1702979 (Refugee)

1702979 (Refugee) [2020] AATA 4723 (6 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1702979

COUNTRY OF REFERENCE: China
MEMBER:Luke Hardy
DATE:6 October 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 6 October 2020 at 3:54 p.m.
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – anti-government protesters – particular social group – local government petitioners – land resumption – land sub-contracted with the local government – lease expired – detention – fear of killing – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347 at 348
Sun v MIBP [2016] FCAFC 52
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 on 25 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [named], is a citizen of China. He arrived in Australia [in] March 2016 on a three-month visitor visa. The visa expired [in] June 2016. [The applicant] then became an unlawful non-citizen. He later lodged a protection visa application on 5 August 2016. The minister’s delegate invited him for an interview but he did not attend. The delegate refused to grant the visa on 25 January 2017. [The applicant] then sought merits review by this Tribunal.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. [The applicant] did not oppose having the hearing proceed by telephone.
The hearing was conducted before me on 6 October 2020 and was facilitated by an interpreter in the Mandarin-English medium. There were no audio issues, although there were occasions on which I asked the interpreter to repeat a word or phrase just to confirm that I was hearing them correctly. I checked that all participants were in secure locations affording privacy. I am satisfied that [the applicant] was given a fair opportunity to give evidence and present arguments.
At the commencement of the hearing I dealt with a technical and legal issue arising from an officer of the former Immigration Department (the Department) having certified that a document in [the applicant’s] file was “non-disclosable.” The document in question is clearly an internal working document and therefore the “certification” was invalid in law. The document has played no part in my reasoning in this matter as it is irrelevant. I informed [the applicant] of my intention to ignore the document and he said he understood what I was saying and offered no objection.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether the applicant is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
In his original protection visa application, [the applicant] claimed to the Department that he was a married man (since 2009) with [number] children who had lived at the one address in [Village 1], [Town 1], Baoding city, Hebei province from birth until March 2016 when he came to Australia. He confirmed this information orally, at the beginning of the hearing. He told me his [children] are at school. He said his wife does not work and relies on money he sends her from Australia and on some money her parents give her. He told me his wife still lives at his lifelong home address and that the house number of that address is “number 19.”
[The applicant] told me that the house belonged to his parents. He said his father had recently died and that his mother had since moved out. He said [other family members] lived there until they married.
In his original protection visa application, [the applicant] also claimed to the Department that he worked for about three years or so in Beijing from 2008. He confirmed this at the Tribunal hearing. He told the Department and the Tribunal that he then came back to [Village 1] where he sub-contracted with the local government of [Town 1] to lease some farmland for ten years. He told me he bred and cultivated [animals] on that land. In his protection visa application form he claimed he ran this [farm] until March 2016 when he came to Australia. In a statement attached to that form, however, he said the local government of [Town 1] “changed” in March 2015 and that the new administration rescinded his ten-year contract after only three years. He said in that statement and during the Tribunal hearing that the [Town 1] local government shut him out of the land without notice in September 2015 and failed to compensate him.
[The applicant] claimed in his statement and at the Tribunal hearing that he then started “petitioning.” In evidence to the Tribunal, however, he said that this “petitioning” took the form of trying to make telephone calls to the [Town 1] local government “at the end of September.” He claimed that when this yielded no results he decided to “petition” the Baoding city administration. He said this “petitioning” took the form of his standing alone outside the locked front doors or gates of the Baoding City Administration on [a specified date in] October 2015. He claimed to the Department that his banner accused the [Town 1] local administration of being unjust. He claimed to me that his banner also said something about demanding his land be returned. He indicated to the Department and to me that he attracted no attention except from police who arrested and beat him and then detained him for [number] days. He claimed that when this venture failed he decided to do exactly the same thing outside the Hebei provincial government offices later in October. He told the Department that the guards there did not let him in and sent him away. He claimed to the Department that the new [Town 1] county clerk’s had been granted the land and that this [Relative A] threatened to kill him. He told me that he received the threats after having gone above the [Town 1] officials: this means he was threatened after [that date in] October 2015.
At the Tribunal hearing he said that this beneficiary of local corruption was a [Relative B] of the [Town 1] official. This is a plain inconsistency; there were others that attracted much discussion during the Tribunal hearing.
[The applicant] claimed to the Department that as a result of these threats he fled to Australia for protection. However, when I asked him to tell me when he first initiated action to obtain a visa for Australia he said it was in September 2015, which would have been before he had suffered any reaction against his purported “petitioning.” There is evidence on file indicating that his visitor visa was granted earlier: in August 2015,which would have been before his farm was shut down without notice in September 2015. This information about the visa having been issued in August 2015 is interesting, but even according to [the applicant’s] own recollection of events, in oral evidence before me, he contacted a people smuggler in September 2015, the month prior to his purported arrest [a date in] October 2015. Either way he was arranging to visit Australia temporarily or to come here indefinitely either before, or at the same time as he was supposedly commencing a process to try and reclaim the farmland he had leased in 2012. At the very least, this evidence about having engaged the people smuggler in September 2015 suggests he decided to come here even before he was threatened over “petitioning” over the head of the [Town 1] local government.
[The applicant] told me that he was afraid to return to China because he would continue to petition for the resumption of his contract and would be killed for doing so. However, he had already confirmed in the hearing that, even if his contract had not been reneged upon, it would now have less than two years to run. He acknowledged that only a court would be able to restore the reneged contract and that the costs and chances of success seemed beyond him practicably. I put to him that he might not even have the funds to invest in [livestock] or anything to help him make a profit from the land. I also put to him that if his claims are true, the local government, which owned, as it were, the prerogative in such matters, would not likely consider entering into any future contract with him. I put to him that he appeared to have shown no interest in the last five years in trying to have his contract restored, and he said that this was because he had been waiting in Australia for the [Town 1] local government to change hands again. I asked him of it had changed hands and he said it had not. I took from this that he would not try to petition to restore a contract that would in any event have been in its last days.
[The applicant] said the “[Relative B]” in [Town 1] was a local gang member who was afraid he would keep petitioning. I asked him if he could explain how the “[Relative B]” might even knew he existed. He did not give any explanation, but just repeated that the ‘[Relative B]” was afraid he would petition again. I put to him that he had not petitioned or five years and that there was nearly nothing left of the contract in question.
[The applicant] said that he cannot go home because he had already petitioned the Provincial government. He said that in China it is well-known that petitioners are regarded as insane people who should be arrested and put away. I put to him that his knowledge of the futility of such action of this did not appear to have stopped him “petitioning” the Baoding government and then the Hebei government and he said, essentially, that he had had no other options. I put to him that he had had the option of using his general knowledge, at the time, or at least the recent memory of how he had been treated [in] October 2015, to avoid the dangers associated with petitioning. I asked him how he had ever expected to succeed by accusing authorities of being unjust. He provided no satisfactory explanation. He just indicated that he expected the authorities to be sorry and to restore the lease.
I put to [the applicant] that although he had purportedly petitioned two tiers of government above the local [Town 1] administration, he evidently went back to his home in October 2015 and remained there until he came to Australia. He was not locked up and he was not killed, even though he said that this was what would happen to him if he returned to China. In response, he said he went back to his home “secretly.” I put to him that, according to evidence he had given to me at the beginning of the hearing, he had resided at his home address, house “number 19,” in [Village 1], until he came to Australia. I put to him that he seemed to be changing his evidence here quite markedly. He then said that the interpreter might have made a mistake. I put to him that the interpreter was highly accredited and had demonstrated care during the hearing to confirm that she was conveying appropriate meanings in her interpreting. [The applicant] then said he was talking about the person who translated his claims to the Department in his 2016 application, rather than the interpreter at the hearing. I put to him that, on this evidence, he did not yet have a satisfactory explanation for having told me, if it was not true, that he had continued to reside at his home address at “number 19” until he came to Australia. In reply, he said that that home was just his home and that he had lived elsewhere for a period of three years. I acknowledged that we had discussed when he lived and worked in Beijing from 2008 to 2012. I put to him that referring to that period did not appear to help to resolve this new discrepancy about whether he remained at his home in [Village 1] until leaving China for Australia in March 2016. In reply, he said that what he was now saying was true.
I put to [the applicant] that even if his account were factual, he would not petition in the reasonably foreseeable future, because the contract in question was near expiry and because petitioning had proved at the very least to be futile. He then said that his family had now been threatened. I put to him that this new claim was in contrast to his claims at the beginning of the hearing, when he had indicated that his family was getting on with day-to-day life. In reply, he said his father’s death, in June of this year, was caused by” them.” I asked him to state the medical cause of his father’s death; he said it was worry and anger at the local officials. I asked him again what cause had been identified on his father’s death certificate; he said it had been “heart failure” and that his father had been [age] at the time of his death.
Findings with regard to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Sun v MIBP [2016] FCAFC 52 at [69].
[The applicant] appears to intend that his claims be regarded as claims about imputed anti-government “political opinion” or about “membership of a particular social group” characterised as “anti-government protesters in China.” Whether his claims meet either of these or any other s.5J(1)(a) criteria can be put to one side, however, because in light of the inconsistencies and concerns about illogicality, which are all discussed above, I find the claims in this matter lack credibility. I do not accept that [the applicant] lost his farm in the manner described, if he ever acquired one in the first place. It follows that I do not accept that he lobbied or petitioned to restore tenure as claimed. It follows that I do not accept that he was arrested, detained beaten or threatened as claimed. He gave plainly inconsistent evidence about whether he remained domiciled at his home in his village until he departed in March 2016 to fly here. On the evidence before me, I find [the applicant] an unreliable witness in this matter. What remains is no credible reason for fearing return to China.

I am not satisfied that [the applicant] faces a real chance of being persecuted in China in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings with regard to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of China, I find that China is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant’s] claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due to a lack of consistency and reliability and, ultimately, due to their not having met the “real chance” test. In the circumstances, those claims can no more succeed as complementary protection claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…

[2020] AATA 4723

6 October 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Appeal