1715530 (Refugee)

1715530 (Refugee) [2020] AATA 6089 (20 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715530
COUNTRY OF REFERENCE:                   China
MEMBER:Damian Creedon
DATE:20 May 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 May 2020 at 1:46pm

CATCHWORDS
REFUGEE – protection visa – China – fear of debt collectors – father’s opposition to land seizure – closure of father’s business by officials as reprisal – business debt passed down to applicant – credible witness but no real threat – 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 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 8 June 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 10 March 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
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
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is [an age]-year-old man from [Fuqing] City, Fujian province, People’s Republic of China.
He is single and has never been married.
The applicant arrived in Australia as [an age]-year-old [in] December 2007 holding a Schools Sector (TU-571) visa, granted on 6 December 2007 and valid until 15 March 2010. He lodged an application for a Protection Visa on 10 March 2016.
Claims:
In his application for a protection visa[1] the applicant made the following written claims:
[1] See Departmental File, folios 18 – 42.
a.He will be discriminated against ‘politically’ and deprived of his rights to attend ‘public meetings’ or to vote for the ‘public interest’.
b.Before he came to Australia his family had a successful [business] and could financially support his study here.
c.After he had left China, his father ‘opposed’ land sale against ‘the official’s decision’.
d.There were a number of ‘confrontations’ against the authorities and the officials.
e.In order to retaliate against his father’s actions, the authorities and officials ‘shut down’ the family business and imposed a ‘significant fine’ against ‘us’.
f.After that his family were unable to continue to support his studies.
g.If her returns to China he will have nowhere to live and will face substantial debts; and in light of his father’s opposition, the authorities will not protect him were he to return.
h.He could relocate to another part of China but would be ‘without Hukou’; with no ‘Hukou’ his right to vote or participate in political activities will be denied.
i.He states:
Because of the political difference, our rights will be denied especially the right to political engagement of the village’s interest
Evidence:
The Tribunal has before it a range of material, including, relevantly:
a.The applicant’s protection visa application forms dated 9 March 2016 (visa application);
b.The applicant’s identity documents being a copy of his passport;
c.The delegate’s protection visa decision record dated 14 June 2017 (delegate’s decision record); and
d.The review application form which included a copy of the delegate’s decision record.
The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s most recent ‘Country Information Report on the People’s Republic of China’, published on 3 October 2019 (DFAT Report).
Country of reference / receiving country:
The applicant claims to be a Chinese national. Based on the copy of his passport provided by the applicant prior to the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that China is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Hearing:
The applicant attended a hearing on 8 May 2020. He was not represented at the hearing. The hearing was assisted by an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant gave evidence broadly conforming to the written claims outlined in his visa application. In particular, the applicant stated that:
a.He came to Australia to complete his secondary schooling but that ultimately, he did not do so. He stated that he studied for only three months before his father informed him that he (his father) had ‘no money’.
b.The applicant stated his father had run a ‘[company]’ [but] that the business had been ‘shut down’ by the local authorities. The applicant stated that the ‘authorities’ had shut down the business because of a ‘land dispute’. When pressed by the Tribunal the applicant stated that his father had owned the land in question and that the local authorities had wished to ‘confiscate’ it. He stated that his father disputed the confiscation of the land as he ‘did not want to give it up’.
c.The Tribunal asked the applicant whether his father had been offered compensation for the confiscation and the applicant stated ‘no’; he stated that the ‘authorities’ forced his father to give up the land and that, in view of his father’s opposition, they ‘used different means’ to damage his business. When pressed by the Tribunal, the applicant stated:
They gave him many difficulties [sic] and the village officials forced him to close his business.
d.The applicant stated that the immediate impact of these events on him was that he was forced to cease his studies in Australia.
e.The Tribunal asked the applicant why it was that he feared returning to China. The applicant stated that he was afraid that he does not have any money to pay back his father’s debts.
f.The Tribunal pressed the applicant as to the nature of his father’s debts. The applicant stated that his father incurred both business debts and ‘penalties’ when he was forced to close his [business]. When further pressed by the Tribunal the applicant stated to the effect that the penalties were imposed by the authorities to exact ‘revenge’ on his father for his father’s opposition to the land confiscation. He stated that his father had tried to appeal to a ‘higher level’ but that ‘nobody offered assistance’.
g.The Tribunal then pressed the applicant as to why he himself was responsible for paying back debt[2] incurred by his father. The applicant stated that it was because his father did not have the money to pay back the debt and that, by custom, ‘some’ of the debt of the father ‘passed to the son’. The applicant stated:
[2] For the sake of convenience, the Tribunal will use ‘debt’ in this decision to mean both ‘debt’ and ‘penalties’ unless the context otherwise requires.
My father cannot pay back the money. I am still very young and can earn money and they might ask me to pay.
h.When further pressed by the Tribunal as to the nature of this obligation the applicant stated that it was a ‘custom’ in Chian for a son to inherit his father’s debt. The applicant stated that the custom applied only to a son, not to a daughter.
i.The Tribunal asked the applicant whether the custom applied only to a limited number of people in China, or whether it was a ‘broad’, generally accepted custom across Chinese culture. The applicant stated that the custom was of ‘broad’ application in Chinese culture.
j.The Tribunal then raised with the applicant his written claim that he would be discriminated against ‘politically’ and deprived of his rights to attend ‘public meetings’. The applicant stated to the Tribunal that as a result of his father’s debt, the responsibility for which he would inherit according to Chinese custom, he would be excluded from his village’s social and political life until all of the debt was repaid.
k.The Tribunal then asked the applicant whether there were any other reasons why he feared returning to China. The applicant stated that he was afraid that he ‘might be attacked’. When pressed, the applicant stated that he was afraid of being attacked by ‘debt collectors’.
l.When asked whether he or his father would have recourse to the state authorities in such circumstances, the applicant stated that a complaint could only be lodged ‘through a lawyer’ but that this was ‘not a possibility’ for him because the process would not be ‘useful’. When pressed by the Tribunal the applicant stated that he did not know this for certain, but that he felt it to be the case.
m.The Tribunal asked that applicant whether he could relocate to another area on China. The applicant stated to the effect that his problems would follow him anywhere in China.
n.The Tribunal asked the applicant whether he had other siblings; the applicant stated to the effect that he had a sister who was married and living in Japan.
o.The Tribunal then clarified with the applicant that there were no grounds other than those he had described for why he feared to return to China. The applicant stated to the effect that this was the case.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
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’. 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.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Analysis
In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully. The applicant stated that he ‘seldom’ speaks to his father and does not speak with his mother. He stated that he learnt enough from his conversations with his father in the immediate aftermath of the key events he described to be confident in relating them. Overall, the Tribunal considers that the applicant provided a consistent and plausible account of his circumstances since he arrived onshore in 2007 and of his understanding of his family’s circumstances in China during that period.
Furthermore, his claims are consistent with country information which indicates that protests and petitions related to land seizures by officials and the conduct of developers were and remain common in China.[3] DFAT reports that, in practice, the treatment of individual cases of petitioners for compensation depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise. The applicant’s description of the behaviour of the local officials towards his father is consistent with DFAT’s analysis.
[3] DFAT Report, paras [3.134] – [3.137]
Accordingly, the Tribunal finds that:
a.the applicant arrived onshore to in 2007 to undertake secondary schooling here;
b.his schooling was to be funded by his father;
c.shortly after the applicant’s arrival onshore his father’s [business], being the family’s main source of income, was closed by the actions of local officials in China, partly in retribution for his father’s opposition to land confiscation orders initiated by those officials;
d.because of the closure of his business, the applicant’s father:
i.could no longer financially support the applicant in his schooling in Australia; and
ii.incurred a debt, comprising business debts and penalties imposed by the local officials, which he could not repay then, and which remain unpaid;
e.that, following Chinese social custom, the applicant will be regarded by his father’s creditors as being personally responsibility for payment of his father’s debts; and
f.the applicant has no means of repaying those debts.
The Tribunal does not, however, accept that the applicant’s fear of ‘debt collector’s’ is well-founded. Despite being pressed by the Tribunal, the applicant could provide no further or other basis for his fear that did not amount to vague, subjective feelings of apprehension. He provided no evidence to support this claim and it appeared to the Tribunal to be mere conjecture on his part.[4]
[4] MIEA v Guo (1997) 191 CLR 559 at 572.
Overall, however, the Tribunal accepts that, if returned to China, the applicant will suffer social and, potentially, legal consequences there as a son responsible for his father’s unpaid debts.
The applicant claimed no fears of persecution in respect of his race, religion, nationality or political opinions.
The first issue to be resolved, then, is whether the applicant is a member of a particular social group. In assessing that question the Act draws a distinction, relevant to this case, between ‘membership of a particular social group consisting of family’[5] and ‘membership of a particular social group other than family’.[6]
[5] Act, s.5K.
[6] Act, s.5L.
In respect of the former, s.5K of the Act states, relevantly:
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:
…
(Tribunal’s underlining.)

The ‘first person’ in this case is the applicant. For s.5K to apply the applicant’s fear of persecution must be for the reason of his membership of a particular social group that ‘consists’ of his family.
The applicant’s claim is that he, as a son, is taken to be responsible for his father’s debt according to Chinese custom. However, this responsibility is not a unique attribute of the applicant’s family per se; the applicant’s evidence was explicit that the social custom was of broad application across Chinese society. Put differently, although membership of his family is a sine qua non of his responsibility for his father’s debt, the social ‘mechanism’ by which that responsibility devolved to him was not ‘for the reason’ of his membership of that family group of itself, but rather it was ‘for the reasons’ of the existence of the debt, and of the broad social custom the applicant described in evidence.
It follows that the relevant social group of which the applicant claims membership does not ‘consist’ of his family within the meaning of s.5K.[7]
[7] In any event, the applicant’s fear of persecution is derivative of his father’s fear of persecution (if such fear exists) which, not falling within s.5J(1)(a) for the reasons to be discussed, would be disregarded by the Tribunal: SZAFC v Minister for Immigration [2003] FMCA 380 (5 September 2003) at paras [17] and [18].
Rather, the social group of which the applicant claims membership may be described as: persons, specifically sons, who are taken to be responsibe for the payment of their father’s debt according to Chinese custom.
In defining the group this way the Tribunal relies upon the applicant’s own evidence and has taken care to not define the group too widely or too narrowly: Applicant A v MIEA.[8]
[8] (1997) 190 CLR 225 per McHugh J.
The governing provision for the applicant’s case is therefore s.5L of the Act. Circumstances analogous to the present case were considered by the (then) Federal Magistrates Court in SZAFC v Minister for Immigration[9] dealing an earlier iteration of that section. In that case the applicant feared harm at the hands of her husband’s creditors in India. Driver SM expressed the difficulty faced by a group thus defined in the following terms:
…a social group of persons returning to India from another country who owed debts and who were perceived as having money would be a social group defined by reference to the fear of harm that such persons might suffer. It is impermissible to define a social group by reference to the fear of harm.
[9] [2003] FMCA 380 (5 September 2003)
In its current form the Act expresses this principle through the operation of s.5L(d); that is, the characteristic defining the social group of which the applicant claims membership cannot be the fear of persecution claimed by the applicant.
In the present case the applicant’s evidence is that his fear of persecution is founded upon the Chinese custom whereby he is taken to be responsible for his father’s debts. There is no relevant social group of which he has asserted membership that is not, therefore, defined by the characteristic that is the fear of persecution he claims.
Accordingly, it is not possible for the applicant to construct a particular social group in order to support his claim of persecution and his application must fail.
Claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to China. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to China as there is taken not to be a real risk of significant harm since the ‘real risk’ is one faced by the sons of indebted fathers in China generally and is not faced by the applicant personally: s.36(2B)(c) of the Act.[10] Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
[10] See also: SZSPT v MIBP [2014] FCA 1245.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Damian Creedon
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 6089

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Immigration

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Procedural Fairness

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