1723318 (Refugee)

1723318 (Refugee) [2023] AATA 3431 (31 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1723318

COUNTRY OF REFERENCE: China
MEMBER:Peter Haag
DATE:31 July 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 July 2023 at 3:59pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – land resumption without compensation – petitions to the government – detention – state protection – corruption – family violence – return visit to China – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 September 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, applied for the visa on 7 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 28 July 2023 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
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.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their 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 their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal has applied this provision when considering the applicant’s claims and evidence.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s background
In her application for a protection visa, the applicant claims to be a citizen of China, born on [date] in Chengdu, Sichuan province, China. She claims to be able to speak, read and write Mandarin.
In her visa application, the applicant provided details of her mother and father, now deceased, who were citizens of China residing in China.
At the time of her visa application, the applicant was residing in [a named suburb], Victoria, Australia since February 2017. Prior to this, the applicant resided in Chengdu City, Sichuan province, China, between [birth] and February 2017.
In her visa application, the applicant stated that she completed [school] in Chengdu, Sichuan province, China, between [specified years].
In her visa application, the applicant claimed to be unemployed since February 2017. Prior to this, the applicant was employed at a [company] in Chengdu, Sichuan province, China, between [year] and January 2017.
Applicant’s identity
The applicant provided the Department with a certified copy of her passport with her visa application.
The documents provided by the applicant are consistent with her evidence to the Tribunal in relation to her identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of China, and as such her protection claims will be assessed against China as the country of reference and ‘receiving country’ respectively.
Migration history
[In] February 2017 the applicant arrived in Australia from China on a [visitor] visa.
[In] April 2017 the applicant left Australia and travelled to China. She returned to Australia [in] May 2017.[1]
[1] Department file, [number], Doc ID 9254004, folio 19, item 69.
On 7 June 2017 the applicant applied for a protection visa.
On 11 September 2017 the delegate for the minister refused the protection visa application
On 28 September 2017 the applicant lodged an application with the Tribunal for review of the protection visa refusal decision.
Claims for protection and other supporting documentation
The applicant submitted her claims for protection when she lodged her protection visa application with the Department on 7 June 2017. The applicant’s claims are as follows:[2]
[2] Department file [number], Doc ID 9254004, folios 11-9.
88 I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside In. This includes countries you are a citizen or national of or you have a current visa for).
CHINA
89 Why did you leave that country(s)? Provide specific details
I HAVE AN OLD HOUSE IN MY HOMETOWN. THE DISTRICT GOVERNMENT NOTICED US THAT OUR HOUSE WOULD BE DEMOLISHED. BUT THE COMPENSATION ONLY HAVE HALF PRICE OF THE MARKET PRICE. SO I AND OTHER RESIDENTS DISAGREE TO SIGN THE AGREEMENT.
ONE DAY WHEN l WAS WORKING, MY NEIGHBOUR TOLD ME THAT THE DEMOLITION TEAM CAME TO MY HOUSE TO REMOVE HOUSE. WHEN I HEARD THE BAD NEWS, I RETURNED TO HOME. THE DEMOLITION TEAM SMASHED ALL GOODS OF MY HOME. I WAS BEATEN BY THEM BECAUSE PREVENT THEIR BEHAVlOUR. AFTER THAT, I CALLED THE POLICE, BUT THE POLICE IGNORE OUR CASE. I WAS SO ANGRY, SO I AND OTHER RESIDENTS DECIDED TO MADE PETITION TO REVEAL GOVERNMENT'S OFFICIALS' CORRUPTlON.
WE WROTE COMPLAINT LETTER TO SUBMITTED TO CHENGDU CITY GOVERNMENT, TO HOPE THAT GET A REASONABLE EXPLANATION AND COMPENSATlON. BUT AFTER OFFICIALS KNEW OUR BEHAVIOUR, THEY SENT POLICE TO CATCH US. I WAS NOT AT HOME, SO I SURVIVED. BUT OTHER RESIDENTS WERE CAUGHT BY POLICE. I WAS SO SCARED, ESCAPE CHINA AND FLED TO AUSTRALIA. PLEASE AUSTRALIAN GOVERNMENT PROTECT ME.
90 What do you think will happen to you if you return to that country(s)?
IF I RETURN TO CHINA, I WILL SUFFERED PERSECUTED BY THE POLICE. ONCE I WENT INTO PRISlON, I WLLL DIE.
91 Did you experience harm in that country(s)?
No
93 Did you move, or try to move, to another part of that country(s) to seek safety?
Yes
THE WHOLE SITUATION OF CHINA WAS THE SAME. THE GOVERNMENT WAS CORRUPTION. THEY COLLUDED WlTH THE POLICE. THEY ONLY CARE THEIR OWN BENEFITS.
94 Do you think you will be harmed or mistreated if you return to that country(s)?
Yes
IF I WENT TO CHINA, I WILL BE PERSECUTED BY THE POLICE. ONCE I WENT INTO PRISION, I WILL SUFFERED PERSECUTION ON MENTAL AND PHYSICAL.
95 Do you think the authorities of that country(s) can and will protect you if you go back?
No
THE CHINESE GOVERNMENT WAS CORRUPTION. THE GOVERNMENT OFFICIALS ARE COLLUDED WITH THE POLICE. THEY ONLY CARE THEIR OWN BENEFITS.
96 Do you think you would be able to relocate within that country(s)?
Yes
THE WHOLE SITUATION OF CHINA WAS THE SAME. THE GOVERNMENT WAS CORRUPTION. THE POLICE WAS COLLUDED WITH THE GOVERNMENTS OFFICIALS. GOVERNMENT WAS THE PROTECTIVE UMBRELLA OF THE POLICE. THEY ONLY CARE THEIR OWN BENEFITS.
The applicant did not provide any further documents to the Department in support of her protection visa application.
On 28 September 2017 the applicant provided the Tribunal with a copy of the record of the protection visa refusal decision.[3]
[3] Tribunal file 1723318, Doc Id 3697484.
On 4 July 2023 the Tribunal provided the applicant with a written invitation to attend an in-person hearing of her review application on 28 July 2023 starting at 9:30AM. The hearing invitation informed the applicant that the purpose of the hearing was to provide her with an opportunity to give evidence and present arguments relating to her case. The applicant did not respond to the invitation, but she attended the hearing.
Consideration of the claims, and evidence relevant and material to the claims
According to the applicant she fled China and entered Australia because she feared she would be arrested by police, imprisoned, and persecuted. She would not be safe in any part of China, or protected by the authorities because the Government, officials and police throughout China are only self-interested, and they all corruptly collude with each other.
The applicant said in her application that she did not experience any harm in China.
According to the applicant if she returned to China the police would imprison her and persecute her mentally and physically.
The applicant asserts she will be persecuted by the police because she objected to the acquisition of her old house by the district government without just compensation. The applicant joined other property holders who, like the applicant, objected to the compulsory acquisition of their property on unjust terms.
The applicant asserts a demolition team arrived at her house. She opposed them. They beat her and they smashed all her household goods. The applicant and the other house holders in the same predicament as the applicant raised a petition accusing the government of corruption. In response local government officials sent police to arrest the petitioners including the applicant. Several petitioners were arrested. The applicant said she was lucky not to be arrested. She survived because she was not at home when the police arrived to apprehend her.
Against that background the applicant obtained a tourist visa, left China and entered Australia [in] February 2017 because she feared the police in China would arrest her unlawfully, persecute her and that she would die in prison.
The applicant’s claims and her supporting narrative are general in nature and unsupported by concrete evidence such as documentary evidence of her ownership or right to occupy the house she identified as ‘my house’[4], or the compulsory acquisition order and offer of compensation for the house made by the local government, no matter how unfair the process may have been.
[4] Department file, [number], Doc ID 9254004, folio 11, item 89.
Common sense and the ordinary course of human experience indicates that if the applicant owned or had a right to occupy an old house in China, as she claimed, her property right would be capable of substantiation by relevant documentation. Otherwise, it seems implausible that the local government would serve her with a notice of demolition of a house, offer her compensation, and she would be specifically targeted as a noncompliant occupant or homeowner, if there were no records that established her ownership of the property or her right to occupy the property.
According to the applicant’s written claims she stated the district government ‘NOTICED US THAT OUT HOUSE WOULD BE DEMOLISHED.’ As the Tribunal understands this statement in the context of all her claims and the supporting narrative, the district government gave her written notice of their plan to demolish her house and neighbouring houses too.
It is reasonable to apprehend that any such notice would be available to the applicant if it existed and was issued to her. Without explanation, the applicant did not provide a copy of the notice, or specific information about the contents of the notice, such as dates, the name of any official who issued the notice, the date of the notice or any proposed time of demolition in support of her protection claims.
Without explanation the applicant has not provided any concrete evidence of the existence of a notice, order, or plan by the district government to demolish a house owned by the applicant, and an associated offer of compensation for the compulsory demolition or acquisition of the property.
Relevantly, the applicant declared in her visa application in response to a question in the application forms, that she travelled to China [in] April 2017 and returned to Australia [in] May 2017.[5] The applicant’s return visit to China seems inconsistent with her written claim that she would be harmed or mistreated if she returned to China: namely she would be persecuted by the police, and in prison she would suffer mental and physical persecution and die.[6]
[5] Ibid, folio 19, item 69.
[6] Ibid, folios 11 & 9.
Additionally, the applicant’s return visit to China seems to be inconsistent with the applicant’s written contention that nowhere in China would be safe for her because the situation is the same in the whole of China. The Government is corrupt, and only cares to benefit itself; government officials collude with the police, and they only care to benefit themselves.[7]
[7] Ibid, folios 11-9.
Evidence at hearing
At hearing the applicant said she was married in China. The relationship was abusive, and she divorced her husband in 2004, that is 13 years before she arrived in Australia and 19 years ago. The applicant said she has one child, a daughter, and that she raised her daughter without assistance from the father. The daughter is now [age] years of age.
According to the applicant her former husband is a criminal and he spent time in prison. The applicant did not provide specific details about crimes for which he was imprisoned. She did not state he was imprisoned for harming her during their marriage.
According to the applicant’s evidence when she turned [age] years of age she retired from the workforce. At the time she retired she held the position of [Position 1] in a company that manufactured [products].
The applicant said in her evidence that she came to Australia because a friend who was working in a [business 1] in Australia told her life in Australia is good. The applicant’s friend introduced her to a job in a [business 1]. She did not like that job, so she sought out her own employment. According to the applicant’s oral evidence she had worked in [the business 1 industry] in China, and for an unspecified period she ran a [business 1]. On the strength of her experience, she was employed in a [business 1] opposite the one in which her friend was employed.
In response to questions from the Tribunal the applicant explained her reasons for leaving Australia and returning to China in April 2017. The applicant explained that she had to arrange things for her daughter. The Tribunal asked the applicant several times at various points in her evidence, to provide more specific evidence about her reasons for returning to China in 2017.
Tribunal will now summarise the relevant and material parts of the applicant’s reasons for returning to China. The applicant said she had to explain to her daughter that she had suffered family violence during her marriage, and that her marriage was miserable. The applicant also told her daughter that she wanted to run from her father and that she would not reconcile with him.
The applicant also told the Tribunal that she returned to China to assure her daughter she would be able to visit her in Australia.. The applicant explained that she had exhausted all her responsibilities and that nothing was holding her in China.
According to the applicant’s oral evidence daughter was well established in her employment in China. She works for [a business] where she holds the position of [Position 1]. She has a sound relationship with a person the applicant described as her daughter’s boyfriend, a member of the Chinese Communist Party who is employed in a significant management position at an unidentified [location].
The applicants also said in evidence that her daughter occupied the apartment that the State had allocated to the applicant and which she occupied before she left China. There was no evidence that the applicant’s daughter was at risk of eviction from the apartment because the local authorities planned to demolish it; or, that her daughter was at risk of harm from the local authorities or anybody else, because she occupied the apartment.
The applicant also said she told her daughter she had no reason to remain in China. She explained that she told her daughter she had a stable relationship with her boyfriend and a good job. The applicant told her daughter that she wanted to live in Australia and to leave her memories of her abusive relationship behind; it was now time to live her own life, and she wanted to do so in Australia.

At hearing the applicant said that her daughter’s father used their daughter against her. However, the applicant’s daughter has visited the applicant in Australia, and as the Tribunal understands the applicant’s evidence, her relationship with her daughter is such that it was important to reassure her that she would be able to visit the applicant in Australia whenever she wants to do so.
There is no evidence that the applicant was harmed by her former husband, or that he attempted to harm her or threatened to harm her after they divorced in 2004. The applicant’s evidence about her husband using her daughter against her is unsupported by concrete specificity, and the Tribunal is not satisfied it is evidence of the existence of circumstances in China that would rise to the level of a real chance of serious harm if the applicant is removed to China now or in the reasonably foreseeable future.
Essentially, according to the applicant’s evidence she does not want to return to China because she is of retirement age, and she retired from the workforce; she feels she has exhausted her responsibilities in China; her daughter is well established in her employment; she has a sound relationship with her well-established boyfriend; she is able live in the apartment allotted to the applicant; the applicant can leave behind the memories of her husband; life in Australia suits her; and, she wants to spend the rest of her life in Australia with her boyfriend. The applicant’s boyfriend resides in Melbourne, Australia, at an address that was read into evidence at hearing.
The applicant gave evidence that in 2017, when she returned to China she returned to her home village, the location where she lived before, she travelled to Australia. There is no evidence that the applicant was harmed or interfered with by State or non-state actors during her return visit to China. The applicant’s return to China to ‘explain things’ to her daughter, is inconsistent with the written claims she made in her application for a protection visa: that she would be persecuted by police if she returned to China, and if she went to prison, she would die.
More fundamentally, the applicant’s evidence that she came to Australia because a friend in Australia who was working in [a business 1] told her about life in Australia being good, is materially inconsistent with her claim that she fled to Australia in fear of corrupt government officials and demolishers who smashed up the contents of her home and assaulted her, and police were sent by the corrupt local officials to arrest her.
The applicant, in explaining to the Tribunal her circumstances in China and her reasons for not remaining in China when she visited there in 2017, and her reasons for wanting to remain in Australia, gave no evidence that demonstrated the existence of the events she claimed in her visa application to be the reasons she fled China, and would give rise to her being harmed if she returned to China.
The Tribunal has considered the DFAT Country Information Report People’s Republic of China December 2021 (DFAT report) relating to protesters, petitioners including land protests: [3.86] – [3.89]. Relevantly, the report states that land disputes arise when local officials try to sell land and evict existing tenants. Land sales are an important source of revenue for local governments and corruption in land deals in commonly alleged. ‘Thugs’ who intimidate protesters have been used and are allegedly hired by local governments: [3.33].
Broadly speaking parts of the DFAT report are consistent with the claims the applicant made in her written visa application.
Nevertheless, the applicant’s oral evidence and claims, when considered in conjunction with her written protection claims and supporting narrative, the DFAT report, and the material differences between her oral claims and supporting narrative, and her written claims and supporting narrative, is insufficient to establish to the satisfaction of the Tribunal, the existence of a real chance the applicant would be subjected to serious harm for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if she is removed to China now or in the reasonably foreseeable future.
In view of the Tribunal’s findings in respect of the insufficiency of the evidence relied on by the applicant to substantiate her protection claims, the Tribunal has given little weight to the information in the DFAT report relating to local government corruption concerning land acquisition on unjust terms.
Findings
Having considered the applicant’s claims individually and cumulatively, as well as the evidence and information in the DFAT report relating to corruption in public office, the Tribunal finds the evidence is insufficient to establish to the satisfaction of the Tribunal, the existence of a real chance the applicant would be subjected to serious harm for any reason specified in s 5J(1)(a) of the Act, or for any other reason, if she is removed to China now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any reason specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Complementary protection
The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘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’.
Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to China now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
In summary, for the reasons given above, the applicant does not satisfy the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa.
Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
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.
…

[2023] AATA 3431

31 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice