1719590 (Refugee)

1719590 (Refugee) [2021] AATA 3100 (14 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1719590
COUNTRY OF REFERENCE:                   China
MEMBER:Tania Flood
DATE:14 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 July 2021 at 10:28am
CATCHWORDS

REFUGEE – Protection visa – China – Falun Gong practitioner – inconsistent evidence –– delay in lodging the visa application –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 August 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 14 September 2015. The visa was refused as the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to China, on the basis of his claims to be a Falun Gong practitioner who is of adverse interest to the authorities.
The applicant was invited to attend a hearing during the COVID-19 pandemic and the Tribunal exercised its discretion to hold the hearing by MS Teams video link. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted in this manner. The applicant agreed to appear before the Tribunal via MS Teams and there was no indication that he had any difficulty in understanding and responding to the questions being put to him during the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 there is a real chance the applicant will suffer serious harm if he returns to China for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a protection visa, the applicant is a [age]-year-old citizen of The People’s Republic of China. He was born in Zibo City, Shandong Province, China and resided at a single address in [a] District, Zibo City, before coming to Australia. His parents and brother reside in China and he does not have family members in Australia. He completed primary school, middle school and college in China. He was employed as a [Occupation 1] in [a] factory in Zibo City between 2007 and 2009, and self-employed in a small business in China from April to September 2011.
He arrived in Australia on [date] January 2013 as the holder of a Tourist visa (subclass 676). He lodged an application for a protection visa on 14 September 2015. On 1 August 2017, a delegate of the Minister refused his protection visa application.
The applicant made the following claims on his visa application form and attached statement:
He became depressed when he lost his job at [a] factory in September 2009, after the factory closed. His friend, [Mr A], introduced him to ‘Qi Gong’ to improve his mood. In October 2009, he started to practice Qi Gong at [Mr A]’s home, and his ‘depression was much better’. His girlfriend encouraged him to continue practicing Qi Gong due to his ‘positive change’, and he then practiced with [Mr A] every day at his home when he came home from work. He married in December 2009. In the second year of their marriage his wife fell pregnant. His parents supported them financially as he didn’t have much money.
In September 2010 he was arrested when he practiced Qi Gong at [Mr A]’s home. He realised after he was taken to the police station, that the ‘Qi Gong’ he was practicing was ‘Falun Gong’. The police asked him many questions and he told them that he did not know he was practicing Falun Gong. He was detained for one month, during which ‘police asked other inmates to hurt [him]’. His wife had just given birth to their son, and their house was searched by the police. His father bribed police officials with 30 000 dollars, for his release.
After his release, he opened a small business in April 2011. Police kept coming to his home and his shop to disturb him. They arrested him to get more money from him. He was arrested for one month during the national day holiday periods in 2011 and 2012 and gave police 10 000 each time for his release.
He has to report to the police station every month because Falun Gong practitioners cannot relocate in China or go abroad. His friend, [Mr A], was arrested and the applicant does not know if he is still alive.
In 2012, his father’s friend helped him to bribe police officials from the city police station to obtain a passport for the applicant. He spent 20,000 dollars on bribes. He obtained the passport in [2013] and came to Australia. As he did not report to the district police every month, the police went to his home and caused trouble for his wife and kids. His wife moved to her parent’s place.
He claims that he will be arrested if he returns to China.
Protection visa interview
The applicant attended an interview with a delegate of the Department on 21 July 2017. He did not make any written submissions in support of his application prior to the interview. In his oral evidence he provided the following additional information:
-He continued to practice Falun Gong at his friend’s house from 2009 until his departure from China in 2013.
-Since arriving in Australia he has not been practising Falun Gong other than meditating in his house.
The delegate concluded that:
-The applicant was never detained by the authorities for reasons relating to Falun Gong.
-The applicant did not bribe the authorities to obtain a passport or to avoid questioning at the airport on departure.
-The applicant is not a Falun Gong practitioner.
-The applicant does not have an adverse profile with the DRC authorities because he is a Falun Gong practitioner.
Submissions to the Tribunal
On 16 June 2021, the applicant made a written submission to the Tribunal. The submission repeats the same information as provided in his statement of claims to the Department in support of his visa application.
Tribunal hearing
The applicant appeared before the Tribunal on 28 June 2021. The Tribunal discussed with the applicant his background in China, his claimed reasons for departing China and his fears of returning to China. The applicant’s testimony is summarised as followed:
He engaged a lawyer to prepare his application for a Protection visa. He is aware of the contents of his application and everything included in that application is true and correct.
He married in China on [date] December 2009. He remains married and has a [age]-year-old daughter. His wife accompanied him to Australia but they separated after one or two years of arrival. His daughter lives his parents and older brother in Zibo City. His daughter has never lived elsewhere in China.
He does not dare to contact his family in China often because he does not want to implicate them in his past problems. Sometimes the local police visit his home to enquire about his whereabouts.
After finishing school he studied [a subject] and simultaneously worked and studied in that profession. Afterwards he worked as a [Occupation 1] for a factory for about two years and then he opened a small [shop].
He practiced Falun Gong with a friend and they were arrested in either 2010 or 2011. The police accused them of practicing an evil cult and they were detained for around one month during which time they were treated badly and bullied. The police went to his home to enquire if his family were also practicing Falun Gong. They searched his home and made a mess. He was released from detention in about October 2010 after his father paid money for his release. The police continued to come to his home and interviewed him regularly. He was detained for another month in around 2012 or 2013. His father asked a friend for help and paid 10,000-20,000 RMB to assist him to get a passport. His passport was issued in [2013] and he came to Australia. His father’s friend is [Mr B] but he does not know him personally. [Mr B] was a leader at the factory where his father worked as a [Occupation 1]. They approached a tourist agency to apply for the visa. The agency made a group application in which he was included. He was not stopped when exiting the airport.
In China he practiced Falun Gong with his friend about twice per week for around one year. After the first arrest he didn’t dare to continue and stopped practicing Falun Gong with his friend. However, his friend did visit him a few times at his home after they were released.
He is no longer a Falun Gong practitioner but he does some meditation exercises at home. He has not joined any Falun Gong groups in Australia.
He delayed making an application for protection in Australia because he didn’t have any friends here on arrival and wasn’t familiar with government processes. Additionally, his financial position was not good and he was reluctant to be in contact with Chinese groups because he practiced Falun Gong in China and was worried about what might happen.
If he returns to China he might be arrested and asked to report to the police on a daily or weekly basis. He might be detained again and physically harmed and the police will keep asking him for money. His family might also suffer some interference.
FINDINGS AND REASONS
Country of reference
Attached to the Department’s file is a copy of the applicant’s People’s Republic of China passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of China.
Claimed past harm on account of Falun Gong involvement
Having considered all the available evidence, the Tribunal has concerns about the credibility of key aspects of the applicant’s claims for reasons which are explained below:
Central to the applicant’s claim is the serious matter of his claimed arrests after being introduced to Falun Gong by a friend. Of concern, is the fact that his evidence as to how many times he was arrested differs between his written claims and oral evidence to the delegate and his oral evidence to the Tribunal. When the Tribunal discussed this inconsistency with him during the hearing he put it down to forgetfulness. He confirmed during the hearing that he was only arrested twice and the Tribunal notes this is despite stating at the commencement of the hearing that he is aware of the contents of his protection visa application which relevantly states he was arrested three times.
The Tribunal acknowledges that the claimed arrests occurred around ten years ago. However, the Tribunal considers the details of being arrested, detained and mistreated by the Chinese authorities, including the number of times such events occurred, is significant and not something a person would easily forget if they had indeed been subjected to such severe treatment. The Tribunal considers the applicant’s inconsistent evidence about this important aspect of his claims to be highly problematic and causes it to doubt the veracity of his claims.
As can be seen from the delegates decision which is before the Tribunal for the purpose of this review the applicant previously claimed that he continued to practice Falun Gong at his friend’s house from 2009 until his departure from China in 2013. This also does not accord with his oral evidence to the Tribunal which is that he refrained from any further practice of Falun Gong after his first arrest in 2010. Furthermore, the Tribunal notes the applicant claimed in his written claims to have practiced Falun Gong with his friend every day whereas he informed the Tribunal it was only twice or three times a week as he also had other things to do. When the Tribunal pointed out the inconsistencies in the claimed duration of his practice of Falun Gong in China he again put the differences down to memory lapse brought about by stress. He said that when he attended the interview with the delegate he didn’t remember things clearly as he experienced a lot of pressure in China. He said it is possible he may have mixed up the details.
The Tribunal accepts that certain psychological conditions might impair a person’s memory and recall and could account for inaccuracies in an applicant’s evidence. However, there is no medical information before the Tribunal to suggest that this applies in the applicant’s case. Furthermore, the Tribunal considers his recounting of the events at different stages of the process to be significantly at odds with each other and not just minor inconsistencies. The Tribunal finds it difficult to accept in this case that a simple mix-up of the facts or the passage of time accounts for his differing account of events.
During the hearing the Tribunal also put it to the applicant that its reading of his written claims indicates that after his departure from China the police continued to go to his home and caused trouble for his wife and kids which prompted his wife to move to her parent’s house. The Tribunal also put it to him that until now it has seen no prior mention of the fact that he and his wife travelled to Australia at the same time. He responded that he and his wife obtained their visas together but acknowledged he might have spoken as if he were alone. He said his wife and daughter did move to live with his wife’s parents because the police were coming to his house. When the Tribunal pointed out that he had earlier advised that his daughter, whom he claims has always lived with his parents and still does, had never lived anywhere else in China, he responded that his wife’s parents live in the same local area. The Tribunal acknowledges his responses but remains concerned he has provided inconsistent evidence about the movements of his wife and child which are not adequately explained.
The Tribunal is also of the view that the circumstances surrounding the applicant’s departure from China call into question the veracity of his claims. Firstly, the Tribunal found the applicant’s evidence in respect of the family friend who allegedly assisted him to obtain a passport to be vague and unconvincing. The applicant’s evidence about the friend of his father was in the Tribunal’s view vague and lacking in any convincing detail. Moreover, he did not in the Tribunal’s view provide a convincing explanation as to why a leading businessman would potentially expose himself as a close associate of persons connected to the illegal practice of Falun Gong by intervening with the authorities in the passport office. This together with the above concerns, does not persuade the Tribunal that the applicant needed to or required such intervention in order to have his passport issued.
Furthermore, as discussed with the applicant he was able to depart China without hindrance despite country information[1] indicating that known Falun Gong members are placed under surveillance and that China employs sophisticated surveillance technology at major airports. The applicant responded that the travel agent he engaged included him in a group booking and that is why his passage through the airport probably went unnoticed. Relevantly, he made no mention of the claim made to the delegate that bribes were also paid to smooth his passage through customs.
[1] DFAT Country Information Report, China, 3 October 2019
As discussed with the applicant travelling in a group does not alleviate the need for persons to present their passport, containing their identity details, to customs officials. The Tribunal is not persuaded that his inclusion in a group booking provides a satisfactory explanation for why a known Falun Gong practitioner with a history of arrest was able to depart China freely, given the attitude of the Chinese government toward Falun Gong. Relevantly, the Tribunal understands that Falun Gong was declared an illegal, evil cult in 1999 and once Falun Gong members are known to authorities they face widespread official discrimination.[2] The Tribunal also notes and has afforded weight to the omission of any information about the claimed bribes paid to airport officials.
[2] ibid

Also, despite claiming to fear returning to China the available evidence shows that the applicant waited two years after arriving in Australia to seek protection from the Australian government. When this was discussed with him during the hearing he put it down to having no friends and being unfamiliar with government processes. The Tribunal has considered his response but does not find it provides a satisfactory explanation for the long delay between his arrival in the country and his application for a Protection visa. In forming this view the Tribunal notes the presence of a sizeable Chinese community in Australia from whom he could reasonably have been able to draw support. While he claims he refrained from engaging with the Chinese community out of fear his evidence is that he has never been openly associated with Falun Gong in Australia and therefore it is difficult to accept that Chinese surveillance, including from other citizens, could result in him being informed upon. The Tribunal is not persuaded that his fear of interacting with the Chinese community in Australia contributed to the delay in him lodging an application for a Protection visa.
The Tribunal concludes that the applicant was able to obtain a passport in his own name in China without the intervention of his father’s friend or payment of any bribes, either to passport official or customs officials and finds that he was able to depart China without hindrance in 2013. This together, with the credibility concerns outlined above and the long delay between his arrival in Australia and his applying for protection, also causes the Tribunal to doubt the applicant’s claims of past harm can be believed.
Having considered the claims and evidence the Tribunal is not satisfied that the applicant ever practiced Falun Gong in China. Nor is the Tribunal satisfied that the applicant was ever arrested, detained or subjected to ongoing surveillance and monitoring by the Chinese authorities or was required to pay bribes in order to obtain his passport and avoid questioning at the airport. Nor does the Tribunal accept that the applicant’s family members were required to pay money to the police or were otherwise harassed by the police or anybody else in connection with the applicant’s involvement with Falun Gong or continue to be. It follows that the Tribunal does not accept he will be arrested, detained and asked to report to the police on a daily or weekly basis for reason of his past involvement with Falun Gong or that he will be physically harmed and asked to pay money to the police if he returns to China now or in the reasonably foreseeable future. Nor does the Tribunal accept his family might also suffer some interference for reason of his past involvement with Falun Gong.
The Tribunal has also considered whether the applicant’s actions in Australia might cause him serious or significant harm if he returns to China. According to the applicant, he is not a Falun Gong practitioner and has never joined in any Falun Gong activities in Australia. The Tribunal is satisfied that there is not a real chance or a real risk the applicant will face serious or significant harm in China for reason of being identified as a Falun Gong member and/or linked to Falun Gong members or practices in Australia.
During the hearing the applicant said that he does some private meditation at home to calm down. When asked if this meditation practice is connected to Falun Gong exercises he merely said he sits with crossed legs and meditates. He said that meditation is one way of practicing Falun Gong but he didn’t learn much about the other ways and in any event he has forgotten how to do the Falun Gong exercises as he hasn’t practiced them for a long time. When asked why he could not do this form of private meditation, which appears unrelated to Falun Gong, in China, he repeated his fears of being targeted for reason of his past profile.
The Tribunal does not accept the applicant ever practiced Falun Gong in China or Australia and is satisfied he does not hold a profile as a Falun Gong practitioner in China. If he does a form of private meditation on return to China, which in the Tribunal’s view is doubtful, the Tribunal is satisfied it is in no way connected to the practice of Falun Gong and would not be identified as such. In the Tribunal’s view the applicant did not express any fears in relation to continuing his private meditation in China and there is no information before the Tribunal to indicate that he would be targeted and harmed for doing a general form of meditation in the privacy of his home in China.
The Tribunal is satisfied that there is not a real chance or a real risk the applicant will suffer serious or significant harm if he returns to China now or in the reasonably foreseeable future for reason of continuing a general form of meditation in China.
The applicant did not claim to fear returning to China for any other reason.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant does not have a well-founded fear of persecution in China. Accordingly, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal is not satisfied 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 suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

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

[2021] AATA 3100

14 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction