1620667 (Refugee)

1620667 (Refugee) [2021] AATA 1229 (13 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1620667

COUNTRY OF REFERENCE: China
MEMBER:Nathan Goetz
DATE:13 April 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 April 2021 at 11:04am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – underground churches – arrests of family members – torture – passing on Christian material online – delay in applying for protection – religious attendances in Australia – return visit to China – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA
Migration Regulations 1994, 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 dependants.
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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
On 6 November 2007 the applicant was offshore and granted a student visa. He arrived in Australia holding this visa [in] November 2007.
On 12 March 2010 the applicant applied for a further student visa and was granted a bridging visa to regularise his migration status while his visa application was considered. On 30 June 2010 the applicant was granted the student visa.
On 10 March 2011 the applicant applied for a further student visa and was granted a bridging visa to regularise his migration status while his visa application was considered. On 11 April 2011 the applicant was granted the student visa.
[In] September 2011 the applicant departed Australia and returned [in] October 2011.
On 26 November 2011 the applicant’s student visa was cancelled because he did not commence his studies. On 25 October 2012 the cancellation decision was revoked.
On 9 November 2012 the applicant applied for a further student visa and was granted a bridging visa to regularise his migration status while his visa application was considered. On 18 December 2012 the applicant was granted the student visa.
On 9 January 2015 the applicant applied for a further student visa and was granted a bridging visa to regularise his migration status while his visa application was considered. On 4 February 2015 the applicant withdrew the student visa application and the bridging visa ceased on 4 March 2015.
On 5 March 2015 the applicant became an unlawful non-citizen.
On 5 August 2015 the applicant applied for a protection visa. On 10 August 2015 he was granted a bridging visa to regularise his migration status while his visa application was considered.
On 2 September 2016 the applicant was interviewed by the delegate. On 7 November 2016 the delegate refused to grant the visa.
On 6 December 2016 the applicant applied to the Tribunal to review the refusal decision.
On 9 April 2021 the applicant appeared at a Tribunal hearing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. The applicant was not represented in the review application.
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
Protection visa application form
According to the protection visa application form, the applicant identifies as [an age]-year-old male who was born in Fuzhou city, Fujian province, China. He claims Chinese citizenship and provided a copy of his Chinese passport which was issued [in] 2007. He can speak, read and write English and Mandarin.
He detailed his travel between [September] 2011 and [October] 2011 as returning to China to visit his parents.
From birth until November 2007 he resided at one address in Xiamen city, Fujian province.
He was asked a series of questions about his reasons for claiming protection. He indicated that he had his own protection claims, but that the reason he left China was to study in Australia. He did not claim to have experienced harm in China and directed the reader to his written statement to obtain the answers to the questions asked in the form.
The statement raised the issue that the applicant’s mother was a Christian in China. She started her belief in 2009. She suggested that her son also become a Christian. He did so. He attended church activities every week.
In February 2013 police raided a Church follower’s home. The applicant’s mother was present there. She was detained for 30 days on account of ‘illegal religious activity’ because she refused to write a ‘letter of guarantee.’ She was maltreated by other prisoners. Upon her release from detention, the applicant’s mother ceased attending church but after a year and a half, his mother started gathering ‘secretly.’ The applicant sent what he described as ‘Christian information’ to his mother via the internet which would be distributed to other church supporters.
In August 2013 the applicant’s brother called him and told him that his father and mother had been caught. Police searched underground gathering places and found some Christian material from overseas. Police learned that the applicant’s mother had provided this overseas religious material, so they arrested her and searched the family home. His mother was tortured into making a confession. She admitted that the applicant had provided her with the material. Police requested the applicant return to China and make a confession. The applicant’s mother was detained for three months for organising an illegal gathering.
When the applicant heard about this, he was shocked. He wanted to return to China, but his family told him that would be silly. His parents could no longer support him in Australia, and he dared not return to China for fear of being ‘caught.’
Delegate interview
The applicant attended an interview with the delegate to discuss his protection claims. The Tribunal listened to the recording. Where relevant to the Tribunal’s findings, the applicant’s oral evidence is detailed in this Decision Record.
Tribunal hearing
The applicant was asked several questions during the Tribunal hearing. Where relevant to the Tribunal’s findings, the applicant’s oral evidence is detailed in this Decision Record.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee’ or meets the requirements for ‘complementary protection.’ The Tribunal must also determine whether the applicant is a member of the same family unit of either type of person.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant claimed to be a citizen of China and provided a copy of his Chinese passport with his protection visa application form. The Tribunal is satisfied on the basis of the passport that the applicant is a citizen of China. There is no evidence that the applicant has a right to enter and reside in a third country.
Credibility finding – The applicant is not a witness of truth
Having considered all the information available, the Tribunal ultimately concludes that the applicant has fabricated his protection claims. The Tribunal is not satisfied that the applicant is a Christian or Christian convert, that he has engaged in any religious activity in China or Australia or that he left China and is now unwilling to return to China because he fears harm on account of his claimed religious belief, or fear for any other reason. The Tribunal comes to these conclusions for the following reasons.
Delay in applying for a protection visa
The applicant told the Tribunal that he became aware that he could apply for a protection visa in Australia ‘not long after he came here.’ The applicant said this was around 2007. His friend told him that the Australian government could protect him. When the Tribunal asked if he knew that he could apply for a protection visa around 2007 after he arrived in Australia, why he waited until 2015 to lodge the visa. To the Tribunal’s way of thinking, if the applicant’s claims in either the written statement or the claims made in oral evidence were true, the applicant would have lodged that visa soon after his arrival. The applicant said that he did not lodge a protection visa because he had a student visa. He accepted that the student visa was temporary and that he lodged a number of those visas while in Australia.
To that end, the delay in applying for the protection visa greatly concerned the Tribunal. The Tribunal remarked that it was curious that the applicant would apply for a number of student visas instead of lodging a protection visa. The applicant said that he did not think about it that much. It appeared to the Tribunal that the applicant was made aware that he could apply for a protection visa if his ability to remain in Australia on a student visa was dashed. Noting that the applicant told the Tribunal that his intention coming to Australia in November 2007 was to study and live in Australia permanently, the Tribunal’s view was that, when combined with the other concerns that it had about the applicant’s credibility, he lodged the protection visa application not because he had a genuine fear of harm in China or because there was a real risk of significant harm to him as a result of his removal from Australia to China, but because he was a failed student who sought to achieve his desired migration outcome (that is, permanent migration to Australia) via a protection visa when the student visa route was no longer an option.
The Tribunal adopted the s.424AA procedure and raised with the applicant his migration history and raised the Tribunal’s concerns that the protection visa was lodged to achieve a favourable migration outcome to remain in Australia as an alternative to the potential migration path offered through a student visa. The applicant disputed that he had done this and responded that his last attempt at a student visa was unsuccessful and he wished to stay in Australia, and when he sought help from an agent about whether there was any way for him to stay in Australia, he was told he could seek protection in Australia due to his religious belief.
The Tribunal has considered that response but is not persuaded by it. To the Tribunal’s way of thinking, if the applicant’s claims were true, he would not have delayed lodging a protection visa (which he was aware of from 2007) and only do so when an agent said this was a way to remain in Australia. If the applicant’s claims were true, he would have lodged a protection visa sooner than he did.
Inconsistent evidence about the applicant and his family’s Christianity in China
The applicant provided inconsistent evidence about both his and his family’s Christianity in China. In the written statement, the applicant wrote that his mother started her Christian belief in 2009. The Tribunal notes the applicant was in Australia at that time. The statement went on to read that the applicant’s mother suggested that he develop the belief. The applicant followed his mother’s advice to believe in Christianity and then he started attending church activities every week. As the applicant was not in China at that time, this activity could only have occurred in Australia.
This can be contrasted with the applicant’s oral evidence to the Tribunal. He told the Tribunal that he grew up in a Christian household and used to participate in small illegal gatherings in China prior to his arrival in Australia in 2007. The Tribunal notes that the applicant had also said that he grew up in a Christian household to the delegate at interview. His parents were Christians at the time of his birth. The Tribunal notes that the applicant’s written statement declares no participation in religious activity in China at all.
The Tribunal adopted the s.424AA procedure and raised with the applicant that his inconsistent evidence about how he came to be involved in Christianity may suggest that the applicant was fabricating his claims, because the Tribunal could not work out which narrative was the truth. The applicant responded that it was back in 2009 that he became a Christian and that he went overseas and noted that he had passed on material online to his parents, and they then gave him the religious belief. The Tribunal noted to the applicant that in 2009 (with the applicant being born in [year]) he would have been [a young adult] (the applicant said that he did not remember his age ‘too clearly’). To the Tribunal’s way of thinking, developing a religious belief [as a young adult] from suggestions of a parent could not be described as growing up in a Christian household. The applicant failed to address the Tribunal’s concern about the inconsistency in his narrative, other than to change his evidence to seemingly adopt what was written in the statement. Regarding the claim that the applicant ‘passed on material online’ to his parents, the Tribunal deals with that claim below.
Inconsistent evidence about ‘harm’ or involvement with the authorities in China because of his religious belief and activities, or that of his family
In the protection visa application form, the applicant claimed that he had not experienced harm in China. His written statement details no harm in China. Indeed, the statement reads that the applicant has become a Christian following his mother’s conversion in 2009. His claims stem from the activities of his family in China, his activity in Australia sending religious material via the internet, and the fact that he is now a Christian in Australia.
However, that was contrasted with the applicant’s oral evidence at the Tribunal hearing. The applicant told the Tribunal that he participated in religious activity in China that consisted of ‘small, illegal family gatherings.’ He told the Tribunal he was present at gatherings that had been interrupted by the Chinese authorities. He said this happened a lot. It was more than 10 times. He could not remember the first time this happened because it happened ‘all the time.’ The last time this happened before he arrived in Australia in 2007 was between 2 and 3 months prior to his departure from China. The applicant said that police would come to the family home claiming the family were holding an illegal gathering, spreading religious information, and would stop the family. He said his parents were arrested but he was never arrested because his parents said he was ‘not involved.’ The applicant said that on the last occasion when police came to the family home, his parents were tortured. He was terrified seeing that and his parents told him to run away which is why he came to Australia.
The applicant also told the Tribunal that he returned to China in 2011 to visit his parents. He said that police attended the family home during that time, but no arrests were made. The family were warned about their gatherings.
The Tribunal was really concerned by this inconsistent evidence. The inconsistency suggested to the Tribunal that the applicant was not a witness of truth and was fabricating his protection claims.
The Tribunal adopted the s.424AA procedure and raised the above inconsistency with the applicant, noting its view that it demonstrated that he was not a credible witness. The Tribunal asked why the attendances where the applicant was present were not detailed in his written statement. In response, the applicant said he ‘maybe forgot.’ The Tribunal was not persuaded by this response. The Tribunal really struggles to accept that the applicant would forget the details of police attendance at the family home, especially when it made the applicant feel terrified. The Tribunal is satisfied that the reason there was such a stark contrast between the applicant’s written and oral evidence is because the applicant fabricated his claims.
Failure to raise at the Tribunal hearing his claim that he sent ‘religious material’ over the internet to his mother which meant that he was now of adverse interest to the authorities in China.
Although the Tribunal has noted the applicant’s response to its concerns in paragraph 40 of this Decision Record, those responses were provided at the conclusion of the Tribunal hearing when the applicant went through its concerns with the applicant one by one. It was at that time that the applicant mentioned for the first time at the Tribunal hearing, his claimed activity of sending religious materials online to his mother. Earlier in the Tribunal hearing, the applicant spoke of the many attendances of authorities at the family home while the applicant and his family were having religious gatherings. The Tribunal asked the applicant whether, apart from his attendances at these gatherings in China, there was any reason why the authorities in China would be interested in him. The applicant responded ‘no.’ It was later while providing a response to the Tribunal’s concerns as noted in paragraph 40, that he then detailed his claimed online activity. The Tribunal raised the applicant’s failure to cite his online activity as a reason why the authorities would be interested in him in accordance with s.424AA. His failure to do so suggested that this claim was fabricated. In response, the applicant responded that he did not tell the Tribunal about sending the religious material over the internet because the Tribunal did not ask him whether he had done so. He said that he had mentioned this previously, so he did not mention it at the Tribunal hearing.

The Tribunal has considered this response but is not persuaded by it. The Tribunal is satisfied that the applicant forgot he made this claim in his written statement which is why he failed to mention it in his oral evidence. It was only in the context of answering the Tribunal’s concerns about his credibility concerning what could be described as his ‘journey’ to Christianity that the applicant raised his claimed online activity as a reason why the authorities would be interested in him. The Tribunal is satisfied that the applicant did that once he remembered that he had, in fact, made this claim in his written statement. The Tribunal is not satisfied that the applicant did send any online religious material to his mother or any member of his family in China.
Lack of corroborative evidence about claimed religious activity in Australia
The applicant told the Tribunal that he practises his Christianity in Australia by going to a Christian church every Sunday. He was asked whether he had always gone to the same church in Australia. He said he occasionally will go to some other churches as well. The Tribunal asked whether there was any reason why he had not provided any support letters from leaders of his church, or fellow church goers to support his claimed church attendance in Australia. The applicant said he had not done so because such materials are pointless, and he believes in God. He also said he did not think about it. When the Tribunal asked what he meant by that, he said he frequently goes to church and never thought about providing such material.
The Tribunal put to the applicant its concern about the lack of corroborative evidence of his claimed church attendance. It suggested to the Tribunal that he in fact did not attend a church in Australia as he claimed. The Tribunal raised this concern with the applicant utilising s.424AA. The applicant offered to get those documents. The Tribunal asked him why he had not provided them in the many years since he lodged his protection visa application. The applicant said he was never asked to provide those documents. The Tribunal disputed this and noted that the applicant and the delegate had discussed the applicant obtaining those documents from his church. The applicant said maybe he did not fully understand what the delegate was asking. The Tribunal put to the applicant that it was struggling to accept this, because the applicant was the person who said to the delegate that he would be able to provide documents to confirm his attendance in Australia over the weekend. The Tribunal notes that it was two months between the delegate interview and the delegate refusal decision, and the applicant did not provide those documents he indicated he would. In response to the Tribunal’s concern about his assertion that he either never thought to provide corroborative documents or that he was never asked to do so in light of what he said at the delegate interview, the applicant responded that he ‘did not remember.’
The Tribunal is not persuaded by the applicant’s response about his reason for failing to provide any corroborative evidence of his claimed religious attendances in Australia. The applicant tried to claim he never thought to do so, and then claimed he was never asked to do so. This is simply untrue, as evidenced by the discussion between the applicant and the delegate. To the Tribunal’s way of thinking, the reason why the applicant failed to provide corroborative documentation was because the applicant does not attend church in Australia.
Failure to declare past employment and personal contacts in Australia in protection form
The applicant declared current or past employment in his protection visa form. He told the Tribunal this was correct. Later, when the Tribunal queried how he was able to financially support himself in Australia since 2007, the applicant said that he did temporary jobs. The Tribunal pointed out that this was different to what the applicant just told the Tribunal. The applicant said it was not a formal job, it was casual and he did not pay taxes. He felt declaring this work was unnecessary. When asked why he thought that, the applicant said he did not think about this too much.
The applicant also declared in the protection visa application form that he had no close contacts in Australia. The Tribunal asked whether this was correct. The applicant said he had no family in Australia, but then said he had an uncle who he rarely contacts. He said his uncle came to Australia after him and he did not declare his uncle as a personal contact because they did not have any contact together. His uncle came to Australia a couple of years after the applicant arrived in 2007. The Tribunal notes he identified this uncle as his father’s brother.
The Tribunal was troubled by the applicant’s approach to providing full and frank evidence about his employment and close contacts in Australia. To the Tribunal’s way of thinking, the applicant clearly wished to hide his employment which is why he did not declare it in the protection form. The Tribunal’s struggles to understand how the applicant could decide this information was ‘unnecessary’ when the form directs him to provide it. Further, he told the delegate that his uncle was present in Australia which is why the applicant chose to come to Australia. His uncle would be able to look after him. The Tribunal notes that the applicant was asked by the Tribunal why he chose Australia and he said because it was a place of religious freedom, not because he already had a family member present.
The Tribunal raised with the applicant his failure to detail his employment in the protection visa application form and his uncle as a close contact suggested that he had a flexible approach to the truth. To the Tribunal’s way of thinking, the applicant’s willingness to not include this information on the form showed he had a flexible approach to the truth about even the most basic of matters. The Tribunal suspects that the applicant saw some advantage of withholding this information from the form but is not sure what advantage there would be in doing so. The Tribunal adopted the s.424A procedure concerning his failure to detail his past employment and his uncle as a close personal contact as it, in the Tribunal’s assessment, suggested that the applicant was prepared to be flexible in his approach to the truth. In response, the applicant said he did not wish to comment.
Return to China and claim that his parents ‘escaped’
The applicant told the Tribunal that he had returned to China for a family visit in 2011. The Tribunal really struggles to accept that the applicant would voluntarily return to China if the claims (particularly as formulated in his oral evidence) was true. The applicant’s willingness to return to China suggested to the Tribunal that the applicant had no fear returning to China, and the reason he had no fear returning to China was because he fabricated his protection claims. The applicant’s willingness to return to China in 2011 was also considered in light of the applicant’s oral evidence about the last time authorities came to the family home prior to his departure for Australia in 2007.
The applicant said that following the last incident in 2007, his parents ‘escaped China to run away from all of this.’ Later, the applicant changed his evidence about whether his parents had escaped China as he initially claimed. He said that they ran away but did not depart China. The Tribunal pointed out the change in this evidence, and the applicant reiterated that they ran away but disputed that he had said they had escaped China. The Tribunal is not satisfied that the change in evidence could be attributed to an error in Mandarin to English interpretation.
The Tribunal is satisfied that the reason that there was a change in this evidence was because the applicant realised that if it were true that his parents had ‘escaped China’ following the last incident of police attendance in 2007, it would not make sense that the applicant would return to China in 2011 to visit his parents, because they would not be there.
CONCLUSION
When the Tribunal puts all its concerns together, as demonstrated above, it comes to the conclusion that the applicant has fabricated his protection claims as a means to achieve a positive migration outcome, namely permanent migration to Australia through a protection visa as opposed to the potential permanent migration that can commence through a student visa. The Tribunal is not satisfied that the applicant or his family are Christians, converts to Christianity, are of any interest to the authorities in China, have engaged in any activity in China that makes them of adverse interest to the authorities in China, or anyone else, or that the applicant has engaged in any activity in Australia that would make him of adverse interest to the authorities, or anyone else in China.
The Tribunal is not satisfied that the applicant is a Christian or that he attends church in Australia. The Tribunal is satisfied that if the applicant returns to China, he will not participate in any religious activity because he has not done so in China in the past and has not done so in Australia.
The Tribunal rejects the applicant’s claims in their entity. He has a flexible approach to the truth and is not credible about his claims. The claims have been fabricated in order to achieve a migration outcome.
Refugee
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
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
…

[2021] AATA 1229

13 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies