1708974 (Refugee)

1708974 (Refugee) [2021] AATA 1639 (29 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1708974
COUNTRY OF REFERENCE: China
MEMBER:Nathan Goetz
DATE:29 April 2021
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 29 April 2021 at 1:37pm
CATCHWORDS

REFUGEE – protection visa – China – applicants failed to attend tribunal hearing – dispute over compensation for breach of lease – petitioned local authorities – arrested and intimidated by police – feared revenge from business association – insufficient information and lack of detail – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 425, 426A, 499
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 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 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
[In] January 2017 the applicants arrived in Australia holding visitor visas. The visitor visas lasted until 4 February 2017.
On 31 January 2017 the applicants applied for protection visas. On 28 March 2017 Mr [A] participated in a delegate interview. On 5 April 2017 the delegate refused to grant the protection visas.
On 24 April 2017 the applicants applied to the Tribunal for a review of the refusal decision.
On 25 March 2021 the applicants were invited to appear at a three-hour Tribunal hearing scheduled to commence on 10:00am on 29 April 2021. The Tribunal was required to invite the applicants to a Tribunal hearing to give evidence and present arguments related to the issues arising in relation to the decision under review because the Tribunal was not satisfied that the applicants met the criteria for the protection visas on the information it had in accordance with s.425(1).
The invitation was sent by email to the email address provided for Tribunal correspondence. The applicants were requested to return a completed ‘Response to hearing invitation form’ to the Tribunal and were directed to provide any submissions or documents they intended to rely upon 7 days prior to the Tribunal hearing. The Tribunal never received a response from the applicants. The Tribunal sent two SMS reminder messages to the applicants at the mobile telephone number they provided with their review application form as the telephone number for correspondence.
On 29 April 2021 the applicants failed to appear at the Tribunal hearing.
The hearing invitation advised the applicants of the consequences should they fail to appear at the Tribunal hearing.
Since lodging their review application, the applicants have not provided the Tribunal with any further evidence or information in support of their claims. There is no record of them contacting the Tribunal since the lodgement of the review application form.
Given this, the Tribunal has determined that the appropriate course is to make a decision on the review application without taking any further steps to allow or enable the applicants to appear at the Tribunal: s.426A(1A)(a). The Tribunal waited until the expiration of the three hour allocated three-hour Tribunal hearing time before making a decision.
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
Protection visa application forms signed on 24 January 2017
The Tribunal read the protection visa application forms. The forms identify the applicants as Mr [A], a [age]-year-old male citizen of China, and his wife Ms [B], a [age]-year-old female citizen of China. The couple claim they were married [in] August 2013. They were both born in Jilin province, China.
From [year] until October 2016 Mr [A] lived at [Address 1] Jilin province. From [year] Ms [B] lived at [Address 2], Jilin province.
Mr [A] has a father and mother in China. Ms [B] has a father and mother in China. The applicants disclose no siblings. Together the couple have a daughter who was born on [date] and she is identified as living in China.
Both applicants identified that they were making claims for protection. They seek protection in Australia so they do not have to return to China. Both applicants identified that they had experienced harm in China, that they sought protection within China after the harm but that they did not move or try to move to another part of the country to seek safety. They both thought that they would be harmed or mistreated if they returned to China and that the authorities of China would not or could not protect the applicants. The applicants claimed that they could not relocate within China. The applicants directed the decision-maker to refer to the written statement for the details they provided in support of these answers.
The written statement was written from the perspective of Mr [A]. He wrote that the couple rented a shop in a shopping mall in Shaoxing city, Zhejiang province in 2012. It was a retail shop named [name]. The statement detailed the success of the business.
On 5 January 2016 Mr [A] received a notice from the shopping mall management. The notice said that the mall would transfer its business model due to the business plan of the municipal government. The couple’s business did not match the new business model and the couple were asked to move out in two months. This was despite the applicants’ having two years left on their lease. The contract required if either party unilaterally terminated the lease, compensation would need to be provided for any financial loss. Mr [A] discussed the compensation with the management ‘several times’ but the management said that this was an arrangement with the municipal government and was not covered by the lease agreement. The applicants did not vacate their business.
On 7 March the couple went to the mall to open their shop and they saw that all the shops on the same level had been removed. All the shop owners gathered to stop workers from demolishing and protesting against the management. They went to the management office but they closed the door and did not want to talk with them.
On 11 March 2016 the applicants and other shop owners went to the municipal government of Shaoxing city and reported what happened. The leader from the municipal government said that they would investigate this. As a result, they applicants got threats and revenge. On 19 March 2016 Mr [A] received a threatening call who said ‘Who report, who die.’ That evening, the applicant and his wife went back home from a friend’s home and they were intercepted by a few men. Mr [A] and his wife ran. They were caught and physically assaulted. They were warned that if there were further reports, the couple would be killed. Other shop owners suffered similar threats and revenge too.
The couple did not surrender. They believed that this was a result of collusion between businessmen and local officials and the government. On 4 April 2010 Mr [A] went to the Bureau of Letters and Complaints in Zhejiang province and reported that the mall management broke the lease, forcibly removed the shops, leaders of the municipal government favoured the mall management and they had revealed that the applicants personal information which resulted in the revenge directed at the applicants. The officials at the bureau said that they would need time to look at the case. The applicants received no news. On 9 May 2016 the applicants again went to the bureau to enquire about the investigation. Staff said that the case had been transferred to the local government for processing. The applicants felt anxious and argued. Security was called to drive the applicants out. There was conflict and police were called. Police arrested the applicants on the basis that they were disturbing business and took the applicants to the Bureau of Public Security in [District 1], Hangzhou city. They were detailed for 24 hours. They were then sent to Shaoxing by police from the Public Security Bureau of that city. They were locked in a dark small room. Food and water were not provided, and they were interrogated. Threats were made to sign a guarantee which was to not report again.
After being released, Mr [A] felt depressed about living in a place where authority and money are everything. No government organisation would uphold justice for them. The applicants felt scared living in such a place. Therefore, the applicants came to Australia to start a new life.
Both applicants claim to have left China from Beijing airport on [date] November 2016 on Chinese passports issued [in] 2016 for Mr [A] and [in] 2016 for Ms [B].
Delegate interview on 28 March 2017
The Tribunal listened to the recording of the delegate interview. Only Mr [A] attended that interview. He indicated that his wife was sick. The applicant provided the following additional factual information to this claim.
The applicant told the delegate that the shop was rented from the management. The owner of the shopping centre was the business association of the local area and described this as a government entity. He had paid the rent for the lease until 4 March 2016. He thought that the person who made the threatening phone call was from the business association of the local area. He thought that he would continue to be attacked in China because he had complained about the local authorities.
He was asked who he feared in China. He said that he feared revenge from the business association. He also feared the police in China because he was beaten by them and forced to sign a document to say that he would no longer petition. He was also required to report to police every fortnight. The petitioning activity was not so bad that it would stop him be able to leave China.
Country information report extracts relevant to the claims:
The DFAT Country Information Report on China dated 3 October 2019 is the most recent report on China. The report details the following information relevant to the claims.
Protestors/petitioners
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.
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.
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).
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 officeholders. 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.
Exit and Entry Procedures
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.
Biometrics and fingerprinting is conducted at most airports, and the National Immigration Administration (NIA) has taken over from the bureau of entry and exit and is gradually mainstreaming management of regional airports. This is supported by AI enhanced security and surveillance capabilities (see Security Situation), and a document examination centre at Beijing airport with connectivity to all airports across the country.
Passports
According to the Passport Law (2006), ordinary passport applicants must apply in person to the Entry- Exit Control Department of the Ministry of Public Security or the authorised county-level bureau where their hukou is registered. Applicants must provide their RIC, hukou, recent photos, and documents substantiating the reasons for their application. Once approved, a passport is generally issued within 30 days. If a passport application is refused, reasons for the refusal are provided in writing and the applicant is informed of their right to apply for administrative reconsideration or to file an administrative lawsuit. Costs of passports vary according to location but are considered affordable.
An ordinary passport records the holder's name, sex, date and place of birth, the date of issue, term of validity and place of issue of the passport, and the issuing authority. The term of validity of an ordinary passport varies according to age of the passport holder. Passports are readable visually and by computer and contain anti-forgery properties. The sale or use of a forged passport is a criminal offence.
Under the Passport Law, authorities can refuse passports to people who ‘will undermine national security or cause major losses to the interests of the State’. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish data on passport denials. DFAT is also aware security authorities have recalled and held Uighur and Tibetan passports (see Ethnic Uighurs, Muslims and Ethnic Tibetans).
FINDINGS AND REASONS

The issue in this case is whether either applicant is a refugee or a person who meets the requirements for complementary protection. The Tribunal must also make a finding on whether either applicant is a member of the same family of a person who is a refugee or meets the requirements for complementary protection and holds a protection visa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
Both applicants provided a copy of each of their Chinese passports. The applicants do not claim that they hold citizenship of any other country and do not claim that they have the right to enter and reside in a third country. There is no information to suggest that these claims are not true. Therefore, the country of reference for the protection visa application assessment is China.
Insufficient information and lack of detail renders the Tribunal unable to give the applicants’ claims any weight
The Tribunal wrote to the applicants and invited them to a Tribunal hearing because it was unable to make a decision favourable to the applicants on the information it had. Just because a person claims to have a well-founded fear of persecution does not mean that the fear is well-founded, or that the fear is because of a person’s race, religion, nationality, membership of a particular social group, or political opinion. Similarly, just because a person claims that there is a real risk of significant harm if the person is returned to their home country does not establish that such a risk exists, or that the claimed harm is significant harm. It is not the task of a decision-maker to make a person’s case for them. It is the task of a person seeking to satisfy the statutory criteria to provide the decision-maker with as much detail as possible for the decision-maker to be satisfied that the statutory requirements for the protection visa are met.
The Tribunal has significant problems with the applicants’ claims. They lack the necessary detail to enable the Tribunal to give the applicants’ claims any weight.
The applicants claim that they operated a shop at a shopping mall. They provided no supporting documents that would be readily available to a person who had operated a business for at least four years in China, such as copies of any business registration certificates, profit and loss statements, and tellingly, a copy of the lease agreement that was the genesis of the applicants’ problems in China. The applicants claim that the lease provided that unilateral termination of the contract by either party would result in the terminating party compensating the other party’s financial loss. The information does not set out how this was to be calculated, or whether the contract provided for a dispute settlement process. The applicants also did not provide a copy of the termination notice they claimed to have received regarding the lease. There was also no evidence provided to explain how the applicants operated a business in Zhejiang province but were living in Jilin province from birth until their departure from China.
The applicants claim that they spoke with the management regarding compensation several times. There was no detail about when these discussions commenced, the number of times these discussions occurred, or who specifically it was that the applicants’ spoke to. The applicants also failed to detail the length of the claimed assault from the ‘few strong men’, why the applicants believed that there was collusion between businessmen and local officials, how the applicants ‘conflicted with security’ and what happened during the claimed 24 hours in which the applicants were detained by the Bureau of Public Security in [District 1] and where the applicants were taken by the Public Security in Shaoxing city. The applicants also failed to explain why, if the applicants signed a guarantee not to petition anymore, and they did not do so after their claimed release from the Bureau of Public Security in Shaoxing city in April 2016, they would continue to be of any adverse interest to any person, group or authority in China, noting that they departed China in November 2016. The applicants also failed to provide an adequate explanation about how they were able to leave China on their own passports issued subsequently to the claimed detention and by the Ministry of Public Security when they were required to report to police every fortnight and, if the applicants were to be believed, were of adverse interest to the authorities.
CONCLUSION
The Tribunal had concerns about the truth of the applicants’ claims. It invited the applicants to appear at a Tribunal hearing to provide further information in support of their claims. The applicants did not appear at the Tribunal hearing. The Tribunal’s concerns have not been addressed.
For the reasons given above, the Tribunal is not satisfied that the applicants operated a business as claimed, that they were involved in a dispute concerning compensation for the claimed breach of the lease or the loss of their shop, that the applicants were threatened, physically harmed, detained or otherwise subjected to any harm in connection with their claimed compensation dispute or petitioning activity, that the applicants were subject to police monitoring, or that the applicants departed China because of their claimed past experiences, or that the applicants failed to return to China because they feared future harm.
The Tribunal rejects the applicants claims in their entirety. The Tribunal is not satisfied that the applicants are of any adverse interest to any person, group or authority in China.
Refugee
Mr [A]
For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in China due to his race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Ms [B]
For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in China due to her race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having found that the applicants were not owed protection obligations under s.36(2)(a) of the Act, the Tribunal considered the alternative criteria for Australia’s protection obligations.
Mr [A]
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to China, there is a real risk that the applicant will be arbitrarily deprived or his life, have the death penalty carried out, be subjected to torture, be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Ms [B]
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to China, there is a real risk that the applicant will be arbitrarily deprived or his life, have the death penalty carried out, be subjected to torture, be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment.
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
Mr [A]
There is no evidence that the applicant satisfies the criteria for a protection visa on the basis that he is a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and holds a protection visa.
Ms [B]
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to China, there is a real risk that the applicant will be arbitrarily deprived or his life, have the death penalty carried out, be subjected to torture, be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…

[2021] AATA 1639

29 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction