1719608 (Refugee)

1719608 (Refugee) [2023] AATA 992 (9 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1719608

COUNTRY OF REFERENCE: China
MEMBER:Lilly Mojsin
DATE:9 January 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 January 2023 at 4.05pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Buddhist – Guanyin Method adherent – evil cult status – detention – bribe to exit China – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 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 dependants.
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 2 August 2017 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 3 March 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm on her return to China within a reasonably foreseeable future.
The applicant appealed that decision to this Tribunal, attaching a copy of the delegate’s decision to the review application.
On 2 December 2022 the applicant was invited to attend a Tribunal hearing to be held on 4 January 2023 at 9.00 am because the Tribunal considered the material before it, but was unable to make a favourable decision on this information alone.
On 19 December 2022 the applicant wrote to the Tribunal advising she will not attend a scheduled Tribunal hearing, stating
“After long time consideration , I would like to inform the Tribunal that I will not attend the hearing as I think I have provided enough information to you. You can make your final decision on the evidence I have provided on your hand.”
The applicant did not attend the scheduled hearing.
I am satisfied that the applicant has consented to the Tribunal deciding the review without appearing before it, and I have proceeded to make a decision on the information before the Tribunal and not to offer the applicant a hearing.
In accordance with s. 425(2)(b) I proceed to decide this application on the material before me.
CRITERIA FOR A PROTECTION VISA
See annexure A
CONSIDERATION OF Claims and evidence
The applicant's claims for protection are summarised below:
§ The applicant claims to be a Buddhist, an adherent of Guanyin Method (Guanyin Famen). She claims that her faith has become the target of the government oppression made it impossible for her to pursue her faith safely in China. Being a girl she was given up for fostering but her when she became ill her foster parents told her parents to take her back. She recovered after her mother prayed to the Goddess of Mercy. She formally became a Buddhist on 22 May 2015, the Birthday of Buddha.
§ The applicant was the only one among her sisters who was able to attend a college where she became Buddhist, and then was initiated into the Guanyin Method. She majored in [Subject 1]. After she got her [Degree] in [specified year], she was employed by a [service] Company and sent to [Country 1], on business, 3 times by the company and she received professional training and did business exchange there.
§ She had a boyfriend in China. He was her initiator to the Guanyin Method and her brother within her faith at the same time. Their faith was viewed by the government as an evil cult. The government blamed and punished them - money collecting for the construction of altars could be labelled as illegal fund-raising, and Buddhism preaching as a disturbance of society by spreading rumours and deceiving people. The government and the security police even falsely accused Guanyin Method of being manipulated by anti-China forces in other countries.
§ Since 2014, the Master's activities were put under constant surveillance by the security police. Just before the National Day of 2015, her boyfriend was put into custody and she was summoned for enquiries by the security police. She was not arrested because of lack of solid evidence. Under great pressure from the security police and the government, her family members began to be opposed to her relationship with her boyfriend and ordered her to denounce the Guanyin Method immediately. She had to give in to her family's demand, very reluctantly. Her boyfriend, to avoid involving her, suggested breaking up with her, which made her really heart-broken.
§ The security police came to her work place to investigate her. Her boss then repeatedly suggested she resign. A friend who worked in the security police cautioned her that she leave the country as soon as possible, for the government had issued new policies that in 2016, there would be a campaign to tighten up the control of various religions in China, and among them the Guanyin Method was one of the priority targets of the new crackdown. The security police in other places were also busy searching for the adherents of the Guanyin Method. In December 2015, she came hurriedly to Australia on a Travel Visa. She happened to find the [Temple 1] in an outer suburb of Sydney, and began to worship Buddha and work as a volunteer there, because she could also hear the voice of the Guanyin Method there.
§ She applied for a PV as the religious situation in China is deteriorating and fellow adherents there are suffering under the campaign to crack down on the Guanyin Method. Secondly, she found her desired temple here as her new home. She wishes she could establish an alter for Guanyin Method in future and preaching the faith, if she can stay in Australia.
The applicant submitted to the Department the following documents
§ An untranslated document described by the applicant as a Buddhist Conversion Certificate.
§ Untranslated name tags which the applicant states includes [two specified names].
§ Photographs of the applicant at various events on [days in] May 2015, [November] 2015, [December] 2015, [January] 2016, [March] 2016, [April] 2016, [May] 2016, [August] 2016, and [May] 2017.
The applicant attended an interview with the Department. She advised the Department that she became a Buddhist in June 2013 but later stated it was [a day in] May 2015. Her boyfriend was arrested by national security and she was questioned. He had assumed a leadership role, and she was only a practitioner. The applicant said that she cannot return as otherwise they will think she escaped the country because she was guilty of something. She said she was questioned before she left the country but this only occurred the one time. The questioning lasted for 30-60 minutes. She thinks they targeted her because her boyfriend had been arrested and she was in a close relationship with him.
In Australia, she volunteers at the Temple. She used to go there once a week before June 2016. But she sustained an injury in her leg – a reaggravation of a previously broken leg which occurred in China. She has been since but only to visit. She no longer volunteers.
She said that she obtained a visa to come to Australia in January 2015. But she was worried that she was under suspicion and that her departure would be monitored. Her friend in the PSB found someone through her relation to help her depart without any trouble. She said that she is not sure who her friend found. She said that person was not willing to disclose their identity. She paid [amount] RMB and gave the money to her friend. All her friend told her was that this other person would help her settle the matter. She paid the money in instalments. She paid a deposit first and then paid the rest when she arrived in Australia.
When she went to [Country 1], she knew that her religion was banned. She claimed though that she had only become a member in June 2015. She did not seek asylum when she returned to [Country 1] in 2015 as she did not know about protection then and the police had not spoken with her. She was aware there was a risk though because she had to practice her religion in secret.
Her family are not official Buddhist but they do worship Buddha in festivals and Guanyin during birthdays. This was something they did when she was growing up and formed part of the basis for her knowledge of the religion. Most of her knowledge she learned when she was in university. Asked why she officially converted in May 2015 as she grew up knowing about Guanyin and had learnt more still in University the applicant said because she was worshipping a lot but not reading the scriptures. After returning from [Country 1], she converted. Before her conversion she described her religious as Buddhist. She said that she formally became a Buddhist in May 2015 and a Guanyin practitioner in June.
In China people took turns and went to each followers’ homes. There were 20 people in a group she met with. They would investigate and observe people before accepting them into the group and that way they would know they were not spies. “[Brother A]” would help people convert in a Buddhist temple, but meetings were held in people’s homes.
Asked if she knows anyone else who follows Guanyin in Australia she said no. She tried to find someone else but has not had any luck. She said she would travel to a temple and ask people but they did not speak highly about Guanyin. She did not tell the monks at [Temple A variant] about her religion because they did not speak highly about Guanyin.
The delegate asked whether she agreed with the 5 main concepts of Buddhism. The 5 things that she is not allowed to do. She said she agrees. The delegate asked what they were. The applicant responded and said: “we don’t need the 5 teachings. No killing. No stealing. No adultery. No lying. No gambling.” The applicant confirmed that these rules also apply to Guanyin. She said Guanyin also requires her to do 2.5 hours of meditation each day and practice. She says this involves saying things out loud, so she doesn’t do it in public.
After her boyfriend was arrested there were no more activities because the leader was also arrested. She does not know what happened to him and her family does not know. The delegate put to the applicant that the way she practices her religion in Australia is entirely personal, and therefore, if she practices her religion the way she has been in Australia, there is no reason the Chinese authorities would be interested in her. She said she would prefer to practice with a group. The delegate pointed out that the group no longer exists and she has been practicing alone. The applicant said that she could not find a group here and had to practice on her own. She said practice on her own is better than not practising.
The delegate acknowledged that Guanyin is banned in China on the basis of country information from DFAT. Further, the delegate found the applicant had an interest in Guanyin Famen’s beliefs and practices or at the very least had worked to acquire such knowledge. The delegate was not satisfied the applicant was a practitioner, however. The delegate also found that the applicant practiced her religion in Australia alone and in a private manner and that she would be able to do so upon her return to China without drawing any adverse interests.
REASONS AND FINDINGS
On the basis of her PRC passport, I accept that the applicant is a national of the PRC and a not national or citizen of any other country or has a right to enter and reside in any country other than PRC. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that PRC is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
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.
According to DFAT[1]
The 2020 US Department of State International Religious Freedom Report on China estimates that 52.2 per cent of the population are unaffiliated with any religion, 21.9 per cent practice traditional folk religion, 18.2 per cent are Buddhist, 5.1 per cent are Christian and 1.8 per cent are Muslim.
Religion in China is traditionally not as separate from everyday life as in the West. Chinese people, especially those of traditional Chinese faiths like Buddhism, Confucianism and Daoism integrate religious practice into their everyday life and lifestyles, including perhaps with home shrines and/or cultural festivities and events. Buddhist, Daoist and Confucian practices are not mutually exclusive; it is common to practice more than one these faiths. Some religious figures might be seen as better at answering prayers than others and some traditions might suit certain life events (for example, weddings and funerals) more than others.
[1] DFAT Country Information Report China 22 December 2021
The Guanyin or Guan Yin according to a report issued by the Information Centre for Human Rights and Democracy in Hong Kong[2]
The "Guan Yin Method" was founded in 1988 by "Supreme Master Ching Hai" who is now residing in Taiwan, and was introduced to China's mainland in 1992. It has about 500,000 followers in 20 provinces (municipalities) in the mainland. The "Guan Yin Method" helps people explore their own inner strength through ancient method of meditation. It stresses vegetarianism and five noes (no killing, no telling lies, no stealing, no lewdness and no drinking); and so its followers on the mainland are basically Buddhists. In July 1996, the public security authorities in Jiangyou City, Sichuan Province, discovered a list containing the names of several thousand "Guan Yin Method" followers in seven provinces. Many of the followers are party members and even high-ranking cadres. The high-level CCP [Chinese Communist Party] authorities were shocked by the close-knit organization and rapid development of the "Guan Yin Method" shown by the name list. Moreover, the Chinese Communists believe that "Supreme Master Ching Hai" has anti-communist thought and they had labelled the "Guan Yin Method" a "reactionary religious organization" at the end of 1996. Soon after the Falun Gong was banned in 1999, the "Guan Yin Method" was openly labelled an evil cult.
[2]
According to the United States Department of State, in its 2019 report published on 10 June 2020, the Guanyin Method religious group continues to be banned by the Chinese government.[3]
[3] '2019 Report on International Religious Freedom: China', US Department of State, 10 June 2020, 20200615132804, p7
The applicant claims to be a member of the banned spiritual/religious group known as Guanyin Femen (Guanyin Method) named after the Buddhist deity, or goddess of mercy, known as Guanyin. Guanyin, as Chinese Buddhists call her, is a central figure in East Asian and some Southeast Asian streams of Buddhism: she is Kannon in Japan, for example, and Quan Am in Vietnam. Guanyin Famen was founded in Taiwan in 1988 and introduced to mainland China in 1992. The Chinese government banned this group as a "reactionary religious organisation" in 1999 and labelled an “evil cult.”
The applicant claims that she became Buddhist, and then was initiated into the Guanyin Method. The applicant was notified by the Tribunal that it had considered the material before it and could not make a favourable decision on the information before it and invited the applicant to a hearing.
The applicant provided a number of photographs to the Department. I have considered these photos. There is no indication on the photos as to who took the photos or when they were taken. The applicant describes one photo as 2015, Buddha’s birthday, [at a named] Temple. A photograph shows a group of people standing outside a temple and has no probative value. A photo of a Calligraphy titled ‘The Heart of Prajna Maramita Sutra” stated to be ‘religious study’ and another photo of a calligraphy was called ‘Heart of Prajna Paramita Sutra’ and has no probative value in the assessment of her claims. A photo titled ‘First Visit to [Temple 1]’ [in] December 2015 shows people outside the temple in Australia, three photos stated as ‘visiting [a named] Temple in Adelaide’, Visiting [the same] Hai Temple, 2016 Bodhisattva Avalokieshvara’s Birthday Dharma and [a named festival], and two photos of 2016 Multicultural Festival Buddha’s birthday do not show the applicant attending and all have no probative value. Another photo stating the applicant was a volunteer on [a day in] March 2016 taken at the Front Shrine of [Temple 1] shows a female standing in front of a group of worshippers and a photo marked as [a venue] of 50Y Anniversary shows a female standing next to a monk’s photo. As the applicant did not attend the hearing, I am unable to ascertain if the photo is of the applicant and is of no probative value. Three photos titled 2017 Buddha’s Birthday Multicultural Festival are advertisements for the festival whilst 4 photos show a woman at the festival. As the applicant did not attend the hearing, I am unable to place any weight on these photos as evidence of the applicant attended Buddhist functions in Australia of being a Guanyin practitioner.
The applicant claims she became Buddhist, and then was initiated into the Guanyin Method. The applicant’s evidence provided to the Department at an interview had inconsistencies e.g., she became a Buddhist in June 2013 but later stated it was [in] May 2015 and without further information from the applicant I do not accept these claims. As the applicant did not attend the hearing, I am unable to explore aspects of her claims with her and in particular, her reasons for becoming a Guanyin Buddhist practitioner. It follows that, without further information from the applicant, I am also unable to accept that her boyfriend was put into custody and she was summoned for enquiries by the security police or that she was questioned or targeted because of her relationship. I also am unable to accept that under great pressure from the security police and the government, her family members began to be opposed to her relationship with her boyfriend and ordered her to denounce the Guanyin Method immediately and she had to give in to her family's demand. I also do not accept that her boyfriend, to avoid involving her, suggested breaking up with her, which made her really heart-broken.
As I do not accept that the applicant was initiated into the Guanyin Method of Buddhism, I do not also accept that the security police came to her workplace to investigate her, her boss repeatedly suggested she resign and a friend who worked in the security police cautioned her that she leave the country as soon as possible.
I have also considered documents described by the applicant as a Buddhist Conversion Certificate and name tags which the applicant states includes [two specified names]. I place no weight on those documents as I am unable to explore with the applicant how, when and where she obtained these documents and if they are relevant to her claims.
DFAT Country Report People’s Republic of China, 3 March 2015, indicates that a number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. The applicant indicated in her PV application that she left China in December 2015, legally with a passport issued in her own name. China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive. I have no information before me to suggest that this information does not reflect the situation for exit from China in December 2015 and I am of the view were it the situation that the Ministry of Public Security did not monitors exit procedures in December 2015, some mention would be made in independent sources such as US State Department and DFAT. Without further information from the applicant and in light of the independent information, I do not accept as plausible, that the applicant was able to leave China, legally, with a passport in her own name whilst claiming that the security police came to her work place to investigate her. Without further information from the applicant I am unable to accept that she paid a bribe to leave China or that she was targeted because her boyfriend had been arrested and she was in a close relationship with him and details of the arrangements to pay a bribe by instalments.

The applicant travelled to [Country 1] and returned to China prior to coming to Australia on 3 occasions. I have been unable to explore with the applicant when she travelled to [Country 1] and details of her claimed beliefs or her reasons for not obtaining a PV in [Country 1]. Without further information from the applicant, I do not accept that she did not know about claiming a PV in [Country 1]. On the information before me I am satisfied that the applicant did not have a subjective fear of persecution on her return to China from [Country 1].
The applicant claims that her boyfriend was arrested, the leader was arrested and there were no more Guanyin activities because the leader was also arrested or that the group is under surveillance. Without further information from the applicant, I do not accept her boyfriend or the leader were arrested, the group is or was under surveillance or that the applicant practised Guanyin method or Buddhism in China with a group.
In light of the above findings, I find that the applicant did not leave China fearing serious harm for a refugee reason.
I am required to consider whether the applicant will suffer serious or significant harm on her return to China.
I accept that Guanyin is banned in China. The group that the applicant claimed to have belonged to in China no longer exists. The applicant claims that she would prefer to practice Guanyin method with a group but she practiced in Australia alone as she could not find a group here. Without further information from the applicant, I do not accept that she was a Guanyin practitioner or that she could not find a group in Australia or that she practised alone.
The applicant claims to have been attending a Buddhist temple in Australia and was a volunteer going there once a week, for about 7 months, until June 2016 when she sustained an injury in her leg and only went thereafter to visit. She no longer volunteers. As she did not attend the hearing, I am unable to explore with the applicant whether she attended the temple as a genuine worshipper/volunteer or her attendance was in order to enhance her claims to a visa. Without giving evidence to the Tribunal regarding her activities in Australia, the photos she has provided of various activities held by Buddhists in Australia are of no probative value. She did not attend the hearing and did not provide further information despite being advised that the Tribunal considered the material before it but was unable to make a favourable decision on the information alone. She provided no further information to the Tribunal.
As I do not accept that the applicant practised Guanyin method or Buddhism in China or in Australia I do not accept that she will practise Guanyin or Buddhism in China on her return. I reject her claim that she wishes she could establish an alter for Guanyin Method in future and preaching the faith, in Australia or in China.
I have considered the applicants’ claims singularly and cumulatively. I am not satisfied that the applicant is at risk of serious harm on her return to China for reasons of her race, religion, nationality, membership of a particular social group or political opinion.
For the reasons given above, the applicant does not satisfy the criterion set out in s.36(2)(a).
I have rejected all the applicants’ claims. I have rejected her claims that she practiced Guanyin method of Buddhism in China or was perceived to be a Guanyin method of Buddhism practitioner or supporter. I reject her claims she practised in Australia. I do not accept that the applicant will undertake any Guanyin method of Buddhism or Buddhist activities when she returns to China, as she is not a genuine Guanyin method of Buddhism supporter/practitioner or a Buddhist supporter/practitioner. I do not accept that the applicant had an adverse profile in China or an adverse imputed profile in China or that she will be imputed with an adverse profile on return to China.
Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, namely China, that there is a real risk the applicant 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 she will be arbitrarily deprived of life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she 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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
…

[2023] AATA 992

9 January 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction