1720509 (Refugee)
[2023] AATA 1729
•24 February 2023
1720509 (Refugee) [2023] AATA 1729 (24 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1720509
COUNTRY OF REFERENCE: China
MEMBER:David McCulloch
DATE:24 February 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 24 February 2023 at 4:26pm
CATCHWORDS
REFUGEE – Protection visa – China – democracy and free speech movement – not satisfied that the applicant is of adverse attention to authorities in Hong Kong – not satisfied that the applicant faces a real chance of serious or significant harm – applicant does not have a well-founded fear of persecution – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 46, 499
Migration Regulations 1994, Schedule 2
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao Jing Li v MIMA (1997) 74 FCR 275Any 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 29 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China (Hong Kong), applied for the visa on 28 September 2016. The applicant was invited to an interview with the delegate but did not attend. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 21 February 2023 at 9.30 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
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 (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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – People’s Republic of China, 22 December 2021, and the Department of Home Affairs, Country of Origin Information Services Section (COISS) Common Claims, 24 March 2022, a copy of each was provided to the applicant in advance of the scheduled hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The following is the applicant’s migration history extracted from the delegate’s decision record:
Date Event details [date]-Feb-92 Arrival on Visitor visa subclass 660 [date]-Jun-92 Departure on Visitor visa subclass 660 [date]-Mar-98 Arrival on Visitor visa subclass TR 676 [date]-Mar-98 Departure on Visitor visa subclass TR 676 [date]-May-00 Arrival on Visitor visa subclass UD-976 [date]-May-00 Departure on Visitor visa subclass UD-976 [date]-Feb-03 Arrival on Visitor visa subclass UD-976 [date]-Feb-03 Departure on Visitor visa subclass UD-976 [date]-May-16 Arrival on Visitor visa subclass UD-601 [date]-Apr-16 Departure on Visitor visa subclass UD-601 [date]-Aug-16 Arrival on Visitor visa subclass UD-601 28-Sep-16 Applied for Protection – Permanent Protection (XA 866)
The following information is apparent from the application for protection forms. The applicant was born on [date] in Hong Kong. The applicant belongs to the Han ethnic group and speaks, reads and writes Chinese/Cantonese. The applicant reads and writes English. The applicant has parents in Hong Kong. The applicant is in contact with them every week by phone. The applicant visited [a country] from [date] August 2016 to [date] August 2016. The applicant attended primary and secondary schools in Hong Kong from [year range]. The applicant lived at one address in Hong Kong from birth until May 2016. From August 1992 until August 2015 the applicant indicates she was a housewife. The application form indicates that the applicant formed a relationship on 14 February 2012 and separated on 2 April 2016. The applicant worked [in] Hong Kong from August 2015 until August 2016. At the time of application, the applicant was unemployed.
The applicant provided a statement in support of her claims for protection. The statement was dated 20 September 2016 and states the following (not corrected for spelling or grammar, headings and footings omitted):
I, [name], born on [date], is a Hong Kong citizen. Since I have lived in Hong Kong for many years, I found that the current democratic ideology and social policies were much harsher after the handover of Hong Kong. When the British government was in power, everyone who just worked hard and honestly could realize their dreams and reach to their goal. At that time people could voice their opinions through democratic activities. The government cared about the public's opinion, accepted advice and made improvements. The whole social and political environment was open and transparent. The government protected democrats and helped maintain orders through police.
After the handover of Hong Kong, the Chinese Communist Party constantly oppressed the Hong Kong people and deprived Hong Kong people of their human rights. The Chinese Communist Party kept on brainwashing the new generation of people in Hong Kong. Hong Kong people's freedom of speech was limited, and democratic policies were narrowed. It is very obvious that Hong Kong's current democracy situation is different from the past. So Hong Kong people wanted to fight for democracy and speech freedom. In 2014 there was a campaign named Occupy Central with Love and Peace. I actively participated in the activities for this campaign. During the campaign, I bought food for some participators and some necessities. During the National Day on 1 October, in order to let tourists from Mainland China to understand the meaning of general selection, I helped to hand out leaflets and joined in parade. Since the handover of Hong Kong, the police have become the weapon to oppress democrats and political dissenters. They not only treated people brutally but also threw tear bombs into crowd. The situation became very serious and Chi Fung Wong was also implicated. We even heard that some democrats disappeared. We suspected that the spies of the Chinese Communist Party kidnapped them. We were frightened. I also worried about my own personal security. I was concerned that I might be framed by the Chinese Communist Party. So I fled to Australia to seek asylum. I plea to Australian government to provide me protection on humanitarian ground. The facts have frightened me. I hope to live in an environment of freedom and democracy. I ask that the Australia government to provide protection to me.
Independent information
The 2021 DFAT report on China provides the following information:
GROUPS OF INTEREST
Activists and civil society
3.82 Civil society in China is restricted. CSOs and their activities must be registered by the government with local authorities. In practice, some CSOs, particularly large organisations, are required to work closely with the government and are quasi-government bodies. All NGOs must have a government sponsor to be registered. Foreign-linked CSOs (including those based in Hong Kong, Macau or Taiwan) are subject to particular scrutiny and may be unable to register or re-register. Few foreign CSOs exist in practice. If an organisation does have government support and its aims align with government priorities, it can be successful in achieving its aims or raising awareness (for example women’s and environmental NGOs) but it depends on the organisation and its goals, history and relationships.
3.83 People who advocate for human rights and their families are subject to surveillance, threats and detention. DFAT is aware of human rights activists who work in areas such as gender or labour rights who have been detained for their activism. Families of activists have been threatened with the loss of jobs if they speak out. Those who speak out about their treatment by authorities face further detention, limiting the number of available sources and information about the treatment of activists.
3.84 Some private criticism (for example among friends and family) of government is generally tolerated. If the criticism is more widely disseminated, for example on an online platform or deemed too inflammatory or in relation to a particularly sensitive subject, authorities might reprimand the individuals involved.
3.85 High-profile activists and critics are particularly targeted but DFAT is also aware of examples of low-profile but outspoken activists being targeted. Profiles of those who may be affected are difficult to predict accurately. DFAT assesses that high-profile activists are at high risk of official discrimination in the form of detention and imprisonment. The hidden nature of low-profile activists and reluctance to speak out make it difficult to assess the risk to day-to-day critics, but those who criticise the government on sensitive issues can come to the attention of authorities. Any discussion on social media is visible to authorities. A person that has been active in protests outside of mainland China (including Hong Kong) against the Chinese Government is likely to attract the attention of government, especially if they are high-profile, but interest in a lower-level protester is not impossible.
Protesters and petitioners – including land protests
3.86 All gatherings of more than 200 people must obtain approval from public security authorities. The Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges. Public demonstrations are rarely approved. Spontaneous protests sometimes occur. Common protest themes are related to labour disputes, environment, land disputes and local corruption. Recent estimates on numbers of protests are not available, but DFAT understands they have become much less common under President Xi.
3.87 Disputes with government may be raised at petitioning offices, also called ‘letters and visits’ offices, a type of government service office. Millions of disputes are raised every year. Local authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means local authorities are incentivised to retaliate against petitioners, which might include charges such as ‘picking quarrels and provoking trouble’. According to the 2020 US Department of State Human Rights Report, local governments have sent personnel to Beijing to force petitioners in the capital to return home. While examples of violence and, in extreme cases, deaths are reported, many complaints are resolved through the petitioning process.
3.88 Land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villages. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation (thus, disputes are generally complaints against local government which may escalate to the national government, as outlined above). China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs’, who intimidate protesters or cut utility supplies, have been used and are allegedly hired by local governments.
3.89 DFAT assesses that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.[1]
…
TREATMENT OF RETURNEES
5.28 DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear. See the relevant section of the report for information on treatment of specific Groups of Interest.
5.29 Those wanted for outstanding warrants could still be charged on return to China. The general statute of limitations for crimes is five years (for a crime where the maximum penalty is up to five years in prison), ten years (where the maximum penalty for a crime is five to 10 years in prison), 15 years (where the penalty for a crime is not less than 10 years in prison) and 20 years (where the maximum penalty is life in prison or death). In practice, a person who flees from prosecution and then returns is likely to be arrested.[2]
[1] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, pp. 24-25.
[2] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, p. 39.
The 2022 COISS Common Claims provide the following information:
HONG KONG PROTESTS
Civil Unrest
Hong Kong experienced significant civil unrest in both 2019 and 2020. Protests broke out in June 2019 over legislation that would allow extradition to mainland China (the extradition bill was formally withdrawn on 23 October 2019[3]), but it has since evolved into a broader pro-democracy movement that continued throughout 2020 despite the coronavirus pandemic.[4] The street protests appear to have largely ceased amid the ongoing legal crackdown against pro-democracy individuals and groups.[5] Notably, following the delay of the Legislative Council (LegCo) elections,[6] in July 2020 47 opposition figures helped organise a public opinion poll to coordinate pro-democracy candidates for the LegCo election which resulted in charges of subversion.[7] Hundreds of protestors held demonstrations outside the court to support them wearing black, the colour of choice during the 2019 protests, and chanted banned slogans.[8]
[3] 'Hong Kong’s ‘dead’ extradition bill finally buried as government formally withdraws it', South China Morning Post, 23 October 2019, 20191024102010
[4] 'Hong Kong Timeline 2019-2021: Anti-Extradition Protests & National Security Law', Human Rights in China (HRIC), 11 August 2021, 20210812131747
[5] 'Explainer: Hong Kong’s hollowed-out pro-democracy camp – who’s left and what’s next?', Hong Kong Free Press, 29 May 2021, 20210811140537
[6] 'How China's influence is changing Hong Kong protests', Deutsche Welle, 7 September 2020, 20200921164936; 'Hong Kong police arrest 289 at protests over election delay', Aljazeera, 6 September 2020, 20201112140636
[7] 'Hong Kong: 47 Charged Under Abusive Security Law', Human Rights Watch, 2 March 2021, 20210302101043; People found guilty of subversion can be sentenced to life in prison with a range of other punishments from short‑term detention to 10 years behind bars, see 'Why have Hong Kong’s opposition figures been charged with subversion and does the camp now face total wipeout?', South China Morning Post, 1 March 2021, 20210302110434; 'Hong Kong’s Crackdown Moves With Dizzying Speed', The Diplomat, 1 March 2021, 20210302114641
[8] 'Hong Kong’s Crackdown Moves With Dizzying Speed', The Diplomat, 1 March 2021, 20210302114641; 'Hong Kong activists chant protest slogans as subversion hearing begins guarded by 100 police', ABC News (Australia), 1 March 2021, 20210302121114; 'Hong Kong activists chant protest slogans as subversion hearing begins guarded by 100 police', ABC News (Australia), 1 March 2021, 20210302121114; 'Queuing, blank placards and shopping: how Hongkongers innovated acts of resistance during security law clampdown', Hong Kong Free Press, 15 April 2021, 20210415151925
Thousands of arrests have been made in relation to the civil unrest. According to official figures as at April 2021, 10,242 individuals have been arrested over involvement in anti‑government protests since June 2019.[9] Judicial proceedings have involved 2,521 individuals with 720 individuals charged with rioting, and the remainder being charged with ‘offences such as unlawful assembly, arson, desecrating the national flag, possession of an offensive weapon, assaulting a police officer, and stopping a vehicle on an expressway.’[10] In practice, actions such as chanting slogans,[11] holding blank pieces of paper[12] (a reference to the chilling effects on freedom of speech), waving flags[13] and banners[14] and information on social media posts have led to arrests.[15]
[9] 'Hong Kong protests: police fire teargas as thousands rally against Beijing's national security law', The Guardian, 24 May 2020, 20201112135235; Hong Kong protests: more than 10,200 arrested in connection with unrest since 2019, government tells lawmakers', Ng Kang-chung, South China Morning Post, 9 April 2021, 20220309140444
[10] Hong Kong protests: more than 10,200 arrested in connection with unrest since 2019, government tells lawmakers', Ng Kang-chung, South China Morning Post, 9 April 2021, 20220309140444; a May 2021 media source quotes one official giving slightly different numbers of 10,2500 arrests and 2,5000 prosecutions; '10,250 arrests and 2,500 prosecutions linked to 2019 Hong Kong protests, as security chief hails dip in crime rate', Hong Kong Free Press, 17 May 2021, 2021051815261
[11] 'Hong Kong activists chant protest slogans as subversion hearing begins guarded by 100 police', ABC News (Australia), 1 March 2021, 20210302121114; 'Hong Kong's political crackdown is forcing democracy activists to make a difficult choice', ABC News (Australia), 9 February 2021, 20210302121538; 'Third Hong Konger charged under new national security law', SBS, 25 November 2020, 20201212151339
[12] 'More than 600,000 in Hong Kong cast 'protest' vote against new China-imposed security laws', ABC News, 13 July 2020, 20200713153850; 'Hong Kong police arrest 8 at ‘blank placard’ silent protest', Hong Kong Free Press, 6 July 2020, 20201212160032; 'Arrests Seen as Ending Last Restraints on Chinese Rule in Hong Kong', VOA News, 8 January 2021, 20210302134812
[13] 'Protests break out in Hong Kong as first arrest made under new security law', CNN, 2 July 2020, 20200713155210; 'Hong Kong’s national security police gather evidence at university campus after student protesters chanted independence slogans', South China Morning Post, 20 November 2020, 20201212150501; 'Hong Kong: at least 60 people arrested on China's national day', The Guardian, 1 October 2020, 20201212205125
[14] 'Hong Kong's political crackdown is forcing democracy activists to make a difficult choice', ABC News (Australia), 9 February 2021, 20210302121538
[15] '4 arrested under new Hong Kong security law for online posts', AP News, 30 June 2020, 20201212203140; 'Activists from Student localism group detained in Hong Kong under new national security law', ABC News (Australia), 28 October 2020, 20210302135627
The National Security Law
The National Security Law (NSL) was implemented on 1 July 2020. It outlaws, in vague terms, ‘secession’, ‘subversion’, ‘terrorist activities’ and collusion with foreign entities.[16] The use of common protest slogans, and tactics associated with or carried out in the 2019‑2021 protests attract penalties up to life in prison.[17] The law applies extra-territorially, including against actions committed in Australia.[18] The NSL is written in the style of PRC laws. The contents are similar in wording and style to Chinese legislation and not the British style familiar in Hong Kong.[19] All of the offences are broadly defined. Both ‘secession’ and ‘subversion’ are broadly defined, but can include ‘overthrowing’, ‘undermining’ or ‘interfering’ with the Hong Kong or PRC government.[20] There is no need for force, or the threat of force, to be involved in the crime and those who provide financial support to people guilty of offences are also guilty of an offence.[21] The offence of ‘terrorism’ is broadly defined and can include acts, plans or even threats to harm the government or a public facility.[22] Depending on the ‘seriousness’ of the offence, which is also not defined, penalties for any of these offences can range from three years in prison to life in prison.[23]
The NSL is separate from Hong Kong Basic Law and may not contain the same legal safeguards. The law guarantees existing human rights in some articles while curtailing freedom of speech and assembly in others.[24] The law itself allows the PRC government to interpret its provisions and establishes a special prosecution office for these cases.[25] Article 55 of the NSL specifically allows for Hong Kong authorities to ask the PRC government to take jurisdiction when a security case is complex, if circumstances meant that the Hong Kong government was unable to enforce the legislation or when imminent threats to national security have occurred.[26] The ‘National Security Committee’ set up under the law is protected from ‘interference’, which is not defined.[27] Its work is not subject to ‘disclosure’, which is also not defined.[28] Its decisions are not subject to judicial review.[29] Trials for NSL cases may be undertaken without a jury.[30] Judges who hear cases under the law will be specially selected by the Chief Executive (Premier) of Hong Kong in consultation with the central government.[31] Judges serve for one year but may be removed if they make statements which ‘endanger national security.’[32]
Colonial-era ‘sedition laws’ have also been applied in the wake of civil unrest. The crime of sedition is contained in section 9 and 10 of the Crimes Ordinance as a criminal offence that prohibits ‘any act with a seditious intention, to utter any seditious words, or to print, publish, or display any seditious publications.’[33] While sedition laws are separate from the NSL,[34] they have also been ruled as offences that may ‘endanger national security’ in certain circumstances which has had implications for further legal procedures such as bail applications.[35] In light of recent judicial consideration, concerns have been raised regarding whether the offence of sedition is unconstitutional.[36] It is estimated that around 22 individuals have been arrested under sedition laws as at March 2022.[37]
Implementation
Over one hundred and fifty people have been arrested under the NSL. It is estimated ‘over 150 people’ have been arrested for violating the NSL since its imposition in July 2021.[38] Individuals charged with national security offences have faced difficulty securing bail, and some may be granted bail with strict conditions.[39] The bail threshold for NSL cases is significantly higher[40] with defendants required to prove they will not ‘continue to commit acts endangering national security.’[41]
Judicial proceedings arising from the civil unrest are ongoing. Protestors and other pro‑democracy individuals have faced trial over a range of charges including national security offences and sedition, and other criminal offences.[42] Many have been convicted of offences and handed prison sentences in accordance with the law.[43] A number of defendants have been acquitted for various reasons including lack of evidence and police procedural issues.[44] However, other judgments which have acquitted defendants have attracted government criticism.[45] For example, the Hong Kong Court of Final Appeal unanimously upheld in November 2021 that ‘people cannot be convicted of rioting or illegal assembly if they are physically absent from the scene,’ although noted there may be other legal avenues for charges such as the ‘joint enterprise’ doctrine.[46]
The trial of the first person charged under the NSL proceeded without a jury. Tong Ying‑kit is the first person to be charged under the NSL after being charged with inciting secession and engaging in terrorism when he apparently rode a motorcycle which carried a black flag with Chinese characters stating the slogan, “Liberate Hong Kong; revolution of our times” during a 1 July 2020 protest.[47] The case was heard without a jury, and instead by a panel of three judges.[48] Yong-kit pled not guilty and was sentenced to nine years jail.[49] He dropped his appeal of the sentence in January 2022 for unknown reasons.[50] The judgment held further significance in finding that the slogan on his flag was ‘ultimately a call for secession,’ and the Hong Kong government formally stated it was a ‘pro-independence expression.’[51] Second and third convictions under NSL for pro-independence speech were recorded in November 2021.[52]
The first sedition sentence since 1967 was handed down in January 2022. The conviction was made in relation to Kim Chiang Chung-sang who pled guilty to the offences after displaying posters in connection with the 2019 protests.[53] Further convictions followed in the same month for two individuals for conspiring to distribute leaflets advocating Hong Kong independence, and for putting up posters insulting judges involved in NSL trials respectively.[54] In March 2022, the first sedition case was heard in which the defendant, activist Tam Tak‑chi, pled not guilty; he was convicted and has not yet been sentenced.[55]
The NSL has seen changes in freedom of speech, access to information, employment and education. Authorities have a watch list of residents under investigation for allegedly violating the NSL and they are to be intercepted and arrested if they attempt to leave Hong Kong.[56] The list currently includes more than 50 people released on bail.[57] Under the NSL, all 180,000 civil servants are required to pledge allegiance to Hong Kong and the Basic Law. Approximately 130 staff have refused to sign and are currently facing dismissal.[58] Education authorities have issued guidelines to bring public schools in line with the NSL. The guidelines cover every aspect of schooling, from management and teaching to pupils’ behaviour including off campus.[59]
Press freedom has declined significantly since imposition of the NSL. Government pressure and the application of NSL on independent media outlets has restricted freedom of expression and information in Hong Kong.[60] The government rejects this notion, arguing that ‘national security’ and ‘public safety’ take precedence.[61] Jimmy Lai, the founder of Apple Daily, a major pro-democracy newspaper, was arrested under the NSL in August 2020 and has been detained since December 2020 aside from a brief time released on bail.[62] In May 2021, authorities froze Lai’s assets under the NSL making it the first time a company has been targeted by the NSL.[63] On 17 June 2021, six of the Apple Daily’s staff were arrested for their role in the publication of more than 30 articles that called on foreign countries to impose sanctions.[64] On 26 June 2021, the Apple Daily ceased operating.[65] Pro-democracy outlet, Stand News, was raided in December 2021 after which seven staff were arrested and charged with sedition offences, and the company assets frozen.[66] Stand News shortly dismissed all staff and removed all their web and social media content.[67] The closure of Citizen News followed in January 2022, citing safety concerns for their staff members and noting they could no longer ‘gauge where the legal boundaries were’ in reporting.[68] International media has also been censored and foreign journalists denied Hong Kong visas.[69]
[16] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, 20200713124208. There is no official translation posted on the Hong Kong government website ( That site links to an official translation on Chinese state media (Xinhua) which is the same as this version from the Hong Kong Free Press, which is a regular COISS source. 'Country Report for Human Rights Practices 2020 - Hong Kong', US Department of State, 30 March 2021, p. 2, 20210401100609
[17] For example 光復香港，時代革命 is a popular protest slogan usually translated as ‘liberate Hong Kong, revolution of our times’. The term 光復 means to ‘recover territory’ and is used, for example, in relation to Taiwan’s ‘liberation’ from the Japanese in 1945. This slogan might be banned under the vaguely worded article which prohibits ‘participation’ in secession (see footnote n. 1, arts 20ff).
[18] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, arts 37, 38, 20200713124208; 'Country Report for Human Rights Practices 2020 - Hong Kong', US Department of State, 30 March 2021, p. 2, 20210401100609
[19] Note for example, the way penalties are considered, in vague terms, for different levels of seriousness, which are not defined. 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, arts. 21ff, 20200713124208 cf. 'Criminal Law of the People's Republic of China', 14 March 1997, arts. 102ff CX168961; see also legal academic analysis: 'Why Beijing must respect Hong Kong courts’ interpretation of national security law', Professor Simon Young (University of Hong Kong), South China Morning Post, 8 July 2020, 20200713143654
[20] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, art. 23, 20200713124208
[21] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, art. 14, 20200713124208
[22] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, arts. 24ff, 20200713124208
[23] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, chap. III, 20200713124208
[24] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, arts 2, 4 cf. chap. III 20200713124208
[25] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, arts 18, 65, 20200713124208
[26] 'National security law: retired Hong Kong judge says it’s ‘reasonable’ for Beijing to take jurisdiction in exceptional cases', South China Morning Post, 14 May 2021, 20210622151107
[27] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, art. 14, 20200713124208
[28] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, art. 14, 20200713124208
[29] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, art. 14, 20200713124208
[30] 'There's no need for jury in security trial, judge rules', The Standard, 21 May 2021, 20210521145007; 'First trial under Hong Kong’s national security law under way', Aljazeera, 23 June 2021, 20210701144602; 'No jury for Hong Kong's first national security trial: source', France 24, 8 February 2021, 20210302143335; 'First trial of a defendant charged under Hong Kong’s national security law ‘to proceed without a jury’', South China Morning Post, 9 February 2021, 20210302142005
[31] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, art. 44, 20200713124208
[32] ‘Freedom in the World 2022 - Hong Kong', Freedom House, 24 February 2022, section F1, 20220225090200
[33] 'After Hong Kong activist Tam Tak-chi’s conviction, we still don’t know what is or is not seditious', Angeline Chan, Hong Kong Free Press, 5 March 2022, 20220307102613
[34] 'Hong Kong pro-democracy activist found guilty under colonial-era sedition law over speech, slogans', Candice Chau, Hong Kong Free Press, 1 March 2022, 20220303091457
[35] 'Stringent national security bail threshold applicable to other offences, Hong Kong’s top court rules', Hong Kong Free Press, 14 December 2021, 20211215093058
[36] 'After Hong Kong activist Tam Tak-chi’s conviction, we still don’t know what is or is not seditious', Angeline Chan, Hong Kong Free Press, 5 March 2022, 20220307102613
[37] 'Explainer: Hong Kong’s national security crackdown – month 20', Hong Kong Free Press, 3 March 2022, 20220304152454
[38] 'Human Rights Watch World Report 2022', Human Rights Watch (HRW), 12 January 2022, p. 61, 20220114100636
[39] 'Explainer: Hong Kong’s national security crackdown – month 20', Hong Kong Free Press, 3 March 2022, 20220304152454; '‘Assumed as criminals’: Hong Kong defendants find bail elusive', Suzanne Sataline, Al Jazeera, 26 January 2022, 20220128105915; '47 democrats national security case: Hong Kong activist Wong ji‑yuet granted bail ahead of Christmas', Hong Kong Free Press, 22 December 2021, 20211223143416; 'Hong Kong activist arrested again for allegedly violating bail terms over acts, remarks that could endanger national security', Ng Kang-chung and Clifford Lo, South China Morning Post, 11 January 2022, 20220113095237; 'National security law: Hong Kong judge cites ex-lawmaker Raymond Chan’s good Legco record in subversion case bail release', South China Morning Post, 1 November 2021, 20211103094306
[40] ‘Freedom in the World 2022 - Hong Kong', Freedom House, 24 February 2022, section F1, 20220225090200
[41] '‘Assumed as criminals’: Hong Kong defendants find bail elusive', Suzanne Sataline, Al Jazeera, 26 January 2022, 20220128105915; '47 democrats national security case: Hong Kong activist Wong ji-yuet granted bail ahead of Christmas', Hong Kong Free Press, 22 December 2021, 20211223143416; 'Explainer: Hong Kong’s national security crackdown – month 20', Hong Kong Free Press, 3 March 2022, 20220304152454; 'THE SIX-MONTHLY REPORT ON HONG KONG 1 JANUARY TO 30 JUNE 2021', United Kingdom Foreign, Commonwealth & Development Office, 13 December 2021, p. 22, 20211217133628
[42] Hong Kong protests: more than 10,200 arrested in connection with unrest since 2019, government tells lawmakers', Ng Kang-chung, South China Morning Post, 9 April 2021, 20220309140444
[43] 'Hong Kong Timeline 2019-2022: Anti-Extradition Protests & National Security Law', Human Rights in China (HRIC), 16 February 2022, 20220309142820; The following is not an exhaustive list of relevant convictions, see 'Hong Kong protests: judge jails 4 men for up to 6 months over stand-off at police station in 2019', South China Morning Post, 6 March 2022, 20220308092515; ‘11 found guilty of rioting during 2019 National Day protests in Hong Kong', Selina Cheng, Hong Kong Free Press, 27 January 2022, 20220131101418; 'Hong Kong protests: apprentice electrician gets 4 months’ jail for taking part in unlawful assembly in 2019', South China Morning Post, 17 October 2021, 20211019130017
[44] 'Hong Kong Timeline 2019-2022: Anti-Extradition Protests & National Security Law', Human Rights in China (HRIC), 16 February 2022, 20220309142820; '4 Hong Kong protesters convicted over 2019 illegal assembly, but court questions police handling of evidence', Candice Chau, Hong Kong Free Press, 14 January 2022, 20220117094814
[45] 'Hong Kong protests: justice department lodges appeal over court’s decision to acquit trio of rioting, arguing it could set far-reaching precedent', South China Morning Post, 21 September 2020, 20200922125133; 'Hong Kong protests: justice department lodges appeal over court’s decision to acquit trio of rioting, arguing it could set far‑reaching precedent', South China Morning Post, 21 September 2020, 20200922125133; 'Hong Kong’s top court adjourns verdict over whether ‘joint enterprise’ applies to rioting cases', Hong Kong Free Press, 4 October 2021, 20211007102121
[46] 'Hong Kong court narrows scope of riot convictions', Jurist, 6 November 2021, 20211108132037; 'Hong Kong protests: 20 found guilty over 2019 Sheung Wan riot, though recent ‘joint enterprise’ ruling plays role in 3 acquittals', South China Morning Post, 12 November 2021, 20211116102113; 'Hong Kong justice chief warns public that court’s riot ruling still leaves government with plenty of legal options at its disposal', South China Morning Post, 6 November 2021, 20211108101036
[47] The slogan was coined by activist Edward Leung in 2016 and commonly used during the anti-extradition bill protests and unrest of 2019, 'Hong Kong pro-democracy activist found guilty under colonial-era sedition law over speech, slogans', Candice Chau, Hong Kong Free Press, 1 March 2022, 20220303091457; ‘Freedom in the World 2022 - Hong Kong', Freedom House, 24 February 2022, section F1, 20220225090200; 'National security law: protest slogan ‘Liberate Hong Kong’ can have multiple meanings, but is it ultimately a call for secession?', South China Morning Post, 28 July 2021, 20210728105944
[48] '3 HK judges ruling first NSL case threatened; city’s legal practitioners express strong condemnation', Global Times, 28 July 2021, 20210729140613
[49] 'Hong Kong Timeline 2019-2022: Anti-Extradition Protests & National Security Law', Human Rights in China (HRIC), 16 February 2022, 20220309142820
[50] 'First Hong Kong activist jailed under national security law drops appeal in ‘surprise’ move', Kelly Ho, Hong Kong Free Press, 13 January 2022, 20220114091701
[51] 'National security law: protest slogan ‘Liberate Hong Kong’ can have multiple meanings, but is it ultimately a call for secession?', South China Morning Post, 28 July 2021, 20210728105944; 'National security law: scholars, legal experts warn ‘Liberate Hong Kong’ slogan ‘very risky’ in wake of secession conviction', South China Morning Post, 29 July 2021, 20210729113416
[52] 'Hong Kong Timeline 2019-2022: Anti-Extradition Protests & National Security Law', Human Rights in China (HRIC), 16 February 2022, 20220309142820; 'Hong Kong’s extreme National Security Law wins second conviction', Acton Institute, 1 November 2021, 20211103095022; '20-year-old Hong Kong activist Tony Chung sentenced to 3 years and 7 months for secession and money laundering', Hong Kong Free Press, 22 November 2021, 20220309143704
[53] 'China Media Bulletin - February 2022', Freedom House, 22 February 2022, p. 10, 20220224095749; Noting that a previous conviction was recorded in relation to Hui Pui-yee for ‘conspiracy to commit a seditious act’ (among other offences) in April 2021, 'China Media Bulletin - Issue No. 153: April 2021', Freedom House, 31 March 2021, 20210428093029; 'Hong Kong man, woman jailed on sedition charges for insulting judges, advocating independence', Brian Wong, South China Morning Post, 30 January 2022, 20220201101135
[54] 'Hong Kong man, woman jailed on sedition charges for insulting judges, advocating independence', Brian Wong, South China Morning Post, 30 January 2022, 20220201101135
[55] 'Hong Kong DJ Convicted of Sedition in Watershed Trial', Voice of America (VOA), 1 March 2022, 20220307101441; 'Hong Kong pro-democracy activist found guilty under colonial-era sedition law over speech, slogans', Candice Chau, Hong Kong Free Press, 1 March 2022, 20220303091457
[56] 'Hong Kong national security police have watch list of residents to be arrested if they try to flee, sources say', South China Morning Post, 28 June 2021, 20210629091725
[57] 'Hong Kong national security police have watch list of residents to be arrested if they try to flee, sources say', South China Morning Post, 28 June 2021, 20210629091725
[58] 'A year under Hong Kong’s national security law: mass arrests, sanctions, a swifter Legco and a defunct newspaper', South China Morning Post, 30 June 2021, 20210701161003; 'Nearly 130 civil servants fail to take required pledge of allegiance to Hong Kong government, with most facing dismissal', South China Morning Post, 19 April 2021, 20210701160359
[59] 'A year under Hong Kong’s national security law: mass arrests, sanctions, a swifter Legco and a defunct newspaper', South China Morning Post, 30 June 2021, 20210701161003
[60] 'Hong Kong Free Press Annual Report', Hong Kong Free Press, 1 February 2022, 20220203090203; 'Explainer: The decline of Hong Kong’s press freedom under the national security law', Candice Chau, Hong Kong Free Press, 4 January 2022, 20220106095356; 'Hong Kong Stifles Journalists With Threats, Expulsions a Year After Sweeping Security Law', VOA News, 7 December 2021, 20211209163035; 'THE SIX-MONTHLY REPORT ON HONG KONG 1 JANUARY TO 30 JUNE 2021', United Kingdom Foreign, Commonwealth & Development Office, 13 December 2021, p. 26-28, 20211217133628
[61] 'National security law: Hong Kong slams overseas coalition for ‘totally erroneous statement’ on press freedom', Christy Leung, South China Morning Post, 9 February 2022, 20220210172617; 'Hong Kong’s Carrie Lam rebuffs claims of press freedom ‘chilling effect,’ says closure of media outlets unrelated to security law', Hong Kong Free Press, 3 January 2022, 20220105092830; 'Hong Kong editors charged with sedition, US criticizes raid', Zen Soo, AP News, 29 December 2021, 20211231104448
[62] 'Hong Kong national security police have watch list of residents to be arrested if they try to flee, sources say', South China Morning Post, 28 June 2021, 20210629091725; 'With Hong Kong's Apple Daily Closed, Media Question Security Law's Reach', VOA News, 27 June 2021, 20210628082551; '‘Assumed as criminals’: Hong Kong defendants find bail elusive', Suzanne Sataline, Al Jazeera, 26 January 2022, 20220128105915
[63] 'Security law 'weaponized' to target Hong Kong activists', UCA News (UCAN), 30 June 2021, 20210701092750; 'Hong Kong national security police have watch list of residents to be arrested if they try to flee, sources say', South China Morning Post, 28 June 2021, 20210629091725; 'With Hong Kong's Apple Daily Closed, Media Question Security Law's Reach', VOA News, 27 June 2021, 20210628082551
[64] 'Security law 'weaponized' to target Hong Kong activists', UCA News (UCAN), 30 June 2021, 20210701092750; 'Hong Kong national security police have watch list of residents to be arrested if they try to flee, sources say', South China Morning Post, 28 June 2021, 20210629091725; 'With Hong Kong's Apple Daily Closed, Media Question Security Law's Reach', VOA News, 27 June 2021, 20210628082551
[65] 'Security law 'weaponized' to target Hong Kong activists', UCA News (UCAN), 30 June 2021, 20210701092750; 'With Hong Kong's Apple Daily Closed, Media Question Security Law's Reach', VOA News, 27 June 2021, 20210628082551
[66] 'Hong Kong’s Stand News shuts down after national security police arrest 7, freeze HK$61 million in assets', South China Morning Post, 28 December 2021, 20211230105812; 'Hong Kong police raid Stand News, arrest 6 for alleged sedition', Committee to Protect Journalists (CPJ), New York, 27 December 2021, 20211230104549; 'Stand News closes, content deleted following arrests and police raid; Chief Sec. slams ‘evil elements’', Hong Kong Free Press, 28 December 2021, 20211230110628
[67] 'Hong Kong’s Stand News shuts down after national security police arrest 7, freeze HK$61 million in assets', South China Morning Post, 28 December 2021, 20211230105812
[68] '‘No other choice’: Hong Kong Citizen News says decision to close was prompted by Stand News arrests, staff safety', Hong Kong Free Press, 2 January 2022, 20220104102406
[69] 'THE SIX-MONTHLY REPORT ON HONG KONG 1 JANUARY TO 30 JUNE 2021', United Kingdom Foreign, Commonwealth & Development Office, 13 December 2021, p. 26-28, 20211217133628; 'Hong Kong Stifles Journalists With Threats, Expulsions a Year After Sweeping Security Law', VOA News, 7 December 2021, 20211209163035; Country of Origin Information Services Section (COISS) – People’s Republic of China, 24 March 2022, pp. 33‑42.
Hearing, credibility, findings and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making (Yao‑Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
The Tribunal is satisfied that the applicant is a citizen of Hong Kong/China and accordingly her claims will be assessed against China (Hong Kong).
The interview with the delegate and the Tribunal hearing are the key means by which claims made by a protection visa applicant are tested and credibility explored. The applicant did not attend either the interview or the hearing to which she was invited.
In the absence of the applicant’s claims being able to be explored in these forums, the Tribunal is not satisfied as to any of the applicant’s substantive claims. The Tribunal is not satisfied that the applicant was involved in a democracy and free speech movement or protest in 2014 or other period in Hong Kong. The Tribunal is not satisfied that the applicant assisted the democracy movement and was involved in a protest that incurred the intervention of authorities. The Tribunal is not otherwise satisfied that the applicant has been politically motivated in support of democracy either in Hong Kong or in Australia. The Tribunal is not satisfied that the applicant is of adverse attention to authorities in Hong Kong such as to create difficulties for her if she were to return to Hong Kong. The Tribunal is not satisfied that the applicant would be politically active in support of democracy and free speech on return to Hong Kong such as to create any real chance of her suffering serious or significant harm from authorities.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, she faces a real risk of significant harm.
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.
David McCulloch
MemberAttachment - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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Standing
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