1621438 (Refugee)

1621438 (Refugee) [2019] AATA 6601 (8 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621438
COUNTRY OF REFERENCE:                  China
MEMBER:Hugh Sanderson
DATE:8 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 October 2019 at 1:28pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – protests against acquisition of land for factory – credibility – inconsistent evidence – participation in protests – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
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 16 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of the People’s Republic of China (China), applied for the visa on 17 November 2015. The delegate refused to grant the visa on the basis that the delegate did not accept any of the claims made by the applicant.
Background
The applicant was born in China and is currently [age] years old. He is married and has [number children]. His family all reside in China. He entered Australia [in] August 2015 holding a [temporary] visa.
The applicant provided a statement to the Department of Immigration where he made the following claims:
·He used to live in [Village], [Town], Hai’an County, Jiangsu Province, China;
·In 2012 leaders of the town government colluded with an entrepreneur, [Mr A], to take over [an area] of land and build a [factory];
·The people of the village received little compensation for losing their land;
·Despite complaints by the villagers, the town government proceeded to take the land over by force and build the factory against the peoples’ will;
·Loud noises and wastewater provided danger to the farmers but despite complaints, no action was taken by any government authorities;
·In March 2015, dozens of villagers gathered in front of the [factory] requesting to see the people in charge, but they were told they were not there;
·[In] March 2015, 100 villagers rallied at the gates of the factory and six representatives, including the applicant, were allowed to enter to negotiate with [Mr A];
·[Mr A] became angry and ordered guards to beat the six representatives who were sent to hospital for treatment and then detained for 15 days for gathering and disturbing the social order;
·[In] April 2015, 300 villagers gathered in front of the [factory] again and when confronted by 100 armed riot police some villagers threw stones at the factory and the police reacted by using tear gas, firing rubber bullets and arresting 20 people, not including the applicant; and
·The government paid attention to the applicant as he joined the activities of safeguarding legal rights several times and he was monitored, threatened and was not allowed to travel far.
The delegate who considered the application noted the following issues:
·When interviewed by the Department, the applicant provided inconsistent information including:
oclaiming the first protest was in 2013 and he was detained for 15 days at that time when in his statement he claimed that the rally and arrest took place [in] March 2015;
oclaiming the second protest occurred in October 2015 when the applicant was already in Australia at that time;
oclaiming he worked as [an Occupation 1] in [Country] from 2006 to 2008 when in his application he claimed that he was employed as a farmer from 1993 to 2015;
oclaiming he was working as a farmer in 2015 whilst claiming the land was confiscated in 2013, but then claiming only part of the land had been taken;
·Despite claiming that he was monitored by government agents, the applicant claims to have had no trouble exiting China through Nanjing airport; and
·Overall, the information provided by the applicant was not plausible or convincing.
The delegate did not accept any of the claims made by the applicant and did not accept the applicant was of adverse interest to the Chinese authorities. Accordingly, the delegate refused the application.
The applicant appeared before the Tribunal on 26 September 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal commenced the hearing by explaining to the applicant the process under s.424AA of the Act. The Tribunal explained to the applicant it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite the applicant to comment on or respond to the information. If he required more time, he could request an adjournment.
The applicant provided details of his life in Australia. He said that he was working [doing a job task]. He said before he came to Australia he had worked as [an Occupation 2] for 20 years. He said that he had no family in Australia. His parents, who are retired, live in China. His father used to work [doing a job task] on the street and his mother stayed at home and grew vegetables in their yard. He said that his wife is working in a factory making [products] and has had that job for about 30 years. He said that she suffers some physical problems now which stop her from working. He said that his two daughters are [aged] years old. He telephones his wife every two to four weeks but does not have much of a relationship with his children. He said that none of his family face any problems living in China.
The applicant said the problems in his village started in 2012 when the government illegally acquired property to build a factory. He said as his village had a very large population there was very little compensation paid to each person. He said the incidents where there were protests occurred in 2015. The Tribunal noted that when interviewed by the Department he claimed that the first incident when he was put in detention for 15 days occurred in 2013. The applicant said that he could not remember this and it was incorrect.
The applicant said that [in] March 2015, 100 people were protesting. When asked how it was organised that three years after the land was reclaimed a protest was arranged to take place outside the factory, the applicant said that someone organised it. He said that he was not an organiser of the protest. He said someone went from door-to-door asking people to attend the protest. He said that as people were upset about the pollution and noise they went to the protest. The applicant said that there was an earlier protest but not many people went to the one held about 10 days before the [March] 2015 protest. He repeated that he was not an organiser of the protests.
The applicant said that at the protest [in] March 2015 six people, including himself, went into the factory to negotiate with the factory owner, [Mr A]. He said there was no reason for him to go in as part of the group, he was just close to other people in the group. He said they tried to negotiate over the pollution, but the owner of the factory said that he had pulled strings so no protest would work. He claimed the group accused the factory owner of putting money above people and then the owner called the guards to come in and beat them up. He said the people outside heard what was happening and came inside and some were injured.
The Tribunal asked the applicant what happened when he was detained. He said that they were taken to the police station and remained there for 15 days. He said that his wife did not do anything while he was detained. He said that they were accused of disturbing the social order but no charge was laid and nothing happened after that. He said that China has too many people so ‘you will only get charged if someone dies’.
When asked about the circumstances of his detention and his release, the applicant was hesitant in responding. He said that he needed some time to think about what happened. He then said nothing happened after he was released from detention. The applicant said the factory was still running and the owner brought in people from other areas of China to work. He was not sure if there had been any more protests.
The Tribunal noted the applicant had obtained his passport in December 2014. He said that he obtained his passport at that time because he was getting ready to leave China. He said that he could not survive in his hometown and that everyone else had left his hometown to go somewhere else. He said they left his hometown for money and for survival. The Tribunal asked him if this was why he wanted to leave his hometown and he said ‘you can say that’.
The applicant said that when he left China, staff in customs asked him if he was really going on a holiday or planning to work. He said that apart from this, he had no difficulties from the Chinese authorities when he left China.
The Tribunal referred to the process under s.424AA of the Act set out above. The Tribunal referred to the interview conducted by an officer from the Department. In that interview, the applicant claimed that he worked as a farmer growing [produce]. This was inconsistent with his claims that prior to leaving China he worked as [an Occupation 1] for 20 years. This was relevant as the inconsistency in the information provided by the applicant undermined his credibility. It also indicated that the claims that there was a dispute as to compensation for any land requisition as he was a farmer were not credible. The applicant said that he had no comment about this.
The Tribunal referred to the interview conducted by an officer from the Department where the applicant claimed that he was held in detention in March 2013. This was inconsistent with the information provided by the applicant in his statement provided to the Tribunal which was that the events happened in March 2015. This inconsistency undermined the credibility of the applicant and indicated the claims he was making of any detention or involvement in any protests was not credible. The applicant said that he had no comment.
The Tribunal referred to the interview conducted by an officer from the Department where the applicant claimed that the later protest that he was involved in took place in October 2015, two to three years after the initial protests. The applicant’s movement records show that he arrived in Australia in August 2015. The fact that the applicant is claiming he was involved in a protest in October 2015 in China when he was in Australia undermines the credibility of the information he was providing or that he was involved in any protests at all in China. The applicant said that he had no comment.
The Tribunal referred to country information from the Department of Foreign Affairs and Trade (DFAT)[1] which indicated the Chinese authorities could refuse a passport to people who will undermine national security or cause major losses to the interests of the state. When exiting China, security monitoring capabilities at airports are comprehensive and departing passengers passed through several identity checks. This would indicate that, if the applicant had used his passport to depart China and he did not have any difficulties leaving China, the Chinese authorities were not concerned about him at all. This indicated that the claims that he faced persecution in China were not credible. The applicant said that he had no comment.
[1] DFAT Country Information Report People’s Republic of China, 21 December 2017 at pp.40–41.
The Tribunal reviewed the evidence given by the applicant and in particular his claim that the people in his home village had been leaving where they were living for money and for survival and not through any claim that they were being persecuted by Chinese authorities or anyone else. This indicated that the applicant’s reason for leaving China was to improve his life. The applicant agreed with this. The Tribunal indicated that it appeared the applicant did not suffer any persecution from the Chinese authorities. The applicant said ‘no’.
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 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 DFAT 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 to be considered in this case are as follows:
·Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the applicant’s identity documents, including his passport and the evidence he provided at the hearing, the Tribunal accepts that the applicant is a national of China. Therefore, for the purposes of s.36(2)(a) of the Act the Tribunal accepts that China is the country of nationality and for the purposes of s.36(2)(aa) of the Act the Tribunal accepts that China is the receiving country.
For the reasons set out below, the Tribunal does not accept the claims made by the applicant of the difficulties he claims to have suffered in China or any claim that he has of fear from the Chinese authorities or any other group or any individual should he be required to return to China. The Tribunal does not accept that the applicant was involved in any protests as a result of any compulsory land requisition; that he was involved in any protests about pollution or noise or criticism of the lack of compensation as a result of any claimed land requisition; or that he was involved in negotiations on behalf of members of his village for any reason; or that he was detained for any reason by the authorities or any other group or individual; or that he or any other person was beaten for protesting in the manner described.
Plausibility and lack of detail in the applicant’s claims
The applicant’s claims made in his statement provided with his visa application are vague and do not provide any details of the organisation of the claimed protests or his detention or any negotiations that he claimed took place. The applicant was given an opportunity both when interviewed by an officer from the Department and also at the hearing before the Tribunal to elaborate on his claims. He did not provide any information which would indicate that the events he claimed took place actually did occur.
At the hearing before the Tribunal, he could not provide any plausible explanation as to how the protest that occurred [in] March 2015 occurred. He claimed someone else organised it by going door-to-door and asking people to attend. He claimed that he was not an organiser of the protest and yet then claims he was among six people of the group of about 100 who were invited to negotiate directly with the factory owner. He said that there was no reason for him to go with the other five people to negotiate, just that he was close to the group.
The Tribunal does not accept that if a group of six people from a protest of 100 people were invited to negotiate with the factory owner that the applicant would have been included in that group if he had not been involved in the organisation of the protest or that he did not have a higher profile in relation to organising the objections to the claimed development.
The applicant claimed that he was detained with the other group of six for 15 days. Apart from stating that he was detained by the police, he provides no particulars of what occurred during that period of detention. He claimed that his wife did nothing while he was detained. He claims that he was not charged with anything and that nothing happened to him after he was released after 15 days. He claimed that as there were too many people in China, only if somebody dies and it is important would he have been charged.
The Tribunal does not accept that, if the applicant had been detained for a period of 15 days, he would not have been able to provide more particulars of the events that occurred over that period of detention. The Tribunal does not accept that if the applicant was in detention for 15 days his wife would not have at least made enquiries into his circumstances or that the applicant would not know what she had done over that period. That he claims she did nothing over that period is not plausible.

During the hearing, the applicant claimed that after he was released from detention nothing further happened to him. This is inconsistent with the claims made in his statement where he stated that he was monitored and threatened and the authorities did not allow him to travel far. This inconsistency calls into question the credibility of the claims the applicant has made in his statement. That he claimed nothing further happened to him during the hearing indicates that he was not of any concern to the Chinese authorities and that he had not been involved in any activities which would draw adverse attention by the Chinese authorities.
When interviewed by the Department, the applicant provided information which was significantly inconsistent with the claims that he had made in his written statement. This included the claim that the protests started in March 2013 and it was at that time that he and five other protesters were held in detention for 15 days. He claimed that there were further protests in which he was involved, in October 2015, two or three years after the first protest. This was when the applicant was in Australia and he could not have been involved in any activities in China.
Inconsistent information
The applicant provided inconsistent information as to the events he claimed occurred in China. In his statement, the applicant claimed the first protests and his detention happened in March 2015. When he was interviewed by an officer from the Department, he claimed that the first protest and his detention occurred in March 2013. The delegate specifically noted that this information was inconsistent with when he claimed the protest and detention occurred in his statement. The applicant claimed that he had made a mistake in his statement and that it was in 2013 that the protest occurred and he was placed in detention. During the hearing before the Tribunal, the applicant reverted to his original claim that the protest and his detention occurred in March 2015.
When interviewed by the departmental officer, the applicant claimed that the further protest had occurred two or three years after the original protests in March 2013. He claimed that this was because of the pollution and noise caused by the factory and the villagers had been waiting a long time for the compensation payment. The applicant claimed this protest occurred in October 2015 when riot police attended and 20 people were arrested. This is inconsistent with the statement provided by the applicant with his application and also the evidence provided by the applicant during the Tribunal hearing which was that this later protest occurred [in] April 2015. It is significant, as was noted in the delegate’s decision, that while the applicant was claiming he was part of this protest in October 2015 he had been in Australia since August 2015.
The Tribunal accepts that people, particularly under stress, occasionally mistake dates and chronologies. The Tribunal does not accept the significant inconsistencies in the claims the applicant made in his statement and to the Tribunal with the claims he made during the departmental interview can be explained simply as a mistake or a memory lapse.
The departmental officer interviewing the applicant specifically raised the fact that when he was claiming he was involved in a protest and detained for 15 days in March 2013 this was inconsistent with the information he had provided in his statement. The applicant affirmed that the protest occurred in March 2013 and not in 2015, stating later that the further protests occurred two or three years after he had been placed in detention. The fact that he provided this information does not indicate the applicant had a lapse of memory and simply made a mistake, but rather that the claims he has made are not genuine.
There are other areas where the applicant provided inconsistent information. In his application and to the Department he claimed that he worked as a farmer in China. At the hearing before the Tribunal he claimed that he had worked as [an Occupation 2] for 20 years before coming to Australia. On its own this inconsistency may not be significant but as the applicant has claimed that he was protesting land requisition and pollution affecting farms, the fact that he now claims that he worked as [an Occupation 2] for 20 years prior to leaving China undermines his claims that he would have been involved in the protests, or would have been considered a leader so that he would have been among six people to negotiate with the factory owner.
The Tribunal gave the applicant the opportunity to respond to or comment on the inconsistencies that he has provided over the course of his application. The applicant said that he did not have any comment to make about these inconsistencies.
Monitoring by the Chinese authorities
The applicant claimed that after the last protest the government paid attention to him and monitored and threatened him and did not allow him to travel far. This is inconsistent with the claims made by the applicant at the hearing before the Tribunal. He claimed that after his release from detention he was not charged with anything and the police took no further action. He claimed that there were too many people in China to charge and so only if someone dies would it be considered important enough to have them charged. The Tribunal does not accept that, if the applicant’s claims are genuine and he was of any concern to the Chinese authorities, the Chinese authorities would not charge him. The applicant stated during the hearing before the Tribunal that nothing happened to him after his release from detention. He provided no information about any supervision or restriction on his movements. This is inconsistent with the claims he made in his statement.
The applicant was able to depart China using his passport. The only difficulty he said that he had was that a customs officer in China asked him if he was truly a tourist or planning to work. He did not indicate that there was any other concern by the Chinese authorities for him departing Australia. As set out above, information from DFAT indicate security monitoring capabilities at airports in China are comprehensive. The Tribunal does not accept that if the applicant was of any concern to the Chinese authorities for any reason he would have been able to depart China in the manner he described.
Other issues
The applicant provided details of his family who continue to reside in China. His family include both his parents, his wife and [number children]. There is no information which would indicate that any members of the applicant’s family have any difficulties living in China. There is nothing to indicate that any of the claimed activities of the applicant have led to any supervision or any action against any of his family members in China.
As indicated above, in his application and during his interview with the Department the applicant claimed he was a farmer. To the Tribunal he claimed that he had been working as [an Occupation] for 20 years prior to his arrival in Australia. The information given by the applicant to the Tribunal about the work of his father and wife does not support any claim that the applicant has ever worked as a farmer. The most he said was that his mother was a housewife but she would grow vegetables at home. As the applicant alleges the protests were spurred by pollution from the factory and how this adversely affected the surrounding farmlands as well as the villagers’ health, the fact that the applicant and his family are not involved in farming calls into question his participation in any claimed protest.
During the hearing before the Tribunal, the Tribunal asked the applicant why he had applied for a passport in December 2014. This was before the applicant claimed he had been involved in any protests in March 2015 (if it is accepted that his claim that the protest and detention occurred in March 2013 was simply a mistake). The applicant said that he obtained the passport because he was getting ready to leave China. He said that he could not survive in his hometown because everyone had left to go somewhere else. He said that this was for money and for survival. When asked if this was why he left China he said that ‘you can say that’.
The Tribunal does not accept the applicant departing China had any connection to any claimed protests or persecution from the Chinese authorities or any other person or group. The evidence indicates the only reason the applicant departed Australia was to improve his financial circumstances. When this concern was put to the applicant during the Tribunal hearing, the applicant agreed that he departed Australia to improve his life. It was not due to any persecution or any fear of harm from the Chinese authorities or anyone else.
While in Australia, the applicant has worked and has not participated in any activities that would draw attention to him by any authorities both in Australia and in China. Although the applicant has remained in Australia for an extended period of time after entering on a Visitor visa, there is nothing to indicate that his activities in Australia would be of concern to the Chinese authorities if he were to return there as a failed asylum seeker.
Overall assessment
The Tribunal has considered all the claims of the applicant both individually and cumulatively. For the reasons set out above, the Tribunal does not accept the claims that have been made by the applicant or that he would face any persecution or harm by the Chinese authorities or any other group or individual in China for any reason. The Tribunal finds the applicant has fabricated claims to achieve an immigration outcome and that he does not face any persecution or harm in China.
In making these findings, the Tribunal acknowledges the possibility of discrepancy arising because of genuine lapses in memory, nervousness and the manner in which responses can differ depending on the nature and manner of questions asked. It is also sensitive to the various cultural differences and the fact that the applicant was using an interpreter when interviewed by the Department and by the Tribunal.
The Tribunal acknowledges that some evidence of the applicant has remained consistent. As indicated above, however, the claims made have been general and the applicant has not been able to provide any details of specific events happening to him, such as what occurred when he was held in detention for 15 days. In his response to questions by the Tribunal, the applicant was often evasive and would say that he needed time to think about what happened. The Tribunal does not accept that, on fairly simple issues put to the applicant, he would not be able to provide an immediate answer. The information that the applicant did provide consistently was all in relation to fairly easy to remember matters and the consistent information he provided did not outweigh the significant credibility issues with regard to inconsistent information on other aspects of his claim.
For the above reasons, the Tribunal does not accept that the applicant was involved with about a dozen villagers for a protest in March 2015 (or in March 2013) or that he participated in a further protest [in] March 2015 (or [in] March 2013) and as a result of which he was part of a delegation of six people to negotiate with a factory boss and was then arrested and held in detention for 15 days. The Tribunal does not accept the applicant was involved in any further protest held [in] April 2015 (or October 2015) with more than 300 villagers where people were injured and more than 20 people were arrested. The Tribunal does not accept that the Chinese government paid any attention to the applicant for any activities he had been involved with in China or that he has been monitored, threatened or prevented from travelling in China for any reason.
The Tribunal rejects the applicant’s claims in their entirety. The Tribunal does not accept the applicant came to Australia in August 2015 in fear for the reason he claims or that he fears returning to China for any reason claimed in his application or subsequent statements and interviews.
Does the applicant have a well-founded fear of persecution?
On the basis of the above findings, the Tribunal does not accept that were the applicant to return to China now or in the reasonably foreseeable future he will face any difficulties for the reasons he has claimed as a result of petitioning, protesting or for any other reason. The Tribunal does not accept the applicant will be arrested, assaulted, economically harmed, physically or verbally harmed, threatened or face any of the difficulties he claims.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his political opinion, imputed political opinion, being a member of a group of protesters against land acquisition, being a failed asylum seeker or for any other reason. The Tribunal is not satisfied that there is a real chance that the applicant would be persecuted for any reason if he returned to China. 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.
Complimentary protection
As set out above, the Tribunal does not accept the claims made by the applicant of any harm that he has suffered in China. The Tribunal does not accept the applicant faces a real risk of significant harm were he to return to China in the reasonably foreseeable future at the hands of the police or any other Chinese authorities, any factory owner or any other group or individual. 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 the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hugh Sanderson
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 6601

8 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice