1718281 (Refugee)

1718281 (Refugee) [2020] AATA 6181 (20 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1718281
COUNTRY OF REFERENCE:                   China
MEMBER:Damian Creedon
DATE:20 September 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 September 2020 at 3:36pm
CATCHWORDS
REFUGEE – protection visa – China – religion – membership and activity in unsanctioned sect – family members’ houses searched by security police – consent to decision without hearing – credibility – vague, unsubstantiated and unpersuasive claims – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZSPT v MIBP [2014] FCA 1245
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 24 July 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 2 March 2017. 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.
The applicant appealed that decision to the Tribunal, annexing a copy of the delegate’s decision to his application for review.
On 27 August 2020 the applicant was invited by the Tribunal in writing to attend a hearing in person on 18 September 2020.
On 7 September 2020 the applicant responded to the Tribunal’s correspondence stating that, ‘due to the COVID-19’ he has decided not to attend the hearing for his ‘safety’. He went on to state that he ‘agreed’ to the tribunal to deciding the review based on his ‘existing paper information’.
On 7 September 2020 the Tribunal wrote to the applicant advising, inter alia, that:
…the advice of the Western Australian Government is that there is currently no evidence of undetected cases of COVID-19 in the WA community. Further information in this regard is available at the Western Australian Government’s website here: [link omitted]
Further, we wish to advise that the Tribunal has adopted all relevant COVID-19 Safety Guidelines for the health, safety and wellbeing of applicants, witnesses and staff. Please refer to the AAT website for information about temporary changes in place to respond to the impact of COVID-19 on services: [link omitted]
Accordingly, the Tribunal requests that you further explain why it is that you fear for your safety if you attend a hearing.
On 11 September 2020 the applicant responded to the Tribunal’s correspondence stating:
…firstly I would like to confirm that I will not attend the hearing and you can make your final decision based on all my previous documents with you. My decision is made based on my careful consideration. I believe that I have provided with immigration and AAT enough information for consideration.
I am aware of there has been no virus in WA for some days, however, it is my own decision not to attend the hearing and I wish AAT could understand me.
The Tribunal is satisfied that the applicant has consented to the Tribunal deciding the review without his appearing before it, in accordance with s.425(2)(b) of the Act.
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 a [age]-year-old man from the People’s Republic of China.
He states his ‘relationship status’ as married and he has one son.[1]
[1] See Department File, folios 36 and 39 respectively.
The applicant arrived in Australia [in] December 2012 holding a Tourist (subclass 676) visa granted on 13 December 2012 and valid until 25 March 2013. He lodged an application for a Protection Visa on 27 February 2017.
Claims:
In support of his application to the Department the applicant provided a written statement (written statement);[2] the written statement can be summarised as follows:
[2] See Departmental file, folios 40 – 44.
a.The applicant states that he is a pursuer and follower of I-Kuan-Tao and is from Hebei Province.
b.The applicant states that his family members use to be atheist and none of them had any religious faith.
c.The applicant states that:
…about three years before my arrival in Australia I met with some pursuers of I-Kuan-Tao, who were so kind and moral that I had learned a lot from them.
d.The applicant states that he first started to practice Tao at his friends’ homes but later he set up a ‘house alter’ at his own home every first and fifteen day of the lunar month and that he would gather his fellow pursuers to worship, ‘but sometimes [they] would attend other alters instead’.
e.The applicant states that since converting to I-Kuan-Tao his life has changed greatly. He states that, whereas he had been ‘indulging’ in ‘worldly enjoyments, such as wealth, fame or luxuries’, and ‘keeping up with [the] Joneses’; after he took up his ‘Tao-pursuit’ he had changed his outlook on life. He states:
I began to be after inner peace and personal joys instead of paying too much attention to wealth or success. In the past few years, I hadn’t reaped an extravagant profit from my business, but I contented myself with a sufficient and steady income I was earning honestly.
f.He states that, after observing the difficulties and challenges faced by his peers:
It suddenly dawned on me why Mingmingshangdi meant people to abandon obstinacy and accumulate credits of virtues in order to evade from possible disasters and find the way to reach Litian.
g.The applicant states that after he was initiated into Tao, he preached to his family members and friends with ‘great enthusiasm’. He states that his older brother was a village [Occupation 1] and his second elder brother was a ‘professional [Occupation 2]’. He states that his brothers were tormented by various troubles in the past, but after their conversion to I-Kuan-Tao, they started to change their outlook on life and their ‘fates’ and businesses changed for the better. He states:
In short, the Tao-pursuit had made me and many famil8ies around me take on a new look.
h.The applicant states that his eldest son came to Australia on a student visa in August 2012 and that, as his son had ‘some difficulty’ in adapting, he decided to come to ‘see him’ in December 2012 with the ‘hope’ of accompanying him through his studies.
i.He states that he had a lot of conflicts with his son; he states:
Once, we fell out over some disagreement, and my son ended up running away from home. I never expected lie should have changed his telephone number in order that I could not trace him. He stopped contacting me or his family, so I had lost touch with him from that time on.
j.He states that he decided to remain in Australia to wait for his son to come back. The applicant states that he had been expecting his son to ‘wake up’ and reunite with his family. He states that his wife and family in China were enquiring with him about his son and that to support himself he worked as a ‘temporary [Occupation 3]’.
k.The applicant states that he did not contact the Australian police because he was told that he would be sent back to China if he did as his visa had expired.
l.The applicant states that he had ‘no alternative’ but to survive and that his ‘sole spiritual pillar” was his I-Kuan-Tao faith. He states:
Every time I worshipped before Lord with my acupoint between my brows opened widely, I would invariably hear a voice claiming me as His son and pointing out that my day had not come yet but I was under the protection of Wujilaomu in the heaven and God Maitreya on the earth, so it was not necessary for me to lose faith in myself.
m.The applicant states that on 1 June 2016, an incident happened in his hometown in Herbei province that motivated him to lodge an application for a protection visa.
n.He states that during this incident, both altars in his brothers’ homes were searched and closed down by the ‘security police’. He states that his family were summoned for enquiries and were subsequently penalised.
o.The applicant states that his wife told him that his house was also searched by the ‘security police’ because the police received a tip-off that there was a house alter in his home.
p.The applicant states that he has lodged a protection visa so he is not persecuted based on his religion in China. He states:
My family members cautioned me that nowadays the government had registered all the Tao pursuing families and the officials would have a regular inspection on every registered family, and more inspections on some particular families. Their Tao books were all, confiscated and the preachers were arrested. A Taiwanese preacher was said to have been arrested and then deported from this country.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
a.The applicant’s protection visa application forms dated 27 February 2017 (visa application);
b.The applicant’s written statemet;
c.The applicant’s identity documents being a copy of his passport;
d.The delegate’s protection visa decision record dated 24 July 2017 (delegate’s decision record); and
e.The review application form lodged with the Tribunal on 17 August 2017 which included a copy of the delegate’s decision record.
The Tribunal notes that, in answer to each of the substantive questions in the visa application concerning his claims, the applicant responded, ‘please read my statement’.
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. The applicant's identity has been accepted by the Department in his visa application. Based on the copy of his passport provided by the applicant, 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.
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.
Country information
The Tribunal has read and had regard to the DFAT Report which provides a summary of the history of I-Kuan-Tow in China and its relations with the Chinese State over time. The Tribunal notes in particular the following extracts from the report:[3]
Yi Guan Dao
3.70Yi Guan Dao (YGD, also known as Tian Dao and I-Kuan Dao) is a syncretic Chinese religion derived from Buddhism. DFAT is unable to provide an estimate of the numbers of YGD followers in China.
…
3.74The present status of YGD in China is unclear. However, the Dui Hua Foundation reports YGD followers in mainland China are likely to be concentrated in Guangdong and Fujian, where there are higher numbers of practising Taiwanese followers. DFAT is not able to verify the extent to which YGD members practise their faith in China.
3.75DFAT assesses restrictions on the free practice of religion continue to tighten in mainland China and would likely affect followers of YGD, as they would followers of any other unsanctioned, underground religion. While the group is not currently considered an 'active' cult in China, DFAT assesses YGD followers may face a degree of harassment and be subject to suppression by Chinese authorities and police. DFAT is unable to verify the extent or severity of such harassment or suppression.
Analysis
[3] DFAT Report, pg.29.
The delegate’s decision record states that the applicant did not attend a ‘scheduled interview to discuss his claims for protection’. The delegate’s decision record put the applicant on notice that the Department did not accept his claims. The applicant did not wish to attend a Tribunal hearing and consented to the Tribunal deciding the review without a hearing; consequently, the Tribunal was unable to explore the applicant’s claims with him.
The Tribunal notes the applicant’s claims in his written statement as to:
a.his conversion to I-Kuan-Tao through meeting ‘some pursuers’ of the teaching;
b.his practice and conversion of several of his family and friends;
c.the actions of the ‘security police’ in the incident he describes as occurring on 1 June 2016;
d.the subsequent summons and penalisation of his family members;
e.the advice from his wife that his house was searched by the ‘security police’ after a ‘tip-off’; and
f.the cautions from his ‘family members’ in respect of the registration and ‘inspection’ of ‘Tao pursuing families’, the confiscation of ‘Tao books’ and the arrest of ‘preachers’.
The Tribunal considers these claims to be vague, unsubstantiated and unpersuasive. The Tribunal is unable to accept that these incidents occurred or that the applicant is a I-Kuan-Tao practitioner. There is nothing in the balance of the applicant’s written statement or in the other evidence before the Tribunal to allay its concerns in this respect.
The Tribunal also notes that the applicant was able to exit China in December 2012 and does not claim to have departed from China fearing persecution or harm.
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, 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.[4] Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
[4] 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 6181

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