1704026 (Refugee)

1704026 (Refugee) [2021] AATA 1644 (6 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1704026
COUNTRY OF REFERENCE: China
MEMBER:David McCulloch
DATE:6 May 2021
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 May 2021 at 2:16pm
CATCHWORDS

REFUGEE – protection visa – China – applicants failed to attend tribunal hearing – dispute over unpaid bills – engaged in petitioning activities – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 426A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MJEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 and Border Protection on 8 February 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 13 September 2016. The delegate refused to grant the visas. The first named applicant (the applicant) did not appear at the interview with the delegate to which he was duly invited.
The applicants were invited to attend a hearing of the Tribunal on 3 May 2021 at 11am. The applicants did not attend at the time and place indicated nor make any contact with the Tribunal to explain their lack of appearance.
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
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.
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. The Tribunal has before it the DFAT Country Information Report – China, 3 October 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and applicant wife and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants entered Australia on FA-600 tourist visas [in] August 2016 and applied for protection visas on 13 September 2016. The applicants were refused by the Department on 8 February 2017. The applicants applied for a review of that decision on 7 March 2017.
The following information is apparent from the application for protection forms. The applicant was born on [date] in Henan Province, China. The applicant belongs to the Han ethnic group. The applicant speaks, reads and writes Mandarin. The applicant’s mother resides in Henan Province, China, and the applicant’s father is deceased. The applicant’s daughter resides at the applicant’s address in [NSW], Australia. The applicant is not in contact with relatives outside of Australia. The applicant has only ever resided at one address in China, from [year] until August 2016, in [Luoyang], Henan, China. The applicant worked from October 1987 until June 2001 at [a workplace] in [Luoyang], Henan, China, in manufacturing. The applicant was then unemployed from July 2001 until July 2014, before working as a manager in manufacturing at [another workplace] from August 2014 until ‘current’. The applicant graduated from Senior High School in [year] at [a] High School [in] Luoyang, Henan, China. The applicant has never travelled to another country, nor left Australia since arrival. The applicant has no convictions recorded.
The applicant and applicant wife married [in] November 1998 in Luoyang Province, China.
The applicant wife is not making her own claims for protection.
The applicant wife was born on [date] and is of Han ethnicity. The applicant wife speaks, reads and writes Mandarin. The applicant wife’s mother and father both reside in Henan Province, China. The applicant wife’s daughter resides with the applicant and applicant wife [in] NSW, Australia. The applicant wife has no contact with family outside of Australia. The applicant wife had only ever resided at one address in [Luoyang], Henan, China from [year] until August 2016 before arriving in Australia. The applicant wife graduated from [a] High School, Luoyang, Henan, China, in [year]. The applicant wife was unemployed at the time of application, and had previously worked in China as [an occupation] at [a workplace] from April 2015 until August 2016. The applicant wife has never travelled to another country, nor left Australia since arrival. The applicant wife has no convictions recorded.
The applicant provided a statutory declaration setting out his claims for protection as follows (not corrected for spelling or grammar):
The reason I fear going back to China
My own company, [name deleted] obtained a contract in September 2014 to install [facilities] for [local] Public Security Bureau's office building. The contract had a project amount of RMB 3 million yuan. The project was completed in May 2015. My company paid for all the materials and labour first and had not received one cent for the project. After the completion of the project, I submitted the project's final account to the Public Security Bureau and requested payment. However the officials of the Public Security Bureau used all sorts of excuses to delay the payment and never made the payment. By November 2015 my company's working capital turnover faced severe difficulty. As a result my company was close to bankruptcy. Having no other choice I was forced to petition Luoyang municipal government. But the municipal government ignored my petition request. In January 2016 [the local] Public Security Bureau found out that I went to municipal government to petition. They came to my company and threatened me that if I didn't stop petitioning, they would close down my company and arrest me for running illegal business.
I did not give in to their threats because I had dozens of workers' wages and material purchases to pay. I couldn't give up just like that. I then went to Beijing in March 2016 to lodge my petition, asking the central government to help me solve the matter. But the petition authorities in Beijing notified the local government in Luoyang, which then sent people to Beijing to forcefully take me back to Luoyang and put me under administrative detention for five days. They said I disrupted the government's operations. The police from [the local] Public Security Bureau threatened me when they released me that they would put me in prison when they detained me on this matter next time. I still didn't give up the project money because to me it related to the future survival of my company and my whole family and all workers livelihood.
In May 2016 I posted a dob-in post on our local internet forum. I informed that senior officials of [the local] Public Security Bureau engaged in embezzlement and receiving bribery. I requested the municipal government to investigate it and solve my company’s project payment. Many people left their comments online regarding my post. They were sympathetic to my situation and supportive to me. One day in June [the local] Public Security Bureau sent a few police officers to my company. They took away my company's books and told me that they were investigating my company's financial offences. I heard from my friends then that the police was already planning to arrest me. I felt the severity of the matter and feared for the safety of my family. I knew that people in police detention often got tortured and were forced to make admissions, and got injured from the torture. I feared that I would be tortured as well and be forced to make admissions. So I decided to find a way to flee China and to escape police persecution of me. So I applied for an Australian visitor visa in July 2016. I fled China in a hurry after I received my visa and came to Australia.
I hope the Australian government can provide me with protection so that I can avoid persecution by the Chinese Public Security authorities.
[applicant name] (Signature)
11/09/2016
Independent information
The 2019 DFAT report on China provides the following information:
POLITICAL OPINION (ACTUAL OR IMPUTED)
[3.119] 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 2018 White Paper on Progress in Human Rights over 40 years, also states ‘the system of multi-party cooperation and political consultation…gives expression to people's democracy...It guarantees that all social strata, people's organizations and patriots from various quarters can express their opinions and play a role in the country's political and social life.’ China’s National Human Rights Action Plan 2016-2020 also 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’.
[3.120] 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 Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges.
[3.121] 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 that authorities consider might aggravate social unrest. Examples of issues which authorities deem sensitive include, but are not limited to, 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 (see Corruption). What the authorities deem sensitive can change with no warning.
[3.122] 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). 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 40,053 entries as of April 2019.
[3.123] 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 Enforced or Involuntary 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.
[3.124] 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. Such penalties can also now be formalised under the social credit system (see The Social Credit System). Prisoners and their families have reported harassment or intimidation, including police surveillance, telephone wiretaps, and property and body searches.
[3.125] Families of dissidents, including children, have also been subject to movement restrictions, exit bans and other forms of harassment by Chinese authorities. The teenage son of a ‘709’ lawyer was placed under effective house arrest from 2015 until late 2017 (see Enforced or Involuntary 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 (see Hukou (household registration) system) of families of dissidents, limiting their ability to access medical care, education and social services.[1]
……..
Protesters/Petitioners
[3.134] Protests and petitions occur regularly across China. An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. China Labour Bulletin (CLB) obtained details of 1,287 protests in 2017, and 1,318 protests between January and October 2018, but it estimates this only reflects one tenth of protests that occurred. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. While construction issues account for around 40 per cent of labour issues, in line with changing patterns of migrant work (see Employment), NGOs working on labour issues claim an increasing trend towards protests over service sector work (more than 20 per cent), rather than industry and factory work.
[3.135] Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices) in 2014, an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT is aware of, but cannot verify, reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.
[3.136] China’s Constitution and State Compensation Law (1994; amended 2010) enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. Sources report that local officials are encouraged to ensure protests do not reach Beijing. The SCS can be used to restrict movement of people to prevent them from travelling to Beijing to petition the government (see The Social Credit System).
[3.137] In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise. A series of protests over land appropriation in 2011 in Wukan, a village of 20,000 people in Guangdong province, led to the resignation of local officials and direct elections of village office-holders. While hailed at the time as a sign of greater openness to democratisation, in 2016 provincial authorities arrested the popularly elected local chief, sparking further protests. In contrast to 2011, authorities violently suppressed the 2016 protests and excluded foreign media (including from Hong Kong), some of whom claimed themselves to be victims of police violence while attempting to cover the event. Police blockaded the village, preventing access to goods and services, and local leaders received lengthy sentences (up to ten years in prison) for their role. In November 2017, media reported the village remained under lock-down and a provincial level ‘Wukan Mass Working Group’ had been established, with 100 staff responsible for ensuring stability by marshalling a network of informers, security patrols, surveillance systems and floodlights in the village.[2]
[1] DFAT, Country Information Report – China, 3 October 2019, para [3.119] – [3.125].
[2] DFAT, Country Information Report – China, 3 October 2019, para [3.134] – [3.137].
Hearing, credibility, findings, and assessment

By letter dated 26 March 2021 the Tribunal invited the applicants to appear before it on 3 May 2021 at 11am to give evidence and present arguments. That letter was sent to the applicants’ last identified address for correspondence and noted that, if the applicants did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable them to appear. The applicants did not respond to the invitation or make any contact with the Tribunal in respect of their scheduled appearance, or the review application more generally.
Based on the evidence before it the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and in the circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
The Tribunal is satisfied that the applicants are citizens of China and accordingly their claims will be assessed against China.
Claims of harm are being made by the applicant but not by the applicant wife. The Tribunal would have had many questions to have asked of the applicant in the hearing before being satisfied as to key substantive claims.
In the absence of the Tribunal being able to explore the claims of the applicant and to test his credibility, the Tribunal is not satisfied as to any substantive claims by the applicant.
The Tribunal is not satisfied that the applicant was the owner of a [company] that was contracted by the Public Security Bureau (PSB) in 2014 to install [facilities]. The Tribunal is not satisfied that the PSB failed to pay for this work once completed. The Tribunal is not satisfied that the applicant engaged in petitioning activities as a result at any level of government. The Tribunal is not satisfied that the applicant was harassed or detained by authorities as a result of his petitioning activities. The Tribunal is not satisfied that the applicant posted critical information of Chinese authorities online. The Tribunal is not satisfied that authorities formed any intention to arrest the applicant causing him to flee China. The Tribunal is not satisfied the Chinese authorities have any adverse interest in the applicant.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk of him suffering significant harm.
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David McCulloch
Member

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

[2021] AATA 1644

6 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction