1703522 (Refugee)

1703522 (Refugee) [2020] AATA 5607 (16 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703522
COUNTRY OF REFERENCE:                   China
MEMBER:Nathan Goetz
DATE:16 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 December 2020 at 9:59am
CATCHWORDS
REFUGEE – protection visa – China – physical disability – discrimination, abuse and violence – credibility – inconsistent evidence – visa history – claims in written application abandoned at hearing and new claims made – previous agent deregistered – applicant’s collusion with agent – did not inform current agent of claims in written application – previous travel to other countries without applying for protection – country information – moderate risk of discrimination and violence does not amount to ground for protection – no genuine fear of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
On 15 July 2016 the applicant was offshore and was granted a visitor visa to travel to Australia. She arrived [in] August 2016 holding this visa.
On 29 August 2016 the applicant applied for a protection visa. She did not attend a delegate interview on 31 January 2017 to discuss her protection claims. On 31 January 2017 the delegate refused to grant the protection visa.
On 28 February 2017 the applicant applied to the Tribunal for a review of the refusal decision.
On 14 December 2020 the applicant appeared at a Tribunal hearing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Mandarin languages.
The applicant was represented for the review application by registered migration agent [Number 1] [Ms A]. The migration agent attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets ‘complementary protection’ or whether the applicant is a member of the same family unit of such a person.
Protection visa application form
According to the form which the applicant submitted when applying for the protection visa, she identifies as a [Age]-year-old female who was born in [Location 1], Hunan, China and is a Chinese citizen. In China remain her father, mother and brother. She departed China legally on her Chinese passport that was issued by the Chinese Government. The passport is valid until [2026]. Until July 2016 she was working as an assistant in a [Workplace] in Wenzhou City, Zhejiang province, China. She lived at her work premises.
She was in [Country 1] between [December 2014] and [January] 2015 for ‘travelling.’ She was in [Country 2] between [September] 2015 and [December] 2015 for ‘travelling.’
The applicant’s protection visa application form contained a written statement. She wrote that in early 2015 her parents rented land to plant fruit trees. A five-year contract was signed, and her family invested money for development of the land. In March 2016 the village committee advised that they would take the land back and refused to pay compensation. There was a rumour that a development company wanted the land and that the boss of the company was related to a city leader. No one dared to say no to him.
As the applicant was educated, her family trusted her. She went to court to file a case. The court refused her. She went to the government to complain. There was no result. She wrote the case in an open letter and distributed it. She wanted to get public attention. The developer retaliated. She was hurt by the persecution and her peaceful family was destroyed.
In April 2016 supervisors and officers from the [Location 1] Police Station repeatedly tried to force her to stop distributing materials. She asked who would pay for her family’s loss. The supervisor told her that if she kept petitioning her whole family would be arrested. When she continued, the police sent her to the [Location 2] Police Department [in] April 2016 and she was detained at a detention centre on a charge of ‘disrupting social order.’ She was shown no documents during the process and protested about the illegal detention by holding a hunger strike. After three days, they were afraid she would die so she was released.
On [Date 1] May 2016 she went to a wholesale market to distribute materials. She was arrested by the police again. The police forced her to hold materials and then took pictures and video-taped the applicant. She was moved to the police station and detained there for one day. She was then sent to the detention centre. She got beaten and almost died. The police told her family that the applicant had committed various crimes, which the applicant detailed.
On [Date 2] May 2016 the applicant was placed under home detention because of her bad health. She went to the police station to get her personal belongings and she was required to write a statement promising to give up petitioning or her property would not be returned. She refused to do so. She requested prosecution of the responsible people and compensation, but police laughed at her naivety and said that city leaders personally gave the order to seriously punish her. As she went against the developer, it meant that she went against the government.
The applicant wrote that the developer hired thugs to harass her family. Facing the threats of the developer, her family advised her to leave China. She was young and she should not lose her life because she was pursuing justice. She fled China and the developer often sent people to her home to check on her whereabouts and threatened to catch her.
Oral evidence given to the Tribunal hearing
The applicant appeared at the Tribunal hearing with a man named [Mr B] who the applicant identified as born on [Date 3]. She said that he was her fiancé and that they became acquainted in 2017. They met in Australia and became engaged on [in] April 2019. He has told her that he is [an Occupation] and an Australian citizen. [Mr B] was identified as a support person. As review application hearings for protection visa application refusal decisions are not open to the public, [Mr B] waited outside the Tribunal hearing room while the applicant gave her evidence.
The applicant told the Tribunal that her protection visa application forms were filled out by her previous migration agent. The protection visa application form indicates that she was assisted by registered migration agent [Number 2] [Ms C]. The previous migration agent told the applicant that if she paid money, she would not have to do anything. All she needed to do was sign the protection visa application form.
The applicant said that she did not know what was in her protection visa application form. The previous migration agent did not read the information contained in the form back to the applicant, other than the details of the applicant’s family members. The applicant said she provided the previous migration agent with a copy of her Chinese household registration card.
The Tribunal asked the applicant why she applied for protection in Australia. She said that when she first went to the agent, she was interested in applying for a [Subject] related educational course. The Tribunal notes that the applicant disclosed employment in the [Subject] industry in China in her employment history. The previous migration agent told her that the applicant did not have an IELTS score (International English Language Testing System) so she would be ineligible for any course of study in Australia. She lodged a protection visa because she was told that the previous migration agent would be able to help her stay in Australia, get work rights, and would be able to get her permanent residency.
The Tribunal subsequently checked the website of the Department of Home Affairs Office of the Migration Registration Authority and found a decision dated [March] 2017 where the Authority cancelled the registration of the applicant’s previous migration agent because the agent was not a person of integrity nor a fit and proper person to provide immigration assistance: [Number 3] is the decision reference.
The Tribunal asked what the applicant’s intention was coming to Australia on a visitor visa. The applicant said that she was a disabled person. Her disability relates to her [Body part 1] and [Body part 2]. She had [Disease] when she was little, and her [Body part 1] was run over by a car. She had what she described as a disability certificate. She read this out to the Tribunal. The number was [Number 4] and the certificate was issued [in] March 2012. The certificate is valid for 10 years and declared her name, gender, ethnic group, date of birth and disability type. The applicant said that the disability type read ‘limb.’ Since she was a child she had ‘been discriminated against’ in China. She told the Tribunal that she had brought this certificate with her from China when she travelled to Australia.
The Tribunal repeated its question about the applicant’s intention coming to Australia on a visitor visa. She again said that she was discriminated against in her studies or employment and mocked during relationships where she was exposed to violence. She browsed the internet to look for developed countries where people enjoyed human rights, however she disputed that her intention coming to Australia on a visitor visa was to remain in Australia. She just intended to ‘have a look.’ She wanted to see whether someone like her would be respected in Australia. She told the Tribunal that she applied for a visitor visa instead of a student visa to come to Australia because she was sacked by her employer due to her disability.
She lodged a protection visa because the migration agent told her that he would be able to find her a way to stay in Australia. She did not tell the migration agent about her disability being a reason why she wanted to stay in Australia. She told the previous migration agent that she wanted to study. Later, when the Tribunal questioned why she did not tell the migration agent about her disability being a reason for her to remain in Australia, she changed her oral evidence and said that she did.
The Tribunal queried why the applicant would sign the protection visa form without knowing what was in it. She repeated her evidence that she was told that if she paid the migration agent money, he would fix everything. She said that she did not know that the previous migration agent was going to put in information that was untrue. She did not know what the previous migration agent was putting in the form. All she knew was that previous migration agent would handle everything, and she would not have to worry about anything else.
She told the Tribunal she became aware that her protection visa application was refused on 19 October 2016. The previous migration agent told her this was normal and that she would be granted permanent residency through the Tribunal. The Tribunal asked why the applicant did not return to China once her protection visa was refused by the delegate. She said that she did not wish to return there because of the abuse and widespread discrimination against disabled people in China. It made her feel quite depressed.
She realised in December 2018 the previous migration agent was caught by authorities and that the previous migration agent was submitting fake protection visa applications. The applicant told the Tribunal that she had not disclosed any of this information to her current migration agent. The Tribunal raised with the applicant its curiosity about the allegations of misconduct on behalf of her previous migration agent being raised for the first time at the Tribunal hearing. This suggested to the Tribunal that the applicant was a party to the previous migration agent’s activities, and that she had only sought to ‘come clean’ given what she had learned about the migration agent being ‘caught’ by the authorities. The Tribunal also put to the applicant its view that if the applicant’s claimed fear of harm on the basis of her disability was true, that claim would have been contained in the protection visa application, and not been raised for the first time at the Tribunal hearing. The applicant responded that after she learned about the conduct of the previous migration agent, she went to talk to several agents. After her fiancé learned what happened, he suggested they seek legal advice. There was no advice provided to her that she could withdraw her previous protection claims. The only advice that was provided was to explore a partner visa, but the applicant did not want to do so, because she did not want a partner visa application to be involved in something that was ‘not pure.’
The applicant told the Tribunal that she had never been arrested or detained in China. She told the Tribunal that apart from her claim about the fact that she will be discriminated against in China on account of her disability, she had no other protection claims. She told the Tribunal that she did not want to be discriminated against because of her disability any longer and noted that she was beaten by fellow school students because of her disability.
The Tribunal told the applicant that it would consider the 3 October 2019 Department of Foreign Affairs and Trade Country Information Report on China (at 2.22 and 2.23) regarding her claim that she will be harmed in China because she has a disability. The report details that disability is generally hidden in China. Children living with disability are often kept in the home, abandoned or placed for adoption and lack access to higher education, including due to social stigma and barriers set by the family. They also experience higher rates of family violence, Education is managed by the Ministry for Disability, rather than by the Minister of Education, which restricts accessibility and the level of education available to people living with disability. The government maintains a quota for Chinese companies employing people living with disability; however, sources report companies can avoid hiring a person if they pay a fine. Some foreign companies do provide employment opportunities for people living with disability. DFAT assesses that people living with disability are at moderate risk of official and societal discrimination, as well as familiar and societal violence in China.
The applicant told the Tribunal that she had previously travelled to [Country 1], [Country 2] and [Country 3].
The Tribunal asked the applicant whether she explored visa options to remain in [Country 1]. She said she did not because she only went there to travel. The Tribunal asked about the purpose of her travel to [Country 2]. She said she went to [Country 2] following discrimination from an employer and clients in China. She intended to go to [Country 2] to be enrolled in a [Subject] course but while she was there, she was involved in a shooting accident. In the beginning of December that year there was a shooting near where she was staying. She arrived in [Country 2] in September. She was also robbed with a gun. She did not lodge any visa to remain in [Country 2] because she kept making enquiries about a [Subject] course.
She told the Tribunal that she went to [Country 3] in May 2016. This was after her travel to [Country 2]. She was in [Country 3] for two days. She came to [Country 3] from Shanghai and returned to China from [Country 3]. She went to [Country 3] to see a friend, however the friend only had accommodation booked for one night. She had planned to be with her friend and see different places. She told the Tribunal that she had been issued with a 10-year multiple entry visa to [Country 3]. The Tribunal asked why she had not returned to [Country 3], given that she had this visa. She said that she did not do so because when she went to [Country 3], she was refused entry. Customs in [Country 3] had queried why she had only booked one night’s accommodation. She was not sure if her visa was cancelled and [Country 3] customs told her to return to China.
FINDINGS AND REASONS
Country of reference
The applicant provided a copy of her Chinese passport when she applied for a protection visa. It identifies her as a citizen of China. There is no evidence for the Tribunal to find that the applicant is a citizen of any other country, or that she has the right to enter and reside in a third country. The Tribunal is satisfied that the country of reference for the protection visa application is China.

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant is a not a credible witness
The Tribunal has considered what the applicant said to the Tribunal regarding the lodging of her protection visa application form. The applicant seeks to lay the blame of false claims as the responsibility of her previous migration agent. However, the Tribunal is not satisfied that the applicant was not involved in the provision of these false claims. Instead, the Tribunal is satisfied that the applicant knowingly allowed her previous migration agent to put forward protection claims that were not true, and when the applicant became aware that her previous migration agent was ‘caught’, she then sought to distance herself from the actions of the previous migration agent. The Tribunal is satisfied that had the previous migration agent not been discovered engaging in the activities that ultimately saw that person’s registration as a migration agent cancelled, the applicant would not have told the Tribunal that the claims contained in the protection visa application form were not her own. The Tribunal suspects that the applicant thought it likely that the Tribunal may look at any claims put forward by an applicant who had used that particular migration agent with a great deal of suspicion, and that the applicant thought it was her best course to feign ignorance of what her previous migration applicant did. The Tribunal comes to this conclusion for the following reasons.
First, the applicant gave to the Tribunal inconsistent oral evidence about what she had told her previous migration agent about her claimed disability being a reason that she wished to remain in Australia. Initially she told the Tribunal that she did not tell the agent about her disability being a reason she sought to remain in Australia. She enquired about attending a [Subject] course and was told she was ineligible. She was told that lodging a protection visa would allow her to stay in Australia, obtain work rights, and would result in her obtaining permanent residency. The Tribunal is satisfied that the applicant changed her oral evidence about whether she had told her previous agent that her claimed disability was a reason she wanted to remain in Australia because the applicant was attuned to the Tribunal’s concern that she would not mention to her current migration agent that she wanted to remain in Australia due to the claimed discrimination that she had suffered in the past in China, and the claim that she would suffer future harm in China, on the basis of her disability if this claim was true and she genuinely held this belief.
Second, the applicant’s international travel and return to China indicates that the applicant has no genuine fear of harm on account of her claimed disability. She travelled to [Country 1] and returned to China, despite her disability being recognised in her disability card from 2012. Although she specifically told the Tribunal that she went to [Country 1] for travel, she similarly went to Australia for travel according to what she said at the Tribunal hearing. It is odd that the applicant would not explore visa options to remain in [Country 1] if she had experienced past harm on account of her disability in China. This would equally apply to her travel to [Country 2], especially when she specifically told the Tribunal that the reason for her travel to that country was because she had been ‘discriminated’ against in China because of her claimed disability. The applicant was able to lodge a protection visa in Australia two weeks after her arrival in Australia. The Tribunal finds it incredulous that she would not lodge a similar visa to remain in [Country 2] after her arrival there if she was genuine in her claims. The fact that the applicant was in [Country 2] for approximately three months and lodged no visa to remain there, and instead returned to China, persuades the Tribunal that the applicant has no genuine fear of being harmed on account of her disability in China. If she had such fear, the Tribunal is satisfied that she would have lodged a visa to remain in [Country 2].
Third, the Tribunal notes that the applicant did not previously disclose her travel to [Country 3]. It is curious to the Tribunal that this travel would be omitted from her protection visa application form, while the other travel to [Country 1] and [Country 2] was included. The applicant’s oral evidence about what happened in [Country 3] was also curious. She suggested that her visa to [Country 3] had not been cancelled, but that she was told to return to China because she had only booked one-night accommodation. The Tribunal struggles to accept that the applicant would not be able to tell the Tribunal more about an incident where it appears that she was not able to clear the [Country 3] immigration controls. The Tribunal is satisfied that the applicant could tell the Tribunal no more than what she did because she did not wish to alert the fact that she probably had her visa to [Country 3] cancelled and that fact was not disclosed in her protection visa application form. To the Tribunal’s way of thinking, this demonstrates that the applicant is calculated and prepared to misrepresent facts to achieve a desired migration outcome.
Fourth, it is incredible for the Tribunal to believe that the applicant, who claims that she became aware that she did not know what was in her protection visa application form around December 2018 that she would not have told her current migration agent of this fact, and that information would have been presented about this to the Tribunal earlier than the morning of the Tribunal hearing. The Tribunal finds the applicant’s lack of candour to demonstrate a willingness by her to be less than honest in her migration matters. The Tribunal does not accept that the applicant sought advice, but no one told her that she could withdraw her claims and instead told her to apply for a partner visa. It is curious in the extreme for the Tribunal to believe that the applicant sought advice from other agents following her discovery of the activities of her previous migration agent, where no advice was given about her ability to withdraw her previous claims (which would only be an issue if the applicant raised concern about the activities of her previous migration agent), yet the current migration agent whom she retained for the purpose of her review application was told nothing about what had happened by the applicant.
The Tribunal is satisfied that the applicant did not tell her current migration agent about the actions of her previous migration agent because she was prepared to continue to be a party to false claims being put into the protection visa application form. The Tribunal is satisfied that the applicant then made a calculated decision on the morning of the Tribunal hearing to tell the Tribunal about the fact that the claims were not her own, feign ignorance about what was put in the protection visa application form, and seek to put a complexion on this fact to suggest she was far less culpable in false claims being put forward than she actually was. The Tribunal is satisfied that the applicant did not raise the alleged conduct of her previous migration agent prior to the morning of the Tribunal hearing because he was probably uncertain prior to the Tribunal hearing whether the Tribunal was aware of the controversy surrounding her previous migration agent.
Regarding any of the claims in the protection visa application form concerning the demolition of family property, detention, or any claimed activity as a protestor, and anything arising from these claims, the Tribunal is not satisfied that the applicant has ever engaged in any such activity and is not satisfied that the applicant would engage in any such activity if she returned to China. The claims are a complete fabrication. The Tribunal rejects them in their entirety.
As evidenced in the above reasons, the Tribunal is not satisfied that the applicant is a witness of truth. The Tribunal does not accept that she has been anything other than party to false claims being put into her protection visa application form. The Tribunal is satisfied that she did so because she came to Australia on a visitor visa, and decided to remain here on a protection visa as an alternative to a student visa, because she would have been ineligible for such a visa given she did not possess the relevant English language score. To that end, she and her previous migration agent manufactured her protection claims to achieve a migration outcome.
It is in the context of this finding that the Tribunal turns to the applicant’s claim that was raised for the first time at the Tribunal hearing. She claimed that she will be ‘discriminated’ against in China because she has a disability. She has experienced harm in the past through verbal and physical abuse, and termination of employment. The applicant noted to the Tribunal that she does not appear to have a disability when a person looks at her. The applicant is right in that regard. However, the Tribunal accepts that the applicant has a disability of the limb as detailed in her Chinese disability card which she read from at the Tribunal hearing.
The Tribunal accepts as a possibility that people with a disability of the limb may be discriminated against in China. Some employers may not like to hire someone with a disability. Some school children may tease and say nasty things about people with a disability. Some clients who may use the services of the applicant may decide that they no longer wish to do so if they become aware that she has a disability of the limb. Some people who are in a romantic relationship may be violent to someone who is less physically able than a perpetrator of family violence, or for any other reason. While all of that is regrettable, the Tribunal does not accept that any of that amounts to the type of harm envisaged as part of Australia’s protection obligations, whether that be as serious harm or significant harm. The possibility of some person doing something bad to another person because they have a disability does not equate to a well-founded fear of persecution and does not mean that there is a real risk of significant harm.
In addition to this, the Tribunal concludes that the applicant herself does not actually have a fear of harm in China on account of her disability. If she did genuinely hold that belief, the applicant would have included that claim in her protection visa application form and would have disclosed that claim prior to the Tribunal hearing, noting that she had never raised that with her current migration agent. The Tribunal notes that the current migration agent commenced acting for the applicant in January 2019.
To that end, the Tribunal concludes that the applicant has sought to put a complexion on her disability that has never been present before. She has sought to fill the gap in her protection visa application by putting forward her disability as a claim. The Tribunal is satisfied that the applicant herself does not genuinely fear harm on account of her disability for the reasons discussed above.
When the Tribunal considers everything that it has concerning the applicant, it concludes that the applicant is prepared to say or do whatever it takes to achieve a migration outcome that will allow her to remain in Australia. She is not a truthful witness.
CONCLUSION
The applicant’s claims that she will be discriminated against in China because of her disability is a broad claim lacking any depth. The information contained in the recent DFAT report notes that people living with disability are at moderate risk of official and societal discrimination, as well as familiar and societal violence in China. While that is regrettably, that does not mean that people living with a disability have a well-founded fear of persecution based on their profile as disabled people, and nor does it mean that people living with a disability face a real risk of significant harm as a result of their removal from Australia to China. Given the concerns that the Tribunal has about the credibility of the applicant, it has real doubt about any claim by the applicant that she has been discriminated against in China because of her disability. The applicant has demonstrated a willingness to put forward claims that are not hers in her protection visa application form. The Tribunal is not satisfied that her flexible approach to the truth has stopped.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant faces serious harm on account of her race, religion, nationality, membership of a particular social group or political opinion in China.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative of whether there is a real risk of significant harm to the applicant if removed from Australia to China. For the same reasons, the Tribunal is not satisfied that there is a real risk of significant harm to the applicant if removed from Australia to China.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no evidence that the applicant is a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 5607

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