1723289 (Refugee)

[2023] AATA 988

1723289 (Refugee) [2023] AATA 988 (27 January 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:   1723289 COUNTRY OF REFERENCE:   China

MEMBER:  Lilly Mojsin

DATE:  27 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 January 2023 at 1:53pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Church of Jesus Christ of Latter-Day Saints – physical assault – police corruption – employment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant who claims to be a citizen of China, applied for the visa on 9 May 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant would suffer serious or significant harm on his return to China.

1. The applicant appealed that decision, attaching a copy of the Department decision to the application for review.

1. The applicant appeared before the Tribunal on 20 December 2022, by Teams video, to give evidence and present arguments. The Tribunal had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. No concerns were raised by the applicant in relation to holding the hearing by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal also received oral evidence from The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

CRITERIA FOR A PROTECTION VISA

1. See Annexure A.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. As part of his application, the applicant, in an accompanying statement, made the following claims (in summary):

·   He was born on [date].

·   In March 2016, he borrowed [amount] RMB from his parents and rented a counter to sell computers, computer accessories in [a named] Shopping Center in Huainan City, Anhui Province. He also did the business of [related] services. Officers from [Agency 1] regularly came to the shopping center for inspection. Some business owners there paid the officers some money when they came for inspection, hoping to be taken care of. He did not do that because he felt it unnecessary since what he sold was genuine and good quality. They often hinted to him that he was young and needed to learn some worldly wisdom if he wanted to survive there. He did not respond to them. So, they were unhappy with him since they thought he did not know how to behave properly.

·   In early September 2016, a customer came to his shop and said there was something wrong with the computer the applicant had assembled and asked for a refund. The applicant tested the computer and found there was nothing wrong with it. But this customer insisted on a refund and called and reported him to [Agency 1].

·   When people from [Agency 1] came, they took away the computer. A few days later, they said since he had used second-hand accessories, he was suspected

of cheating consumers and would be fined [amount] RMB. Otherwise, they would close his business.

·   He asked them to provide evidence, but they turned him down. Besides, they would not give him the opportunity to explain. With no choice, he had to pay the fine.

·   After that incident, he reported to [Agency 1] of their staff's abuse of power. However, he did not get any reply from them.

·   [In] October, he posted what had happened to him on the website, showing how corrupted the officers from [Agency 1] were. Many people replied and showed their support to him. Many people, in their reply, shared that they also encountered the difficulties brought by the officers from [Agency 1]. Only a few days later, his post was removed.

·   [Later in] October, a few policemen from [a specified] Public Security Bureau [PSB] came to his home and took him to the PSB. They said, through their investigation, they found he had spread rumours on the Internet which had bad social impact.

·   In the PSB, the police forced him to admit that the post he made on the internet were all rumours. They also let him admit on the network that he was wrong. When he refused their request, they threatened him and beat him with batons. He was beaten so badly that he curled up in the corner, full of wounds in his body. Finally, he was detained for [period] and was fined [amount] RMB.

·   When he was released, the police officers also warned him: "Be careful after going out since we will watch you."

·   After he was set free, the officers from [Agency 1] often came to his shop to check, with bad attitude. Moreover, some rumours started to be spread out on the market that he cheated customers and was arrested. His business was going down. He felt helpless. His good wishes of running well his business and earning some money were totally ruined by these corrupted officials.

·   In December 2016, he transferred his business at a low price. He was hit hard by the experience. The government officials were so corrupted that civilians had no chance to assert their rights. Posts on the website were also investigated so civilians had no freedom of speech at all. He felt so fearful living in such a country. So, through the help of the agent, he came to Australia.

1. At the Department’s interview, the applicant informed the delegate that he had begun attending [Church 1] in [Suburb 1] “3 or 4 weeks prior to the interview”.

1. Following the Department’s interview, the applicant sent the Department two emails. The first, on 23 August 2017, stated:

I am [name]. Sorry that today is not in good condition Because my waist hurts, I would be grateful if the government could help me find an easy job. In our country are the right to have the money of the world, they kill us like killing ants in general.

I am not a person who wants to eat refugee benefits, I just want to live with you and work together on this land, I hope that the Australian government will take me, I want to serve the democratic countries, do not want to become the dictatorship of the population dividends. I came here not for money but in order to achieve the value of life so that my father for my growth feel at ease and prides. If the Australian

government needs, I will not hesitate to contribute to my strength. I hope to have such a chance. I hope you approved my application because there is no tax number I am hard to survive.

I am now the situation is very difficult, hard work and life, my waist was injured, but Long night will be the past, the light is coming, is not it? I always believe that you are like God's help is that you believe in God's ability if God does not help you to show that he believes in your ability. I will work hard and hopes May God bless me and guide my way God bless you, respect the ladies.

1. The second email, on 25 August 2017, stated:

My address is po box x My cell phone number is xx. Please forgive me for failing to provide my address, for I am afraid of being taken away, please take me not to push me back to that fire pit again? I will not go back unless the Communist Party to step down, I said are realistic hope you can understand.

1. At the Tribunal hearing the applicant told the Tribunal that in China he completed junior college, his studies related to computers, the design of software. He finished studying in [year]. Work is hard to find in China. He was able to get a job in [specified work] in a shopping mall. He then worked in a government bureau relating to [agency responsibility specified] where his uncle worked. When he came to Australia he was unable to study as he could not afford it. He just worked as a labourer.

1. His father made a decision for him to go abroad for a better life. He applied for a [Country 1] visa in 2016. He was rejected for applications to [Country 1] and he decided to come to Australia. His friend got a working holiday visa to Australia so he decided to try Australia as he wanted to change his future. He obtained a passport in 2015 and obtained a visitor visa to Australia in 2017. He wanted to change his life because in China he could not see any hope in China, the inflation rate is high, the living expenses and property prices are so high and he would not be able to save for a deposit. He China he could not afford to have a family and he was struggling there financially and had to rely on his parents. His parents are retired after his mother was laid off. They have a pension. His family is a poor family, his father had been [an Occupation 1]. When he left China he had a job working for the [named bureau]. Asked if his position was still available he said that he cannot return to the old job as his uncle’s bureau was locked down during COVID and his uncle has opened a private company. Asked if he could work with his uncle on his return he said that business is not good so he is doing random work. His aunt has a [store] but they do not need employees. He would not have a job to go back to in China.

1. He did not have a problem getting a passport.

1. Asked what he fears about returning to China he said that there is too much uncertainty in China. It is a dictatorship. Shi Jing Ping is a dictator and there is so much uncertainty. He said he is ok but he does not want his children going through difficulty in obtaining work and financially surviving with the salary in China. Also he does not know what China is heading towards, there is uncertainty for the future of China.

1. I asked him about becoming a Christian in Australia. He said he was baptised in Church of Jesus Christ of Latter Day Saints. He became a member of the Church of Latter-day Saints at the end of 2017, nearly 12 months after his arrival in Australia. He met 2 preachers who spread the word to him. He attends church when he is not too busy. He works now in a [business]. He had been working in the [specified] industry but had an injury.

1. Asked for his intention on his return to China to practise his religion he said that it will be hard to continue to practise as Christianity is not completely banned, but it is hard to practise. I put to him that the Church of Latter-day Saints have members and a number of congregations and whilst not one of 5 official religions he would be able to practise his faith in China. Asked if he feared harm for practising his religion, he said that even though he was

not practising in China he did attend a church once. He said it is forbidden there to spread the gospel. He prefers the Australian society to the materialistic Chinese society.

1. I discussed independent evidence that Church of Latter-day Saints are not subjected to serious or significant harm and the Chinese do not prevent returning Church of Latter-day Saints who have converted overseas to practise their religion providing they are not proselytising. He responded that in China what they claim is not credible. He feels there is religions persecution, financial reasons and whether there is a future. He said even if they penalised him no one would know.

1. I explained the Church of Latter-day Saints have an internet site for returning Chinese about the religion and where they can practise their faith, details about how to practise faith in China. I put he has not committed any offences in China that he would be punished or significantly harmed. He agreed he has never had any problems with the authorities in China.

1. Put that he had no problems when he lived in China so why would he have problems on his return. Put that he would be able to obtain some work that would not necessarily give him the same life style as in Australia. When he was in China he did have some problem but if he had committed any offences the Chinese would not have allowed him to leave. China has no democracy, in China he would have travel and problems. If he had a very good life there he would not have left his family and his home country to come to Australia. Asked about what problems he had in China he said that people with money with powerful backgrounds have a good life but for a person whose mum was laid off, father was [an Occupation 1] and his grandfather was persecuted during the Great Famine and lost his job. He comes from a family that is not CCCP. In China one does not have basic rights and freedoms as in other countries.

1. He did not have a problem with the police or the PSB in China. Put to him that he told Department that in October 2016 when he had a business he was attacked with sticks by PSB. He said that at that time he came to Australia and had no money and owed people money and it was for the purpose of making money that he submitted that application. He confirmed he did not have any problems. He confirmed he did not have a computer shop and was working with his uncle. He confirmed he had only been to a Church once in China and has become a Christian in Australia.

1. The applicant in conclusion said that he submitted an application with the wrong information. He was told he could do this. He was frightened if he told the truth he would have been deported back to China. He said that he acted unreasonably.

1. In regard to his witness I explained to the applicant that I accepted he was baptised and practised the Church of Latter-day Saints religion. He said he could not provide information to the refugee criteria. He indicated he was willing to go to war on behalf of Australia and does not wish to live in a totalitarian country. He said this witness can testify he said the same thing to his witness.

INDEPENDENT EVIDENCE

1. Church of Latter-day Saints is not one of the five religions officially recognized by the government of China (Buddhism, Taoism, Islam, Catholicism and Protestantism). Although returned overseas Chinese converts and foreign Latter-day Saints [LDS] who live in China do attend in-country sacrament meetings , Chinese nationals and expatriates do not attend the same meetings, and the LDS Church has directed its non-Chinese members to avoid proselytizing in mainland China

1. DFAT Country Report China 22 December 2021 states that there are members of the Church of Jesus Christ of Latter-day Saints (Church of Latter-day Saints) in China. The Church’s website notes the large worldwide Chinese diaspora has exposed many Chinese people to their faith. The website cautions members in China to be careful to comply with local laws and not distribute church literature or materials or set up social media accounts to discuss their faith. It says there are local Sunday worship meetings in China. It also says that, because the Church follows government regulations, ithas good standing and is respected.

3.44A CNN article from June 2020 reports that Church of Latter-day Saints worship meetings do take place, but with caution. One member of the Church told CNN he was able to tell people he was a Church of Latter-day Saints if he was carefulnot to preach, while others simply say that they are ‘Christian’. The CNN article notes there are Church of Latter-day Saints worship communities in a number of cities, particularly on the east coast but also in Xi’an and Chengdu.

3.45The construction of a Church of Latter-day Saints Temple in Shanghai was announced in April 2020. At the time of writing, construction has not begun and it is not clear if it will proceed. CNN further reported that ‘already, authorities in Shanghai’ had ‘suggested’ that ‘prior approval’ for the announcement had not been sought bythe Church.

3.46Information about Church of Latter-day Saints is limited. DFAT does not have enough information to make a firm assessment about official or societal discrimination.

1. According to the Church of Latter-day Saints1, there are an estimated 12,000 members of the Church in China and over 100 congregations throughout the country. Congregations meet in government approved locations or privately in homes. Members of the Church consist of foreigners working in China and returning Chinese nationals who converted while abroad. The report states that returning members who were baptised aboard are most likely to become inactive as many live in areas where there is no congregation or few members.

1. The report also states that The Church of Latter-day Saints maintains one of the most positive and respectful relationships with the Chinese government and is careful to observe all government regulations and restrictions. Other sources present a similar picture of the relationship between The Church of Latter-day Saints and the Chinese government. One source states that the Church has established good relations with the Chinese government and another says current and former Church members as well as outside observers agree that the Church is 'scrupulous' about following Chinese law and is perhaps the 'gold standard' amongst non-official religions in China. On 5 April 2020, the President of The Church of Latter-day Saints announced plans to build a temple in China, in Shanghai which indicates official tolerance of the Church.

1. Further, The Church of Latter-day Saints has a website specifically for Chinese nationals who joined the Church while living aboard which provides detailed information to returnees about practising their religion in China such as who to contact for information, attending Sunday church meetings and encouraging observance of relevant Chinese laws. The website provides the email address of the 'China Administrative Unit Director' who helps take care of and direct members and congregations in China, and will welcome returning Chinese nationals, answer their questions, connect them to their local leaders in China, provide times and places for Sunday meeting, and establish their church membership in the right place.

REASONS AND FINDINGS

1. The applicant's identity has been accepted by the Department in his visa application. On the basis of his Chinese passport I accept that the applicant is a national of the PRC and is not a

1 or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than China. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that China is the applicant's “receiving country” for the purposes of s.36(2)(aa).

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

1. According to the website of The Church of Latter-day Saints, the term ‘Mormons' is a 'nickname' which the Church did not come up with and has recently asked people to call the Church by its full name, The Church of Jesus Christ of Latter-day Saints. The Tribunal will thus refer to the Church as such in this decision.

1. At hearing the applicant told the Tribunal that his claims made in his PVA were created by a friend in order to obtain a PV and he resiled from those claims. Therefore, I find that the applicant did not borrow [amount] RMB from his parents and open a business, officers from [Agency 1] were not unhappy that he did not offer them bribes, he was not fined, he did not post any allegations of corruption about Bureau staff on the internet and he was not threated, beaten, detained or fined by the PSB. I accept that he was able to obtain a passport because he did not have an adverse profile.

1. The applicant stated that he had problems when he was in China but when asked to explain further said that people with money with powerful backgrounds have a good life but for a person whose mum was laid off and whose father was retired, it was not a ‘good life’. I find that the applicant’s problems of not having a good life does not amount to discrimination or serious harm as described in s.5J(5).

1. I am satisfied that the applicant came to Australia, for financial reasons and in order to find work and a better life. I am satisfied the applicant did not suffer serious harm in China for a refugee reason.

1. I am required to assess whether the applicant will suffer serious harm on his return to China, within a reasonably foreseeable future.

1. I accept that the applicant attended church once when he lived in China, was not a practising Christian in China and became a Christian in Australia. He was baptised in the Church of Jesus Christ of Latter Day Saints, at the end of 2017, nearly 12 months after his arrival in Australia.

1. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

1. The applicant’s candid comments regarding his reasons for making claims to the Department that were not true has led me to conclude that the applicant has honestly responded to questions put to him at the Tribunal hearing. I am satisfied that he attends Church of Latter-day Saints in Australia and is a genuine follower.

1. Asked for his intention on his return to China to practise his religion he said that it will be hard to continue to practise, as Christianity is not completely banned but it is hard to practise. I put to him that the Church of Latter-day Saints have members and a number of congregations and whilst not one of 5 official religions he would be able to practise his faith in China. I discussed independent evidence that Church of Latter-day Saints are not subjected to serious harm and the Chinese do not prevent returning Church of Latter-day Saints followers who have converted overseas to practise their religion providing they are not proselytising. I accept that the applicant would wish to continue to follow the religion. The applicant has not claimed that he intends to proselytise.

1. Even though The Church of Latter-day Saints is not a recognised religion in China and not technically 'legal', the situation for members of the Church is not comparable to that of other religious groups designated as cults or unregistered religious groups. The Church of Latter- day Saints has a unique relationship with the Chinese government. Its members, including returning Chinese nationals who joined the Church aboard, are able to practise their religion as instructed by the Church within the laws of China. The information before me indicates that the Church has a small but public presence in China and provides information publicly about practising the religion in China to Chinese nationals returning from abroad. I am of the view were any of its members to suffer harm the Church would not place returning members at risk of harm by providing public information indicating they could practise their religion in China. The independent evidence before me does not suggest that members of The Church of Latter-day Saints in China are denied employment opportunities or face discrimination by the authorities.

1. As I have accepted that the applicant is a genuine member of The Church of Latter-day Saints I find that he would practise his religion in China as instructed by The Church of Latter-day Saints.

1. I find that there is not a real chance that the applicant will be detained by Chinese authorities for being a member of The Church of Latter-day Saints or attending a Church gathering, denied education or work opportunities in the reasonably foreseeable future, or subjected to discrimination or any other harm amounting to serious harm for reasons of his religion.

1. I accept that the applicant came to Australia for a better life and he believes there is much uncertainty in China. I accept that he had difficulty finding work in China and does not have a job to go to on his return and is concerned for his future and the the future of his children. The applicant does not claim to have children. I accept that it will be difficult for him, due to the types of jobs available to him, to save a deposit for a house and he would struggle financially. Whilst I accept that it may be difficult for the applicant on his return to China to obtain work, the applicant has been employed in China previously, he has been working in Australia. I am not satisfied that the applicant will be denied the capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. I am not satisfied there is a real chance that the applicant will suffer serious harm to earn a livelihood, on his return, within a reasonably foreseeable future.

1. I have considered whether the applicant has had an adverse political opinion imputed to him because his grandfather was persecuted during the Great Famine, lost his job and his family was imputed as coming from a family that is not CCCP. The applicant’s father was able to work as [an Occupation 1] in China, the applicant was able to obtain an education, he was able to work in China albeit in jobs where he was not paid well. He believes he did not have a good life. Whilst I accept that his views are critical of the current government, the applicant does not claim to have ever spoken publicly about his political views nor has he expressed his views to anyone whilst he lived in China. He does not claim to have expressed his views in Australia. I therefore I find that there is not a real chance the applicant will have an adverse political opinion imputed to him, on his return, within a reasonably foreseeable future.

1. I have considered the applicants’ claims singularly and cumulatively. I do not accept that the applicant had an adverse profile in China or an adverse imputed profile in China or that he will be imputed with an adverse profile on return to China. I find that there is not a real chance the applicant will suffer serious harm, for a refugee reason, in China on return within a reasonably foreseeable future.

1. For the reasons given above, the applicant does not satisfy the criterion set out in s.36(2)(a).

1. I am required to consider whether the applicant will suffer significant harm on his return to China.

1. The applicant is a practising Christian of the Church of the Latter-day Saints. As stated above I accept that he will practise his religion. There is no credible evidence before me to suggest that members of The Church of Latter-day Saints in China are subjected to harm or discrimination amounting to significant harm by the authorities or by non-State agents. The applicant did not have an adverse imputed political opinion when he resided in China. He has never had any problems with the authorities in China.

1. I do not accept that the applicant will be imputed with an adverse profile on return to China.

1. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely China, that there is a real risk the applicant will suffer significant harm. I do not accept there is a real risk that she will be arbitrarily deprived of life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.

1. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

CONCLUSIONS

1. 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).

1. 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).

1. 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.

1. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Lilly Mojsin Member

ANNEXURE A

1. 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.

1. 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.

1. 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).

1. 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.

1. 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.

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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