1705266 (Refugee)

1705266 (Refugee) [2020] AATA 4275 (12 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705266
COUNTRY OF REFERENCE:                   China
MEMBER:L. Symons
DATE:12 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 October 2020 at 6:10pm
CATCHWORDS
REFUGEE – protection visa – China – religion – member of underground Christian church – detention, torture and fines – credibility – implausible, inconsistent and unconvincing evidence – previous travel to third country without applying for protection there – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36, 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 on 23 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, arrived in Australia [in] August 2016 as the holder of a [Visitor] visa that was valid until 12 November 2016. On 2 September 2016, she was granted a Bridging A visa in association with her application for a Protection visa. That visa remains in effect.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 24 August 2016 and the delegate refused to grant the visa on 23 February 2017. On 20 March 2017, she applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 7 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 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 AND FINDINGS
The applicant’s claims in her application for a Protection visa are summarised as follows:
·She is from Chongqing city. Her friend taught her to pray to God because of her [physical] pains and a [“disease”]. After she believed as an underground Christian, she strictly adhered to the word of the Bible. All of her diseases disappeared and her family became more harmonious.
·After the persecution of Christians began, she was detained, brutally tortured and fined large amounts of money. In the past, the Chongqing government did not strictly control the underground Church activities. She travelled abroad and secretly brought back lots of religious materials and started learning with her brothers and sisters.
·At the beginning of May 2016, the Chongqing government started to crack down on underground religions and she and her brothers and sisters suffered severe persecution. [In] May 2016, three Police Officers arrested her at her home and took her to the Police Station at [Town]. She was interrogated and asked where the articles came from. When she refused to answer, the Police used their leather shoes “to attach” her feet and ankles so that a layer of skin immediately peeled off. She endured extreme pain. She was tortured brutally for almost an entire day and was then sent to the Chongqing City Detention Centre.
·Inside the evil Detention Centre she was subjected to brutal torture. There were “four collaborators with false understandings” who, in two shifts, took turns to “transform” her. The brutal torture included stress positions, beatings, water boarding and being forced to eat food she was allergic to. She was released from the Detention Centre [in] May 2016 and imprisoned at a brainwashing centre controlled by the Chongqing City Police Bureau. The Police forced underground Christians to watch videos slandering God and to write “conversion” letters. She was fined [Amount] yuan.
·After her return home [in] May 2016, the Police went to her home and monitored her often. Her family were threatened and they were living in fear. With the help of a friend, she obtained an Australian visa and left China. In Australia, she participated in a Chinese Church. She is free to worship God.
The applicant provided a copy of her Chinese passport issued [in] 2015 to the Department.
The applicant was invited to attend an interview with the Department on 21 February 2017 and did not attend the interview.
Country of reference
The applicant claims to be a citizen of China and has provided a copy of her Chinese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of China for the purpose of assessing her claims for protection under the refugee criteria and the complementary protection criteria.
Third country protection
The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.
Assessment of claims
During the hearing, the Tribunal discussed with the applicant her background, her family, her education, her employment, where she lived, her travel overseas, her reasons for leaving China and why she fears returning to China. The Tribunal found aspects of her evidence to be implausible, inconsistent and unconvincing. Her conduct was not consistent with her claims. The Tribunal finds that she is not a credible or reliable witness for the following reasons:
First, in her visa application, the applicant claimed that a friend taught her to pray to God because of her [physical] pains and a [“disease”]. After she believed as an underground Christian, she strictly adhered to the word of the Bible, all of her diseases disappeared and her family became more harmonious.
During the hearing, the Tribunal discussed these claims with the applicant. She stated that in mid-2015 she had [physical] pains and a friend of hers, who is a Christian, told her to believe in God. She followed her advice, became a Christian and her [physical] pain “magically disappeared”. When asked what this friend taught her about Christianity, she responded that her friend introduced her to other Christians. She stated that there was another person who preached. When asked what she learnt about Christianity, she responded that she learnt many things including how to help other people and calm yourself down.
The Tribunal does not claim to be an arbiter of Christian doctrine or to dismiss the impact of a person’s religious convictions. However, the Tribunal finds the applicant’s explanation for how her [“disease’], [physical] pains disappeared to be implausible and unconvincing. It raises concerns about her credibility and the veracity of her claims.
Second, in her visa application, the applicant claimed that she travelled abroad and secretly brought back lots of religious materials and started learning with her brothers and sisters. The Tribunal discussed these claims with the applicant. She stated that she travelled to [Country] in November 2015, lived in [Country] for over 4 months and returned to China in mid-March 2016. When asked what she did during that time, she stated that she went shopping, travelling, making friends and participating in gatherings.
The applicant gave evidence that she attended a Chinese Christian Church in [Country] during Christmas (2015) and thereafter attended Church once a week. When asked what she learnt from going to Church once a week, she responded that she felt that the people were very friendly and loved to help other people. They were selfless and devoted themselves to the cause in which they believed. The Tribunal would expect that, if she was attending Church in [Country] once a week between Christmas 2015 and mid-March 2016, she would have learnt about Christianity and not just about the people who attended Church.
The applicant gave evidence that she obtained some pamphlets with photos on them and a CD from the Church and took them back to China. The CD had an introduction to Jesus Christ, hymns and other things like the “admiration of God”. When asked why she did that, she responded that she thought they were good. She shared them with the brothers and sisters at the Church in China. In view of her evidence that she was a member of an underground Church, the Tribunal finds it implausible that she would have taken the risk of secretly smuggling religious material into China.
The Tribunal also finds it implausible that the applicant would have taken the risk of distributing the material in China thereby putting herself at risk of coming to the adverse attention of the Chinese authorities. These issues raise concerns in relation to her credibility and the veracity of her claims.
Third, the applicant’s conduct is inconsistent with her claims and raises concerns in relation to the credibility of her claims. Her claims are that she was a Christian in an underground Church in China, she and her “brothers and sisters” met at each other’s homes for the purpose of worship and she had to secretly smuggle religious materials into China. She experienced the freedom to attend Church in [Country] and to practise her faith openly and without restrictions. She did so for 4 ½ months. Her evidence to the Tribunal is that Christianity is important to her.
In these circumstances, the Tribunal would expect the applicant to have claimed asylum in [Country]. She did not do so and instead voluntarily returned to China. When the Tribunal raised this as an issue with her, she responded that she went to [Country] in November 2015 and returned to China in 2016. The incident happened after she returned from [Country]. Whilst the Tribunal accepts that the incident in May 2016 may have given her an additional incentive to leave China and claim asylum in Australia, her response does not alleviate the Tribunal’s concerns.
Fourth, in her visa application, the applicant claimed that [in] May 2016 three Police Officers arrested her at her home, took her to the Police Station at [Town] and interrogated her. She claimed that she was “tortured brutally” for almost an entire day and was then sent to the Chongqing City Detention Centre where she remained until [date] May 2016. She claimed that during that time she was brutally tortured to “transform” her. This included stress positions, beatings, water boarding and being forced to eat food she was allergic to. She was then imprisoned at a brainwashing centre controlled by the Chongqing City Police Bureau until [date] May 2016 when she was released.
During the hearing, the Tribunal discussed these claims with the applicant. There were significant inconsistencies between her evidence to the Tribunal and her written claims in her visa application. She gave evidence that four Police officers went to her home on [date] May 2017 (which she subsequently changed to 2016), searched her house, confiscated religious materials, arrested her and took her to the Dispatch Unit of the Public Security Bureau (PSB) in Qijiang district where she was attacked and assaulted.
The Tribunal asked the applicant how she was assaulted. She responded that she was asked questions about her Church, where she got the materials and the names of the other followers. She stated that she refused to answer some of the questions. She stated that she was beaten with the heel of a shoe on her head until she bled and was not allowed to cry. She was asked to do the splits at 180 degrees. She was deprived of sleep and was hit if she fell asleep. She was at the Dispatch Unit of the PSB for 7 days and on [date] May 2016 she was transferred to a place where people get “brainwashed”.
The applicant gave evidence that at the place where she was “brainwashed” she was shown materials such as pictures, slogans and videos and was told that she was a heretic. She was forced to write letters confessing that she was a heretic, promise that she would change and not be a heretic in the future. She had to put her fingerprints on a piece of paper. She was at this place for 5 days. She was then fined [Amount] RMB and released to her family.
There were inconsistencies in the applicant’s evidence in relation to how many Police Officers went to her home, what happened at her home, where she was taken, what happened when she was there, what injuries she suffered and how long she was there. In her evidence to the Tribunal, she failed to mention that she was at the Chongqing City Detention Centre between [date] May 2016 and [date] May 2016 or that her family was threatened after she was released. In her visa application, she claimed that she was fined large amounts of money. Her evidence was that she was fined once.
There inconsistencies in the applicant’s evidence raise concerns in relation to her credibility and the veracity of her claims. When the Tribunal raised this as an issue with her, she responded that there are many things that she does not want to recall as it makes her uncomfortable. She stated that they used all the methods of torture that they could think of on her and no one from the outside would know what they went through. She made a new claim that they tortured her with boiling hot water.
The Tribunal accepts that, if a person has been tortured, he or she would not want to recall it and that it would make the person feel uncomfortable. However, these claims are central to her claims for protection, she did recall the events, provide details in her visa application and attended the hearing knowing that her claims for protection would be discussed at the hearing. She did not indicate a reluctance to discuss these events during the hearing. The Tribunal is not satisfied that her response provides an adequate explanation for the problems with her evidence and it does not alleviate the Tribunal’s concerns.
Fifth, in her visa application, the applicant claimed that after she was released by the Chinese authorities and returned home on [ date] May 2016 the Police went to her home and monitored her often. She claimed that her family were threatened and they were living in fear. The Tribunal discussed these claims with her.
The applicant gave evidence that after her return home she continued to attend the underground Church gatherings. She stated that she was too afraid to have gatherings in her own home, so she attended gatherings at other people’s homes. When asked why she did that if she was being monitored by the Chinese authorities, she responded that she did not believe she did anything wrong. She just wanted to pray. She made no mention of her family being threatened despite being given every opportunity to do so. When asked if she had told the Tribunal everything that had happened, she responded yes.
The Tribunal has a number of concerns in relation to the applicant’s evidence. Firstly, it is implausible that if the Police were going to her home often and she was being monitored, that she would have put herself, her family and other Church goers at risk by attending their homes particularly in view of the “brutal torture” she claims to have endured. Secondly, if she just wanted to pray it is not clear why she was unable to do that at her own home and why she needed to go to someone else’s home to pray. Thirdly, her failure to mention that her family was threatened and they were living in fear is significant.
These issues raise concerns about the applicant’s credibility and the veracity of her claims.
Sixth, in her visa application, the applicant claimed that, with the help of a friend, she obtained an Australian visa and left China. She claimed that, in Australia, she has participated in a Chinese Church and is free to worship God. The Tribunal discussed these claims with her.
The applicant gave evidence that since coming to Australia she has attended a Church to participate in gatherings and pray. When asked when she first started attending Church in Australia, she responded that she could not remember. She said it was a Church in [Suburb]. When asked how often she attended Church, she responded that she had no pattern and would go there when available. There were weekly gatherings. She went about once a month until the Covid 19 pandemic.
The Tribunal asked the applicant what denomination of Christianity the Church belonged to. She responded that they believe in Jesus Christ. It is new school. She stated that she has not attended any Bible study classes in Australia to learn about Christianity. She has attended Church to listen to the priest teaching about the Bible, to pray and to join the gatherings. She has not provided the Tribunal with any evidence from the Church to confirm that she has attended Church in Australia.

The applicant’s conduct in Australia is not consistent with her claims. She gave evidence that Christianity is important to her. The Tribunal is of the view that, if she was prepared to put herself at risk of serious harm to practise Christianity in an underground Church in China and continued to do so even after she was detained and “brutally tortured”, she would have used the freedom of religion and the opportunities available to her in Australia to attend Bible study classes, attend Church weekly, participate in Church activities and become involved in the Church community. The Tribunal would expect her to have asked members of the Church congregation to give supporting evidence at the hearing or provide letters of support. She did not do so.
These issues raise concerns about the applicant’s credibility and the veracity of her claims.
Seventh, in her visa application, the applicant claimed that, after she became a Christian she strictly adhered to the word of the Bible. She gave evidence that she had her own copy of the Bible in China and that she read it. When asked what she could tell the Tribunal about the Bible, she responded that it is the fable of the Lord and she could tell the Tribunal a lot. When asked the difference between the Old Testament and the New Testament, she responded that the Old Testament is before Jesus Christ and the New Testament is about Jesus Christ and his teachings.
The Tribunal asked the applicant to tell the Tribunal about the story of Moses. She responded that he was quite obedient to the Lord and was offered the opportunity to have a face to face talk to the Lord. When asked where he was born, she stated that she could not remember. When asked if she could tell the Tribunal anything else about Moses, she responded that she was not familiar with the western story but knew many things. When asked who wrote the New Testament, she responded that she could not remember. When asked about the first miracle that Jesus Christ performed, she responded that he changed water into wine at a wedding ceremony.
The Tribunal asked the applicant what she believed as a Christian. She responded that she believed in God. When asked if she believed in anything else, she responded that she believed in God the Lord Jesus Christ. She stated that Christianity was important to her. When asked why, she responded that in her mind she believes each movement is in the eyes, every action we take has consequences and we should accumulate devotion. She stated that Christianity merges into love. She loves and admires Jesus Christ and that means that she should love her family and her sisters and everyone and everything.
The Tribunal asked the applicant if she would practise Christianity if she returned to China and she responded yes. She stated that she believes in it and will keep practising it but does not know if the authorities would approve it. When asked why she did not attend an official Christian Church in China, she responded that there is no official Church where she lives. When the Tribunal pointed out that Chongqing is a large city and there are many Churches there, she responded that she does not know of any Churches. She stated that there is a physical Church which is a school for blind people.
The Tribunal asked the applicant if she had any issue with attending the official Christian Church in China. She responded that she would hope that there is an official Church in China but she did not think there was. She questioned why she would be arrested and asked where she got materials from. She stated that if we all believe it does not matter where we practise. The Tribunal discussed with her relevant country information on official and unofficial Churches in China.[1] She responded that she had not experienced that and did no believe data from the Chinese authorities. When the Tribunal informed her that DFAT sourced information from a wide range of sources including government and non-government sources, she responded that it is a lie.
[1] DFAT Country Information Report on China, 3 October 2019.
The Tribunal has a number of concerns about the applicant’s evidence. The Tribunal accepts that she has some knowledge of the Bible. However, her knowledge of the Bible is not consistent with her claims that she has been a Christian since mid-2015, has attended Church regularly, had her own copy of the Bible in China which she has read, that Christianity was important to her and that she risked serious harm, including detention and torture, to practise Christianity in China.
The Tribunal raised as an issue with the applicant the fact that her knowledge of the Bible was not consistent with her claims. She responded that she is on her own in Australia and has to earn money and feed herself. She believes in God and trusts, admires and respects him and goes to Church once a month. She prays to God every morning and believes that God will bestore wisdom and strength to her.
The applicant’s lack of knowledge of the existence of official Churches in China and her question as to why she would be arrested in China also raises doubts that she was a Christian in China. It is implausible that, if she was a Christian in China, she would not be aware that there are official Churches in China, the difference between official and unofficial Churches and the risks associated with being involved in unofficial Churches.
Eighth, in her visa application, the applicant answered ‘yes’ to the question Have you been found guilty or convicted of a crime or any offence in any country? in section 86 of Form 866C. In section 3 of Form 866 B she stated that she had been charged with an offence that was currently awaiting legal action, she had been convicted of an offence (including a conviction which is now removed from official records) and had been the subject of an arrest warrant or Interpol Notice. During the hearing, she gave evidence that the information in her visa application was true and correct. However, she subsequently gave evidence that she was a law abiding citizen and none of these things happened.
The Tribunal raised as an issue with the applicant the fact that, if the above was true, her passport would have been confiscated, she would have been put on a Watch List and would not have been allowed to leave China. The Tribunal noted that the fact that she was able to leave China without a problem tends to indicate that she is not of adverse interest to the Chinese authorities. She responded that she told her migration agent the truth and she has no idea what her migration agent wrote in her visa application. She stated that she has not been able to contact her migration agent. She stated that what she told the Tribunal is what happened to her.
The applicant has signed two declarations in her visa application that the above information is accurate. She earlier gave evidence to the Tribunal that she was satisfied that her visa application was accurate and complete. These issues raise concerns in relation to her credibility and the veracity of her claims.
Ninth, the applicant gave evidence that her relationship with her husband broke down and she divorced him shortly before she left China to travel to Australia. She stated that her [Age] year old son lives with his father. When asked why she came to Australia, she responded that a friend advised her that if she did not have a happy life she should travel and see the world. Her friend advised her to travel to Australia. She stated that that was why she came to Australia.
The applicant’s reason for coming to Australia is not consistent with her claims that she was arrested by the Chinese authorities, detained, brutally tortured, fined, monitored after she was released from detention, her family was threatened, they all lived in fear so she left China and came to Australia where she is able to freely worship God. This raises concerns in relation to her credibility and the veracity of her claims.
Other considerations
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on China and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that she is not a witness of truth. The Tribunal finds that she fabricated her material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [Date] at Chongqing in China. The Tribunal accepts that she entered into a defacto relationship in 2005 and her son was born on [Date]. The Tribunal accepts that her relationship with her partner subsequently broke down and they separated. The Tribunal accepts that her [Age] year old son lives with his father. The Tribunal accepts that she travelled to [Country] and lived there for over 4 months. The Tribunal does not accept that she spent her time in [Country] shopping, sightseeing, making friends and attending Church.
The Tribunal does not accept that the applicant was a Christian in an underground Church in China. It follows that the Tribunal does not accept any of her claims that flow from that including that she is of adverse interest to the Chinese authorities. The Tribunal accepts that she has attended a Chinese Church in Australia. The Tribunal is not satisfied that there is a real chance or a real risk that she would be at risk of serious harm or significant harm for this reason if she returns to China now or in the foreseeable future. The Tribunal is of the view that what is important is what she would do on her return to China.
The Tribunal is not satisfied that she is a genuine Christian. It follows that the Tribunal is not satisfied that she would seek to practice Christianity in an official Christian Church or an underground Christian Church if she returns to China now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant wants to live and work in Australia and does not want to return to China.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of her religion or any other reason set out in s.5J(1)(a) of the Act if she returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to China now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act.
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) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, she does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
L. Symons
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 4275

12 October 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction