1619714 (Refugee)

1619714 (Refugee) [2019] AATA 6679 (15 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619714
COUNTRY OF REFERENCE:                   China
MEMBER:Denise Connolly
DATE:15 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 15 October 2019 at 9:39am
CATCHWORDS
REFUGEE – protection visa – China – seizure of land with no compensation – claim of arrest, detention and interrogation written by lawyer – issued with and travelled on own passport – residence and work in another country, and extensive travel – delay in applying for protection – applied after tourist visa expired – ability to work or eligibility for pension if returned – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 438
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 23 June 2015. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) is not a person in respect of whom Australia has protection obligations.
There are two purported s.438 certificates on the Department’s file; the first a certificate dated [November] 2016 notifying the Tribunal, under s.438(1)(b), that folio 84 should not be disclosed to the applicant because it contains documents affecting personal privacy. Folio 84 contains the information relating to the interpreter service delivery, including the interpreter’s name. The Tribunal notes there is nothing on the form to indicate the interpreter gave the information in confidence. The Tribunal is satisfied the personal information in the form, the name of the interpreter and the officer booking the interpreter, can be redacted if for some reason the applicants wish to see the form. Having considered folio 84 and the certificate, and the lack of evidence that the interpreter gave the information in confidence, the Tribunal is not satisfied the s.438(1)(b) certificate dated [November] 2016 is valid.
The other purported s.438 certificate dated [November] 2016 notifies the Tribunal, under s.438(1)(a) that folios 80 to 83 should not be disclosed because it would be contrary to the public interest as the folios contain information relating to an internal working document and business affairs. Those folios are the applicants’ incoming and outgoing passenger cards. The applicant acknowledged at the hearing that the applicants had previously visited Australia and departed before returning again in 2014. There is nothing in the cards that is sensitive or adverse. Having considered the certificate and the information in folios 80 to 83 the Tribunal finds the reasons given do not properly identify a basis for public interest immunity. There is no suggestion that the documents or their content would harm the nation or public interest by disclosure of the material. The Tribunal finds the certificate is not valid.
The applicant appeared before the Tribunal on 10 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CLAIMS AND EVIDENCE
When making the visa application the applicant provided the following information. He was born on [Date] in Heilongjiang, China. He is a citizen of China. He does not have the right to reside in any other country. He speaks Mandarin. He is in a de facto relationship with the second named applicant. His mother and father are deceased. He provided a copy of his Chinese passport issued [in] 2011 obtained through normal procedures. He departed China legally. Prior to travelling to Australia he was unemployed. Until March 2014 he resided in [Town], Ningan City, Heilongjiang.
The applicant applied for a visitor visa [in] November 2013 which was granted [later in] November 2013. He arrived in Australia as the holder of a [Visitor] visa [in] March 2014. He indicated he had not departed and re-entered Australia since his first arrival.
The second named applicant was born on [Date] in Tianjin, China. She speaks Mandarin. Her parents live in China. She arrived in Australia [in] March 2014 as the holder of a [Visitor] visa. She lived in Tianjin City prior to coming to Australia. She is not making her own protection claims but seeks to rely on those of the applicant.
The applicant’s written claims are that he had land in China but the authorities seized the land and did not pay compensation. He does not have sufficient financial income to maintain living expenses in China since the land was seized. He protested against the authorities’ seizure. The authorities did not return his land or provide financial compensation, but detained him and warned him not to take any further action. He was arrested, detained and interrogated and the authorities deprived the applicants of making a living and discriminated against them. He believes if he returns to China, he will have the problem of finding financial support and he will continue to protest against the seizure. As a result it is inevitable he will be harmed and mistreated.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records information he gave to the delegate at an interview on 27 October 2016. The Tribunal has listened to the recording and it is satisfied the information in the decision record, while not a transcript, reflects the information given by the applicant at that interview.
The delegate’s decision record also records the applicant’s migration history. The applicant was granted a Tourist visa [in] November 2013. He first arrived in Australia as the holder of a Tourist visa [in] January 2014 and departed [later in] January 2014. He then returned to Australia [in] March 2014 and did not lodge the protection visa application until 23 June 2015, after the Tourist visa ceased [in] June 2014. The applicant told the delegate his allocated farming land was occupied by force by a private sand mining company. He complained to the local authorities but was ignored. He then left China and worked in a factory in [Country 1] for nearly 12 years. He returned to China in about 2011 but stayed only for a short time. From 2011 he also travelled to other countries including [Country 2], [Country 3], [Country 4] and [Country 5]. He is divorced and has 2 adult children.
The delegate was not satisfied the applicant would suffer serious or significant harm if he returned to China. She formed the view he had shown resilience and resourcefulness in finding work and accommodation in Australia and he would be able to do this if he returned to China.
The applicant appeared before the Tribunal on 10 October 2019 to give evidence and present arguments. The following is a summary of the oral evidence provided at the hearing.
The applicant stated that the second named applicant did not attend the hearing because she had to go to work. He told the Tribunal they met in [Country 1] and have been in a de facto relationship for about 13 or 14 years. He divorced his first wife and has no contact with her. He confirmed that he travelled to Australia as the holder of a Visitor visa, valid for one year, allowing for multiple entries.
The Tribunal asked the applicant about his family in China. He indicated his daughter, aged [age], works as a farmer in [Village], [Town], Heilongjiang Province. She is married with one child. She farms corn and vegetables on land allocated by the government. She has been doing this for more than 10 years. His son, aged [age] works outside the local area in a factory in Ningan City. He is married with 2 children. He lives in his own house in, [Village], the same village where the applicant lived before he left China.
The Tribunal asked the applicant about his employment history in China. He indicated that he was a farmer, at first on government land. He did this for about 5 years. He then worked as a farmer on land, the subject of his claims, allocated to him by the government. That allocation is no longer in place. He farmed that land for less than 10 years. He then went to [Country 1] in about 1999 where he worked for [Employer]. The Tribunal asked when he returned to China. He could not remember. He lived in [Country 1] for about 11 years. He went from [Country 1] back to China for about 3 years and then came to Australia. However in the period about 2010 to 2013 he travelled to [Region] on holidays using his savings from his [Country 1] work. He visited about 6 [countries]. He also had holidays in [Country 3] and [Country 4], and [Country 5] for one week. He had previously been to [Country 6] in 1992 but that was to work.
The Tribunal asked the applicant when and why he first came to Australia. He indicated that he first came for a holiday. He could not remember when exactly. He then left Australia and returned to China. He then returned to Australia later in 2014. The Tribunal asked why he came to Australia the second time. He indicated that when he was back in China he thought Australia was a nice place so he applied for a visa to come back here to live and work. He could not remember exactly when he did this; he thought possibly in March 2014. He and his partner stayed in a hotel and looked for work. It took him about 2 months to secure employment. In the interim he lived off his savings.
The Tribunal asked the applicant why he cannot return to China. He indicated that he cannot go back because when he went to [Country 1] (in 1999) he had land but after he left they took the land away because of the dispute. The Tribunal asked about the timing of the dispute. He could not remember.
The Tribunal asked the applicant what he thought would happen to him if he returned to China and, if he feared harm, who he thought would harm him. He indicated that he does not have anything to go back to as he has no land. The Tribunal noted that the applicant has been able to secure employment and accommodation in Australia and [Country 1] and asked why he could not do this in China. He indicated that, while he cannot say that he will not be able to find a job in China or that he will not be able to survive, he has had a land dispute and he lost a court case. The Tribunal asked about the particulars of the court case. He indicated it was before 1999. He then clarified that it was not really a court case; he went to see someone in the government. The Tribunal noted that the applicant is concerned about events that occurred nearly 20 years ago. It asked why that would stop his return to China now. He said he has no land.
The Tribunal asked the applicant to set out everything that happened in the past to make him leave China. He indicated that the government did not care about normal citizens. They occupied his land and put sand and stones on it so he could not farm. The Tribunal asked if there was anything else that happened to make him fearful of returning to China. He indicated the problem was that he had a dispute over the land prior to leaving in 1999.
The Tribunal asked the applicant if he is of adverse interest to the authorities in China. He indicated that he went to the Land Bureau and they did not care. He acknowledged that he got his passport and departed China lawfully as indicated in his protection visa application. When asked if he was stopped by the authorities on the various occasions he departed China, he explained that he was not stopped by the authorities when he departed China because he had not broken the law.
The Tribunal explained that the applicant’s oral evidence is different to his written claims. It explained that, for example, it was alleged that he had been arrested, detained and interrogated. It explained that it may not accept some of his written claims because he had not repeated them to the Tribunal when asked what happened in China. The applicant acknowledged that the lawyer had written his claims. He denied telling the lawyer to write that he had been arrested, detained and interrogated. He paid the lawyer about $[amount] to complete and lodge his visa application.
The Tribunal explained that the country information referred to in the delegate’s decision record indicates that any dispute he may have had regarding the confiscation of his land might be dealt with by the Chinese legal system. It noted that country information explains that state compensation law provides administrative and judicial remedies for applicants whose rights or interests have been infringed. The applicant indicated that the allocated land is no longer in his name. He believes that they will not reallocate that land to him because the other party involved in the dispute has government connections.
The Tribunal asked the applicant why he did not merely relocate in China after he had the dispute over the land. It also explained that country information[1] indicates that he would now be able to relocate to seek employment in another province. It noted that the applicant had been resourceful in securing employment and accommodation in other countries. The applicant indicated that, given his age, people will not want to hire him. He indicated he is [age]. The Tribunal noted that he was born in [year] so he is in fact not quite [age].
[1] DFAT Country Information Report People’s Republic of China, 21 December 2017, page 38 - 39
The Tribunal explained to the applicant that he appears to have family connections in China and he may be able to work. It noted he had told the Tribunal that the second named applicant did not attend the hearing because she was working. It explained that it may find he and his partner could work in China and it may not accept that he would be destitute in China if he returned. The applicant indicated that he cannot work now because he had [surgery], in August 2018. He believes he cannot get the pension in China. His family would not be able to support him because they have their own burdens. The Tribunal explained that the applicant’s evidence regarding his holidays might suggest that he has not been concerned about his financial circumstances. It also explained that the country information indicates that there is in fact a social security pension system in China and that he would be entitled to receive a pension at age 60.[2] [3] It noted the country information also indicates that if a male has undertaken certain physical work they are able to get the pension of 55. It noted that the second named applicant is currently working, suggesting should would be able to continue to do so if the applicants returned to China. It explained that it may form the view that she would be able to secure employment in China and support the applicant. The applicant indicated that the systems are corrupt in China and the officials take 50% of the pension. The Tribunal indicated to the applicant that it had not seen country information supporting this claim.
[2] Pensions at a Glance 2017 - China, OECD, accessed 10 October 2019
[3] Pension system reform in China: Who gets what pensions?, Social Policy Administration Wiley Online Library, accessed 14 October 2019
The Tribunal went through the definition of refugee, and explained that it must consider whether the applicant has a well-founded fear of persecution, and if so, whether he fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. It asked the applicant if he thought he met the definition. He indicated the definition of refugee may not be relevant in his circumstances. The Tribunal then read the definition of significant harm as set out in the Act and asked the applicant if he believed he feared any of the circumstances described in that definition. He indicated he thought his fears did not meet the definition of significant harm. The Tribunal explained that it appeared the applicant did not meet the definition of refugee or the complementary protection criterion. He acknowledged that it appeared he did not meet those requirements.
The Tribunal asked the applicant if he had any other evidence to give regarding his claims. He confirmed that he had no other evidence to give.
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality

The applicant claims to be a citizen of China and has provided to the Department a copy of his Chinese passport. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China. The Tribunal finds that China is his receiving country for the purpose of assessing his claims for protection. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.
The second named applicant also provided to the Department a copy of her Chinese passport issued [in] 2011. There is no evidence to suggest that her passport is not genuine. The Tribunal is satisfied she is also a citizen of China and finds that China is her receiving country for the purposes of assessing any claims.
Does the applicant have a well-founded fear of persecution?
The Tribunal discussed with the applicant that his written claims were somewhat different to his oral evidence. He acknowledged to the Tribunal that the written claim that he was arrested, detained and interrogated was not true. He explained that he did not write the claims; they were written by his lawyer on his behalf. The Tribunal considered the applicant’s oral evidence to be persuasive and credible. It is not concerned that he has not been truthful in his oral evidence. In the circumstances of this case, based on the applicant’s own oral evidence that aspects of the written claims are not true, the Tribunal finds the applicant’s oral evidence to be more reliable and makes its findings, in the main, on the basis of that evidence.
The Tribunal accepts that the applicant had a dispute in relation to land allocated to him by the government, which he farmed up until 1999. It accepts that he approached the Lands Bureau but did not achieve the outcome that he sought. It accepts that he believes that the other party, the private sand mining company, had connections in the government. It also accepts that he then went to [Country 1] to work and he stayed there for 11 years. It was in [Country 1] where he met his current partner, the second named applicant. While the Tribunal accepts that the applicant may have been disappointed with the outcome of his attempts to seek redress as his land had been impacted by the sand mining company and rendered unsuitable for farming, the Tribunal does not accept that the applicant suffered serious harm or came to the adverse attention of the authorities because of his attempts to seek redress. On the basis of his oral evidence, it does not accept that the applicant was arrested, detained and interrogated as claimed in the written application.
The Tribunal accepts the applicant’s evidence that he returned to China after living in [Country 1] for 11 years and that he, from time to time travelled abroad. It accepts that he came to Australia in March 2014 because he wished to live and work here. The applicant did not tell the Tribunal that he came here because he feared serious or significant harm in China. The Tribunal is satisfied he came here in 2014 because it was the country in which he wished to reside and work.
When asked why he fears returning to China, the applicant indicated that he cannot go back because he no longer holds land. The Tribunal accepts that the land allocated to him by the government, prior to his departure for [Country 1], is no longer available to him. However the Tribunal does not accept that the reappropriation of that land will result in the applicant suffering serious or significant harm if he were to return to China. Given the time that has passed since the incident, the Tribunal is not satisfied the applicant will seek to have the land reallocated to him or protest about the reappropriation of the land.
The applicant told the Tribunal that he underwent [surgery] in Australia in August 2018 and the Tribunal is satisfied it can rely on his oral evidence regarding this claim. While he indicated that he would not be able to work because of the surgery, the Tribunal is not satisfied that the evidence before it supports his claim that he would not be able to do any work if he returned to China. The applicant has not claimed that he requires any further medical treatment, in relation to this condition, or that medical treatment would not be available to him in China. The Tribunal is not satisfied the applicant’s [surgery] prevents him working in the future.
The Tribunal is not satisfied that the applicant would not be able to secure any work if he returned to China such that he will not be able to subsist. It notes that the second named applicant is currently working in Australia. It is not satisfied there is any evidence before it to indicate that she would not be able to secure employment if she returned to China. In these circumstances the Tribunal is satisfied that either or both of the applicants will be able to secure at least some employment if they return to China, such that they will be able to subsist. The Tribunal also notes that the applicant has adult children in China, both residing in the same town where the applicant lived before he departed for [Country 1] in 1999. While the Tribunal accepts the applicant’s evidence that their capacity to provide for him may be limited by their own burdens it is not satisfied the applicant would not have some family support if he returned to China.
The applicant has indicated that he would not be able to subsist on the pension in China. The Tribunal discussed with the applicant the country information which indicates that he will be eligible for the pension at age [60]. The Tribunal also notes from the country information that men who have undertaken certain physical work in China are entitled to receive the pension at age 55. Given his work history as a farmer, it may be the case that the applicant is already entitled to receive the pension. In any case, even if he is not entitled to receive the pension until age 60, the Tribunal has found that either or both of the applicants will be able to secure some employment if they return to China such that they will be able to subsist. While it accepts the applicant may fear rejection because of his age, the Tribunal is not satisfied that at age [age] the applicant will be considered unemployable.
The Tribunal went through the definition of refugee as set out in the Act and the applicant acknowledged that it did not appear that he met the definition. It also explained to him the definition of significant harm and he acknowledged that it is not relevant in his case. The applicant’s written claims indicate he was arrested, detained and interrogated but he has acknowledged that this was not the case. The Tribunal is not satisfied there is anything before it to indicate that he is of adverse interest to the authorities. Nor is it satisfied that he will suffer any harm in the future because of any conflict as a consequence of the land dispute in 1999. He has claimed that he does not have sufficient financial income to maintain living expenses in China since the land was seized but the Tribunal is not satisfied this is the case. The Tribunal is not satisfied it can rely on the written claims that the authorities warned him not to take any further action about the land dispute or that the authorities deprived the applicants of making a living and discriminated against them because he did not repeat these claims in his oral evidence. For the same reason it does not accept that he believes it is inevitable he will be harmed and mistreated if he returns to China.
Overall the Tribunal is not satisfied the applicant has a well-founded fear of persecution in China. Therefore, he does not meet the definition of refugee set out in the Act. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
The second named applicant has not made any claims of her own. The Tribunal is also not satisfied the second named applicant has a well-founded fear of persecution in China. Therefore, she does not meet the definition of refugee set out in the Act. Accordingly, the Tribunal is not satisfied the second named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Are the applicants entitled to protection under the complementary protection criterion?
As the Tribunal has found that the applicants do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether they may nevertheless meet the criterion for the grant of the visa under the complementary protection criterion.
For the reasons given above the Tribunal is not satisfied the applicant will suffer any harm as a consequence of his attempts to seek redress for the damage to the land he farmed, or because of the reappropriation of the land.
The Tribunal has considered the applicant’s claims about his fear that he will have difficulty supporting himself financially in China. However for the reasons given above it is not satisfied that he and/or the second named applicant will not be able to secure some employment if they return to China. The Tribunal is satisfied the applicants will be able to subsist by employment income, family support and, in future, the pension if they return to China. As recorded above, the applicant agreed that the harm he feared does not meet the definition of significant harm. On the evidence before it, the Tribunal is not satisfied that the applicant will not be able to subsist in China or that there is a real risk he will suffer financial difficulty such that he will suffer significant harm if he returns to China.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
The second named applicant did not make her own claims. In view of the above findings and on the evidence before it, the Tribunal is not satisfied that there is a real risk that she will suffer significant harm if she returns to China. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to China, there is a real risk that the second named applicant will suffer significant harm. Therefore, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Denise Connolly
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – 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; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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 6679

15 October 2019

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal