1615081 (Refugee)

1615081 (Refugee) [2019] AATA 6549 (5 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615081
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:5 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 05 August 2019 at 11:26am

CATCHWORDS
REFUGEE – protection visa – China – claim for compensation by family of motorcyclist killed by vehicle driven by applicant’s employee – fear of harassment by local authorities for unpaid compensation – family planning regulations – two children – credibility – vague and inconsistent evidence – travelled on own passport – no harm to family in China – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), 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

The applicant claims to be a citizen of the People’s Republic of China (China) and is [age] years of age. He was born in [Village], Longtian City District, Fujian Province. [In] June 2015 the applicant arrived in Australia travelling on a Chinese passport with an Australian [temporary] visa.
The applicant applied for a protection visa on 23 June 2015. He provided a copy of his Chinese passport.
The applicant attended an interview at the Department of Immigration on 22 August 2016.
On 24 August 2016 the delegate of the Minister for Immigration refused to grant a protection visa under s. 65 of the Migration Act 1958 (the act) because the delegate was not satisfied that the applicant met the requirements for that visa. There is no restricted material on the Department’s file.
This is an application for review of the refusal decision and it was made on 20 September 2016. The applicant provided the Tribunal with a copy of the delegate’s decision record and a further copy of his Chinese passport.
The applicant appeared before the Tribunal on 1 August 2019 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 gave evidence about his background, his migration history and his claims for protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.
The relevant law is set out in attachment A.
Background
The applicant is [age] years of age and was born in the rural village of [Village], Fujian Province. He stated that he has rural household registration (hukou).
The applicant’s parents are alive and living in his home village; his father is a farmworker and his mother is retired. He has a married [sibling 1] with two children and a married [sibling 2] also with two children. They both live in the home village where [sibling 1] works in a [workplace] and [sibling 2] is [an occupation].
The applicant attended school in the village and completed Middle School leaving when he was 17 years of age. After he finished school he worked in a [workplace] for two years and then told the Tribunal that he worked in all sorts of jobs all over Fujian Province. When questioned further he stated it was mainly manual work.
The applicant and his wife married in 2005; his wife also came from [Village]. The applicant and his wife have two children; [child 1] is [age] years of age and [child 2] is [age] years of age. His children are living with his wife in the village and are attending a local school.
The applicant gave evidence to the Tribunal that he had a previous passport issued before his current passport. His current passport was issued in 2012 and he could not remember when his previous passport was issued. When asked why he applied for the first passport he said everyone in the village for applying for passports so he also applied for a passport. There was no specific reason as to why he applied for a passport at the time, he just thought he could use it in the future.
Country of reference
The applicant claims he was born in China and is a citizen of China. He provided a copy of his passport which was issued in 2012. He has consistently claimed that he is of Chinese nationality; he spoke Mandarin fluently and was familiar with the geography and culture of Fujian province.
Taking into account the available evidence, and noting that identity is not in issue, the Tribunal is satisfied that the applicant is a citizen of China and that China is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in his application for protection. The claims for protection were further discussed with the delegate on 22 August 2016.
The applicant gave oral evidence concerning his claims at the Tribunal hearing held on 1 August 2019.
Essentially the applicant claims if he returns to China he faces serious harm from the family of a person killed in a motor vehicle accident in 2014 and that local authorities will assist those persons in pursuing him for compensation. He also fears that they will mistreat him if he does not pay the compensation claimed.
He also claims that he has breached the family planning regulations and faces harm from Chinese authorities for his non-compliance. In his application and in the interview with the delegate he claimed that he was liable for a social compensation fee in relation to his second child, however, during the Tribunal hearing he admitted that the social compensation had been paid.
Assessment of claims
In his application for protection the applicant claimed he owned a small [company]. He displeased one of his competitors for obtaining contracts and after that there was a setup accident. The family of the accident victim demanded compensation. He claimed that he had sustained harm from the victim’s family and his business competitors. He claimed that he sought the authorities help with respect to the compensation claimed but his business competitors had good connections to officials.
He also claimed that authorities found out that he and his wife had two children and had contravened the family planning regulations. He claimed they had been mistreated by the Chinese authorities in relation to the contravention of the family planning policy and he did not seek help as he believed they had broken the law.
He claimed that if he returned to China he feared harm from the accident victim’s family as they will continue to pursue compensation as well as harm from his business competitors and their associates. He also fears harm from Chinese authorities who regard him as a breaker of family planning policy.
The applicant discussed his claims with the delegate at interview[1]. At the interview the applicant stated;
·He faced harm, harassment and mistreatment in China.
·He owned a small [business] which had a [specified] contract.
·A motorcyclist was killed in a road accident with an [vehicle] not driven by the applicant. The applicant was blamed for the accident because the driver of the vehicle was working for the applicant’s [firm].
·The family of the motorcyclist was awarded [amount] RMB to be paid by the applicant. The compensation amount was decided on and awarded by the members of the family of the deceased. It was known to local government but not the central government.
·The applicant’s wife lives 500 km away from his home village with his children and they have not faced any difficulties related to the family planning regulations or the compensation claimed by the motorcyclist’s family.
·He and his wife have two children and this is in contravention of family planning regulations. He stated that he was fined [amount] RMB in 2011 for breaching the family planning regulations and he claimed he had not paid this sum.
·He departed China from Guangzhou International Airport and had no difficulty leaving China.
[1] Decision record provided to the Tribunal File no 1615081 ff 1-8.
The applicant gave evidence at the Tribunal hearing that in 2014 he was a contractor for a [project] which involved [a job task] in [a Location] which was close to his home village. The purpose of [the job task] was to [do something] in an [area].
He contracted to provide five vehicles with drivers to engage in this work. One of the drivers was involved in an accident which killed a motorcyclist. The family of the motorcyclist blamed him as he was the contractor and they demanded [amount] RMB. The Tribunal tried to obtain some clarity about the nature of this claim for compensation. He claimed that the victim’s family wanted this amount and had involved the local government authorities. When asked whether this meant there was a claim in a court he stated it was a local government court.
When asked whether he had a notice or court order he stated that he did have something in writing at his home in [Village]. He was asked why he had not provided a copy to the delegate or the Tribunal. At first he stated he could get such a document and then stated he did not know where he could get the document. He had not made enquiries or asked anyone else to obtain this document on his behalf. He also stated he had not engaged a lawyer to assist him in defending the claim. The Tribunal put it to him that he had made his application in 2015 and it had been refused in 2016. As the delegate had noted the absence of any supporting material this suggested that there was no document to support his claim that he had been ordered to pay compensation by local authorities.
He stated that despite the claim for compensation he had not paid any amount because he did not have that amount of money and in any event, it was not his responsibility. As he did not wish to pay the compensation and was being harassed he decided to engage an agent and obtain a visa for Australia. He claimed the cost of coming to Australia about [amount] RMB.
As discussed with the applicant at the hearing, it appeared the evidence he gave regarding the incident and claim for compensation was very vague and lacked plausible detail. In any event, as discussed, it appeared that the applicant was involved in a civil dispute over a claim for compensation and that his unwillingness to return did not appear to be for one of the reasons set out in the Act. He claimed that the local government was involved and harassing him on behalf of the victim’s relatives. The Tribunal put it to him that if there was a local court order that he should pay compensation it suggested that local government officials had a legitimate function of to pursue that debt. In response he stated that if he returned to China he could not pay the debt and survive financially.
The Tribunal accepts the applicant’s evidence that after he left school and prior to his departure from China he was engaged in a variety of manual and [work sector] jobs in China and that he worked in different areas of Fujian Province.
The Tribunal accepts that in 2014 the applicant was contracted to provide five [vehicles] and drivers for a [project] in Fujian Province near [his home village]. It accepts that one of the drivers was involved in an accident and that a motorcyclist died as a result of that accident.
The Tribunal does not accept that the applicant was required to pay the sum of [amount] RMB in compensation to the victim’s family by either court order or by some administrative action by local officials. The applicant’s evidence lacked plausible detail; he was unable to describe the nature of the compensation, that is, was it an unenforceable demand made by the family or was there a court order or official direction from local authorities that he was to pay the sum? Further there was no corroborative material provided despite the delegate raising this as an issue in the 2016 decision record.
If the victim’s family asked the applicant to pay compensation without some official process the Tribunal considers the demand to be a civil dispute between the applicant and the victim’s family. There is no evidence or material suggesting that the demand of itself would fall within the definition of serious harm for one of the reasons set out in the Act.
In the delegate’s interview, the applicant claimed his family had moved 500 kilometres from the home village to avoid harassment but at the Tribunal hearing he stated that his wife and two children were living in the family home in [Village] and the children were going to a local school. The Tribunal considers that his wife, children and parents have been continuously living in [Village] since he departed China. He made no claims at the hearing that his family had been harassed or had been harmed by the victim’s family or local officials arising from the demand for compensation.
The Tribunal finds that the applicant has not been mistreated or harmed by local officials for reasons of his failure to pay compensation and it does not accept that his family have been mistreated or harassed for this reason.
Taking the available evidence into account the Tribunal does not accept if the applicant returned to China he would be harassed by the victim’s family or local officials for his failure to pay compensation to the victim’s family.
The applicant initially made claims that he and his wife had two children in breach of China’s family planning regulations and the authorities demanded he pay to social compensation fee and had forced ligation.
In the interview with the delegate he claimed that he had two children and had been fined [amount] RMB to [amount] RMB and had not repaid the sum.
As discussed with the applicant at the hearing, that there is country information which indicates that an exception to the “one child” rule previously applied, particularly in rural areas of Fujian, where couples who had a female child were entitled to have a second child[2] without being required to pay a social compensation fee. The applicant agreed but stated that you had to have at least 4 years between the births.
[2] China Country Information Request-“Fujian registration of children and out of plan births” 24 March 2016 CX0562B6F11
In any event, the Tribunal pointed out that the applicant’s [age] year [child 1] and [age] year old [child 2] were attending school and this indicated that they had household registration. They had either been exempted from the family planning regulations or the fee had been paid. He stated that he had paid the social compensation fee.
With respect to family planning regulations,the most recent report from the Department of Foreign Affairs[3] notes that
3.105 China has had nation-wide family planning policies since the late 1970s. China's Population and Family Planning Law (Population Law) came into force on 1 September 2002. Until 2015, the state encouraged late marriage and childbearing and mandated one child per couple, although couples could have more than one child where: both spouses were sole children; the first child had a disability; both spouses were members of ethnic minorities; or, for rural residents, the first-born child was a girl. From 2013, couples could have two children if either spouse was a sole child. Legislation requires government departments, state media and schools to advocate family planning policies.
3.106 Concerned about its ageing population, the National People’s Congress amended the Population Law with effect from 1 January 2016. Changes included the full implementation of a ‘two child’ policy (subject to other health, age and timing requirements), the abolition of forced contraception, and changes to certain leave entitlements for parents (including maternity and paternity leave). The National Health and Family Planning Commission, the body responsible for overseeing the policy, reported that 2016 saw the largest annual number of births since 2000. Lower level governments down to neighbourhood and village committees are responsible for implementation of the two-child policy. Interpretation and implementation of the policy varies enormously across China (for more detailed information on Fujian province see DFAT’s Thematic Report on Fujian Province, published 15 December 2016).
….3.111 DFAT is aware of media reports that authorities have employed coercive practices (such as forced abortions, sterilisations or invasive medical inspections) in order to force compliance with family planning policies. DFAT considers credible local and international NGO reporting suggesting the incidence of coercive practices has reduced since the introduction of the two-child policy. There are, however, no reliable data on the frequency of coerced or forced abortions or sterilisations.
[3] DFAT Country Information Report on China 21 December 2017
On the basis of the available evidence, the Tribunal does not accept that if the applicant returns to China he will be required to pay a social compensation fee in relation to the birth of his second child. The claim in the protection visa application regarding the non-payment of the compensation fee was contradicted by the applicant’s evidence at the hearing and the Tribunal considers that if a fee was levied it was paid at some time prior to the applicant’s departure from China. This is supported by the applicant’s evidence that both children have household registration and are attending school.
The application for protection states that the authorities “have demanded for penalty and forced us for ligation”. The applicant did not raise the issue of ligation or provide further evidence during the interview or Tribunal hearing. The Tribunal notes that the applicant stated that his wife and children were living in the home village and had not been harassed or harmed. While accepting that in the past couples were often pressured or coerced into a variety of contraceptive measures when they reached their allowed quota of children the applicant has not claimed, and, there is no evidence, that the applicant will face forced contraceptive measures in the future if he returns to China.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future he faces a real chance of persecution for reasons of his contravention of the Chinese planning regulations or for reasons of his failure to pay an amount of compensation.
It is not necessary to consider whether the harm which the applicant claims to fear is for one of the reasons set out in s.5J(1)(a) of the Act as the Tribunal does not accept the claim that the applicant has been harassed, or that he faces mistreatment, by Chinese local authorities for reasons of his failure to pay a sum of compensation to the family of a motor vehicle collision which took place in 2014. It also does not accept that the applicant faces harm from the victim’s family for failure to pay them compensation and does not accept that local officials will aid the victim’s family in causing harm to the applicant in their pursuit of compensation.
The Tribunal also does not accept that the applicant will be required to pay a social compensation fee or face any other penalty or harm in relation to the birth of his second child for the reasons set out above.
Accordingly the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in section 5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?

Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
As stated above, the Tribunal does not accept that if he returns to China the applicant will be harassed or harmed by the victim’s family or that he will face mistreatment by Chinese authorities for the his failure to pay an amount of compensation. It finds that his two children have household registration which indicates that he has either paid the social compensation fee in relation to his second child or he and his wife were not required to pay a fee for the second child as their first born child was a female.
Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, 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 that there is a real risk he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
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.
Louise Nicholls
Senior Member

ATTACHMENT A
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.
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 6549

5 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice