1716082 (Refugee)

1716082 (Refugee) [2021] AATA 3070 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716082
COUNTRY OF REFERENCE:                   China
MEMBER:Lilly Mojsin
DATE:30 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 June 2021 at 5.50 pm
CATCHWORDS

REFUGEE – Protection visa – China – religion – I-Kuan-Tao faith – relationship with girlfriend that is prohibited by her family – fears from his girlfriend’s family are localised to where he lived –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 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 15 July 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm on his return to China. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the application for review.
The applicant attended a Tribunal hearing on 6 May 2021 via video to give evidence and present arguments. The applicant was assisted by an interpreter. The hearing was held via Teams video during COVID 19. The Tribunal determined it was reasonable to hold a hearing by Teams video during the COVID-19 pandemic. I 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 video.
I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant confirmed that he could hear and see well and that he understood the interpreter. I was able to interact with the applicant and interpreter. All parties were able to maintain appropriate communication throughout the proceedings. I am satisfied that the hearing provided a real opportunity to be heard.
The applicant was assisted by a Mandarin interpreter.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims in his PV that:
•He was raised in Henan Province.
•His family practiced the I-Kuan-Tao faith and they had a house altar at their home. They attended 'Tao-pursuit activities on the first and fifteenth days of every lunar month'. Around 100 other people in his village also attended 'our gatherings'.
•When he was in his [specified] year of primary school, the village council ordered his family 's house altar to be closed.
•When he was in his [specified] year of middle school, there was a new leader in his village. This man was a relative who was sympathetic to the applicant's family, and he turned a 'blind eye' to their Tao-related activities as some of his own relatives followed I-Kuan-Tao.
•Later when his family's house altar reopened, more worshippers came to the house.
•The applicant had a girlfriend for many years and they intended to register for marriage, however her parents objected to the marriage.
•According to local traditions, parents arrange the marriages of their children, 'and no marriage would be valid without the tribe's sanction.'
•To protest against her parent's interference with their marriage and to scare her parents, the applicant's partner attempted suicide.
•As the conflict with the parents escalated, his partner's 'family and tribe members' decided he was the 'chief culprit... '
•His parents attempted to hide him, and he later went to different places to work, however he was caught, and they forced him to write to his partner and cancel the marriage. They wanted him to disappear away from them, or they wanted his family to pay a large ransom.
•His fiancés family molested his family
•He decided to depart China to avoid 'imminent trouble'.
•After he arrived in Australia the applicant learned that his visa required him to study at college, however he found the courses difficult and he was unable to complete the courses.
•The religious situation in his hometown had not improved, his partner was in poor health, and her family members continued contact with the applicant's family . Therefore, his parents cautioned him not to return to China.
•In Australia, he paid someone a large sum of money in order to transfer schools, however after one year he realised this person had disappeared. The applicant was heavily in debt and became disillusioned about resuming his education.
•His 'Tao-pursuit' activities helped to relieve his 'distress and sorrow'.
•In 2015, the Chinese government targeted unauthorised churches, and his family's house altar was closed down.
•If he returned to China, he would be unable to 'pursue I-Kuan-Tao safely '.
•In the previous few years, he has studied the faith by 'perusing I-Kuan-Tao classics and attending online sermons .'
•In December 2015, he found his 'ideal altar' in Australia', and he decided to commit himself to preach the I-Kuan-Tao faith .
•This commitment means that he will face danger and religious persecution if he returned to China.
At the Tribunal hearing the applicant explained that his parents remained living in [a] Town in Henan. He has a brother living in Australia. He had been born there and grew up there. Father works as a construction worker. His mother works in the factory.
The applicant presently works in Australia, he works as [an occupation].
I asked the applicant about his education. He said that he completed secondary school, he worked in the factory, in Guandong. He worked in Shangai in 2012. After he finished school a few months later in 2011 he went to work in Guandong for 1.5 years. He then went to Zhangu province for 2 or 3 months and went to Shanghai for 3 or 4 months. He went to Henan. He worked in a factory there for a period of time, about 1 year and then he went to Guangdong.
Asked why he left China he said that at that time he dated with his girl friend and they had conflict and it nearly caused an accident. Her family did not like him. They met when they were at school. She had aggressive behaviour and drank drugs. Her family did not allow him to see her and forced him to leave town and he had to pay compensation. They thought it was him that caused the problems and caused her to have that behaviour. He went outside to work as they are trying to find him. Asked why he had to pay compensation, he said that her family found a mediator, she nearly died, and the families fought with each other. They asked him to pay compensation to end the event. If he left and disappeared then he would not have to pay. At that time her family went to his home and they had a fight and some people from her family were hurt, so he was required to pay compensation or leave the country. It was not through the court system. Asked why he did not report them to police, he said that this was impossible as he was part of the reason. They did not want him to see his girlfriend anymore so some persons they sent threatened him and told him to go oversees or pay them compensation.
Asked what would happen if he went back now. He does not know, her family still pay attention to him. Asked where she is now, he said she is in China. He is still in touch with her, occasionally, via internet or a phone call. Her parents are still trying to monitor her. She is not married.
Asked him what he fears about returning to China, he said that if he went back to China there might still be conflicts between them.
Put that he does not need to go to Henan he can go to Guangdong or Shanghai. Before he went to Guangdong he could stay there as he has a medical problem because he could not adapt to the weather. The hospital could not cure it. Doctors said the joints on his fingers and elbows are quite stiff, caused by weather. He does not know if it is the weather. When he went back to his hometown the symptoms went away. He does not have it in Sydney. Asked if he had the symptoms in Shanghai, he said that he did not, but he was only there for 3 months.
I explained that I did not accept these people do not allow him to remain in China. I put that there is nothing to prevent him going back. He can go to police and lodge a report. He agreed he could that.
Asked again if there was any other reason he feared returning to China, he said that he is afraid they may have conflicts that caused a severe problem. The law in China is fine and “we might may have conflicts”. I put that it is his choice if he wishes to see his girlfriend. It is only because of this girl that he does not want to return.
I put to him that he had claimed he was Yiguangdao [YGD] practitioner and is no longer claiming it as part of his application. He said he is also claiming that.
I put that the attitude of the Chinese government to YGD has changed and YGD is no longer considered to be an “evil cult”. I noted that he did not claim any fear of harm on return to China for his YGD practice. He responded that was because I did not ask him the questions. I explained that I already asked him at least twice what he feared about returning to China and he did not tell me about YGD.
I put that he stated to the Department that YGD is on the protection list by the Australian Government. I put that this indicated he has claimed he was a practitioner of YGD because it was on the protection list. He responded that it was not true, he joined when he was at home and in 2015 December.
I put to him that practitioners are able to practice. He did not agree.
I discussed the independent information about the situation for YGD members improving to the extent that the authorities in China are looking for ways of legalising YGD as they consider it promotes Chinese tradition and slows down the rapid growth of Christian churches and sectarianism in rural areas.
He said in China it was defined as it could not be developed. I put it was defined as an evil cult. He put that the Chinese government does not approve it. It is not legal. As far as he knows when he was in primary school the altar was closed as the government was against it.
REASONS AND FINDINGS
The applicant’s identity has been accepted by the Department in his visa application. On the basis of his Peoples Republic of China [PRC] passport I accept that the applicant is a national of the PRC and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than PRC [China]. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that China is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
I note that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
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 the 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.
There may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am mindful of AAT guidelines on the assessment of credibility. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant's claims may mean that it is feasible an applicant will provide new information when asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant's claim is exaggerated does not mean that the entirety of the claim is dishonest.
The applicant claims that he fear harms, on his return to China, because his relationship with his girlfriend that is prohibited by her family and also for reasons of his religion, I-Kuan Tao also called Yiguandao or Yi Guan Dao [YGD].
The applicant left China because he and his girlfriend, who he intended to marry, had a conflict. It nearly caused an accident. She had aggressive behaviour and took drugs Her family did not like him, they thought he caused the problems and caused her to have that behaviour. She did not agree to an arranged marriage and attempted suicide to scare her parents. Her family, and their tribe, did not allow him to see her and forced him to leave town. His family attempted to hide him. Her family went to his home, they had a fight and some people from her family were hurt, so he was required to pay ransom/compensation or leave the country. It was not through the court system. Asked why he did not report them to police, he said that this was impossible as he was part of the reason. They did not want him to see his girlfriend anymore so some persons they sent threatened him and told him to go overseas or pay them compensation.
The applicant has provided inconsistent evidence in regard to his claims, as discussed below.
Firstly, at the Tribunal hearing when asked why he left China he said he and his girlfriend had a conflict. She had aggressive behaviour and took drugs. Her family did not like him, they thought he caused the problems and caused her to have that behaviour. Her family did not allow him to see her and forced him to leave town. Her family went to his home, they had a fight and some people from her family were hurt, so he was required to pay compensation or leave the country. Asked why he did not report the family to police, he said that this was impossible as he was part of the reason. They did not want him to see his girlfriend anymore so some persons they sent threatened him and told him to go oversees or pay them compensation.
The applicant was asked three times during the hearing what he fears about returning to China. On the first occasion he said that he does not know but he is still in touch with his girlfriend and her family are still paying attention to him. On the second occasion he again referred to issues with the conflicts over his girlfriend. I put to the applicant my view that his claim that his girlfriend’s family would not be able to prevent him remaining in China. On the third occasion I asked him again if there was any other reason he feared returning to China, he again referred to conflicts with his girlfriend. He said that it was only because of this girl that he does not want to return.
It was only when I put to the applicant that in his PV he had claimed he was a Yiguangdao [YGD] practitioner and is now no longer claiming it, he responded that he is claiming that and that he had not been asked the questions. I reject his claim.
Section 5AAA of the Act states that it is the applicant's responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
There is no information before me to suggest that the applicant suffers from any medical condition whereby he would be unable to recall events. I place great weight on his omission of advising the Tribunal about claims of harm for YGD membership and claims of preaching YGD especially because I asked him 3 times and each time he only referred to his claims regarding his girlfriend. I am satisfied that the applicant omitted details of his claim about YGD at the hearing because he had forgotten he had made such a claim and was reminded by me when I put to him that he no longer claimed fear of harm for YGD.
Secondly, in his statement made to the Department, the applicant stated that “It is not until recently that I get to know that I-Kuan-Tao is on the protection list by the Australian Government”. I put to the applicant that this indicated he claimed he was a practitioner of YGD because it was on the protection list. He responded that it was not true, he joined when he was at home and in 2015 December. I reject his explanation. I am of the view that the applicant created his claims of practice of YGD in China and in Australia because he believed it was “on the protection list” and therefore believed that by making such a claim he would obtain the visa sought.
I have also considered the applicant’s claims that in December 2015, he found his 'ideal altar' in Australia', and he decided to commit himself to preach the I-Kuan-Tao faith. A document in the applicant’s name with a date 20 December 2015 refers to a venue at Jiru Buddha Institute. As there is no indication on the document who issued the document, what it was issued for, and makes no mention of the applicant being a YGD follower or preacher or intended preacher, I place no weight on this document as evidence that the applicant was a YGD follower or preacher.
Additionally, in his application the applicant wrote about the I-Kuan-Tao faith. The information provided was basic, lacking in any detail. As I am satisfied the applicant is not a witness of truth and not a YGD practitioner I place little weight on this statement.
I am satisfied that the applicant is not a witness of truth and I am satisfied he has created his claims of practice of YGD in order to obtain the visa sought. I am satisfied that the applicant did not practice YGD in China or in Australia when he arrived in 2015.
Therefore, as the applicant is not a witness of truth, I find that the applicant’s family did not practice the I-Kuan-Tao faith and had a house altar at their home, the village council did not order his family 's house altar to be closed or later re-opened, and again closed in 2015. I do not accept that he studied the faith by 'perusing I-Kuan-Tao classics and attending online sermons. I do not accept that in December 2015, he found his 'ideal altar' in Australia', and he decided to commit himself to preach the I-Kuan-Tao faith.

In regard to his claims regarding his girlfriend and her family’s attitude towards the relationship, I give the applicant the benefit of the doubt. He claims they would not allow him to remain in China. DFAT[1] states that mainland China has a population of 1.4 billion, and a total land area of 9.6 million square kilometres. China’s largest city is the municipality of Shanghai (population 25.5 million in 2018). Gaining support for China’s policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. The government deploys a vast internal security apparatus. Some reports estimate 170 million surveillance cameras have been installed in cities and towns across the country in the past decade. Everyday street crime and violence in China’s major cities is generally low. Since 2010, China’s expenditure on internal security agencies such as the police, the PAP, the courts and the prison system has outstripped spending on the military. I have no information before me to suggest that the girls’ family have any connections or ability to prevent him staying in China. I reject his claim.
[1] DFAT Country Information China 3 October 2019
I accept that the applicant and his family had an altercation with the girlfriend’s family who did not approve of the applicant and who did not approve of the applicant and his girlfriend’s ongoing relationship or intended marriage. The applicant does not claim that the harm he suffered from the girlfriend’s family was for his membership of a particular social group ‘his family’ but rather for what he had done, he had an ongoing relationship and a marriage intention that was disapproved by his girlfriend’s family.
I find the applicant did not flee China fearing serious harm for a refugee reason but came to Australia as the holder of a student visa.
I am required to assess whether there is a real chance the applicant will suffer serious harm or a real risk the applicant will suffer significant harm on his return to China.
I accept that the applicant may suffer harm at the hands of his girlfriend’s parents or relatives. Any harm will be because of what he has done, ie continued to see his girlfriend and/or not paid the compensation sought, and/or expressed his intention to marry her and/or his perceived bad behaviour involved with her alleged drug taking. It was not for his membership of the particular social group ‘his family’. I am therefore not satisfied that there is real chance the applicant will suffer serious harm from his girlfriend’s family for a refugee reason on his return to China.
The applicant claims to fear harm, on his return to China, for reasons of his religion, I-Kuan Tao also called Yiguandao or Yi Guan Dao [YGD]. I have found that the applicant was not a member of YGD in China nor was he a follower or practitioner of YGD in Australia and he had created this claim in order to obtain the visa. Therefore, I am satisfied that the applicant will not preach or proselytise YGD on his return to China. I find that there is not a real chance the applicant will suffer serious harm for his religion or any other refugee reason on his return to China.
I have considered all of the applicant’s evidence singularly and cumulatively. As I do not accept that the applicant is a genuine believer or follower of YGD and as I do not accept that the applicant’s relatives have an adverse profile as YGD followers or practitioners in China or for any other reason, I am not satisfied that there is a real chance the applicant will suffer serious harm on his return to China for his religion, his perceived religion or any other refugee reason enumerated in s.5J(1)(a) of the Act.
For the reasons given above, I find remote the chance that the applicant will suffer serious harm in China for any reason. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
I am required to consider if the applicant will suffer significant harm on his return to China. The applicant is unmarried and he claims to continue to remain in contact with his girlfriend despite her family threatening him with harm.
The applicant claims that he will be harmed by his girlfriend’s parents or residents in Henan, where he lived. I am satisfied that the applicant’s fears from his girlfriend’s family are localised to where he lived and there is no evidence before me to suggest that the girl’s family are able to locate him in other parts of China. When put to the applicant he could go elsewhere in China, Guandong or Shangai in light of his work history, he indicated he could not go to Guandong due to its weather and the effects of the weather on his medical problem. He did not have the complained symptoms in Sydney or in Shanghai. I have no information before me to suggest that the applicant has a medical condition that prevents him returning to Henan or anywhere else in China. When put to the applicant that he could return to Shanghai he said that he was only there for 3 months. He provided no other reasons for being unable to relocate to Shangahi. I am satisfied that the applicant is able to return to a place in China where he does not fear harm, Shangai. I find remote the risk that the applicant will suffer significant harm on his return to China at the hands of his girlfriend’s parents or relatives.
I do not accept that the applicant will practise YGD on his return to China. I do not accept that the applicant had an adverse profile in China or an adverse imputed profile in China or that he will be imputed with an adverse profile on his return to China for practise of YGD.
I have considered all of the applicant’s evidence singularly and cumulatively. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely China, that there is a real risk he will suffer significant harm. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
CONCLUSIONS
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.
Lilly Mojsin
Member

Annexure A
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.
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 3070

30 June 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing