1615642 (Refugee)

1615642 (Refugee) [2019] AATA 4550 (22 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615642
COUNTRY OF REFERENCE:                  China
MEMBER:Christine Cody
DATE:22 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 July 2019 at 9:48am

CATCHWORDS
REFUGEE – protection visa – China – no response to hearing invitation – acquisition of family land – failure to be paid compensation – victim of retaliation due to petitioning – Xinfang system – corruption – credibility issues – no direct harm suffered – failure to attend scheduled hearing – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 426A, 441A
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
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 8 September 2016 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 The Peoples’ Republic of China (China), applied for the visa on 11 May 2015. The relevant law is set out in Annexure A.
The Department
The Departmental file contains documents including the applicant’s protection visa application forms lodged 11 May 2015, a written statement setting out her claims for protection, copies of the applicant’s passport and NSW driver’s licence, a recording of the Departmental interview, and a copy of the delegate’s decision record. It also contains an application for a bridging visa (seeking permission to work) dated 21 July 2015.
Migration history
The applicant was granted [a] visitor visa on 3 May 2012, and arrived in Australia [in] May 2012. The applicant applied for a protection visa on 11 May 2015.
According to the application form of 10 May 2015, the applicant’s background and claims can be summarised as follows:
·     The applicant was born in [year] in [Town 1], Hebei Province, China. The applicant specifies neither religion nor ethnicity. The applicant speaks, reads, and writes Mandarin.
·     The applicant married her husband in 2007 in Hebei. Her husband and two sons (born [year] and [year]) both live in China.
·     The applicant completed middle school in [Town 1] in [month, year]. The applicant states that she has no work experience.
·     The applicant lists one address in [Town 1] from birth until May 2012. Since coming to Australia, the applicant has lived in a Sydney suburb.
·     In December 2011, the local government decided to acquire the applicant’s home. The applicant and her family were offered compensation of 800RMB/mu every year, and each adult would receive 1,000 RMB every year. The applicant and her family had to accept the government’s offer.
·     The project started in January 2012, but the applicant and other people whose land was acquired did not receive any compensation. Only people who were in a close relationship with the village leaders received any money. The applicant and her husband went to the village council several times, but were told that the higher government had not paid the council. It was obvious that the village leader, [Mr A], had taken the compensation money.
·     The applicant and her husband organised some people to complain through the [Town 1] Xenfang System. Officers from the system attended, but one month later the applicant and her husband had still received no further information. The applicant and her husband lodged an application against [Mr A] in court.
·     Two days later, 5 men came to their house, carrying big sticks and wearing ‘mouth-muffles.’ They smashed valuable items in the home, and beat her husband on the head. The applicant also suffered a minor injury. After they left, the applicant called the police and ambulance. The applicant informed the police what happened. [Mr A] made connections with criminal organisations and police to cover his corruption. The police asked the applicant’s husband to attend the police station for investigation. Once the applicant’s husband recovered, he sent the applicant to live in Australia for safety.
·     The husband was detained for a day in the police station, and was forced to sign a document ending his court appeal.
·     The applicant states that if she returns to China, she will petition with her husband and be persecuted again. The applicant believes that [Mr A] would harm her and her husband, because they lodged a court application against him. [Mr A] monitors her husband, asking people to watch him and installing cameras around their home, so that [Mr A] would know if the husband went to court again.
·     The applicant does not believe that she could be protected in China because the authorities are corrupt and seek private gain. The government officers buy votes and collude with criminal organisations as well as police.
·     The applicant does not believe she could relocate in China, since [Mr A] provided her and her husband’s information to the police, so he could control them. The applicant and her husband would be unable to buy train, bus, or plane tickets.
·     The applicant states that their friend could drive her and her husband somewhere else, but they would still need an ID card. If the applicant used her ID card, then the police would know and would inform [Mr A], who would persecute them once he discovered that the applicant intended to report him.
·     The applicant states that she had no friends and did not understand English, so she did not know that she could apply for protection visas when she arrived in Australia. Once the applicant discovered that she could apply for a protection visa, she lodged her application straight away.
The applicant attended an interview on 1 September 2016. Some of the applicant’s evidence at interview was summarised in the delegate’s decision record as follows:
·     She became aware of the construction project which necessitated the acquisition of her family land in 2011. The construction commenced in 2012 and is now nearing completion.
·     She was unaware of Protection visas and therefore did not apply for a Protection visa earlier.
·     She has not faced harm directly but has been psychologically impacted by the harm inflicted on her husband for his petitioning.
·     Her husband has petitioned 7-8 times regarding the inadequate compensation offered and failure to be paid compensation from land acquisition for a construction project.
·     Her husband has been arrested and beaten previously. He most recently faced difficulties including being beaten in late 2015.
·     Their home was ransacked. Evidence of this exists in photographs which the applicant will provide on 2 September 2016.
·     She did not face any difficulties with Chinese authorities when departing China.
·     If she returned to China she would continue to petition.
The delegate found that the applicant gave seemingly stock answers to questions at the interview, and would not answer original questions. Her responses seemed rehearsed; and she was vague and silent. The delegate found that the applicant’s claims were not credible, based on her unconvincing evidence at interview and the long delay between arriving in Australia and applying for a protection visa. The delegate did not accept that the applicant came to the adverse attention of the Chinese government, that she petitioned Chinese government authorities, nor that the applicant fears harm from the Chinese authorities. Therefore, the delegate found the applicant not to be a refugee or owed complementary protection obligations. The delegate refused the application on 8 September 2016.
There are no non-disclosure certificates on file.
The Tribunal
The applicant provided to the Tribunal an online application for review form and a copy of the delegate’s notification of decision and decision record. There were no other documents provided to the Tribunal by the applicant.
In the Tribunal’s acknowledgement of application letter dated 26 September 2016 sent to the applicant by email to the email address on the application for review form, the Tribunal emphasised that it was important that the applicant inform it immediately if she changes her contact details, including her email address and telephone number. The Tribunal also noted that if the applicant had materials or written arguments to be considered, they should be provided as soon as possible. No material or written arguments were provided to the Tribunal.
On 1 July 2019 an invitation to attend a hearing on 17 July 2019 was sent to the applicant. In that hearing invitation, the Tribunal advised the applicant that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at the hearing. The invitation stated that she should provide all documents, evidence and submissions upon which she sought to rely by 10 July 2019, and that she should advise the Tribunal as soon as possible if she was not able to attend the hearing, and that if she did not attend the hearing, the Tribunal may make a decision on the case without further notice to her. The applicant did not respond or provide any documents or evidence to the Tribunal.
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing on 17 July 2019. She has not contacted the Tribunal after the scheduled hearing date to offer any explanation as to why she did not attend. Having reviewed the Tribunal file, the Tribunal considers that the applicant was informed that a decision may be made if she does not attend or contact the Tribunal. The Tribunal also notes that between the lodgement of her application in 2016 and more recently in May 2019, there has been email correspondence between Tribunal staff and the applicant relating to her requests for letters allowing her to continue to claim Medicare, and that the email address used for correspondence is the same as that to which the Tribunal sent the hearing invitation.
The Tribunal also sent two SMS hearing reminders to the applicant at the phone number she provided to the Tribunal five days and one day prior to the hearing; these reminders were returned to sender. This suggests that the applicant’s phone number is no longer operative; and that if it has changed, she has not updated the Tribunal.
The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.441A(4) of the Act, and the invitation has not been returned to sender. In the circumstances described above, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Country of reference
The applicant produced her passport issued by the Chinese authorities to the Department and the Department accepted that she was a Chinese citizen and national of China, and assessed her claims against China. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of China, and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is China.
Credibility of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
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 or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if she returns to China.
The applicant provided written claims to the Department. The delegate refused her claims. She had been advised by the Tribunal that it had insufficient information before it to make a favourable decision on her behalf. Yet, she did not provide anything further to the Tribunal nor did she attend the hearing where she might have had the opportunity to provide necessary details of her claims. In these circumstances, a number of relevant questions about her claims remain unanswered, including as set out below.[1]
[1] All references to the applicant’s evidence at interview are sourced from the delegate’s decision record that the applicant provided to the Tribunal. She did not provide any further documentation or submissions suggesting that the contents of the delegate’s decision record were incorrect.
The Tribunal was concerned as to why the applicant was the one who left her husband and children behind in China, when it appears that it was her husband who was targeted for harm and beaten up, not the applicant herself. Although in her statement she said that she had suffered a minor injury when her husband had been attacked and beaten, at interview she said she has not suffered harm directly (but has been psychologically impacted by the harm inflicted on her husband for his petitioning). While noting her claims that her husband was concerned for her, the applicant left her husband who had been hospitalised, and her then young children, and the Tribunal is not satisfied as to her reason for leaving her family in China.
The applicant told the delegate that her husband had photos of their home being ransacked which she would send to the delegate the next day. This did not occur, nor did the applicant provide these photographs to the Tribunal, or an explanation as to why these have not been produced (if she was unable to obtain them). While the Tribunal accepts that documentary evidence is not a requirement for the Tribunal to be satisfied of claims, the applicant has not offered an explanation as to why, three years later, she has not produced these photographs.
The applicant’s passport was issued [in] 2011. According to her statement, although they were forced to sell their land in December 2011, they did not experience any difficulties until January 2012 when the project started but they did not receive their first instalment and they complained to the council. The applicant claimed that they were thereafter persecuted and because her husband did not want her to be involved he helped her to apply for an Australian visa. The Tribunal considers that the act of obtaining her first ever passport[2] even before her family faced the claimed difficulties (which started when they were not paid and they complained), indicates that there may have been other reasons for the applicant’s travel to Australia.
[2] Her protection visa application form confirms that she has never previously held a passport.
The Tribunal was concerned with the applicant’s delay in lodging a protection visa application after her arrival holding a visitor visa, noting that the delay was a period of about 3 years. In her statement she claimed that this was because she did not have friends, and she did not understand English. However, she also claims that she has never worked, yet she has managed to survive in Australia for three years. On the evidence before it the Tribunal is not satisfied with her claim that she did not work. Further, the Tribunal considers it unlikely that the applicant would have had no contacts in Australia given she lived in a residence in Australia (the same one for the three year period from the time she arrived in Australia until she lodged her application) and the likelihood that she engaged with people while working to support herself in Australia.
The Tribunal also considers that the applicant’s delay in claiming asylum is hard to accept given that she claims to have left her children and husband at the mercy of the corrupt people in control in the village while she spent three years in Australia (and noting she has not explained what she has been doing in that three year period in Australia).
Finally, the applicant claimed that if she returned to China she will petition again. There is no evidence however that the applicant has taken any steps to petition or cure the claimed injustice suffered by her family while she has been in Australia for the last seven years, even though there appears to be no reason why she could not have continued petitioning by sending emails and other correspondence from Australia.
The Tribunal is not satisfied as to applicant’s claims of the events which she says occurred in China to herself and her family. The Tribunal is not satisfied that anyone has had any adverse interest in the applicant or her family while she has been in Australia. It is also not satisfied on the evidence before it that she suffered psychological harm.
The Tribunal has considered the country situation as set out in the DFAT report to which the Tribunal is required to have regard; however as it is not satisfied as to the majority of the applicant’s claims, the Tribunal does not consider that the applicant faces a real chance of serious harm or a real risk of significant harm for any reason.

The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicant faces a real chance of serious harm or a real risk of significant harm in China.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are made out, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution for any of the reasons put forward by her.
The Tribunal does not accept that there is any credible evidence to support that the applicant faces a real chance of persecution in China. 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).
Complementary protection criteria
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). As discussed above there remain many questions unanswered in relation to the applicant's claims. Insufficient detail has been provided for the Tribunal to be satisfied that the claims are credible. The Tribunal is not satisfied on the evidence before it that she faces a real risk of significant harm in China for any reason.
Accordingly, on the evidence presently 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 a receiving country, in this case China, there is a real risk that she will suffer significant harm for the purposes of 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE 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 below.
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 below.
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 4550

22 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice