1714265 (Refugee)

1714265 (Refugee) [2021] AATA 920 (10 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714265
COUNTRY OF REFERENCE:                   China
MEMBER:Tamara Hamilton-Noy
DATE:10 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 March 2021 at 8:06am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – house church – persecution from authorities – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant arrived in Australia [in] September 2013 and applied for a protection visa on 14 April 2016.[1]
[1] Dates taken from Department decision, a copy of which was provided by the applicant to the Tribunal.
Claims and Evidence
Evidence before the Department
In his written protection application, the applicant stated that he was born in Nanping, Fujian province and that he lived in Yanping district, Nanping City, Fujian prior to leaving China. The applicant provided a written statement setting out his claims for protection which was as follows:
I am an overseas student who came to study in Australia in 2013 from the countryside of Fujian Province, China. As early as I was in my hometown, I became a Christian and attended the house church. My parents were also Christians. My mother said I was a child born outside the state plan. To prevent me being forced to be aborted, my mother went into hiding in a mountainous area, and from then on she lived through hard times there. I was the helping and praying from her fellow Christians that she could pull through all the hard times and gave birth to me at last. So at a very early age, I was baptized at my parents’ church.
In our country in Fujian Province, house churches were very popular, but the local government, in its support to the Patriotic Church, was doing its best to suppress and outlaw the house churches. I remembered when I was in my primary school; the government was at its highest in suppressing the house churches, so most house churches had to go underground. At that time, many people were punished for attending the unauthorized churches. My family members were also among them.
My parents were both enthusiastic activists in churches, and my two sisters followed their example to attend the church activities. However, we met with a lot of troubles. According to my memory, my parents were penalized for many times for holding house gatherings. Sometimes, though the government knew we held a house church gathering once every week, they just couldn’t track us to our gathering place, because we changed our places frequently to escape being caught on the spot. Another reason the government liked making arrests was that they could benefit from the fines they imposed on the arrested. By excessive arrests, they could make fortune and get promoted at once. Why shouldn’t they?
I remembered a countryman of my father’s, a businessman, often went to the official Patriotic Church, and he suggested that my father also attend it with him, but his suggestion was politely refused by my father. That man once told my father that going to the Patriotic Church would bring good benefits to his business and would turn ill luck into good, if there was any. Even the Taxation Office would intentionally or unintentionally ignore his tax evasion.
My father replied to him that if his Church should help prevent a person like him from being punished by God, my father would despise such a church. The god in such a Church was nothing but a Satan or a Devil instead of the just sole supreme God described in the Bible. My father vowed not to go attend such a Church. Moreover, my father’s church printed and distributed gospel pamphlets, warning others not to step into such a Church. Such acts of his caused my family a lot of troubles. My father was summoned for interrogation and was penalized by the security police. From then on. I dared not to go attend the house churches, as I knew if I did, I would be expelled from the school at once when caught doing so.
Since my arrival in Australia in 2013, I hadn’t found any church amongst many others that was as good as my previous one. I tried attending some of them, but however, I failed to be staying with any specific one of them, either because of the language barrier or because of my poor impression.
In 2014, I and some of former countrymen organized a house church, yet we didn’t hold the gatherings exactly regularly. There were a dozen or so of us, but we dissolved one year later at last, just because of the high mobility of the attendants. Some of us went back to China and others went to other places for living. Later, one of my countrymen recommended to me a house church, one affiliated to the Patstel Church in Sydney. I regarded it as my spiritual home where I could serve our God.
During my live in Australia, I keep contact with my parents. Since 2015, the government in our hometown imposed higher pressure on house churches and demolished crosses. The situation becomes very tight. My parents were arrested twice for preaching gospels and fined over 10,000RMB. My cousin was also arrested for preaching the gospel shortly after the Spring Festival of 2016, and remained imprisoned until now for a month. My parents’ condition worried me much. They often cautioned me that there was no such thing as genuine freedom of faith in China, and that the Patriotic Church, being unable to delve into the roots of the sins or to expose the evil effects of the sins on the society, could by no means be a genuine church described in the Bible. As a matter of fact, it could only serve for a ready implement for the government in carrying out its patriotic education. It was just a product of the policy of the unification of state and religion, so how could you expect it to expose the crimes and corruption of the government? The house churches could only be operated underground precariously. What my parents expected of me was that I could stay in an Australian church serving our Lord.
I’m now a student, but I have a solid religious background, a passionate enthusiasm for gospel-preaching and a noble sense of mission, so I’m sure I will be a committed preacher of gospel. Wherever I go, I will always stand firm for my faith. I hope I can return to China to help set up more house churches, to help people there understand the Bible better and to help those who are still superstitious, confused and idol-worshipping understand the truth that only Jesus is our saviour, and only by repenting can we sinners gain our eternal life in the heaven instead of the longevity the vulgar people wished for in this world. No worldly wealth is more precious than the eternal and immortal life.
I’m filing this application for protection in order to defend the freedom of faith. My family members are still under the religious oppression. Once we are discovered practicing our faith, we will be persecuted. Previously, I once hesitated about applying for a refugee visa, which I found is quite unacceptable to me. I thought we students could only apply for students’ visas and I wouldn’t like to take a step towards the protection application. But the reality is a better teacher which has brought home to me that China is the grave of my faith while Australia is the only way out for my faith.
The applicant attended an interview with a delegate of the Department on 8 June 2017. The Tribunal has had access to, and has listened to, a recording of that interview. Relevant parts of that interview are referred to further below.
A delegate of the Department found that the applicant’s account given at the Department interview undermined his written claims given that he initially indicated he could return to China and then later stated he could not; he was unable to explain to the delegate why he couldn’t return to China; couldn’t explain to the delegate how being unable to evangelise affected him personally; couldn’t explain how his cousin being arrested in 2016 was relevant to his claims for protection; and that his written claims relating to his father’s experiences were omitted entirely from his interview. The delegate found there was insufficient evidence to substantiate the applicant’s claims regarding his circumstances in China. The delegate did not accept the applicant’s mother or father was fined because of their religious activities in China, the applicant’s father ever distributed negative pamphlets about the Patriotic church, the applicant’s mother or father was arrested or interrogated because of their religious activities or that the applicant is of adverse interest to Chinese authorities. The delegate found that the applicant is not a refugee as they were not satisfied the applicant faces a real chance of persecution for one of the reasons set out in s.5J(1)(a); and he is not owed complementary protection because they were not satisfied that he would suffer significant harm if removed from Australia to China. A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 17 December 2020, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing, by telephone, on 27 January 2021. At the time of the hearing the applicant was located interstate and, having regard to the objectives of the Tribunal to provide a quick, informal hearing, to the ongoing restrictions in Victoria and to the length of time since the applicant’s matter had been before the Tribunal, the Tribunal determined it was appropriate to invite the applicant to a hearing by telephone. Prior to the hearing, the applicant provided a ‘Hearing Response’ to the Tribunal which stated that he did not believe he would have any difficulty participating by telephone and noting that he did not have any further documents he was seeking to rely on and was not calling any witnesses at the hearing.
On the morning of the scheduled hearing, the applicant wrote to the Tribunal advising that he would not be attending the hearing and requesting the Tribunal determine the matter on the previous interview and the documents before it. The reasons given by the applicant were that he had been feeling very stressed and nervous in recent days and, after careful consideration, had decided not to attend the hearing in order to reduce his stress.
On 18 January 2021 the Tribunal wrote to the applicant under s.424A, inviting the applicant to comment on information it had before it. The applicant was given 14 days to comment on the information.
On 27 January 2021, the applicant wrote to the Tribunal advising that, after consideration of the Tribunal’s email, he had decided to attend a telephone hearing to provide more information as requested. He requested a hearing be scheduled for late February or early March.
The applicant was invited to attend a hearing by telephone on 3 March 2021. The hearing proceeded, with the applicant participating by telephone and the Tribunal was assisted during the hearing by a Mandarin interpreter. The Tribunal was satisfied from the responses of the applicant throughout the hearing that he was able to give evidence and present arguments to the Tribunal during the hearing.
Consideration of claims and evidence
The 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.
Assessment, reasons and findings
The applicant travelled to Australia on a Chinese passport, has at all times maintained he is a citizen of China, and the Department interview and Tribunal hearing were both conducted with the assistance of a Mandarin interpreter. The Tribunal accepts the applicant is a Chinese citizen and has assessed his claims against China as his country of nationality.
The Tribunal has significant doubts about the credibility of the applicant’s claims for protection, based on the manner in which he gave his evidence to the Tribunal during the hearing, and for other reasons as set out below.
Firstly, the Tribunal doubts the credibility of the applicant’s stated reasons for having left China because of the vague and unconvincing way he explained his reasons for leaving to the Tribunal. The applicant stated to the Tribunal that he left because he was afraid he might get adverse treatment. When asked what the adverse treatment was, he stated it was being arrested. When asked why he feared arrest, he stated ‘certain issues to do with religion’. When asked what had happened in China that meant he had to leave (in 2013), he referred to a cousin being arrested in 2016. When asked what had happened to him before he left, he stated nothing happened. When asked whether anything had happened to family members before he left, he said that his parents were fined a few times and that nothing else had happened apart from them being fined. The Tribunal asked the applicant for details about his parents being fined and he said ‘government’, then that he thinks they went to the police and doesn’t think the police came to the house. When asked why they would do that, he stated he doesn’t know what to say. Despite prompting by the Tribunal at several points in the hearing, he was unable to explain to the Tribunal why he feared arrest; when asked why he was afraid, he responded ‘afraid is afraid’ and when asked the reasons for being afraid he stated he doesn’t know if there was any reason but whatever it was, he was afraid.
Secondly, the applicant’s evidence at the hearing was internally inconsistent. The applicant claimed at the Tribunal hearing that he left China because of his religion. However, later in the hearing he gave evidence that he last attended gatherings with his parents when he was [a child]. When asked why he had left China in 2013 because of his religion, he stated ‘no, I came as a student’. When asked why he would be concerned about being arrested if he had not attended a church since [a young age], he stated ‘at the time I was very little and didn’t know’. When the Tribunal sought clarification of the reasons the applicant had left China, he stated he left because of fear of arrest; when asked why he feared arrest, he stated ‘because of fear’. The Tribunal observed during the hearing that it was having difficulty accepting the applicant’s stated reasons for having left China and he stated in response ‘ok’.
Thirdly, the evidence given by the applicant at the hearing differed to his previous evidence on several points. The applicant told the Tribunal that he may have been baptised when he was young but is not too sure. When asked why he had claimed in his written statement to the Department that he had been baptised, he stated he doesn’t know and was small then. The applicant told the Tribunal that his parents had never hosted church gatherings at their home. The applicant gave evidence that a friend assisted him to complete the protection application and that he had prepared the three-page written statement himself. When asked by the Tribunal why he had claimed in his written statement that his parents were penalised for hosting church gatherings, he stated he did not write that. The applicant also gave evidence that his cousin was arrested in 2016 but he does not know how long he was held imprisoned for. When asked why he had said in his statement that his cousin had been imprisoned for one month, he stated in response that after his cousin was arrested, he doesn’t know when he was released. The discrepancies in the applicant’s evidence at the hearing from his written statement, which he gave evidence of having prepared himself, leads the Tribunal to doubt the credibility of his evidence and to doubt that he left China for the reasons stated.
Fourth, in his written protection application, the applicant had claimed that his family members had been punished for attending unregistered churches, his parents had been penalised many times for holding house gatherings, his father had been summoned for interrogation and penalised by security police, that since 2015 his parents had been arrested twice and fined over 10,000RMB, his cousin had been arrested for preaching in 2016 and imprisoned for one month and his family members were still under religious oppression. These claims for protection are inconsistent with the applicant’s statements at the Department interview that his cousin had been arrested in 2016 and ‘nothing else’ had happened.
The Tribunal wrote to the applicant under s.424A about these discrepancies and noting that they raised concern for the Tribunal about the credibility of his written claims. The applicant responded that he was seeking to discuss these matters further with the Tribunal at a hearing and the Tribunal held a hearing, at the applicant’s request, to discuss these matters with him. When this information was put to the applicant at the hearing his response was ‘nothing’. When the Tribunal asked why the applicant had requested a hearing to discuss these matters, he stated that he doesn’t wish to return due to fear; when the Tribunal observed that the applicant was unable to explain his fear to the Tribunal, he stated he doesn’t want to say anything.

Fifth, the significant delay in claiming protection after arriving in Australia leads the Tribunal to doubt the applicant’s reasons for leaving China are as he claims. The applicant arrived in Australia [in] September 2013 and claimed protection on 14 April 2016. The delay in claiming protection adds further weight to the doubt of the Tribunal about the applicant’s claims. The Tribunal wrote to the applicant under s.424A about his delay in claiming protection and he requested to attend a hearing to discuss the contents of the s.424A letter. At the hearing the Tribunal noted the applicant’s delay in claiming protection and invited him to respond and he stated ‘no’. When asked what he wanted to speak to the Tribunal about at the hearing, he stated ‘no, no’.
For the reasons set out above, the Tribunal does not accept the applicant’s claimed reasons for having left China. The Tribunal does not accept the applicant was baptised in China or that he attended house churches with his parents, or that he feared he would have to stop attending school because of his parents’ religious practices. The Tribunal does not accept the applicant’s family members came to the adverse attention of authorities in China because of their religion, specifically that they were fined, penalised, summoned for interrogation, arrested or imprisoned. The Tribunal does not accept the applicant’s family members ceased attending house churches because of any adverse attention from the authorities. The Tribunal finds that the applicant did not practice as a Christian in China and therefore finds that he did not experience any harm in China because of his religion.
The applicant’s evidence to the Tribunal about his religious practice since arriving in Australia was that someone from his village found a small church in Sydney [and] that this is the only church he has been to in Australia. He stated he commenced attending this church in 2014 and that he last attended two years ago. He gave evidence that he had not attended other churches but had been to small gatherings organised by a male from his village. He stated he had not attended more recently because of ‘personal reasons’ and, when asked about these reasons, stated he had been living in other areas such as Melbourne for work. He stated he is not practicing his religion at all at the moment. As to whether he still considers himself to be Christian, he stated ‘maybe, I think so’.
The Tribunal finds that the applicant has not attended a church for two years and is not otherwise undertaking any Christian practices. The applicant has not sought out a church since moving to Melbourne for work and, on this basis and on the basis of the applicant’s lack of current Christian practices, the Tribunal finds that the applicant no longer practices as a Christian. The Tribunal finds that, if he returns to China now or in the reasonably foreseeable future, the applicant would not practice as a Christian and would not attend either a registered or unregistered church. The Tribunal is not satisfied the applicant faces a real chance of serious harm, if he returns to China now or in the reasonably foreseeable future, because of his religion.
The applicant stated to the Tribunal that there are no other reasons he cannot return to China. The Tribunal is not satisfied the applicant faces a real chance of persecution for any reason if he returns to China now or in the reasonably foreseeable future.
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). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
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.
Tamara Hamilton-Noy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 920

10 March 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction