1715562 (Refugee)

[2022] AATA 3946

1715562 (Refugee) [2022] AATA 3946 (5 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  1715562

COUNTRY OF REFERENCE:                   China

MEMBER:Senior Member G.A.F. Connolly

DATE:05 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal directs that the applicants satisfy s 36(2)(aa) of the Act and remit the matter for reconsideration in accordance with this statement of decision and reasons.

Statement made on 05 August 2022 at 4:07pm

CATCHWORDS

REFUGEE – protection visa – China – complementary protection – religion – Christianity – evangelical unregistered or house church – detailed and accurate knowledge of church teaching, discussion of beliefs and practice, and persuasive witness evidence of membership and activities – not necessary to consider citizenship of two Australian-born children – country information – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2), (aa), 65

Migration Regulations 1994 (Cth), Schedule 2

Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)

CASE

Chan v MIEA (1989) 169 CLR 379

Drake v MIEA (1979) 24 ALR 577

MIEA v Guo (1997) 191 CLR 559

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 REASONS1

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 July 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who are citizens of China, applied for protection visas on 5 September 2016. The Minister’s delegate refused to grant the visas on the basis that the primary applicant did not genuinely fear persecution for reason of her Christian religion and did not face significant harm and for this reason should return to China.

3. The applicants were represented in relation to the review.  

4. [The primary applicant] was born in China and she is [Age 1] years of age. She had received her education to secondary school level in Hebei, was last employed as [an Occupation 1] in Dezhou City, Shandong, and was a housewife or unemployed at the time of the visa application.  She arrived in Australia [in] March 2014 on a 573 dependent student visa.

5. [The husband of the primary applicant] was born in China; he is [Age 2] years of age (husband applicant). He arrived in Australia on a 573 student visa on [in] November 2013 prior to the primary applicant’s arrival. He completed secondary school in China and before the student visa, was employed as [an Occupation 2] in Tianjian, [an Occupation 3] in Zibo, Shandong and [an Occupation 4] in Hangzhou, Zhejiang. He was a student at the time of the protection visa application. He did not raise separate claims for protection (Part B, Q2).

6. The applicants have two children in Australia. Their son [the third applicant] was born in New South Wales in [Year 1] and was added to the application at the time of the Departmental interview. Their daughter, [the fourth applicant], was born in New South Wales in [Year 2].

7. The applicants both appeared before the Tribunal on 28 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] and from [Ms B], who were witnesses in support of the applicants, and who have known both applicants for at least six years from their membership of the same evangelical church in Sydney. Each of the witnesses in support were examined separately by the Tribunal and in the absence of the primary applicant and the husband applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   Criteria for a protection visa

8. 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.

9. 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).

10. 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.

11. 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

12. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

13. The hearing before this Tribunal is a hearing de novo and not an appeal, strictly speaking, at least not to any court. The matter before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision. The Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the AAT Act.   The Federal Court in Drake v Minister for Immigration and Ethnic Affairs said this of the Tribunal’s task:

    The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.[1]

    CONSIDERATION OF Claims, evidence AND FINDINGS

    [1] (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.

    The applicable law

14. In considering whether there is a real risk that the primary applicant will, indeed, suffer significant harm, as a necessary and foreseeable consequence of her being removed from Australia to China, the Tribunal notes 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: s 36(2)(aa).

15. 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 primary applicant to satisfy the Tribunal that all statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of an applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any allegations made by an applicant.[2]

    [2] MIEA v Guo (1997) 191 CLR 559 at 596 per Kirby J.

16. The issue in this case is whether the applicants have proved they have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that they will suffer significant harm: s 36(2)(aa). 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.

    The facts

17. The primary applicant was born in Hebei, China, on [Date 1].  The husband applicant was born in Hebei, China, on [Date 2]. The husband applicant had already arrived in Australia [in] November 2013 before the primary applicant arrived in Australia [in] March 2014.  They have since had two children while living in Australia: a son named [the third applicant] born [Date 3] and a daughter named [the fourth applicant] born [Date 4]. 

18. Both applicants and their two children attended the hearing on 28 June 2022.  Each of the two applicants and their two witnesses, [Ms B] and [Ms A], gave sworn evidence in support of the applicants’ case for protection visas.

19. The fundamental claim made by the applicants is that there is a real risk that they will suffer harm, which could be inflicted on them by Chinese authorities on the grounds of their religious faiths and practices as Christians, should they be returned to China.

20. The Minister’s delegate interviewed the primary applicant on 10 July 2014.  The delegate was not satisfied that the primary applicant (and her family) were refugees or were owed complementary protection visas and refused to grant her and them any protection visas.

21. It is undisputed that the primary applicant and the husband applicant are citizens of the People’s Republic of China. The citizenship status of the children is in dispute, as the primary applicant and the husband applicant both consider their two children to be ‘stateless’ as they were both born in Australia.  It is unclear whether the Chinese government is aware of the applicants’ two children and, thus, it is unclear, what, if any, position Chinese authorities have taken towards the children of the primary applicant.  For the reasons that I will give, I do not need to consider this issue.

    The primary applicant

22. The information before the Tribunal about the primary applicant’s claims to be owed protection obligations was provided by the primary applicant herself and her supporting witnesses.  The primary applicant presents as a sincere and practising Christian. The primary applicant was sincere in her discussion of her Christian beliefs. She was able to accurately – and in some detail – discuss her practice of her faith and her family’s membership for six years in the same Church in [Sydney]. The primary applicant’s knowledge of the Bible and of foundational Christian doctrine (commonly shared among Catholic, Protestant, and Orthodox denominations) was of a good standard. The primary applicant’s Christianity is of a kind that is readily identifiable as an evangelical Protestantism.  After extensive and repeated questioning, it was clear to the Tribunal that the primary applicant had a sincere and committed faith, which she, clearly, wanted to share with non-Christians. The primary applicant expressed a clear and repeated fear that if she was returned to China, she would suffer significant harm, as her Christian beliefs are not those of the registered state churches. The primary applicant was particularly insistent that, because of her Christian beliefs and evangelism, she would be separated from her children by Chinese authorities. The primary applicant was particularly insistent that her church and theology was not a state-approved church and, instead, was of the kind that in China is known as an unregistered or house church.  It is the case that the primary applicant’s faith and particular doctrinal beliefs do not sit easily in either the Catholic or major Protestant denominations, but do resemble a common evangelical belief system, not unlike Baptist theology.

23. The sworn evidence provided by the two witnesses called in support of the primary applicant was, equally, persuasive. As was stressed before, each witness was questioned separately, in the absence of the applicants and the other witness. The two female witnesses were mature elders in the local Chinese Christian community. Both witnesses had since 2016 known the primary applicant, the husband applicant, and their two children, as they were all members of the same church community in [Sydney].  Each of the two witnesses were questioned separately and both provided supportive evidence, in considerable detail, of the work done by the primary applicant in their church for the past six years.  The primary applicant is a quiet but enthusiastic and reliably attending member of the church’s weekly Bible study.  The primary applicant is also a worker in the church, attending to the cleaning of the church, the preparation of food for parishioners, and supporting all the pastoral needs of the parish. Both witnesses stressed that this work in the church by the primary applicant had gone on, quietly and consistently, since 2016.  Indeed, it was from the sworn evidence given by the witnesses (and not the primary applicant herself) that the Tribunal learned that the primary applicant had assisted, for a considerable period of time, one of the witnesses during the witness’ immense grief on the recent passing of her husband.  This witness’ evidence was that the primary applicant had stayed with her in her home, cooked and cleaned for her, and helped to arrange the late husband’s funeral arrangements, including the cleaning and dressing of her late husband’s body in line with Chinese Christian custom, with the primary applicant acting towards the witness in the manner of a devoted Christian daughter. Both witnesses were at pains to stress the primary applicant’s devout faith and her many good works in the parish life.

24. The primary applicant’s file contains documents and photographs from years past supplied by the Minister of the primary applicant’s church in [Sydney], including the baptisms of her two Australian-born children. The applicant’s religious Minister has had a long pastoral relationship with the primary applicant and her family since they joined his church in 2016. The Tribunal accepts the Minister’s undisputed evidence of the primary applicant’s faith and did not seek to have him attend for examination.

25. Accordingly, the Tribunal accepts that the primary applicant is a sincere and believing evangelical Christian.

    The husband applicant

26. The husband applicant, too, was, when separately questioned, also able to describe his practice of his faith, especially in Hebei, China. His mother is a practising Christian and well-known local evangelist in Hebei. His evidence, consistent with what had been the primary applicant’s case, was that he had been targeted and attacked for his Christian beliefs by the local Chinese authorities, including because of the missionary activities of his mother in their part of China.  There was evidence from both the primary applicant and the husband applicant that the husband applicant had suffered severe physical injuries at the hands of local Communist Party officials, which he said was because of his mother in Hebei.  It was the husband applicant’s evidence that his mother’s evangelism had made him known to Chinese authorities, and that his own father had tried to have his mother cease evangelising the local community, as it was attracting adverse Chinese governmental attention.  

27. The husband applicant was questioned separately from the primary applicant and was able to explain, in some detail, his Christian faith and knowledge of the Bible and of Christian doctrine (shared among Catholic, Protestant, and Orthodox, denominations).  He said that he was raised as a Christian by his mother. He said that his father was not a Christian and that his mother’s intense faith caused considerable problems for his family, especially as his mother was known to the Chinese government authorities for her Christian evangelism.

28. The sworn evidence provided by the two witnesses in respect of the husband was, equally, persuasive. Their evidence was that the husband applicant is a faithful communicant of their church in [Sydney].  He is, particularly, a member who works, reliably, in the church during the week, particularly on the apparently demanding information technology and lighting/structural needs of the church.  The husband applicant is always ready to fix what is broken in the church, even during the working day or at night, to support the various ministries of the church.  Both witnesses commended him on his willingness to help parishioners in the time they had known him since 2016. The husband applicant is also, by all accounts of the primary applicant and the witnesses, very supportive of the missionary work of the primary applicant, both in terms of the Sunday service and the support to the church’s ministries among women.  Each of the two witnesses were questioned separately and both provided supportive evidence, in considerable detail, of the work done by the husband applicant for their church.  The two witnesses gave not just evidence but often quite passionate detail, as regards the husband applicant’s contributions to the church.

29. The Tribunal, thus, accepts that the husband applicant is a sincere and believing evangelical Christian, based on the evidence that is before it.

    Do the applicants have a well-founded fear of persecution?

30. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.[3]

    [3] Section 5H(1) of the Act

31. The next issue for consideration by the Tribunal is whether the primary applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

32. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. Its elements provide that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·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 above; and

    ·the real chance of persecution relates to all areas of a receiving country.

    Does the primary applicant fear being persecuted for one of the stated reasons?

1. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons.  This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.

2. The Tribunal is satisfied that the primary applicant fears being persecuted for reasons of their religion.

   Is there a real chance of serious harm if the primary applicant were to return to China?

3. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept - not only must a person fear persecution, there must also be a prospect of that fear being realised.

4. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan[4] as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.  It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[5]

   [4] Chan v MIEA (1989) 169 CLR 379 at 389 per Mason CJ and at 406 per Toohey J.

   [5] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

   Risk of harm?

5. The reports by DFAT state that China is home to millions of Christians, a significant number of who practise in state-sanctioned churches. The position of those practising in underground or house churches – which are conducted in private homes or private meeting places, and which are not recognised or sanctioned by the Chinese government – is much more precarious and prone to persecution by the Chinese government authorities.  Within the Christian community in China, there are significant differences between the registered and unregistered/house churches.  It is a major error to assume that just because a Christian faith may, right now, be safe to be practised within the ecclesiology of an officially registered church, that the same will apply to unregistered/house churches – it does not.

6. The DFAT Country Information Report, People’s Republic of China (dated 22 December 2021) provides the following information regarding Christians in China:

   3.28 Christianity is growing rapidly in China. Estimates of the number of Christians vary and official figures only count those Christians worshipping at officially registered churches. The Chinese Government reports there are 38 million Christians. The 2020 US Department of State International Religious Freedom Report estimates there are 70 million Christians throughout China; higher estimates also exist.

   3.29 Authorities have regulated Christianity to make it more ‘China-oriented’. Bibles are increasingly difficult to obtain and Bible references are censored online. Plans for authorities to ‘re-translate’ the Bible or issue state commentary have been reported by media but have not been implemented at the time of writing. Sacred images in churches, such as those of the Virgin Mary, have been replaced with portraits of Xi Jinping in some churches.

   3.30 .. Since about 2015, and to some degree earlier, the government engaged in a campaign to remove visible symbols of Christianity from church buildings. Both Catholic and Protestant churches have been affected. Christian media reports the removal of crosses on buildings consistently between 2015 and 2021, and across a wide geographic spread of provinces.

7. It is noteworthy that the DFAT Report speaks of the difficulties faced, already, by the registered churches, including in the obtaining of authentic Bibles and holy books, and the wearing by Christians and registered churches of visible symbols such as crosses. That the registered churches are now undergoing a degree of further regulation and policing by the Chinese authorities, as it is, allows the conclusion that the precarious existence of Christianity and Christians in China is only worse for those members of unregistered/house churches.

8. The Chinese government has made efforts in recent years to better control both the registered and unregistered (house/underground) churches across China, including targeting churches to have their distinctive crosses removed and even up to demolition of churches, as well as the surveillance and imprisoning of pastoral leaders (of all denominations).  The position of churches in China is to either accede to pressure to ‘Sinicise’ or they must find new and inventive ways to avoid scrutiny.

9. In addition to the registered churches, there are a significant number of unregistered/house churches or like unrecognised Christian communities in both rural and urban China, which form their own church or become part of a network of churches.  These churches do not belong to any Catholic, Protestant, or Orthodox hierarchal and denominational structures.  Rather, these underground/house churches are known also by various names, including as literal ‘house’ or ‘underground’ churches, as befits churches that gather in private homes and away from official eyes. There is no set size of underground or house churches and some form part of a church network that can have thousands of parishioners or communicants. The explanation for not having officially published structures and hierarchies for churches that are not state-sanctioned – and which can thus be surveilled by Chinese security and police services - is an obvious one.

10. The increased Chinese government sensitivity over foreign influence in China creates clear difficulties for parishioners and supporters of the house/underground churches to travel abroad, particularly for religious fellowship and to attend church events, of the kind that any church and its pastors would do in Australia. It is likely that anyone who takes a visible, or even invisible role, in a house/underground church is inevitably going to attract the attention of the Chinese state and risk persecution, if not prosecution and imprisonment.

11. The DFAT assessment is that members of unregistered/house churches who participate in human rights activism are at high risk of official discrimination and violence, as, also, are their families. While DFAT may assess the adverse attention relating mainly to their activism and association with unregistered (and illegal) organisations, rather than specifically a Christian faith, the reality is that house/underground churches already risk being termed as ‘xie jiao’ (commonly referred to as ‘evil cults’ but also understood to translate to ‘heterodox teachings’).  To the degree that a house/underground church rejects the registered church in favour of a church that aligns with an evangelical interpretation of the Bible, then these parishioners (such as the applicants) clearly risk persecution as well as prosecution. China’s criminal code does provide for prison sentences of up to seven years for individuals who use superstitious sects, secret societies, or ‘evil’ religious organisations to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong (a traditional Chinese exercise discipline), or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society’. While the criminal provisions may now principally target Falun Gon, others who engage in practices deemed superstitious or cult-like are liable to face harassment, detention, and imprisonment.  These risks are clearly and obviously shared by house/underground churches.

    FINDINGS

12. On the evidence before it, the Tribunal is well satisfied that the primary applicant and the husband applicant are evangelical Christians.  The Tribunal is satisfied that they have suffered, and will experience if returned to China, harassment, discrimination, threats of arrest or any other form of harm in the past for reasons related to their Christian faith. The Tribunal is satisfied that both applicants will be of adverse interest to the Chinese authorities for the reasons claimed. While the applicants did not leave China for reasons of religious persecution, the Tribunal does accept that it is very likely they will experience religious persecution and risk significant harm as members of an underground Christian community. It follows that, on the information before it, the Tribunal is satisfied that the applicants face the real chance of serious harm or significant harm in China from the government authorities/police for reasons of their Christian religion.

13. For the foregoing reasons, the Tribunal is satisfied that the primary applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).  The Tribunal is satisfied, also, that the husband applicant, who has also applied for a protection visa, is also a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(aa).

14. The Tribunal is satisfied that the young children of the primary applicant and the husband applicant are dependent children. The Tribunal accepts that these two children are and will be for well into the future, wholly or substantially reliant on the primary applicant and the husband applicant for financial support. The Tribunal is satisfied therefore that they are members of the sasme family unit and thus owed protection obligations by Australia.

    decision

15. The Tribunal directs that the applicants satisfy s 36(2)(aa) of the Act and remit the matter for reconsideration in accordance with this decision and these reasons.

    Graham Alfred Frederick Connolly
    Senior Member
    Administrative Appeals Tribunal

    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.

    …