1721577 (Refugee)

1721577 (Refugee) [2022] AATA 5165 (9 December 2022)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721577
COUNTRY OF REFERENCE:                   China
MEMBER:Luke Hardy
DATE OF DECISION:  9 December 2022
DATE CORRIGENDUM
SIGNED:14 December 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The words: "For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration." at paragraph 13 should be replaced with: "For the following reasons, I have concluded that the decision under review should be affirmed."
Luke Hardy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721577
COUNTRY OF REFERENCE:                   China
MEMBER:Luke Hardy
DATE:9 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 December 2022 at 2:39pm
CATCHWORDS
REFUGEE – protection visa – China – local official corruption – harassed and intimidated by gangsters – property dispute – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a citizen of China. He arrived in Australia on a visitor visa [in] April 2017 and lodged a PV application on 13 April 2017. The delegate refused to grant the visa on 22 August 2017. [The applicant] then sought de novo, independent merits review by this Tribunal and the matter was constituted to me. I find the review application valid.
[The applicant] appeared before the Tribunal on 6 December 2022 to give evidence and present arguments.
The Tribunal hearing was facilitated by an interpreter in the Mandarin-English medium.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision which contains a summary of evidence given in the original PV application and at [the applicant]’s PV interview.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Original Claims to the Department of Home Affairs (the Department)
In his original PV application, allowing for typographical errors, [the applicant] claimed to have lived all his life at the one address from July 1988 until April 2017 in [Town 1], Nantong County in Jiangsu Province. China. He claimed to have a wife, born in Anhui Province, who he married in 2014, and a son who was born in Nantong in [year]. [The applicant] claimed his work was located in Nanjing City in Jiangsu. He claimed he left China because after he reported “corrupted officials” to higher authorities, those officials came to his house stalking him and threatening to kill him if he continued reporting. He said he would continue to report those officials if he returned to China and would therefore suffer harm, even though all his past attempts to report them ended in nothing because, as he put it, the authorities did not respond to his reporting. He said he could not relocate because the officials have links with criminal gangs who would find him and harm him.
Evidence to the delegate
[The applicant] provided somewhat different claims at his PV interview on 10 August 2017. These are summarised in the delegate’s decision record:
·He was born in Nantong, Jiangsu Province, China. He was married in 2014 and has one child. They are currently living with her parents in Anhui Province. He has regular contact with his family.
…
·He states that his problems stem from a conflict he has had with his neighbour. He states that his neighbour has taken over a small public pathway between the two properties. He states that the path was originally a shared path but now the neighbour has appropriated a large part of the path.
·He states that he went to his local council to have the problem addressed but that the local council members did not want to help him. He believes that they had been bribed by his neighbour.
·He stated that he tried to approach the neighbour but he has a reputation for being unreasonable and aggressive.
·He stated that he was assaulted by officials in 2013 [sic] and so moved to his wife’s home town in Anhui Province, China. He stated that he stayed there for 5-6 months but that the neighbour from Nantong, located him and forced him to return to Nantong. He further states that the neighbour harassed and assaulted him by hiring “gangsters” to threaten him.
The facts here that struck me as appearing to be different were these: the claims about the source of the trouble being a neighbour; the absence of claims about having reported the corrupt or corrupted local authorities to any higher authority; the claims about having temporarily relocated to Anhui; and the claim about the neighbour having hired gangsters. It struck me as odd, on the face of things, that the neighbour in these claims had the power or even the motivation to force [the applicant], an obstacle to his ambitions as long as he was present to fight the acquisition of the common pathway, to return to his home in Nantong. I note that [the applicant]’s explanation to the delegate was that his neighbour had hired gangsters who found him in Anhui Province and brought him back to his home in Jiangsu Province. However, this reference to the neighbour engaging the gangsters seemed different from the original claim about the local officials being the ones who hired the gangsters.
The delegate observed in the primary decision record that [the applicant] made no reference at all, at interview, to having reported corrupt officials to higher authorities. The delegate also observed, on the evidence before her, that there was no evidence of circumstances having deteriorated since [the applicant]’s travel to Australia.
I take the reference to “2013” in the last of the claims summarised by the delegate to be an error on the part of the delegate, as [the applicant]’s timelines are otherwise logical.
Evidence to the Tribunal
At the Tribunal hearing, [the applicant] said the matter of the dispute over the common pathway had been finalised some two or three months before he left China for Australia, with him and his household the losing party. He also said that the last time he was physically harmed or intimidated was two or three months before he left China. He described the pathway as being too narrow for a motor vehicle, in that it was which he described as being one metre wide and about [number] metres long. He said his family home also faces another road, in any event, that gives his family access to the larger local road network. He also said that his neighbour’s actions in taking over the common path had been all the more unreasonable because his property also faces onto a road connecting his own property to the larger local road network.
On this information, I put to [the applicant] that the matter he described, a local property dispute with apparently no relevance to s.5J(1)(a), appeared to be a finite series of events that concluded even before he came to Australia, with no evident, relevant implications for the reasonably foreseeable future. I also put to [the applicant] that the dispute as described had not involved any encroachment on his, [the applicant]’s, family’s land. In response, [the applicant] said that his neighbour has also declared an intention to possess adversely some of his, [the applicant]’s, own property. He said that the neighbour had been “bullying us” and “threatening us.” He said that the neighbour declared to him that he wanted to build a new road on his, [the applicant]’s land. I asked [the applicant] to tell me when the neighbour had declared this to him and he said, “2015.” I drew [the applicant]’s attention to this appearing to be a whole new claim that he would have been in a position to include in his evidence to the Department in his original PV application and/or in oral testimony to the delegate back in 2017, and yet did not bring it to light at the time. In reply, [the applicant] simply repeated the claim.
[The applicant] confirmed that, as at 2022, some seven years since the alleged 2015 declaration, his neighbour still had not tried to encroach on, or otherwise possess or appropriate his family’s land. Here, I raised for discussion two of [the applicant]’s assertions: one, that he himself was viewed by his neighbour as an obstacle to the latter’s property interests; and, two, that the neighbour had been bullying not only him but also his family, who he described at the Tribunal hearing as his widowed mother, his wife and their infant son.
Since the neighbour had allegedly been bullying [the applicant]’s family, I asked him why the only adult male member of the household had left the rest of the family to fend for themselves. In reply, [the applicant] changed the evidence he had just previously provided, saying that the neighbour “didn’t do much to [the] females” and had only intimidated him. In this way, he characterised himself alone as his neighbour’s main obstacle. Hence, I asked him if he could explain how and/or why, with him out of the way seemingly indefinitely, the neighbour had not even tried to possess or appropriate the land since 2015, or at least since 2017, after he, [the applicant], had left the scene. In reply, [the applicant] merely said that the pathway originally occupied by the neighbour had been public land that had been supposed to be accessed by “everybody.” I put to [the applicant] that he was not responding to the concerned I had just raised on its specific point. I observed that on current indications it looked like his neighbour was not interested in possessing or appropriating any of his, [the applicant]’s, family land. In reply, [the applicant] said that this observation seemed a correct one. I put to him that I might therefore end up not giving weight to this claim about the neighbour having ongoing territorial ambitions. In reply, [the applicant] said there still remained the problem of the pathway having been taken away, requiring his family to build a new one.
[The applicant] said the neighbour had engaged people to hit him on “quite a few occasions” in 2017. However, he confirmed that these incidents stopped about two or three months before he came to Australia, after he ceased trying to resist or oppose the occupation of the common pathway.
I asked [the applicant] to provide detailed information about the current circumstances of his family. He said he had lived exclusively in his family home in his home village, and at no other location, throughout all of his life. He said his widowed mother has no occupation. He said his wife has no job. He said his son has just started primary school which he attends in his home district. I asked [the applicant] how his family household in China is able to subsist, given that none of them obtain income from work, and he said he sends money home from the income he earns in Australia.
[The applicant] acknowledged that the disputes described in his claims were all localised disputes and that none of them have any nexus with “race, religion, nationality, membership of a particular social group or political opinion.” He maintained that he and his family nevertheless face a real risk of significant harm. I asked him why he thought the localised harm he claimed to fear might warrant what is, in effect, international protection and he said he believed it should do because the neighbour got someone to hit him, leaving him with no option other than to go abroad.
I asked [the applicant] about the possibility of relocating to somewhere in China where there would not be a real chance of being persecuted or a real risk of significant harm. In reply, [the applicant] said he and his family cannot move anywhere else because they do not own property anywhere else. I asked [the applicant] if his wife’s family’s home in Anhui might be an option and he said that it would not be a reasonable option because his son has already started school in his home district. He went on to say that the schools in Anhui are not as good as the one his son is attending.
I asked [the applicant] if he had ever tried to relocate himself and/or his family away from the home village where the problems with his neighbour and local officials had been occurring. Interestingly, he said he had never tried. At this point, I reminded [the applicant] of his claim to the delegate about having relocated his family to Anhui and about his having stayed there for five to six months. In response, he said that after so many years (i.e., between five and seven years) he had forgotten ever having to do that. Essentially, he was saying that he had by now forgotten ever having to relocate his family from one province to another to avoid physical and other harassment from his neighbour and hired gangsters around 2015-16.
[The applicant] said he and his family did not stay in Anhui and all moved back to his home village because the house there was too small for his in-laws and his own family to reside under one roof. I put to him that this claim was not consistent with an assertion he had made to the delegate about his hostile neighbour having forced him to abandon his refuge in Anhui and return to the home village in Nantong. I asked him if the claim abut the neighbour having “forced’ him to return might be a false claim, and he said it was a true claim. I asked him how his neighbour in one province could have had the capacity to have “forced” him to move back home form another province. He took some time and prompting to reply, but eventually said that the neighbour got “someone” in Anhui to intimidate him by saying, “You need to come back. We need this matter to be resolved.” This information did not sound consistent with the claim to the delegate about the neighbour having hired gangsters who found him in Anhui Province and brought him back to his home village in Nantong.
I put to [the applicant] that, on the evidence provided so far, the neighbour might have been acting against his own interests in trying to get him to return from Anhui. In reply, [the applicant] said there had been no room for him and his family in his wife’s parents’ house in Anhui. This did not strike me as being a satisfactory response to the point of the concern raised.
[The applicant] said that if he returns to China the same problems with his neighbour will start again. I put to him that on his evidence, his family I China had become and remained totally dependent, economically, on his remaining in Australia with permission to work. I asked him if this might be a significant reason for wishing to remain here. In reply, he said that if he did not work here his family would not be able to afford the school his son is attending.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220 .
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Sun v MIBP [2016] FCAFC 52 at [69].
In this matter, [the applicant] originally claimed that local officials were using gangsters to harass him for reporting their corruption to higher officials. He claimed that the harassment could continue were he to return to China and that he would not be able to relocate safely because the officials have networks through gangster contacts and would easily find him. These claims, which are entirely unsupported, disappeared from [the applicant]’s body of evidence after they were initially made. It is hard to give them any weight, as they were essentially replaced by claims in which the source of harm was described an individual non-state entity, being [the applicant]’s neighbour, and the issue of relocation was discussed not in the abstract, as in the original PV application, but as something [the applicant] actually attempted without success.
My overall inclination, on the evidence before me, is to give no weight to those original substantive claims. This, however, is not to say that I give weight to the claims [the applicant] has subsequently made; rather, on the quality of the information he has provided, I am of the view that the claims about the dispute with the neighbour are fabrications, especially given the prevalence of inconsistency and apparent improvisation throughout.
The inconsistencies in [the applicant]’s evidence in this matter are many, and relate to core claims rather than to minutiae or insignificant details. Examples include the conflicting claims about whether the alleged dispute with the neighbour ended before [the applicant] even departed China. On the evidence before me, I find he invented the newly disclosed information about the further encroachment to keep his PV application alive, having just acknowledged that the dispute he previously described to the delegate had ended. Another example is the confused and contradictory evidence about whether [the applicant] ever relocated to try and avoid the harm he claimed to be suffering in China. He was inconsistent at one point during the hearing about why the period of relocation did not last, and both of these versions were inconsistent with the reason he provided in his interview with the delegate. He was also inconsistent, within the span of the Tribunal hearing itself, as to whether he ever even tried to relocate at all.
In addition to the above-stated concerns, I found [the applicant]’s evidence of the neighbour’s need to have him present in the home village, in order for that neighbour’s projects to succeed, simply implausible. I do not accept that the claim about the allegedly intended encroachment on [the applicant]’s own land to be factual, as [the applicant] was unable to provide any coherent explanation as to why the neighbour had not tried to proceed with that acquisition in his five-year absence.
[The applicant] was inconsistent in his evidence about the neighbour bullying and threatening not just him but his family, who comprise his wife, mother and child. Ultimately, he did not give a credible or otherwise satisfactory explanation, in the claimed circumstances, as to why he left the women and child to fend for themselves.
Overall, I find that the whole story about the neighbour, local officials and gangsters working together to harass and intimidate him over a public pathway and other parcels of land is a concoction. This gives me all the more confidence in giving no weight to the original claims in [the applicant]’s PV application.
[The applicant]’s evidence strongly indicates that he chooses to remain in Australia so that he can fund his family’s upkeep, including his son’s education at a school he prefers. I can and do believe this to be true as he explicitly acknowledged it near the end of the hearing. However, these facts do not provide any basis for protection in live with Australia’s international treaty commitments.
Overall, I find [the applicant]’s evidence so tainted by inconsistency and improvisation that I cannot rely on it. I am not even satisfied that he ever even entered into a dispute with a neighbour who took possession of a local public pathway.
On the evidence in this case in its entirety I am not satisfied that [the applicant] faces a real chance of being persecuted in China in the reasonably foreseeable future for any reason in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of China, I find that China is the receiving country in this matter.
[The applicant]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have failed for want of credibility and because they do not meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant]’s protection claims can no more succeed as complementary protection claims than they have as refugee claims.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to China, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

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

[2022] AATA 5165

9 December 2022

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

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Appeal