1709405 (Refugee)

1709405 (Refugee) [2020] AATA 788 (3 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709405
COUNTRY OF REFERENCE:                   China
MEMBER:Nora Lamont
DATE:3 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 3 April 2020 at 2:45 pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – Shouters – unregistered family church – contravention of family planning laws – two children born out of wedlock – social compensation fee – delay in applying for protection – credibility concerns – false and misleading information in previous visa application – exhaustion of all other visa avenues – did not practice religion during first five years in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 13 April 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, applied for the visa on 11 July 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 9 December 2019 at 9:30 am to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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
Background
The applicant came to Australia on a Chinese Passport, copies of which she provided to the Department. The delegate had no concerns as to her claimed nationality. The Tribunal accepts the applicant is a national of China and has assessed her protection claims accordingly.
The applicant claimed to be born on [date] in Fuqing in the Fujian province of China and a citizen of China. A copy of the applicant’s Chinese passport, valid at the time of the visa application, is on the Department file.[1]The applicant claimed to be of Han ethnicity, and to practice Christianity as her religion. The applicant also claimed to speak, read and write in Chinese, and to be unemployed at the time of the visa application.
[1] Department File [number], folio 73.
The applicant attended and completed primary school and junior high school in China from [year] to [year]. She declared that she had not travelled overseas to any other country except for when she arrived in Australia [in] January 2018 as an international student on a Class TU (subclass 571) Student visa. She has not departed Australia since that date.
On her Form 866C, submitted with her protection visa application, the applicant declared that she had a father, mother and brother who all resided in Fuqing City in China as Chinese citizens. She also listed her daughter, who was born in Australia in [date], as an applicant on her application for a protection visa sharing her claims for protection.[2]
[2] The secondary applicant had an individual Form 866C submitted, Department File [number], folios 15-39.
In pre-hearing submissions to the Tribunal, the applicant advised that she had given birth to a second daughter in [date] and provided evidence in the form of a Victorian Birth Certificate.[3]
[3] Tribunal File 1709405, folio 47.
The applicant’s visa history can be summarised as below:
·[date]/01/2008: the applicant arrived in Australia on a Student (Class TU, Subclass 571) visa;
·23/07/2009: the applicant attempted to lodge a Student (Subclass 571) visa application which was found invalid on the same day;
·28/07/2009: the applicant lodged an application for a Student (Subclass 572) visa
·09/09/2009: the applicant was granted a Student visa (Subclass 571) with work rights;
·03/03/2010: the applicant’s Student visa (Subclass 572) application was refused;
·12/04/2010: the applicant’s Bridging A visa expired and the applicant remained unlawfully in Australia;
·11/07/2016: the applicant lodged an application for a Protection (Class XA Subclass 866) visa, granted subsequent Bridging visa C on 12/07/2016.
Written claims
The applicant’s claims for protection are contained in a written statement attached to her protection visa application,[4] and further expanded upon at a PV interview on 10 April 2017. They are accurately summarised by the delegate in their decision record as below:
[4] Department File [number], folios 66-67
·The applicant came to Australia as an international student to study high school and English.
·She stopped studying because of the loss of her parents’ employment in China. She did not return to China because she was hoping to repay the money her parents had borrowed to send her to Australia.
·The applicant has never been legally married and accidentally fell pregnant with her daughter.
·Since she was young the applicant had followed her parents; attending church gatherings and spreading the gospel. She was baptised at her Local Family Church at the age of [age]. Every week she attended a church gathering once or twice depending on her study load.
·Her Local Family Church was not registered with the Three Self Patriotic Association. It has been banned and classified as an ‘evil cult’, ‘anti-government organisation’ and ‘shouters’. Many of her church friends were arrested and detained by the Chinese authorities from time to time.
·Ever since she arrived in Australia the applicant has regularly attended her church gathering in Australia and she really enjoys the freedom of religious practice in Australia.
·Members of her family had not been harmed by the authorities in the past which is why she was not able to obtain evidence to lodge a PV application in the past. She sought advice from legal practitioners who said that unless members of her family had been harmed or persecuted by the Chinese authorities it would be difficult to demonstrate that she faced strong chance of persecution by the Chinese authorities.
·[In] March 2016 while attending a Local Family Church gathering in Fuzhou the applicant’s mother was arrested by the Fuzhou Public Security Bureau officers and detained for one week. Her mother was arrested because she was a leading member of the church and other members were taken away at the same time. Her mother was interrogated, slapped, kicked and threatened in detention. Before her release she was warned not to attend any further Family Church gatherings, or she could expect more severe punishment.
·The applicant’s mother told her not to return.
The applicant provided a written statement of her claims for protection, her daughter’s Victorian Birth Certificate and a copy of her valid Chinese passport in support of their applications.
A delegate on behalf of the Minister refused to grant the applicant a protection visa on 12 April 2017. The delegate also refused to grant the applicant’s daughter a protection visa in a separate decision, also currently under review with the Tribunal.
The applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal on 29 April 2017 with the decision record attached.
Pre-hearing submission
The applicant’s migration agent made submissions before the hearing which introduced new claims for protection.[5] In relation to the applicant, those new claims are set out below:[6]
·That as the applicant has had two children out of wedlock, she has contravened the Fujian Population and Family Planning Regulation 2002 and would be charged with a significant amount of social compensation fee which would cause economic hardship;
·That the applicant and her children would be denied access to a series of basic services for them to subsist if she does not pay the social compensation fee;
·That her eldest daughter would be denied access to home registration (‘Hukou’) since she was born out of wedlock and in breach of the policy, and this would lead to a denial of access to education, social welfare and other basic services for her to subsist in society.
[5] Tribunal File 1709405, folios 48-52
[6] Ibid, folio 50.
The applicant’s migration agent acknowledged that the claims raised in their submission were new but submitted that the Tribunal should not draw unfavourable inference to the credibility of these claims. This is because although these claims for protection were never expressly raised by the applicant, the applicant did state in both her written statement of claims and at interview that she was a single mother with a child born out of wedlock. The migration agent submitted that the material facts related to the claims on family plans.
Non-disclosure certificates
There are no non-disclosure certificates on the applicant’s department file.
Tribunal Hearing
At the Tribunal hearing the applicant stated that she was unlawful for six years and she knew during those years that she was indeed unlawful. When asked why she waited six years until 11 July 2016 to put in for a protection visa the applicant stated that in 2016 her mother was arrested during worship and warned her not to come back to China. The applicant then said that if she was returned to China, she would continue to practice her religion with her mother. She said that Australian freedom is higher, and she would like to remain to be able to fully serve the lord our God.
The Tribunal asked the applicant why she waited five years after coming to Australia before she started practicing her religion again. The applicant said she didn’t know anyone, and she wanted to concentrate on her studies.
The Tribunal queried why the applicant had provided the Department with misleading information on her student visa application when she stated that she had a financial loan for school when in fact she did not, and that she put down her fathers financial situation and employment which was also found to be false. The applicant said she had engaged an agent and she wasn’t even notified about the refusal.
The applicant explained that in China they held church every Sunday from 10-12 at various houses sometimes her mothers’ home. The applicant said they were called “shouters”. The Tribunal asked the applicant about Witness Lee and Watchman Knee and she said they established the church. The applicant said she would pray every morning in China using a devotion booklet. But she was not a regular attendee at the church as she had to concentrate on her studies.
The applicant said many of her church friends have been arrested from time to time. But when questioned at the hearing she only mentioned the time her mother was arrested in 2016. She said her mother was slapped and beaten and kicked and sent to detention. Her father was not home and the time and only found out later from a neighbour what had happened.
Her mother resumed her church practices until 2018 when a new law came into place which makes it more difficult as they believe in Jesus Christ and that is not compatible with the rest of Chinese society. The applicant said her family is Christian and therefore not connected within China. She said that her church would need to be registered which means that the government would be the head of the church and not Christ.
The applicant said her mother lives in fear and is walking in a mine zone and she should be able to practice her religion freely.
The Tribunal put to the applicant DFAT information that states compared to other parts of China Fujian Province religion was widely tolerated. [7]
While a wide variety of religions are practised across China, they are generally able to thrive to a
greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.
Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.
Because of poverty and poor agricultural productivity, Fujian residents have a long history of
emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.
[7] DFAT Country Information Report People’s Republic of China 3 October 2019
DFAT assesses that individuals in Fujian have historically practised religion more freely within state sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion).
The applicant told the Tribunal that news and access to information was being censored and that the government was covering up what really happens.
The Tribunal also asked the applicant to respond to country information that states it is activists who are targeted not necessarily those just practicing their faith. [8]
DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.
[8] DFAT Country Information Report People’s Republic of China 3 October 2019
The applicant responded that again they censure and cover things up.
The Tribunal noted with the applicant that the Tribunal had several letters from the Chinese Speaking District noting she attends meetings as well as a letter from her church noting she attends services. The applicant also provided pictures of herself and daughter at church gatherings.
The applicant said she fears return to China as they would try to stop her faith in God, she said her mother is tortured as she wants to serve God but cannot. When asked about her father she said he has faith as well and he prays with her mother. The applicant said her partner does not believe in Christianity but accepts that she does.
Daughter Claims Tribunal File 1709406 (please see separate decision record)
The applicant’s first child has a separate application Tribunal File 1709406. The daughter’s claims were her mothers claims but since she was born in Australia to parents without a visa she has not been able to be added to her mother’s claims and application. Therefore, the Tribunal held a combined hearing and a combined decision noting the two separate files.
The Tribunal asked the applicant what her daughters claims were noting these were not in her original application, and they are as follows:
She is not married so her child will be a “black child” and will not be able to get an ID, go to school and the government will issue the applicant with a fine. The applicant also has a second child.
The Tribunal put to the applicant country information: [9]
In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration
[9] DFAT Country Information Report People’s Republic of China 3 October 2019 page 54
Management System,’ directing local authorities to not treat the payment of SCF as a prerequisite for accepting an application for a hukou (see Hukou (household registration) system). Children whose unauthorised births might previously have gone unregistered are subsequently able to apply for a hukou irrespective of whether the relevant SCF has been paid.

Whilst the applicant is concerned about having to pay a Social Compensation Fee this law is applicable to all citizens in China and it applies to all people, the applicant is not being singled out or punished by having to pay the fee. The applicant was born in Fujian Province and would have had household registration in Fujian. The Tribunal finds that if the applicant returned to China she would be entitled to household registration in Fujian. The applicant may have to provide a statement of her circumstances to explain why she is not married and has had children outside policy.
The Tribunal accepts that it is possible that the applicant's mother may be charged a social compensation fee for having children outside the family planning policy in Fujian Province. Further, the country information indicates that officials have the discretion to waive or lower the fee depending on the circumstances and may also allow payment by instalments.
The Tribunal accepts it may take some time for the applicant's mother to pay the fee, if one was levied; however, it does not accept that this would amount to the applicant facing a real chance of serious harm.
The daughter has applied for a 785 Temporary visa and that decision is separate to this decision however as the applicant is a child the Tribunal combined the hearing and the applicant’s mother addressed the child’s claims.
Tribunal Findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
In assessing the applicant's credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation.
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, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Delay in applying for protection
The Tribunal considers that the applicant has a level of capability to understand and deal with complex situations, such as considering her visa status in Australia. The considerable delay of eight years in lodging her protection visa is of serious concern to the Tribunal. The Tribunal considers that had the applicant held a genuine and urgent fear of persecution arising from her circumstances, it considers that the applicant would have sought to lodge a protection visa application much earlier, and the delay leads to consideration that her claims in this regard are not genuine or urgent.
Findings
The Tribunal does not find the applicant to be a credible witness. The applicant provided false and misleading information to the Department in relation to her student visa, waited a period of eight years in Australia prior to seeking a protection visa and after she had exhausted all other visa avenues, brought new claims before the Tribunal and told the Tribunal she did not practice her religion for the first five years she was in Australia as she claims she was focusing on her studies. The applicant has not displayed any urgent or pressing fear of return to China rather it appears she put in her application for a protection visa when she had exhausted all other avenues.
The Tribunal accepts that the applicant has practiced Christianity in Australia since 2014. However, there is no credible evidence that the applicant practiced in China prior to arriving in Australia and by her own admission she did not practice for five years after her arrival in Australia. When asked why she said she was focusing on her studies and she didn’t have the transportation to attend a church. However, the Tribunal considers that if the applicant was involved and practicing and that was the reason why she could not return to China she would have maintained her religious practice the entire time she was in Australia.
The applicant claims that her mother practices Christianity in her home and at home churches however, the Tribunal found little to no evidence that this was or is the case and the Tribunal does not find the applicant credible in this regard.
As the Tribunal does not accept that the applicant practiced religion in China prior to arriving in Australia and as the Tribunal does not accept that the applicant by her own admission did not practice her religion until 2014 after having been in Australia since 2008 the Tribunal does not accept that the applicants children would be affected in China due to religion.
Given these findings the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a refugee reason on return to her home area in Fujian Province.
Conclusion
In the context of these adverse credibility findings, both individually and cumulatively considered, the Tribunal does not accept that the applicant has any genuine, personally held fear of persecution for any of the claimed nexus reasons outlined in s.5J(1)(a) or any other reason, written or oral, or in returning to the applicant’s country of nationality and reference, as the Tribunal finds the applicant’s written and oral claims for protection are fabricated or embellished solely for migration purposes.
Accordingly, the applicant does not have a well-founded fear of persecution if she returns to China for any reason mentioned in s.5J(1)(a) as required by s.36(2)(a).
For the reasons given above, the Tribunal does not consider that the applicant is a person in respect of whom Australia has protection obligations because she is a refugee as defined in s. 5H. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Migration Act 1958.
The Tribunal has also considered whether the applicant meets the complimentary protection criterion of s.36(2)(aa). On the basis of the evidence before it the Tribunal does not accept 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 practising her religion or for any other reason. Also based on the evidence before it the Tribunal does not accept 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 to her or that she will suffer significant harm on the basis of her religious views. Therefore, 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.
Nora Lamont
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 788

3 April 2020

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

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Jurisdiction

Procedural Fairness

Statutory Construction

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Natural Justice