1709216 (Refugee)

1709216 (Refugee) [2020] AATA 4798 (30 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709216
COUNTRY OF REFERENCE:                   China
MEMBER:Mara Moustafine
DATE:30 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 October 2020 at 1:59pm
CATCHWORDS
REFUGEE – protection visa – China – religion – father’s involvement in an underground family church – son of a cult leader – credibility concerns – departed China legally on own passport – unique or exceptional circumstances – serious, ongoing and irreversible harm – medical conditions of Australian permanent resident father – integration into the Australian community – length of time in Australia – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is a citizen of China and is [age] years old. He arrived in Australia [in] April 2008 as a holder of a Student visa. In May 2013 he applied unsuccessfully for a Subclass 445 (Dependent Child) visa on his mother’s BC-100 Partner visa and was not considered for Ministerial Intervention on 10 February 2016. The applicant lodged a Protection visa application on 3 March 2016, which was considered invalid and he applied again for the visa on 6 May 2016.
Evidence before the Department
According to his Protection visa application form, the applicant was born in [year] in Shenyang, Liaoning province China, where he lived until he came to Australia in 2008 as a student. He is a Christian and reads, writes and speaks Mandarin. He studied English in Sydney from April 2008 to March 2010 and has never worked. His mother and father are in Australia and he has an older sister in China. states that he has been doing his schooling in Australia from April 2008 to March 2010. He indicated that he left China legally [in] April 2008 on his own passport, which was issued [in] 2007. A copy the biodata and his Australian student visa pages of the passport were submitted with his application as well as a translated copy of his birth certificate.
The applicant’s protection claims, as outlined in his application form were that:
·He left China because his father was treated as the leader of a cult when he was young. His mother and the whole family suffered from government pressure at that time. He came to Australia as a child on a Student visa to leave the messy situation. Due to an injury at school he has never worked, and his mother has supported him for 25 years.
·He experienced harm in China as part of his family, who suffered from government pressure before they left for Australia, although it was not directly aimed at him. They found ways to escape together.
·He fears that if he returns to China he will still be treated as a son of a cult leader and his stay in Australia for all these years will be regarded as escaping from China. He does not have a home or family or friends in China. As he has never worked, he will be unable to support himself if he has to return alone. However, his mother will never go back to China and he can’t live alone without her support. His memory of the time before he came to Australia has become a nightmare.
The applicant failed to attend his scheduled Department interview on 6 April 2017.
On 6 April 2017, a delegate of the Minister for Immigration and Boarder Protection refused to grant the applicant a Protection visa as she was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.
Evidence before the Tribunal
On 27 April 2017, the applicant applied to the Tribunal for a review of the Department’s decision. He provided a copy of the decision to the Tribunal for the purpose of the review and is taken to be on notice of its findings and reasons.
The applicant was represented in in relation to the review by his registered migration agent.
On 13 October 2020, the Tribunal wrote to the applicant inviting him to give oral evidence and present arguments relating to the issues arising in his case at a video hearing conducted by Microsoft Teams on 28 October 2020. The Tribunal received a hearing response from the applicant’s migration agent on 21 October 2020 indicating that the applicant would attend the scheduled hearing.
On 21 October 2020, the applicant’s migration agent provided a submission and statement from the applicant dated 18 October 2020 which made the following relevant points:
·In spring 2007 Chinese police broke into his father’s church and took him away with other church members. His father was identified as the leader of this ‘cult’. He was detained, interrogated and seriously injured when he tried to escape detention.
·The applicant was traumatised when seeing his injured father in hospital. Identified as the son of a cult leader, he suffered discrimination and social isolation at school in China. In 2008, his mother took him to Australia to study after his father had recovered and his sister could take care of him in China.
·His uncle in China was killed in a ‘bizarre and weird’ car accident that ’did not seem to happen naturally’ soon after he condemned the brutal persecution of his father when questioned by police. He is afraid that, if he returns to China, the police will interrogate him and he will also condemn their brutal persecution of his father and will also lose his life.
·His family home has long since broken up but he has to care for his mother as she is getting older and in poor health.
·His father suffered a [medical condition] in July 2017 and is now bedridden and immobile in a nursing home, with no judgment ability and fed through a tube. The applicant is the only person in Australia who his father can rely on to make decisions for him and who can assist the nursing home staff to understand his needs.
·The applicant has lived in Australia for the last 12 years and never returned to China so everything there would be unfamiliar. Australia is his real home. He has grown up here with democratic values and feels safe and free here. He will be desolate, miserable and in pain there.
Documents provided in support of the applicant’s case included a medical summary relating to the applicant’s father; a letter from the Social Worker at [a named] Hospital explaining the medical condition of the applicant’s father; letters from the Care Manager at [a] nursing home dated 6 August 2019 and 21 October 2020 relating to the applicant’s role in care of his father; an Appointment of Enduring Guardian form nominating the review applicant as his father’s guardian; the applicant’s bank statement highlighting pension payments received on behalf of his father used to pay for [the] nursing home.
In his submission dated 21 October 2020, the migration agent posited that the review applicant had a genuine fear of actual and significant harm in China due to his father’s involvement in an underground family church while in China and provided excerpts from country information reports on religious persecution in China. He also requested that, in the event that the Tribunal was not satisfied that the applicant was owed protection obligations, it refer the matter to the Minister with a recommendation that, pursuant to section 417 of the Migration Act 1958, he intervene on public interest grounds and grant the applicant a permanent residence visa due to the medical condition of his father and the applicant’s care for him.
The hearing
The applicant appeared before the Tribunal by Microsoft Teams video conference on 28 October 2020 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s migration agent also attended the hearing.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal discussed with the applicant his background in China, his reasons for leaving and why he fears returning there. Where relevant to his protection claims, the applicant’s evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Analysis, Findings and Reasons
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
At the start of the hearing, the applicant confirmed that all the information in his application form was true and correct and that he did not wish to make any changes or to add anything.
In a discussion of his background, the applicant told the Tribunal that his family was comprised of his parents and older sister, who was now [age] years old. His parents each had siblings in China and one of his mother’s sister lived in [Country 1]. He completed high school to Year [level] in China, then came to Australia on a Student visa in 2008 with his mother. He studied English and Year [level] in 2008 and 2009 but did not complete his studies due to an accident, illness and depression. His sister also came to study in Australia between 2009 and 2013 and his father later came to visit her, though he was not sure when. While in Australia, his sister lived with her father, while the applicant lived with his mother. His sister visited Australia again in 2017 when her father had a [medical condition]. She was currently living in Shenyang and was engaged to her boyfriend and worked casually in his [business]. His parents had already separated in China in 2007 or 2008 and his mother had remarried in Australia. The applicant told the Tribunal that, since he had recovered from his illness and been granted work rights at the end of 2019, he has been working part time in [Occupation 1] for [Business 1] and [Business 2]. He lives alone.
By his own evidence, the applicant never faced serious or significant harm in China before coming to Australia. He claimed that he suffered psychologically as a result of the trauma of seeing his father after he was hurt by the Chinese authorities in 2007 and that he faced discrimination at school and was ostracised by his peers in China because of his family’s involvement with the church. As discussed with the applicant, the Tribunal is not satisfied that this constituted serious or significant harm as defined in the legislation.
Asked why he feared returning to China now, the applicant responded that he feared harm from the Chinese government because of his father’s persecution. He claimed that the Chinese authorities came searching for him and his mother after they were already in Australia; and attributed the death of his [uncle] in a sudden car crash in 2012 to his defence of the applicant’s father. He claimed that the same would happen to him as he was his father’s only son.
As discussed with the applicant, the Tribunal finds these claims speculative and implausible. Significantly, he and his mother were able to leave China legally in 2008, as was his father some years later. For her part, his sister had departed and returned to China several times without incident. The Tribunal has considered but finds unpersuasive the applicant’s various responses that this was because he was under 18 when he left, that his mother was already separated from his father and that his father ‘left quietly’ from China. In view of country information about the Chinese government’s strict monitoring of entry and exit procedures at airports, the Tribunal does not accept that any of the family would have been able to leave China without restriction if they had been of adverse interest to the Chinese authorities at the time they left[1]. Given the immigration exit control list and information exchange between security agencies, it is dubious that the authorities would have come in search of the applicant or his mother after they left China. Furthermore, the applicant admitted that he had no evidence to support his claim that his uncle suffered a car accident at the hands of the authorities and that this was just his speculation.
[1] DFAT, DFAT Country Information Report People’s Republic of China, 3 October 2019, Exit and Entry Procedures, pp.71-72: ‘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. ... 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.
For reasons outlined above, the Tribunal is not satisfied that the applicant has suffered serious or significant harm while in China as a result of his father allegedly being treated as the leader of a cult by the Chinese authorities. Nor does the Tribunal accept that, if he returns to China now or in the reasonably foreseeable future, the applicant will be treated as a son of a cult leader or that his stay in Australia for the past 12 years will be regarded as escaping from China. The Tribunal notes that Chinese law provides for foreign travel, immigration and repatriation[2].
[2] Ibid.
Given that he and the rest of his family left China legally and were not of adverse interest to the authorities, the Tribunal considers unfounded the applicant’s fear that the police will interrogate him on his return, prompting the applicant to condemn the brutal persecution of his father by the police, nor that the applicant will lose his life as a result.
The Tribunal further notes that, while the applicant previously claimed in his application to the Department that he does not have a home or family or friends in China and will be unable to support himself if he has to return alone as he has never worked, his evidence at hearing was that he is now working and has a sister and several aunts and uncles in Shenyang. In the Tribunal’s view, these family members might provide some assistance to the applicant in the event of his return there.
The Tribunal accepts that after living here for over 12 years, the applicant considers Australia his home, does not wish and may be afraid to return to China, a country with which he is no longer familiar, especially as both his parents are here. It also accepts that the applicant does not wish to be parted from his parents, especially his severely incapacitated father, for whom he is the primary carer and enduring guardian. However, as discussed with the applicant, these are not grounds on which Australia owes him protection under either the refugee or complementary protection criterion.
Referral to the Minister

The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’. The Tribunal considers that several factors in this case which constitute unique and exceptional circumstances that warrant a referral to the Minister for possible consideration of the use of his intervention powers. These are as follows:
- Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
The applicant’s father, [Mr A], born on [date], holds a Protection visa and is an Australian permanent resident. According to correspondence from senior managers at [a named] aged care facility dated 21 October 2020 and 6 August 2019, he has been resident at their facility in [Suburb 1] since August 2018 with significant high care needs, after suffering from a number of conditions, including [Medical Condition 1], [Medical Condition 2], [Medical Condition 3], [Medical Condition 4], [Medical Condition 5], [Medical Condition 6] and [Medical Condition 7]. He requires full assistance on aspect of his care and is chair and bed bound, requiring two assistants and a full hoist for transfers and on continuous supplemental feed pump for food and medication as monitored by a registered nurse. The applicant is the Enduring Guardian for his father and acts as the legally responsible person on behalf of his father, who is unable to make decisions for himself. The applicant needs to be available to give consent (e.g. medical treatments, concerns with his care and has a critical role in decision-making when his father becomes unwell or in an emergency situation). He also provides social support, visiting his father, who has no other family members or contacts in Australia. Although the applicant’s mother is in Australia, his parents are divorced, and she has limited knowledge of her ex-husband’s medical condition.
In the Tribunal’s view, these constitute unique or exceptional circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicant’s father, an Australian permanent resident.
- The level and nature of the person’s integration into the Australian community and the length of time they have been in Australia
The applicant has been living in Australia continuously for over 12 years since he arrived as a student to study English in 2008. By his evidence he is well integrated into the Australia community, is now employed part time, attends various church groups and volunteers at his father’s nursing home. Having lived outside China since he was [age] years old, he is unfamiliar with the work and social environment there. Having grown up in Australia, where both his parents now reside, the applicant does not have the family and social networks that might assist him to establish himself professionally and socially in China as his only relative there now is his sister.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J) and will refer the matter to the Department.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mara Moustafine
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 4798

30 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness