1703419 (Refugee)

1703419 (Refugee) [2019] AATA 6479 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1703419
COUNTRY OF REFERENCE:                   China
MEMBER:Catherine Carney-Orsborn
DATE:1 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 October 2019 at 4:50pm
CATCHWORDS
REFUGEE – protection visa – China – political opinion – political persecution – questioned and detained – sacked from job – claim provided little details – communist regime – inconsistencies – credibility issues – decision under review affirmed
LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 438(1), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559 at 596,
Nagalingam v MILGEA (1992) 38 FCR 191,
Prasad v MIEA (1985) 6 FCR 155

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 6 February 2017 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 China, applied for [a temporary] visa offshore on 17 September 2015, which was refused on 7 October 2015. The applicant applied offshore for [another] temporary work visa on 18 October 2015, which was granted on 20 October 2015. The applicant arrived in Australia [in] November 2015. On 6 January 2016, the applicant applied for [a temporary] visa onshore, which was granted on 12 January 2016. The applicant departed Australia [in] February 2016. The applicant returned to Australia [in] June 2016, and applied onshore for a further [temporary] visa on 28 June 2016, which was granted on 4 July 2016.
The applicant applied to the Department of Home Affairs (the Department) for the protection visa on 26 September 2016. On 6 February 2017, the delegate refused to grant the visa on the basis that the evidence was insufficient to satisfy the delegate that the applicant faces a real chance of persecution or a real risk of harm in China. The applicant applied to the Tribunal for review of the decision on 27 February 2017.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

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 themself 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.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 Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The applicant’s application for a protection visa is on the Department file.
The Department file contains the application for protection forms, a copy of the applicant’s passport, and a copy of the delegate’s decision record. There is a s 438(1)(a) non-disclosure certificate on file which covers folios 48 – 53, which are ICSE print-outs relating to the grant of the applicant’s [one temporary] visa, and [the second temporary] visa refusal.
The applicant claims that he will be persecuted in China due to his political views and expression of them against the Chinese government.
The following information is provided by the applicant in the application for protection form.
The applicant was born on [date] in [Shandong] Province, China. The applicant lists neither ethnicity nor religion. The applicant speaks, reads, and writes Mandarin. The applicant married in [2014] in China. The applicant’s [family] remain in China, and the applicant is in contact with them by phone and WeChat.
Prior to coming to Australia, the applicant visited [Country 1] from [April] 2008 until [May] 2008. The applicant also visited [another country] from [May] 2013 until [May] 2013. The applicant lists no address in China aside from Shandong Province. Since coming to Australia, the applicant has lived in [a suburb].
The applicant completed unspecified studies at [University 1], from [date] until [date]. The applicant worked as a journalist from [2013].
The applicant claims that he left China to flee political persecution. The applicant claims that his political views are inconsistent with those of the Chinese authorities, and he has been questioned and detained, and was sacked from his job due to his political views. The applicant claims that his personal website was blocked and prohibited.
The applicant fears being mistreated and arrested by the authorities due to his political views and expression of them against the Chinese government. The applicant claims that this implicates his family members, relatives, and friends. The applicant did not try to relocate, as he claims that it is not possible to escape political persecution in China by moving to other parts of China.

Hearing

The applicant appeared before the Tribunal on the 25 September 2019.

A summary of the oral evidence is as follows.
The Tribunal went through the introductions and explained the process. The Tribunal explained that the Tribunal would consider the evidence before it and apply the same law that the Department applied however it was not bound by their decision and would make a fresh decision. The Tribunal explained that it had before it the evidence he had provided to the Department and the Tribunal. The Tribunal explained that the hearing was his opportunity to present his claims and discuss any concerns with the Tribunal. The applicant indicated he had no problem understanding the interpreter.
The Tribunal explained that there was a certificate for non-disclosure of certain information on the Department file. The Tribunal explained that it did not consider that the certificate was valid as it refers to internal working documents and business affairs. The Tribunal then went through the information referred to in the non-disclosure certificate and explained that the information relates to information on the applicant’s [temporary] visa which is already outlined in the Department’s decision which he provided to the Tribunal and was aware of. He indicated he was aware of that information.
The Tribunal stated that it had noted that he had been invited to an interview by the Department but had not attended. He responded that he had been invited however he did not attend as his mobile phone was broken and he did not receive the email from the Department. The Tribunal indicated that normally it would expect that one would check for their email on another computer. He responded he did not have another computer.
The applicant then provided the following information. He stated he was born in Shandong province. He has [family] living in China. He has no relatives in Australia. He said he talks to his family often. He said he speaks to them once a week. He said his child attends school. He then said words to the effect that he and his wife are divorced however they still maintain a husband and wife relationship. He said they divorced [in 2014]. The Tribunal asked why they were divorced. He responded that it involved [details deleted].
He expanded that it was due to the issues with his political opinion that they are divorced on paper but maintain a husband and wife relationship. The Tribunal asked how they communicated. He responded that it was by the usual communication.
The Tribunal then asked the applicant why he was fearful of returning to China. He responded with words to the effect that it is his own opinion against the one party government and the communist party. He stated he stands for freedom and democracy.
He expanded on his position. He stated words to the effect that he started to have his own opinion and values since 2005. He said he formed these opinions through talking to people and the internet and text books and he came to understand about the communist party.
He said his values were against what he read in those materials. He stated that since 2005 he started to understand that the national policy was not the truth. He claimed that because of what was happening in society he started to not believe what was in the media. He said he independently got to understand other information and to get the truth.
Through several public events he realised who was in control of the party. He realised one party controlled politics and they monopolise and control the country and the ethnics (minorities).
He claimed that he published his own view of those events via the internet and social media. He published his view on the government party and social medical and his views are against the government views.
He claims he wrote on social media and internet views which were against the benefit of many and exposed the back side of the government. He claims he published these things since 2005 until now.
He said words to the effect that before he came to Australia his main concern was for the environment and people’s life. He said he did [details deleted].
He explained that in the Chinese mainland the number of investigative journalists was limited and they are normally different from other journalists. He stated he was a social investigative journalist.
He said that this all happened before he came to Australia. He claims that he first came to Australia in November 2015. He said that in the first couple of months he had been to many places and had stayed with the Chinese community. He claims he was inspired by the democratic values.
He stated words to the effect that he then returned to China and he reflected on what he saw and he did research on living, environment and major events. He claims he was led to realise that the cause of the rich and poor gap is the policies of the government. He claims that it is political policy that causes those social phenomena and he started to focus on one government party which is the cause of the all the problems.
The party is greater than the law and the party represents the country which is wrong. He stated the propaganda in China is all about the party. He said the propaganda says that it is democratic but the one party represents everything.
The Tribunal asked if he came to the notice of the authorities in China. He claims that in [date] he graduated from High School and the university entrance. He entered [a] college in Shandong province and studied there for one year. [Details deleted]. This affected his education and he was dismissed. He claims it was meant to be put on the university website but it was not. He said this happened in [year]. The Tribunal asked why he had not provided any of this information earlier.
He responded that he did not know he could. The Tribunal indicated that he was asked several times to provide information for his claim. The Tribunal stated that he had appeared to be able to apply for visas and participate in the process.
The Tribunal indicated that it appeared that after he had done [details deleted] he had obtained a job as a journalist and [another occupation].
He responded with words to the effect that due to his dismissal from the university he could not study and they had said his dismissal was due to him not doing the study he was meant to do.
He said he then studied in [Country 1]. He went to [Country 1] and studied [a course]. In 2012 he returned to China and he started an internship as a journalist in Shandong province at [a] metropolitan newspaper. He said this is the biggest official newspaper in [a location]. He said words to the effect that it was because of his knowledge of [Country 1] and [Country 2] that he was able to get the internship. The Tribunal asked how the knowledge of those languages would help him get a job in a large Chinese official newspaper.
He responded that it was economical as there were many foreign funded organisations for [Country 1] and [Country 2] in the area.
He said words to the effect that he did many reports on foreign reports on [details deleted] between [Country 1] and [Country 2].
The Tribunal again asked why he was fearful of returning to China.
He responded that it was because of what he reports and his values. He stated that in [year] a [building] was illegally built and illegally operated and used people’s fields illegally. The applicant said words to the effect that people from the [building] captured him and beat him. He claimed that the [building] was run with agreement from the local government even through the [building] was operating illegally.
As he was [details deleted]. He claims he was captured by a special police force. He stated that they were only released after writing a statement promising not to do the same again.
The Tribunal asked who the special police were. He responded with words to the effect that they were employed by the official police force. He said words to the effect that when the police are controlling social order they hire local homeless people to do the job.
The Tribunal asked if he was saying that the homeless people detained him and asked him to write a statement.
He responded that it was the official police that wanted the statement and he was detained in a police station for one week and when he wrote the statement he was released. He stated this happened in 2013. He said words to the effect that because of this he was penalised by losing three months’ pay. He was warned not to attend public events.
He said a big event happened in society. There was an explosion and people died and there was [an] accident. He said these things involved the death of people.
He said his main value is about public living and social environment against the government and politicians who comply so they can be promoted. He said he would like to expose those issues. He claims that after he came to Australia he was more focused on democracy and freedom.
He confirmed he was detained just once however during his time in China however the number of threatening warnings is hard to estimate. He says that after staying four months in Australia he went back to China.
When he was in China he started to promote values in public meetings. He claims that he is an investigative journalist and there are 100 such journalists in China. He claims that with the instruction and assistance of friends he met with many people who hold the same values as his. He said words to the effect that he was the organiser of meetings where he promoted freedom, democracy and public order. He said the meetings were held weekly and he would expose the facts against the one party government.
The Tribunal asked how he exposed the government. He responded with words to the effect that he held public meetings like a class and he gave the facts and exposed the facts. He stated that he liked to read books and go to communities and helped them gain knowledge about everything.
He claims he held meetings and told people and mentioned political events and told them repeatedly what happened and how fake news was spread by the party. He claims that after 2-3 months of gatherings the numbers increased to over 100 people so that government officials attended the meeting in casual dress.
He stated that the Chinese constitution allows freedom of speech however local government fears it will affect the order of society. He claims he was ordered to stop the meetings. He said he was twice asked to go to government offices to have a chat and they limited his freedom. He said that later the authorities forced them to stop the meetings. Three or four of his associates were accused of affecting public order and trying to demolish the communist party.
He claimed he could only arrange meetings at night so he and his associates were accused of affecting public and social order.
The applicant said the reason he came to Australia was because the government accused him of wanting to organise a new party against the government. The Tribunal asked if he was detained again. He responded that he was not. He claimed that after the meeting was forcefully dismissed the authorities twice undertook investigations and later on he avoided doing being part of another investigation by telling them he was not at home.
He stated that around May/June 2016 he with other people moved to a rural area and the government official went there and asked them to stop and again he was given a warning. He claimed that because he was an organiser his friend said that he should leave. He was warned but it did not reach the point of him being in custody.
The applicant confirmed he was working in Australia. He was working in [another position] at [a location]. He said he obtained this work through friends in Australia. The Tribunal asked if his friends in Australia were helping him. He responded that he had many friends in Australia.

The Tribunal then stated that the hearing had to be adjourned as the interpreter’s booking was finishing. The matter would be adjourned for him to continue to provide his evidence.
The Tribunal announced the adjournment and invited the applicant to bring any other evidence he would like the Tribunal to consider to the next hearing.
The hearing reconvened on 1 October 2019.
The Tribunal explained again that the hearing was his opportunity to provide arguments and evidence to support his claim. The Tribunal said it would consider his evidence and would put to him any concerns including country information for his comment.
The Tribunal asked if he had any evidence to hand up to the Tribunal. He responded that as it was only six days since the last hearing he did not have any. The Tribunal reminded him that he had had ample opportunities to provide any evidence during the process.
The Tribunal asked what it was the applicant would like to say to the Tribunal in relation to his fear of returning to China. He stated that the main one is his personal views and political thoughts. He said that the values he holds are contrary to the communist party policy and reality.
He said although China enjoys prosperity there is a lot of injustice and inequality.
The Tribunal reminded him of his previous evidence that he had organised political meetings. He responded that he organised the meetings in [Month 1] 2015 to [Month 2] 2015. He said that before that period he had engaged in chit chat with friends but not live meetings.
He said that before [Month 1] 2015 it was only small but from [Month 1] 2015 to [month] 2015 the meetings became large scale. He claims he was being monitored for a long time and undercover people were sent to monitor the meetings. He claims that the people who gave speeches were taken to the police security bureau in a mini bus. He claims he was told they were invited to take tea however they were questioned, their personal information obtained and they were finger printed. He said that questions were detailed so that they could be monitored. He claims they stayed there about 7 hours and the leader of the police tried to persuade them not to conduct anti-government and anti-party meetings. He claims they were verbally threatened. He claims that due to their non-threatening manner they were asked to sign a document and sent home.
He claims that the police deleted the contact details from each of those detained so they could not contact each other. He claims that he was then subjected to severe harassment, monitored and house arrest. He claims that as he owns two houses and he told them the addresses of the houses he could hear voices at night and saw cigarette butts in the morning and he knew he was monitored.
He claims that as he was arrested near [date] 2015 and it is a public holiday the police were afraid that he would give speeches and he was placed under strict monitoring. He claims that the house arrest continued for 2-3 days after the [holidays]. He claims the police then left however they also threatened him verbally that if he continues with his anti-government works and causes social unrest he will be arrested and not make it out alive.
He said he had previously been arrested and he knew what would happen. He claims that in 2012 or 2013 he was arrested and beaten and he still has problems with his vision
He claims that after his public speech in 2015 which was anti-government and anti-party he realised that this was very serious and he began thinking of moving somewhere else.
He then corrected his dates. He moved to Australia the second time in 2016. He said the date of the monitoring should be 2016 as this was right before he came to Australia the second time in 2016.
The Tribunal then put to him that it had concerns as it appears from what he said earlier that he worked for an official newspaper and if he was known as anti-government it would have been hard to work for such a newspaper. He responded with words to the effect that the first time he came to Australia he came with the newsagency but the second time he applied for a [temporary] visa. The Tribunal asked if he was still employed the second time. He responded that he took long leave from his work. He said the first time he came as work but the second time it was personal.
The Tribunal said that he had earlier said he put his views on a website. He responded with words to the effect that he had put up many views. He said the earliest time was around 2005 when he was still at school. The Tribunal asked him what happened with the authorities. He said he kept publishing his views and his website was blocked. He claimed his We Chat account was banned a few days ago.
The Tribunal pressed for more detail on his internet activities. He said it was ongoing, he said he was publishing every week and it was banned.
The Tribunal then put to the applicant country information which indicates that the Chinese authorities monitor the internet very heavily. He agreed they monitor very carefully and are very strict. He said he mainly comments on current affairs and posted a video of his political views.
The Tribunal then discussed with the applicant country information on exiting China. The Tribunal pointed out that it would be difficult for someone with the background of political activism and anti-government views who had been arrested twice could have exited China on his passport.
He responded that it was a hard question to answer. He responded that his political views were getting stronger and he feels his values have been transformed.
The Tribunal again discussed with him his job with a large newspaper in China which would be monitored. He agreed that it would be monitored.

COUNTRY INFORMATION

The Department Foreign Affairs and Trade (DFAT) Country Information Report: People’s Republic of China, dated 21 December 2017 provides the following information:
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight.[1]
[1] DFAT, Country Information Report – People’s Republic of China 2017, 21 December 2017, p. 40, para [5.20].
The Country of Origin Information Services Section of the now Department of Home Affairs undertook research and reported the following information on 30 April 2019. The government maintains a system of border controls that prevents persons of interest departing the country. The government has expanded the use of exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents and persons employed in sensitive government posts. Lawyers, artists, authors, and other activists are sometimes prevented from exiting the country. Chinese passports use sophisticated technology and Chinese authorities have a high surveillance capability, particularly at train stations, airports and ports. An ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials. Genuine documents obtained by fraudulent means, such as household registration, proof of employment, academic transcripts, bank statements and ID cards are relatively easy to obtain and are commonly used.[2]
[2] Department of Home Affairs, Common Claims: People’s Republic of China, 30 April 2019, pp. 21 – 22.
In addition to the DFAT and COISS reports, the Tribunal notes that the US Department of State reported that the government permitted legal emigration and foreign travel for most citizens. Government employees and retirees, especially from the military, continued to face foreign travel restrictions. The government expanded the use of exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents and persons employed in government posts. Border officials and police cited threats to “national security” as the reason for refusing permission to leave the country. Authorities stopped most such persons at the airport at the time of their attempted travel.[3]
[3] US Department of State, Country Reports on Human Rights Practices 2018 – China, 2018, p. 41.
The Canadian Immigration and Refugee Board also wrote a research report dated 6 March 2014 on exit procedures in China. The report stated that airport officials have access to the Public Security Bureau of China’s online database of citizens who have been convicted of crimes or are wanted by authorities, and that officials would often confiscate passports held by individuals deemed unsuitable for foreign travel.[4] The Board produced another report on 22 September 2015, which noted that a person may be requested to produce their passport up to four times at the airport, and will be scanned at the airline check-in and the departure counter.[5]
[4] Immigration and Refugee Board of Canada, China: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports¸6 March 2014, CHN104761.E (accessed 5 September 2019).
[5] Immigration and Refugee Board of Canada, China: Information on electronic/biometric passports, including security features, Radio Frequency ID (RFID) technology and wireless tracking capacity; exit procedures at international airports, including e-passport verification, security checkpoints, and the use of facial recognition technology, 22 September 2015, CHN105049.E, (accessed 5 September 2019).
The DFAT Report also provides the following information in regards to political opinion in China:
Article 35 of China’s Constitution states that citizens of the People’s Republic of China enjoy freedom of speech, the press, assembly, association, procession and demonstration. China’s National Human Rights Action Plan 2016-2020 outlines the Government’s plans to advance the right to expression ‘giving more space to public opinion, […] improving the check and supervision system for the operation of power, and protecting in accordance with the law the citizens’ rights of free expression and democratic supervision’.
In practice, however, laws and regulations enforcing these constitutional rights are not well developed. China’s law requires all gatherings of people numbering more than 200 persons to obtain approval from public security authorities. The 1989 Law of Assemblies, Demonstrations and Processions puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges.
The CCP has little tolerance for public dissent on a wide-range of matters considered politically sensitive, including social stability, the legitimacy of central authorities and one-Party rule and other topics which authorities consider might aggravate social unrest. Examples of issues which authorities deem sensitive include commentary on serious economic, health and environmental concerns, financial risks, land and property issues, ethnic and religious unrest, labour disputes and official responses to natural or anthropogenic disasters. The Party and government may, in limited circumstances, tolerate commentary on corrupt local officials, particularly those already under investigation by the CCDI (see Corruption). What the authorities deem sensitive can change with no warning.
Pre-emptive detention of activists and rights defenders is common around sensitive political anniversaries and other high profile political or ‘sensitive’ events (see Arbitrary Arrest and Detention, and Acronyms for list of dates). Those publicly advocating greater human or civil rights, including the ‘709 Lawyers’ (see Human Rights Defenders (including Lawyers)), have also been detained and charged under public order offenses or accused of state subversion. Duihua’s Political Prisoners Database, which records information about political and religious prisoners incarcerated in China since 1980, contained 34,910 entries at the end of 2016.
In recent years, several people charged with political offences have appeared on Chinese state television making public confessions to alleged crimes. In some cases, the public confessions have taken place before trial and conviction. Recent examples include several ‘709’ lawyers (see Human Rights Defenders (including Lawyers)), journalists who have exposed official abuse of power, and two registered refugees who were returned from Thailand (see Involuntary and enforced disappearances). Those confessing commonly express regret for having sought to sow instability and work against the authority of the CCP, and have often included alleged admissions of colluding with ‘foreign forces’ to destabilise the country. Some have subsequently claimed their confessions were forced.
Political prisoners can legally be deprived of political rights (freedom of speech, assembly, association, procession, demonstration, vote and holding a position in a state organ) after completing a prison term. In many cases, individuals have been placed under house arrest for extended periods of time after official release from prison (see Arbitrary Arrest and Detention). Those deprived of political rights can face difficulties finding employment, renting property, travelling freely, and accessing social services. Prisoners and their families have reported harassment or intimidation, including police surveillance, telephone wiretaps, property and body searches.
Families of dissidents, including children, have also been subject to movement restrictions, exit bans and other forms of harassment by Chinese authorities. The 16-year-old son of a ‘709’ lawyer was placed under effective house arrest from 2015 until late 2017 (see Involuntary and enforced disappearances). Children of other ‘709’ lawyers have been denied entry to primary school and pre-school, and the spouses of some detained lawyers have reported being evicted from their apartments. Chinese authorities have also reportedly harassed family members in China of overseas dissidents. Overseas Uighur activists have reported police harassment of their China-based families, including jail terms (see Ethnic Uighurs). Other high profile critics of the Chinese government’s human rights record have also reported harassment of their China-based families and some have publicly severed ties with their families in order to protect them from further harassment. DFAT is aware of claims that authorities have confiscated ID cards or hukou of families of dissidents, limiting their ability to access medical care, education and social services.[6]
[6] DFAT, Country Information Report – People’s Republic of China 2017, 21 December 2017, pp. 22 – 23, para [3.63] – [3.69].
The DFAT Report also states the following in regards to media and media workers within China:
Despite constitutional protections for freedom of speech, the CCP controls traditional print and broadcast media. According to the Committee to Protect Journalists, at least 38 journalists were in prison in China as of December 2016. China ranks as 176th out of a total 180 countries on the 2017 Press Freedom Index compiled by Reporters Without Borders.
In February 2016, President Xi Jinping called on all Chinese state and non-state media to serve the interests of the CCP. In a tour of the three largest CCP and state news organisations, he said all Chinese media must be part of the ‘Party family’ (literally, must ‘bear the surname of the Party’). The Chinese government blocks broadcast of foreign television in China except by cable to a limited audience (which are, nevertheless, also subject to censorship), which includes authorised public servants, authorised academics and business executives, and international hotels rated at four stars or higher. The State Administration for Radio, Film and Television (SARFT) strictly regulates domestic content. News must derive from state-approved sources and SARFT censors fictional and historical content. Content showing the CCP or government in a poor light as well as explicit sexual material (and all same-sex material) has long been prohibited. Recently, restrictions have expanded to include all sexual references, underage drinking, and blurring lines between ‘truth and falsehood, good and evil, beauty and ugliness’. The lack of precision in the guidelines allows censors broad latitude. In March 2016, SARFT and the Ministry of Industry and Information Technology issued Regulations on the Management of Internet Publishing Services prohibiting foreign companies from disseminating content on-line, including text, maps, games, animation, audio and video. Foreign-owned companies can publish material in joint venture with a Chinese partner, but only with government approval.
The Chinese government heavily censors news media. The government routinely suppresses reporting of sensitive events, such as disasters – particularly when not naturally caused, or when attributable to or exacerbated by official laxity or corruption. If news gets out (often on social media), official media are quick to revert to a government line. The government has recently targeted even CCP publications that question central policies, changing the management of a liberal magazine in July 2016. The government has told financial journalists and financial analysts to ensure their reporting does not ‘talk down’ Chinese economic conditions or policy measures: one financial journalist was jailed in 2015 for reporting in unfavourable terms on the government’s response to a stock market crash.
DFAT assesses that journalists working for China’s domestic media also practise a high degree of self-censorship. Journalists and editors who transgress officially sanctioned lines risk official harassment, which may include loss of employment or imprisonment, depending on the perceived severity of the transgression. State scrutiny of media ‘loyalty’ and, consequently, media self-censorship is particularly intense for significant anniversaries, such as those relating to the 1959 Tibetan uprising, the 1989 Tiananmen protests, and significant events such as meetings of the National People’s Congress or the Communist Party Congress.[7]
While the rise of the internet has created a non-traditional space for the expression of political opinion in China, authorities have developed and applied increasingly sophisticated methods to limit on-line expressions of dissent. The Freedom House ‘Freedom on the Net’ 2016 report rated China as the most restrictive country in the world in terms of internet access for its estimated 650 million internet and social media users. China’s security apparatus invests heavily in monitoring and controlling the internet, with many foreign websites (including Facebook, Twitter, Google and many foreign media sites) blocked. Recent regulations have also cracked down on the use of virtual private networks, a means by which Chinese citizens and companies have gained access to banned sites by routing their searches through a foreign server. Companies must now apply for permission to use such networks, and must demonstrate a business requirement. The Cybersecurity Administration monitors all use of approved networks. Since the entry into force of China’s Cybersecurity Law in June 2017, all users of Chinese social media accounts must register with their real names. The Chinese government has required real name registration for email and internet users since 2015. Since August 2017, all comments posted on websites or social media must carry real name identifiers, in order to ‘safeguard national security and the public interest’.
The Chinese government reportedly employs up to 2 million people to police the internet and post pro-government comments, and encourages netizens both to post positive comments and to report negative ones. Chinese social media accounts operated offshore (WeChat and Weibo) are also censored, although to
a lesser extent than on-shore accounts. Censors are quick to block trending words designed to circumvent controls, and satire directed at CCP leaders. Recent examples of prohibited subjects include the death of Nobel Laureate Liu Xiaobo (see Deaths in Custody), references to the 1989 suppression of protests in Tiananmen Square in Beijing, and any references to the 2015 crackdown on human rights lawyers (‘709’ incident – see Human Rights Defenders (including Lawyers)). Censored posts have been used in court as evidence of public order and subversion offences (see Ethnic Uighurs).
In September 2013, a court judgement ruled that an author of an internet post could face up to three years in prison if their post was reposted more than 500 times, read more than 5,000 times, led to mass protests, instigated ethnic or religious clashes, damaged the country’s image or caused ‘a bad international effect’. Since then, authorities have detained and tried popular bloggers, particularly where they have drawn attention to abuses of power, including at a local level. In some cases, bloggers have spent up to two years in residential detention (see Arbitrary Arrest and Detention).
China began testing a Social Credit System in 2015 that would track citizens’ financial, legal and social activities and distil their behaviour into a single ‘trustability’ score, able to affect many facets of life, from obtaining bank loans to using library cards. The giant Chinese e-commerce company, Alibaba, is reportedly using its large customer database to pilot aspects of the system. The CCP has said the system, which could be rolled out across much of China by 2020, would enable millions of people lacking access to financial services to receive them, and would address the current high levels of social distrust among Chinese citizens. Critics express concern this may lead to greater self-censorship, increased suppression of online dissent and an increasingly fearful society.
People who post comments contrary to the wishes of the government and the CCP currently face censorship. In areas that have implemented ‘social credit’, such people suffer reductions in their ‘social credit’. Censorship of the internet in China is extensive. New regulations make the ‘creator’ of a group chat responsible for its content. DFAT assesses that people who repeatedly post unapproved material are at high risk of attracting adverse treatment by authorities, including possible criminal charges or threat of charges. [8]
[7] DFAT, Country Information Report – People’s Republic of China 2017, 21 December 2017, pp. 25 – 26, para [3.84] – [3.87].
[8] DFAT, Country Information Report – People’s Republic of China, 21 December 2017, pp. 26 – 27, paras [3.88] – [3.92].

A 2011 RRT Q&A report provides the following information regarding internet monitoring in China (footnotes omitted):
China’s internet environment is one of the world’s most restrictive and is characterised by a sophisticated, multi-layered control apparatus. Sources indicate that the Chinese authorities monitor chat rooms using an ever-changing list of sensitive key words, for example, “Falun Gong” and “Tibetan independence”. No information was found on the Chinese public’s general perception as to what is safe to discuss via chatting. The sophisticated monitoring of the internet by the authorities has resulted in casual users keeping away from sensitive content. There are also reports that people have been detained for using chat rooms.
In April 2011 Freedom House reported that Chinese laws have resulted in internet companies employing hundreds of thousands of people to monitor and censor online videos, bulletin-boards and blog posts. The US State Department reported, in its human rights report for the year 2010, that over 14 Chinese government ministries were involved in blocking access to foreign and domestic websites, resulting in censorship of a range of websites including online chat rooms. Restricting access to websites, however, was not universally effective. Freedom House states that as controls have tightened, more people are said to be seeking out techniques for circumventing censorship. There is a growing community of bloggers, online commentators and human rights defenders which have a played a role in uncovering official corruption and exposing rights abuses.
The most systematically censored topics include criticism of top leaders, evaluations of China’s human rights record, violation of minority rights in Tibet and Xinjiang, Falun Gong, the 1989 pro-democracy demonstrations, pro-Taiwanese independence views and initiatives that challenge the regime on a systemic level. The US State Department noted that the Chinese government “automatically censored e-mail and Web chats based on an ever-changing list of sensitive key words, such as “Falun Gong” and “Tibetan independence.”” It also reported that “censorship was effective in keeping casual users away from sensitive content” but was easily circumvented by technology.
There are reports that people have been detained for using chat rooms. Freedom House noted that a Beijing activist was detained in November 2010 on “inciting subversion” charges for posting a photograph of the 1989 Tiananmen Square crackdown on the “popular online forum and chat service QQ.” In May 2010 a person, writing about the “Sanlu Milk Power (sic) Incident” on the QQ online chat group, was reportedly arrested by Chonqing police for intending to “spread terrorizing information and create a terrorizing atmosphere” and sentenced to one year of re-education through labour (RTL).[9]
It is reported that the law in China grants the government access to almost all personal information, and that WeChat and its competitors collect data about their users that the Chinese government can monitor. QQ is reported to have allowed the Chinese authorities to monitor exchanges between internet users, with the authors of the messages identified by their user numbers. There have been concerns raised about security and privacy issues in the QQ browser, and the monitoring of WeChat communications by the Chinese authorities. Other reports indicate that the Chinese government has tightened control of the online media space, and filters and censors content on social media platforms such as WeChat.
The November 2017 Freedom House report on internet freedom in China states that ‘[p]rivacy protections under Chinese law are minimal. In the words of one expert, the law explicitly authorizes government access to privately held data, and “systematic access” to “data held by anyone” is a realistic possibility once e-government strategies are fully implemented’.
The March 2013 report by Reporters Without Borders indicates that ‘[t]he QQ application, owned by the firm Tencent, allows the authorities to monitor in detail exchanges between Internet users by seeking certain keywords and expressions. The author of each message can be identified by his or her user number. The QQ application is effectively a giant Trojan horse’. A more recent October 2017 Reporters Without Borders news article refers to the WeChat social network also having ‘rightly acquired a reputation for being a police Trojan horse. Since last year, information gathered from WeChat, including conversation detail, can officially be used as prosecution evidence in trials’.
[9] RRT, China – CHN38800 – Employment – Falung Gong – Cohabitation – Summons – Harbouring criminals – chat rooms – Surveillance, 23 June 2011, pp. 9 – 10.
The 2018 US Department of State’s report on human rights practices stated:
Authorities frequently subjected former political prisoners and their families to surveillance, telephone wiretaps, searches, and other forms of harassment or threats. For example, security personnel followed the family members of detained or imprisoned rights activists to meetings with foreign reporters and diplomats and urged the family members to remain silent about the cases of their relatives. Authorities barred certain members of the rights community from meeting with visiting dignitaries.
…
Journalists operated in an environment tightly controlled by the government. While the country’s increasingly internet-literate population demanded interesting stories told with the latest technologies, government authorities asserted control over those new technologies (such as livestreaming) and clamped down on new digital outlets and social media platforms.
Because the Communist Party does not consider internet news companies “official” media, they are subject to debilitating regulations and barred from reporting on potentially “sensitive” stories. According to the most recent All China Journalist Association report from 2017 on the nation’s news media, there were 231,564 officially credentialed reporters working in the country. Only 1,406 worked for news websites, with the majority working at state-run outlets such as XinhuaNet.com and ChinaDaily.com. This did not mean online outlets did not report on important issues. Instead, many used creative means to share content, but limited their tactics and topics since they were acting outside official approval.
Violence and Harassment: The government frequently impeded the work of the press, including citizen journalists. Journalists reported being subjected to physical attack, harassment, monitoring, and intimidation when reporting on sensitive topics. Government officials used criminal prosecution, civil lawsuits, and other punishment, including violence, detention, and other forms of harassment, to intimidate authors and journalists and to prevent the dissemination of unsanctioned information on a wide range of topics.[10]
[10] US Department of State, 2018 Country Reports on Human Rights Practices: China (includes Tibet, Hong Kong, and Macau), 13 March 2019, (accessed 26 September 2019).

Receiving country

The applicant claims to be a citizen of China and has provided a copy of his Chinese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China and that he is outside his country of nationality. The Tribunal finds that China is his receiving country for the purpose of assessing his claims for protection.

Third country protection

There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

Assessment of claims

The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
The applicant set out his claims in his application for protection. The claims he listed in the application were scant and provided no detail. He stated in his written application that he “had been sacked because of his political views inconsistent to the China authorities, I have been questioned and sustained restraint of liberty. My personal web site was blocked and prohibited.” He did not provide any statement. He did not attend any interview with the Department when he was invited. At hearing he stated he did not attend as due to problems with his mobile phone he did not get the email.
At hearing the applicant’s narrative was convoluted and at times confusing as to the relevance of the issue which was put to the applicant about his fear of returning to China. He stated that he does not agree with the communist regime. At hearing he also responded that it involved [details deleted]. He did not expand on those issues or provide any further detail.
He went into some detail about his organising meetings, speeches to large crowds and coming to the attention of authorities. He did not provide evidence of internet postings until the Tribunal asked him about that claim. He described posting anti-government views since 2005. When queried about his claim he said his views have become stronger over time. The applicant claimed he was dismissed from his university in 2006, he described not being allowed to finish university due to his research on an [issue] affecting a local area this is inconsistent to his application for protection in which he listed being at [University 1] from [year] to [year]. He claimed he was arrested in 2012 or 2013 due to his taking part in a [protest]. He claims he organised and participated in anti-government meetings and speeches. He was arrested, placed under house arrest and monitored.
The Tribunal is concerned about his claims as at hearing he went into some detail about his organisation of political anti-government meetings. He did not discuss, until prompted by the Tribunal, his claim as set out in the protection application that he had been sacked due his personal website being blocked and prohibited. He claimed at hearing that he had been posting his views on the internet since 2005. When queried he stated that at first they were about social issues but have become stronger anti-government views.
At hearing he discussed his work as a journalist in China. He was working for a mainstream newspaper. At hearing he stated that he was given leave from his job to travel to Australia a second time in 2016. He stated that when he first travelled to Australia in 2015 he came with his employer to work however on the second occasion he applied for a [temporary] visa and was given leave. This is in contrast to his statement in his application for protection that he was sacked from his job.
At the hearing he gave inconsistent evidence in regard to dates when the activity started. He was also inconsistent on whether he was arrested and monitored in 2015 or 2016. He earlier said he avoided authorities by telling them he was not home and he was only arrested and detained once. Later he stated they arrested him for seven hours, monitored him and had him under house arrest at one of his two homes.
He claims he is divorced from his wife to protect her from his political opinion however he claims he speaks to her on Weibo once a week. No certificate of divorce was provided. Chinese authorities monitor the Chinese sites such as Weibo and if they still considered themselves to be man and wife the authorities would be aware of this.
Despite being given several opportunities and requests to provide further information. He could give no cogent or persuasive evidence of any information or opinions he had posted on the internet. The Tribunal only has his own assertions that this happened. He provided scant evidence on his application for protection, no statement was provided, and he did not attend an interview with the department and did not provide any further information to the Tribunal other than the evidence he gave orally at the hearing.
He claims that he participated in activities denouncing the communist party and promoting democracy and freedom of speech. He claims that the meetings he held became so large that up to 200 people attended. He claims that the authorities accused him of breaching social order and peace. These are considered to be very serious crimes in China.
After considering country information the Tribunal is of the opinion that those accused of such crimes are not able to continue to work in state sanctioned newspapers and to exit China on work delegations to Australia.
As set out in the applicant’s protection application, the department’s decision record, which was provided to the Tribunal and the applicant’s evidence he worked for a large Chinese newspaper, he has travelled extensively into and out of China. This travel happened during the times he claims he was involved in anti-government protests.
The Tribunal put to the applicant that he would not be able to participate in such dangerous activities as denouncing the communist party and be able to secure employment, work and exit the country with such ease.
In response to the country information he agreed that the Chinese authorities monitored heavily all internet and news outlets. He stated that it was hard to answer the Tribunals concerns about independent exit information.
On the evidence provided the Tribunal does not accept the applicant’s claims that he was an anti-government agitator for some years. The Tribunal does not accept that he would have been able to consistently criticise the Chinese communist party, be arrested, subject to house arrest and continue to work as a journalist for a large mainstream Chinese newspaper, to exit and return to China and own [properties].
At the hearing when the issues were put to the applicant he stated that he had recently had his Weibo account blocked. He did not provide any further information other than his own assertions.
Due to the Tribunals cumulative concerns as outlined above and the findings that it does not accept the applicant’s claims it does not accept that the Chinese authorities have only just blocked his Weibo account.
The Tribunal considers the applicant’s ability to depart the country on his own passport to be inconsistent with the applicant’s claimed fear of persecution from higher authorities and fear that he will be arrested if he re-enters China. The Tribunal does not accept that he is at any risk from detention, continued threats and harassment that is condoned or uncontrolled by those higher authorities.
For these reasons, and the Tribunal’s finding about the applicant’s evidence being his own assertions, the inconsistencies and finding his claims unpersuasive, the Tribunal rejects that the applicant had been involved in the reporting of corruption, organising anti-government meetings, posting anti-government and anti-partyviews on the internet for many years. The Tribunal rejects the claim that the applicant was detained twice, tortured and monitored for several years before he exited China with his work delegation or when he returned and sought leave from his work for a [temporary] visa. The Tribunal rejects the applicant’s claim that he spoke to people about his political views, the corruption and the injustices and that he participated in demonstrations and organised meetings. The Tribunal does not accept that he continues to post anti-government political views and that his Weibo account was recently blocked. After considering all the evidence Tribunal finds that the applicant will not pursue anti-government activities or publicly criticise the one party rule if he returns to China.
The Tribunal has above outlined the applicant’s inconsistencies in relation to the incidents in which he claims he was involved. Due to those inconsistencies and his lack of credibility the Tribunal rejects his claim that his family and friends may be subjected to any persecution because of their connection to him or of any issues relating to [problems].
The Tribunal rejects the applicant’s claim that the applicant was of any interest to the authorities, the police or other elements influenced by the local government which was ultimately controlled by the Chinese government.
After considering the applicant's claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to China now or in the reasonably foreseeable future, there is no real chance that he will be persecuted for the reason of his political opinion, membership of a particular social group or for any other Convention reason.

Does the applicant meet the complementary protection criteria?

The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
A person meets the complementary protection criteria 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.
‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
Section 36(2)(aa) of the Act 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: MIAC v SZQRB [2013] FCAFC 33.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). The Tribunal is not satisfied 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 he will suffer significant harm. He therefore does not satisfy s.36(2)(aa).

Conclusion

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). 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).
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.

Catherine Carney-Orsborn

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

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.
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.
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.
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.
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.
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

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.
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 6479

1 October 2019

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