1710454 (Refugee)

1710454 (Refugee) [2022] AATA 2445 (9 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1710454

COUNTRY OF REFERENCE: China
MEMBER:Paul Windsor
DATE:9 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 June 2022 at 3:24 pm
CATCHWORDS
REFUGEE – protection visa – China – particular social group – women – victims of family violence – Domestic Violence Law – refusal of divorce – divorce by estrangement – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
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 5 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 24 December 2015.
In her protection visa application the applicant stated she was born on [date] in Xinyang City, Henan Province, China, is of Han Chinese ethnicity and does not have any religion. She stated she was married [in] October 1997 and has a daughter from the relationship. She stated that she last departed China legally [in] November 2015 and arrived in Australia [in] November 2015, entering on a visitor visa. She indicated that she had been in Australia previously, arriving in early 2015 and departing in June 2015.[1]
[1] See the Departmental file.
In a statement included with the application, the applicant indicated that she left China because her relationship with her husband became very bad after he had an affair in 2010. She stated that she wanted a divorce but he was unwilling to agree to a divorce because he did not want to give her ‘any of his business’. She indicated he was abusive and violent towards her and she does not want to return to China and go back to him.[2]
[2] See the Departmental file.
The delegate refused to grant the visa, noting that the applicant failed to attend a scheduled interview and that her written claims were vague and lacking in detail, and did not provide a sufficient basis to be satisfied that the applicant faces a real chance/real risk of being subject to serious or significant harm if she returns to China.
The applicant applied to the Tribunal for review of this decision on 16 May 2017.
The applicant appeared before the Tribunal on 6 June 2022 to give evidence and present arguments.
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 (Cth) (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 (the Department), 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection, as set out in the statement included with her application, are summarised as follows:[3]
[3] See the Departmental file.
·She was born in [Village 1], Gushi County, Xinyang City in Henan Province China.
·She left China because she suffered domestic violence and the Chinese Government failed to give her any protection.
·After she completed middle school she helped her family do farming at home.
·She got to know her husband in early 1992 through one of her relatives and they fell in love, marrying a few years later in October 1997. They had some good times together until [date], when she gave birth to their daughter. Her mother-in-law wanted a boy in line with the traditional preference for boys as ‘successors’ and hoped she would give birth to a boy in the near future. She was not able to get pregnant again, however, and her mother-in-law complained about this to her son.
·Her husband also believed she was at fault and they frequently fought over trivial matters.
·In April 2003 they relocated to Suzhou City and set up their own business in a market-place, selling [Product 1]. The business became more and more profitable and their lives became richer, but the longing of her husband and mother-in-law for her to have a boy child became even stronger, so her husband could pass the business to his son.
·In 2010, her husband, who was rich and good looking, had an affair with one of his business partners. She was very angry when she found out, and their relationship became terrible. She wanted a divorce, but her husband would not agree, because he did not want to give her any of his business.
·Her husband started to always lose his temper at home, yelling and beating her from time to time. He even forced her to have intercourse with him when she did not want to.
·The neighbourhood committee police only tried conciliation, which was not helpful to her situation at all.
·She suffered violence for several years until early 2015, when she went to Australia for tourism. She was very impressed with the people and environment. She could see people live in happiness, with the government providing welfare and protection to the citizens. She returned to Australia in November 2015 and does not want to leave.
·She cannot return to China and go back to her husband. She received no protection from the government and there are insufficient laws or regulation to protect women like her.
Evidence from the hearing
At the hearing the applicant confirmed that was born in Gushi county in Henan province, China.
She indicated her parents, [and specified family members] remain living in her home village. She indicated her siblings had been working in Shanghai but have returned to her home village because her father suffered a stroke two months ago and is very unwell. She indicated that her family had asked her to return home to see her father and was upset because she could not do that due to her immigration status.
The applicant indicated that she has been working in Australia in [workplaces], and at the moment is working as [an Occupation 1].
The applicant confirmed she married in October 1997. She said she and her husband were introduced by friends, got to know each other and eventually married. She indicated that initially they lived in her hometown. She indicated she had worked in a [business] making [product 2]. She said their daughter was born in [year] and they stayed in her hometown until their child was two years old, and then went to Suzhou city, which she said was about [distance] away by bus. She said they went there as her hometown was really poor and, although shop rents are cheap there, it is hard to do business. She said she could only earn RMB 800 per month in her hometown while it was much easier to make money in Suzhou city.
The Tribunal asked the applicant if her husband was doing business before they moved to Suzhou city. She said, ‘not really’, commenting that he worked as [an Occupation 2]. She added that she did not know too much about him when they married.
When asked why they decided to start a [Product 1] business, the applicant said a friend had a factory that produced [Product 1] and agreed to give them a supply of [Product 1] that they could resell at retail prices, and they were able to return what they could not sell. The Tribunal asked if her husband had any other businesses. She said he did not, commenting that he did not even pay all the debts. The Tribunal asked the applicant what happened to the business after she left. She said it went downward because she had been taking care of it. The Tribunal asked what her husband did now. She said she doesn’t know, adding that he might be working casually.
The Tribunal observed that her written statement, included with her protection visa application, suggested her husband was doing other business as it referred to him being rich and having business partners. She replied that she had taken them into the [Product 1] business and then her husband had an affair.
She indicated her daughter had been living in Suzhou city but went to Shanghai to work and is still there, although there is no work there at the moment due to COVID-19 related lockdowns.
The Tribunal asked the applicant if she was now divorced from her husband. She indicated they were not officially divorced but said she had lost contact with him. She commented that there were property issues. She indicated her husband is still living in Suzhou city.
The applicant commented that she and her husband got along okay initially, but problems arose because her mother-in-law wanted her to bear a son and her inability to do that, due to fertility issues, caused frequent arguments with her husband. She indicated that her husband had an affair and would stay out late smoking and drinking and would force her to do things she did not want to do. She said her husband sometimes would hit her and had given her a black eye and bruises and she didn’t dare go out to see others. She indicated she was hurt by her husband and wanted to end the marriage but he would not agree to a divorce.
The applicant indicated that she first came to Australia in 2015 and when she returned to China she did not feel safe. She commented that she had no friends as her husband intimidated them, so she did not have anyone to talk to. She indicated that she returned to Australia and decided to stay.
The Tribunal asked the applicant when she lost touch with her husband. She said she could not say exactly when it was, but indicated she has had no contact with him since she has been in Australia. She indicated she remains in contact with their daughter, commenting that her daughter is not happy with him either.
The Tribunal asked the applicant why she thought she would have problems if she returned to China now, and returned to her hometown rather than Suzhou city. She replied that there is no point, commenting that she was beaten up, her home was smashed and in Australia she has a happy life. The Tribunal asked the applicant why she thought she would be at risk of harm if she returned and did not have any contact with her husband. She said he would know through friends that she had returned. The Tribunal observed that it has been nearly seven years since she left China and asked why she thought she would have problems now if she returned to her hometown in China. The applicant said her husband would not divorce her, commenting that all their properties and monies are in Suzhou. The Tribunal asked the applicant why she had not pursued a divorce while she was in Australia. She commented that she lost contact with her husband and was told it was done automatically. She said the house is with him and she has nothing left in China so there is no point in her returning.
The Tribunal queried whether the applicant was saying she was now automatically divorced from her husband. She said her daughter told her that would be the case because they lost contact with each other.
The Tribunal observed that the DFAT Country Information Report on China indicates that, while a new Civil Code, which came into force on 1 January 2021, introduces a one month ‘cooling off’ period for divorce, there is no cooling off period in cases where domestic violence is alleged. DFAT also indicates that a Domestic Violence Law introduced in 2016 included greater protections for women facing domestic violence, including legal assistance, shelters and protection orders.[4] The Tribunal commented that this suggests she could get a divorce with no ‘cooling off’ period. The applicant replied, ‘yes’, adding that from what she has been told, if there has been a three year period of no contact she should be automatically deemed to be divorced. She added that she does not think there is any point her going home as she has nothing left in China and does not know what happened to her house.
[4] DFAT Country Information Report, China, 22 December 2021, sections 3.111-3.116.
The Tribunal asked the applicant if she had a house together with her husband in Suzhou city. She indicated they bought a house together for RMB 80,000 when they moved to Suzhou city. She commented that as their business selling [Product 1] in the market grew, their lives got better, but then her husband began to drink and had an affair, and she became really unhappy.
The applicant said she doesn’t like to talk about her ‘ex’ and doesn’t like to think of him. She commented that she came from a poor family and couldn’t afford a wedding banquet but things changed when they went to Suzhou city and worked there. She added that, while she thought her husband was handsome, she got nothing from him. She described how he did not assist her with her birth and caring for her baby and when she had an operation, and did not like the food she prepared. When asked if he has had another relationship since she left China, the applicant said she does not know, commenting that she does not want to hear about him.
Findings and reasons
Identity
On the basis of the copy of her Chinese passport submitted to the Department,[5] the Tribunal accepts that the applicant is a national of China and that her identity is as claimed. The Tribunal accepts that China is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of China, there is a real risk she will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out (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.
Assessment of claims

The Tribunal accepts the applicant is from Gushi County in the Prefecture of Xinyang City in Henan province, China. The Tribunal accepts that she married in October 1997 and after having a daughter in [year], moved with her husband to Suzhou city (located approximately 580 km east of Gushi County), in search of better economic opportunities. Suzhou is a city in Jiangsu Province adjacent to the megacity of Shanghai (estimated population in 2019 of 26.32 million).
The Tribunal accepts that the applicant having a girl child and being unable to have another child displeased her mother-in-law and husband. The DFAT report confirms that an historic traditional preference for boys over girls has devalued daughters with the family in China.[6]
[6] DFAT Country Information Report, China, 22 December 2021, section 3.109.
The Tribunal accepts the applicant’s evidence that she and her husband did well economically after setting up a retail business selling [Product 1] in a marketplace in Suzhou city, but there were tensions in her relationship with her husband due to her inability to have a son. The Tribunal accepts that her husband subsequently had an affair, which made the applicant very angry and their relationship became very bad. The Tribunal accepts that the applicant wanted a divorce but her husband did not agree to this because he did not want to lose part of their combined assets, which on the applicant’s evidence at the hearing, consisted principally of a house they purchased together in Suzhou for RMB80,000 (approximately AUD16,700 at the current exchange rate). The Tribunal accepts that the applicant suffered domestic violence during the latter part of her relationship with her husband, during which time he frequently lost his temper, yelled at her, intimidated her friends impacting her friendships, hit her from time to time and forced her to have sexual intercourse with him when she did not want to.
The Tribunal accepts the applicant’s evidence that the neighbourhood committee police were not of assistance to her at the time because they only sought to reconcile the parties, when what she wanted was to divorce her husband. This is consistent with DFAT’s advice that mediation (rather than criminal charges against a violent partner) is an option that is commonly used in domestic violence cases, because of traditional values of family harmony and the view that family matters are private matters.[7]
[7] DFAT Country Information Report, China, 22 December 2021, section 3.111.
The Tribunal finds that the applicant has exaggerated some of the information in her written statement. She wrote that her husband was rich, that he had business partners (one of whom he had an affair with) and that he did not want a divorce because he was unwilling to give her ‘any of his business’. In her oral evidence, however, she indicated he did not have a business but had been [an Occupation 2] when they met, she was behind the retail [Product 1] sales busines they established in Suzhou city, that business went downhill after she left and he did not have any other business. This did not indicate or suggest her husband was rich, had business partners or had significant assets that he wished to protect, apart from the house she indicated they bought together.
The Tribunal considers the evidence regarding whether the applicant and her estranged husband are divorced or not is unclear. She indicated she believed they may be deemed to be divorced because they have had no contact for in excess of three years. She indicated she has not had any contact with him since she left china in 2015, nearly seven years ago, and does not wish to have any contact with him.
From the applicant’s evidence, the Tribunal considers the applicant’s estranged husband has no interest in re-establishing contact with her. There is nothing to indicate or suggest he has made any attempt to contact her since she left for Australia in 2015, including by way of their daughter. There is nothing to indicate he has sought to threaten or intimidate her since she left.
While the Tribunal accepts that the applicant is happy in Australia and does not wish to return to China, and that she would likely be less well-off economically if she returned to China, the Tribunal does not accept that the applicant would face a real risk of suffering treatment amounting to persecution involving serious harm from her estranged husband, should she return to China and not seek to re-engage with her husband, as she indicated she did not wish to do. The Tribunal does not accept that, if he found out that she had returned to China, he would seek to contact her and that he might harm her. Noting the sheer population of China, the Tribunal considers that, if the applicant did not wish to return to Suzhou city, she could return to her hometown, or look to find work in Shanghai, where she indicated her daughter and siblings had been working, once COVID-19 related restrictions are lifted there.
If the applicant is not deemed to be divorced as a consequence of her having had no contact with her estranged husband for over three years, as she has indicated, she could pursue divorce on return to China. While DFAT advises that some women have reported the courts will not grant their divorce applications, again because of ‘traditional values’, the country information indicates that, as someone alleging domestic violence, she can pursue a divorce, with no ‘cooling off’ period, under the new Civil Code which came into force on 1 January 2021.[8]
[8] DFAT Country Information Report, China, 22 December 2021, section 3.115.
The Tribunal notes that the applicant apparently has not pursued the matter of her share of the value of the house she indicated she and her estranged husband bought in Suzhou city. There seems to be no reason why she could not pursue this through legal means or a divorce settlement on her return to China, if she wished to do so, other than her comments that she did not wish to see or even think about her former husband.
The Tribunal accepts that the applicant can earn more money in Australia than she can in China and accepts that she may suffer some economic hardship and stress should she return to China. However, noting that she has worked in a [business] in the past, has established and run a successful retail [Product 1] business, her daughter and siblings have pursued work opportunities in Shanghai, and she has worked in [workplaces] and as [an Occupation 1] in Australia, the Tribunal does not accept that the applicant will become homeless and/or be without food or other basic needs if she returned to China. The Tribunal does not accept that any hardship and stress the applicant might suffer would amount to serious harm. The Tribunal finds there is nothing to indicate or suggest there is a real chance the applicant would suffer serious harm in the form of significant economic hardship that threatens her capacity to subsist; and/or would be denied access to basic services, where the denial threatens her capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)-(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act (that is, for one or more of the reasons of her race, religion, nationality, membership of a particular social group or political opinion), should she return to China.
Does the applicant have a well-founded fear of persecution if she returned to China?
For the reasons given above, the Tribunal does not accept there is a real chance that the applicant will suffer persecution involving serious harm from her estranged/ex-husband, employers or anyone else, for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, if she was to return to China, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to China, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[9]
[9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from her estranged husband/ex-husband, employers, or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
In reaching this conclusion, the Tribunal finds that any economic hardship the applicant might experience if removed to China, including feelings of emotional distress and/or humiliation due to her economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing her to suffer significant harm.
Member of the same family unit
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.
Paul Windsor
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.
…

[2022] AATA 2445

9 June 2022

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice