1615817 (Refugee)

1615817 (Refugee) [2019] AATA 6689 (4 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615817
COUNTRY OF REFERENCE:                   China
MEMBER:Luke Hardy
DATE:4 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 September 2019 at 3:22pm
CATCHWORDS
REFUGEE – protection visa – China – irregular migration history – use of people smugglers – obtained passport under own identity – legal departure from China – imputed religion – underground church – economic hardship – competitive labour market – social compensation fee – hukou – access to education and other social benefits – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 26 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The [applicant] is a citizen of China. He entered Australia on a business visa [in] May 2015. The visa expired on 23 August 2015. [The applicant] lodged a protection visa application on 15 September 2015. The delegate refused to grant the visa on 26 August 2016. [The applicant] then sought merits review of the delegate’s decision.
[The applicant] appeared before the Tribunal on 4 September 2019 to give oral evidence and present arguments. He was accompanied by his advisor, a registered migration agent. The hearing was facilitated by an interpreter in the Mandarin-English medium.
At the beginning of the hearing, the Tribunal dealt in some detail with the matter of a s.438(1) “Non-disclosure Certificate” covering material in his Immigration Department file described as internal working documents and, therefore, invalid[1], meaning that I am not barred from disclosing them. I assured [the applicant] and his adviser that the documents in question, including an internal checklist and an opinion from the Department’s Document Examination Unit to the effect that his passport appeared genuine, meaning that his identity was not in question, have no bearing in the matter to be decided by me, not least since I have no concerns about his identity. I invited comment. There were no concerns raised and the hearing proceeded.
[1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision which contains a summary of his oral evidence he gave at his protection visa interview on 29 July 2016 as well as descriptions of the delegate’s concerns about the relevance and/or quality and/or reliability of a number of his claims.
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, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
In his original protection visa application and in a statement attached to it, [the applicant] claimed that he had a history of leaving his home town in Fujian province for other provinces, and China itself on three prior occasions, to look for work so that he could send money back to his family. He claimed that, engaging “snakeheads”, or people smugglers, he falsified his identity and background to secure a working visa for [Country 1] in the mid-1990s, where he was found to have breached immigration conditions and was deported back to China. He claimed he paid a fine for breach of migration laws and felt some social stigma once he had returned. He claimed he used smugglers to travel illegally by boat to [Country 2] in 1998. He claimed he was implicated in the assault of a [Country 2] people smuggler and was jailed for six months in [Country 2]. He claimed he was somehow able to serve a short remainder of his sentence back in China and said his jailers in Fujian treated him relatively well. He claimed he tried to enter [Country 2] on a false passport in 2005 and was deported back to [Country 2]. He claimed that he is treated with suspicion in Chinese society due to his irregular migration history and implied that if returned to China the authorities might mistreat him in relation to this. I note, meanwhile, that [the applicant] applied for and obtained a passport in his own identity in 2008. He used this passport when he applied for his visa for Australia; when that was granted he left China legally and without any official impediment. He told the Minister’s delegate that he had no difficulty obtaining the passport.
[The applicant] also claimed to the Department that he has two children, a son born in [year] or [year] and a daughter born in [year]. He claimed that he could not afford to pay the fine, or “social compensation fee” (SCF), to ensure that his daughter, born outside of China’s family Planning Regulations as they stood at the time, could be included in his family registration book, or “hukou”, and therefore have access to state education and other benefits throughout her life. He claimed that he would be severely punished if he did not pay the SCF, which, in any event he said he could not afford to do. At the Tribunal hearing, however, [the applicant] told me that he and his wife had paid off the SCF for their daughter some years ago and that she was now attending an ordinary state school, being about to start grade [number] of [high school]. Since she is around [age] years old, she does not appear to have missed any significant amount of her education. In any event, I put to [the applicant] that the “black child” and SCF issues appeared no longer to be relevant in the present matter, because his family was all registered and getting on with life. In response, he said he nevertheless had to pay a steep “fine” for his daughter. I put to him that the SCF had been charged under generally-applicable regulations. He acknowledged this. He did not suggest that there had been any discrimination in applying the SCF and he did not suggest that his family composition gives, or would give, rise to a real chance of his being persecuted either directly or indirectly in the reasonably foreseeable future, let alone for any reason cited under s.5J(1)(a) of the Act.
[The applicant] claimed to the Department that throughout his arguably colourful migration history, he was often encouraged by friends to pray to the Christian God for better luck. He claimed that for years he did not take up the suggestion as he was not at all religious. He claimed that after he was deported from [Country 2] the first time, the occasion on which he served out part of his sentence in what appears to have been some kind of exchange arrangement between China and [Country 2], he accepted a friend’s invitation to attend a prayer group in 1999 and 2000 in an unauthorised, “underground” Christian church in Fujian. He said the prayer meetings were so secret that he was slow to comprehend what was going on. He said he was warned by village leaders that he might get into trouble over attending such gatherings and that, fearing he might be harmed by the authorities, he relocated to Guangxi province for five years, moving about there under a false name. He claimed he returned to his home village because he was missing his family. He did not suggest that he met with any intrusion from authorities regarding religion. He claimed he moved to Shangxi province in 2007 to work and send money home, presumably after his second attempt to work in [Country 2], returning to his home village in 2014, where he apparently remained until departing China legally in 2015.
In his protection visa interview, [the applicant] told the delegate that he attended a church in [Suburb 1] NSW on the invitation of friends here. He said he did not know what the denomination of the church was. He said that when he went to the church, people performed certain gestures, like crossing themselves, and he just copied them. He said he only went there a few times. He evidently said he had become some kind of a Christian although not under any particular church. He evidently said that he generally preferred to practice his religion alone by standing in front of a statue of some kind and assuming the form of a crucifix with his arms outstretched hoping for a blessing. Asked what Heaven is, he evidently told the delegate he was not sure.
At the Tribunal hearing, I asked [the applicant] why he could not return to China, and he said he feared having to face economic hardship due to the competitive job market there. I clearly articulated to him that economic hardship and unemployment, on their own, might not be sufficient to meet any of the criteria for a protection visa, particularly if the reasons for such hardship did not involve discrimination or, for the purposes of complementary protection, intention to harm. He did not rebut this position. After we discussed his efforts to find work abroad, the fines and other penalties he had paid in China for irregular migration, his second child and the SCF paid to have her included in the family “hukou”, I asked him if he had any other claims and he said he did not. I asked him about the “religion” claims he had made to the Department and he expressed what appeared to be some embarrassment, eventually acknowledging that they were all false claims and that he had been misled into making them in the first place. He said he did, however, attend a church in [Suburb 1] a few times and that he did go along with his friends to a prayer gathering in China many years ago. He did not suggest that he did this out of any genuine need. He did not suggest that any of these activities would lead to a real chance of being harmed in the reasonably foreseeable future and, in considering whether his having attended an underground church group back a few times back in 1999 and 2000 might give rise to a real chance of being persecuted in the reasonably foreseeable future, I give weight to the fact that he was never persecuted by the authorities for having done so and that he was allowed to depart China legally, under his own identity, without any hindrance in 2015.
[The applicant] admitted at the hearing to having no fear of being persecuted in China for reasons of “religion”. He stressed that he wanted to stay in Australia so that he could continue to work here, presumably to send home to his wife who, he said, does not have a job. He said that what he fears is not being able to continue his working visa in Australia. By way of helping him understand his status here, I mentioned that any permission he might currently have to work in Australia would likely be concomitant with his bridging visa, which would expire in the event of his not being granted a protection visa. I asked him if he was working at present and, if so, in what kind of field. In reply, he said he sometimes cannot find any work here.
A number times, I asked [the applicant] and his advisor if they had any more claims to present or if I had overlooked anything potentially important in assessing his eligibility for a protection visa. They said that there was nothing more to add.
I accept that [the applicant] attended a Christian church in Australia on a few occasions. I have not disregarded this conduct for the purposes of determining his s.5J(1)(a) claims because he said he was invited by friends and just went along with them. I accept on the evidence before me that there was an innocuous social element in the conduct. Meanwhile, [the applicant] did not suggest that his attending the church on the few times he went, here in Australia, would attract potentially negative relevant attention back in China and. On the evidence before me, there appears to be no reason to apprehend that it would.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220.
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the 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 in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[5]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[5] Sun v MIBP [2016] FCAFC 52 at [69].
On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in China in the reasonably foreseeable future for reasons of his daughter being his and his wife’s second child, whether one views this as having nexus with any of the terms of s.5J(1)(a) or not.
On the evidence before me, giving some weight to the evidence of the issuing of his last passport as well as the evidence of his legal departure from China in 2015, I am not satisfied that [the applicant]’s migration history in China, which includes his having paid a number of penalties for breaches of immigration laws or regulations, gives rise to a real chance of his being persecuted in that country in the reasonably foreseeable future, let alone for any reason cited in s.5J(1)(a) of the Act.
On the evidence before me, I am not satisfied that [the applicant] has any religion, I find that I am not satisfied that he faces a real chance of being persecuted in China in the reasonably foreseeable future for reasons relating even to imputed religion.
I find that [the applicant]’s claims about not being able to find a job in China are baldy speculative, and that they do not meet the “real chance” test. In addition, his claimed reasons for not being able to find a job there relate to how few adequately well-paying jobs there are, generally, for people who want them in China’s current economic climate; as such, his claims do not raise any issues relevant to s.5J(1)(a)of the Act.
Having considered all of the evidence in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in China in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act

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).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
As [the applicant] is a citizen of China, I find that China is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his complementary protection claims involves economic hardship due to a general lack of availability of jobs in China that he thinks he could do for an appropriate wage. He does not suggest that this situation will be intentionally inflicted upon him; rather, he indicates that he feels he might not be able to compete in a competitive labour market. As such, the harm [the applicant] claims to fear does not include “the death penalty”, “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”, let alone intentionally inflicted in the last three instances. Accordingly I find that the harm [the applicant] claims to fear does not rise to what one could reasonably consider to be significant harm for the purposes of s.36(2)(aa).
In addition, I find that [the applicant]’s claims about what will or will not happen to him in China are baldy speculative such that I am not satisfied that his claims meet the “real risk” test.
As to his other claims, they must also fail. His claims about being harmed for reasons of his migration history fail to meet the “real risk” test just as they have failed to meet the “real chance” test. His claims relating to his daughter’s status are evidently unfounded since she is now “hukou” registered, meaning that there is no continuing basis to the claims. Also, as discussed above, his “religion” claims are, as he said himself, unreliable and otherwise incapable of meeting the “real risk” test, even if one considers “imputed religion”.
Having considered all of the evidence in this case, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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 6689

4 September 2019

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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Appeal