded the place and arrested them. He was taken to [a] detention centre. A guard [Mr B] ordered inmates to give the applicant and another inmate, [Mr C], a shower. The inmates stripped them and poured iced water over them. The applicant felt persecuted. [Mr C] lost consciousness after he was doused with more than 10 buckets of cold water. They were then put in prison uniforms. [Mr B] hit the applicant hard on the back of the neck and his feet left the ground. He landed hard on the floor and could not move. He was lifted up by the neck and choked for 3 minutes. When [Mr B] released him and dropped him to the ground he told the other guards “take him to the interrogation room. I am going to grill him”. [Mr B] went into the interrogation room with 4 other guards. He saw that the applicant was keeping quiet so he beat him violently and continued to torture him almost the whole night.
The applicant claims that [in] February 2015, because he refused to provide the details of the underground church, the police took him to the interrogation room. He was hung up with hand cuffs behind his back, to a heating pipe running along the top of the wall. His body was suspended in the air. He was badly beaten and his mouth and chest were covered in blood.
The applicant claims that [in] February 2015, a week after he was arrested, the police asked his family to come. He was fined [amount] and required to report to police monthly. The police also threatened his family and said that if they found him at a meeting again he would be detained. In desperation he fled China. Recently he heard that because the meeting was held at [Mr A’s] place, he was not released. Now [Mr A] has [suffered a medical condition] in the detention centre. He fears returning to China because he does not want to be caught.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was interviewed on 14 July 2016. The delegate set out the information provided by the applicant. The Tribunal has listened to a recording of that interview and, while not a transcript, it is satisfied the information recorded in the delegate’s decision record reflects his oral evidence to the delegate. During the interview the applicant told the delegate that he was detained [in] August 2014 for his involvement in an underground Christian gathering at his house where others were present. He said that he was asked to report fortnightly to the authorities. He last reported 3 weeks before he departed for Australia. He was expected to report again. He seeks Australia’s protection because he was persecuted by the Chinese government and he fears returning to China because his life will be damaged by the authorities. He was hit by a truck in March or April 2014. He has not read the Bible in its entirety but he has read Genesis.
The delegate recorded that the applicant could not answer basic questions such as where Jesus was born, when he was born and about the life of Jesus and other basic information. The delegate also recorded that the applicant stated, while he went to church in Australia, he did not have time to read the Bible since he arrived in Australia, despite claiming he came here because he is Christian and wanted to practice his religion. The delegate also noted there were inconsistencies in his evidence. She recorded that at times when asked questions about his claims he was not able to respond. She was not satisfied is he a credible witness. She was not satisfied he is a genuine Christian. She was not satisfied that he was of adverse interest to the authorities, or that he was being monitored, as he was able to depart China legally. She described in detail the country information about border control in China and the difficulties in departing faced by anyone of adverse interest to the authorities.
Independent country information
Apart from the country information referred to in the delegate’s decision record the Tribunal intended to discuss with the applicant other country information reported in DFAT’s Country Information Report: People’s Republic of China, dated 21 December 2017. This report states, in part:
The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims.
Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.
In practice, the number of religious believers is likely to be much higher and rising, particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million.….
The report notes that Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), which are overseen by the State Administration for Religious Affairs (SARA). DFAT notes that:
Registered religious organisations may own property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools.
Unregistered religious organisations are illegal and vulnerable to punitive official action.
Registered religious adherents may proselytise in registered places of worship and in private settings but not in public. Foreigners may not proselytise. Registered religious organisations may not distribute unapproved literature nor associate with unregistered religious groups. Revised regulations adopted in September 2017 (see below) prohibit religious groups in China from accepting any foreign donations, which were previously permitted
…
In April 2017, President Xi Jinping called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions.
…
Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention …
In addition to the state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching.
Leaders of both registered and unregistered churches are subject to greater scrutiny than ordinary worshippers. Leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation.
Members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families …
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
Nationality
The applicant claims to be a citizen of China and has provided to the Department a copy of his Chinese passport. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China. The Tribunal finds that China is his receiving country for the purpose of assessing his claims for protection. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.
Does the applicant have a well-founded fear of persecution?
The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The Tribunal is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In this case the applicant has made several claims in his written visa application and oral evidence. He attended the interview with the delegate, as recorded in the delegate’s decision record, provided to the Tribunal by the applicant. However the delegate recorded that there were inconsistencies in his evidence, and she formed the view he lacked basic knowledge about Jesus. She also recorded that he stated he did not have time to read the Bible since he arrived in Australia, despite claiming he came here to practice his religion. She recorded that at times when asked questions about his claims he was not able to respond. She was not satisfied that he is a credible witness. She was not satisfied he is a genuine Christian. She was not satisfied that he was of adverse interest to the authorities, or that he was being monitored, as he was able to depart China legally. She described in detail the country information about border control in China and the difficulties in departing faced by anyone of adverse interest to the authorities.
The Tribunal wished to discuss these concerns with the applicant at the hearing but he did not attend. The Tribunal has been unable to obtain further details about his claims, or to test their veracity. Had he attended the hearing it would have asked him further questions about each of his claims, and why he now fears returning to China.

On the basis of the evidence before it, the Tribunal is not satisfied the applicant was injured in an accident. It is not satisfied his friends removed the truck and that he was left only with bruising. Nor is it satisfied he recalled seeing a ray of light and felt God saved him. It has formed the view this evidence has been manufactured to explain why he started attending underground church, which, on the evidence before it, the Tribunal does not accept. The Tribunal is also not satisfied the applicant was attending an underground church meeting in February 2015 when the police attended and arrested those present. It has difficulty accepting these claims because, as recorded by the delegate, his oral evidence on these issues was inconsistent. It therefore does not accept he was taken to [a] detention centre, showered in iced water, made to wear prison clothes, struck on the head, choked for 3 minutes, interrogated or beaten. Nor does it accept the police sought information from him about the underground church because it is not satisfied he ever attended those gatherings or meetings. Accordingly it does not accept that the police interrogated and hand cuffed him as described in his written application, or that his family had to attend the detention centre and pay a fine to have him released, or that he was required to report to police. Given the country information described in the delegate’s decision record, provided to the Tribunal by the applicant, it is of the view that if the applicant was of adverse interest to the authorities, and had to report to the police as he has claimed, he would not have been able to depart China lawfully.
The delegate recorded that in the interview the applicant claimed he was attending church on a weekly in [a suburb, State 1]. However on the evidence before it, the Tribunal is not satisfied this demonstrates he is a genuine Christian. It does not have any evidence about his current Christian practice and, given its concerns about his claims, is not satisfied he is currently practising Christianity in Australia.
The Tribunal is not satisfied the applicant has practised as an underground Christian in China. It is not satisfied he has practised as a genuine Christian since arriving in Australia in 2015. Nor is it satisfied he will practise as a genuine, committed Christian if he returns to China.
On the basis of these findings, the Tribunal is not satisfied the applicant has suffered any harm incurred by the authorities on the basis of his religious practice. Nor is it satisfied he fears his life will be damaged by the authorities if he returns to China.
The Tribunal notes the applicant has indicated he and his wife had their children out of wedlock, having married in 2014 after they were born. However he has not made any claims to fear harm from the authorities because of these circumstances.
The Tribunal has considered all of the material before it. It is of the view the applicant has merely made written and oral assertions to fear harm in China. The Tribunal is not satisfied there is any reliable evidence to suggest the applicant has any reason to fear harm if he returns to China. It is not satisfied he or any member of his family will participate in any religious activity or any other conduct that will result in his detention or in harm. The evidence before the Tribunal is not sufficiently detailed and persuasive for the Tribunal to be satisfied the applicant, or any member of his family, has been or will be involved in any religious activity, or any other conduct, that would result in the applicant coming to the attention of the authorities. It is not satisfied the applicant fears harm in China because of his religion or for any other reason.
On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his religion or for any other reason set out in the Act, or that there is a real chance that he would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of China. Therefore, he does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may nevertheless meet the criterion for the grant of a protection visa under the complementary protection criterion.
As indicated above, the applicant has failed to provide sufficient details regarding his claims. As the applicant failed to attend his hearing, the Tribunal has been unable to obtain further information about his claims, or to test their veracity. In view of the above findings and on the evidence before it, the Tribunal is not satisfied that the applicant suffered harm in China or that there is a real risk that he will suffer significant harm if he returns to China.
On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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.
Denise Connolly
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.
…

[2019] AATA 2433

20 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction