1723484 (Refugee)

[2021] AATA 3646

1723484 (Refugee) [2021] AATA 3646 (1 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723484

COUNTRY OF REFERENCE:                  China

MEMBER:Peter Booth

DATE:1 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 01 July 2021 at 9:46am

CATCHWORDS
REFUGEE – protection visa – China – religion – Jehovah’s Witness – non-appearance before the Tribunal – no documents or witnesses to corroborate claims – migration history – delay in seeking protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Subramaniam v MIMA (1998) VG310
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Zhang v RRT & Anor [1997] FCA 423

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 29 April 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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) of the Act. 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).

6. Under s 5J(1) of the Act, 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–5LA of the Act, which are extracted in the attachment to this decision.

7. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

8. Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. 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.

9. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

10. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

11. 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.

12. ‘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.

13. 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.

14. Pursuant to s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. The Tribunal draws guidance from the judgements of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.

15. Pursuant to s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

16. Pursuant to s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.

    Mandatory considerations

17. 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 (the Department), 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

18. The issue in this case is whether the applicant meets the criteria set out in either s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

19. The facts are taken from the applicant’s protection visa application as follows:

    a)The applicant is a [age]-year-old male, born on [date] in Fuqing, Fujian, China.

    b)The applicant can speak, read and write Mandarin.

    c)The applicant stated he is of the Han ethnicity and Jehovah’s Witness faith.

    d)The applicant claims to have Chinese citizenship by birth and a copy of his passport, held upon the Department file, confirms that he is a citizen of China.

    e)The applicant states that he has never been married or in a de facto relationship.

    f)The applicant did not record former employment in China or current employment. He recorded former employment in Australia as a casual [Occupation 1].

    g)The applicant arrived in Australia on a Student visa.

    h)On 4 February 2013 the applicant was granted a UK-820 temporary Partner visa.

    i)On [date] March 2014 the applicant departed Australia.

    j)On [date] March 2014 the applicant returned to Australia.

    k)On 17 February 2015, the applicant’s BS-801 permanent Partner visa was refused.

    l)On [date] December 2015, the applicant departed Australia.

    m)On [date] January 2016, the applicant returned to Australia.

    n)The applicant applied for a XA-866 Protection visa on 29 April 2016.

    CLAIMS

    866 visa application

20. The applicant’s claims for protection are contained in his visa application and attached statement. The Department interview was scheduled for 5 September 2017, however the applicant did not attend. The claims submitted were as follows:

    I am seeking protection in Australia so that I do not have to return to:

    CHINA

    Why did you leave that country(s)?

    PLEASE READ MY STATEMENT

    What do you think will happen to you if you return to that country(s)?

    PLEASE READ MY STATEMENT

    Did you experience harm in that country(s)?

    Applicant selected ‘yes’

    Give details:

    PLEASE READ MY STATEMENT

    Did you seek help within the country(s) after the harm?

    Applicant selected ‘no’.

    Give reasons for why you did not try to seek help:

    PLEASE READ MY STATEMENT

    Did you move, or try to move, to another part of that country(s) to seek safety?

    Applicant selected ‘no’.

    Give reasons for why you did not try to move to another part of the country(s):

    PLEASE READ MY STATEMENT

    Do you think you will be harmed or mistreated if you return to that country(s)?

    Applicant selected ‘yes’’

    Give Details:

    PLEASE READ MY STATEMENT

    Do you think the authorities of that country(s) can and will protect you if you go back?

    Applicant selected ‘no’

    Give details about why you think the authorities could not, or would not, protect you:

    PLEASE READ MY STATEMENT

    Do you think you would be able to relocate within that country(s)?

    Applicant selected ‘no’.

    Give details about why you are unable to relocate:

    PLEASE READ MY STATEMENT

    EVIDENCE AND SUBMISSIONS

21. The applicant has not provided submissions to the Tribunal.

22. The applicant provided the following to the Department:

    a)Personal statement, undated, provided in Chinese with a non-certified English translation. The statement is in the following terms:

    1. I am an overseas student who came to study in Australia in 2008. I grew up in the countryside of Fujian Province with my grandma, a pious Christian. When I was very young, I went to attend the house church and was baptized there. My aunt (the wife of my father's elder brother) was also a Christian and she had a great influence over me. I was obedient to her and she treated me as her own son. My parents were working in other places then and they actually took little care of me.

    2. After I came to study in Australia, my family required me to earn my own living expense and tuitions by working part-time. To survive, I did my best to learn to do anything I had not ever done before.

    3. At that time, my family was struck by misfortune. It is less than half a year after my arrival in Australia my father was afflicted with a mysterious disease. Though we visited many doctors and tried many treatments, my father's pains lingered on. Finally, someone gave us a folk prescription, which appeared so effective at first that he could never tear himself from it. It turned out to my mother that the medicine contained some narcotics so my father began to have a growing dependence on it. My father had intended to cure his disease, so he borrowed money from the usurer to buy the medicine only to be framed by someone and was thrown into prison (on the charge of taking drugs). I was the only son of the family , so my parents, to secure my safety at any cost, had to leave me in Australia to go on with my study.

    4. I had a romance in Australia. In 2012, I filed an application for a spouse Visa and was granted a TR visa. In 2011, I met a preacher from Jehovah 's Witnesses at [a train] Station, Melbourne, and from then on, I read a lot of its pamphlets titled Watchtower. However, my girlfriend's family members were opposed to my faith and refused to accept a pagan like me. The relationship between my girlfriend and me was now in crisis. Therefore, when I was applying for my PR in 2014, my sponsor cancelled her sponsorship for me,

    5. At the end of 2015, during my last visit to China, my aunt also disapproved of my faith in Jehovah 's Witnesses. She warned me that Jehovah 's Witnesses was not yet recognized by the mainstream Christianity community and they were all pagans. At that time, I left some pamphlets of Jehovah 's Witnesses to my aunt only to be thrown out by her. In great disappointment, I returned to Australia frustrated and confused. Soon I learned that undeserved misfortune befell my aunt. The police were investigating the books of Jehovah 's Witnesses I had left to my aunt, and she was finally fined by the security police more than RMB 20,000 for owning those pamphlets. She might have been less discreet in dealing with those pamphlets.

    6. I had been wondering whether the adherents of Jehovah 's Witnesses were really pagans as my aunt had asserted. I had also searched the internet for reviews on that faith, but they were so different that I thought no one was more convincing than any others. However, in my personal opinion, I liked Jehovah 's Witnesses more, because their preachers worked so earnestly and so devotedly. Meanwhile, I found some other Christians were pursuing their faith in a utilitarian attitude. More often than not, they were praying for God's blessings on their own aspirations instead of repenting of their own sins. I had rarely found any church would preach God's Kingdom so piously as Jehovah 's Witnesses did. Their preachers had left me a deep impression. They were even willing to visit my house to teach me how to read the Bible and learn the biblical truth. I was so moved by their devotion that had been inspired by the Holy Spirit. As a matter of fact I had been to several churches after I arrived in Sydney. For instance, I once went to attend a Christian church in [Suburb 1] in December, 2009, but people there told me that the Jehovah 's Witnesses adherents were all pagans.

    7. On the Easter Day of 2016, I met again with the preacher from Jehovah 's Witnesses on the street and was told something new. I was just finding out a Chinese Jehovah 's Witnesses church and I'm longing to be a member of that big family. On the other hand, I have learned that the Chinese Government is now launching a campaign to suppress the foreign preachers, to deprive people of their freedom of faith and to forbid preaching any gospel at all, though the preaching of gospel is a sacred mission for all Jehovah 's Witnesses adherents. In China, the church of Jehovah 's Witnesses is still outlawed while the official Patriotic Church is nothing but a nominally religious yet practically political organization that has been alienated by the whole mainstream Christian community. The Patriotic Church's doctrines or practice can never touch or endanger any authority and its politics or ideology. It is practically a tool to maintain the government or to strengthen the patriotism education. I vow I will never accept such a pseudo church. Nowadays, various Christian churches are mushrooming in Mainland China. The number of churches is well above a hundred million. I believe that Jehovah 's Witnesses will have a bright dissemination and a potentially big audience in China. I'm convinced the gospel is invincible and will sweep away all the obstacles against it. The reason I'm filing this application is to enable me to preach the gospel to Mainland China in the future, and I hope my faith can also take root, sprout and blossom in Australia.

23. In summary the applicant’s claims are:

    a)The applicant came to Australia to study in 2008.

    b)The applicant’s grandmother and aunt were Christians, and the applicant was baptised at a house church at a young age.

    c)The applicant’s father became ill and was given a folk remedy which contained narcotics. He became dependent and borrowed money from a usurer but was ‘framed by someone’ and ‘thrown into jail’ on charges of drug use.

    d)In 2011 the applicant met a Jehovah’s Witness preacher at [a train] station. He became interested in the faith and read the pamphlet.

    e)The applicant was in a relationship and applied for a spousal visa, but the sponsorship was withdrawn as his partner’s family opposed his faith.

    f)The applicant has been to several churches since he arrived in Sydney, including a Christian Church in [Suburb 1] in December 2009, but the people at the churches told him Jehovah’s Witnesses are pagans.

    g)The applicant’s aunt did not approve of his association with Jehovah’s Witnesses whom she viewed as pagans. The applicant left some material from Jehovah’s Witnesses there and she was fined more than RMB20,000 by the security police for keeping this material.

    h)In Easter 2016, the applicant heard about a Chinese Jehovah’s Witness church which he longs to join.

    i)The applicant is filing this application to enable him to preach the Jehovah’s Witness gospel in Mainland China in the future.

1. The applicant did not appear at the hearing to provide oral testimony in support of his application for review. The applicant had provided no written submissions or evidence other than that extracted above in support of his application to the Tribunal. The Department file contains no additional submissions or evidence from the applicant in support of the application for a protection visa except that set out above. In his response to the hearing invitation the applicant stated that he consented to the matter being determined without a hearing. Accordingly the evidence upon which the application is to be assessed is contained solely in the applicant’s written application for a protection visa dated 7 July 2016. The applicant’s answers to the relevant questions are set out above. In summary, the applicant claimed that he fears persecution if he returns to China due to his involvement with the Jehovahs Witness religion (JW).

2. The Tribunal finds that the applicant:

   a)is a [age]-year-old male, born on [date] in Fuqing, Fujian, China.

   b)can speak, read and write Mandarin.

   c)is of the Han ethnicity

   d)is a citizen of China.

3. As to his migration history the Tribunal finds that:

   a)The applicant arrived in Australia on a Student visa.

   b)On 4 February 2013 the applicant was granted a UK-820 temporary Partner visa.

   c)On [date] March 2014 the applicant departed Australia.

   d)On [date] March 2014 the applicant returned to Australia.

   e)On 17 February 2015, the applicant’s BS-801 permanent Partner visa was refused.

   f)On [date] December 2015, the applicant departed Australia.

   g)On [date] January 2016, the applicant returned to Australia.

   h)The applicant applied for a XA-866 Protection visa on 29 April 2016.

   THE COUNTRY INFORMATION

4. In accordance with Direction No.84 made pursuant to s 499 of the Act, the Tribunal also had regard to country information assessments prepared by DFAT, titled ‘People’s Republic of China’ dated 3 October 2019.

   CONCLUSIONS

5. The Tribunal notes that it is a requirement of the Act that the applicant provide details of the applicant’s claim and that it is not incumbent upon the Tribunal to prove the applicant’s case. 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 claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The applicant did not produce any documents  or witnesses to corroborate his claims for protection. This is most surprising having regard to the importance of this matter, apparently, to the applicant, and the time which the applicant has had to consider and prepare for this application.

6. The applicant has asserted that he is a Christian, attended church in China and was baptised in China. He has produced no witness or document to corroborate these assertions. The Tribunal does not accept that the applicant is a baptised Christian.

7. The applicant also asserted that he met a JW preacher in Australia in 2011, and that he has been involved in the JW religion in Australia since that time. He has produced no witness or document to corroborate this critical aspect of his claim. This is a significant flaw in the applicant’s case. The Tribunal does not accept that the applicant is a follower of or involved in the JW faith in Australia or at all.

8. The applicant has asserted that he provided JW pamphlets to his aunt when he returned to China in 2015 and that she was investigated by the police as a result of possessing such documents. He has not produced any evidence from his aunt or any document to corroborate these assertions. They are not accepted by the Tribunal.

9. The Tribunal notes that the applicant arrived in Australia [in] June 2008 as a student, he asserts that he met a JW preacher in Australia in 2011 and became involved in the faith thereafter, and returned to China in 2015. He returned to Australia [in] January 2016 but did not make a protection visa application until 29 April 2016. This is conduct which is inconsistent with a person who has a well-founded fear of persecution. It is given weight by the Tribunal.

10. The vague nature of the assertions, the failure to provide relevant details and documents and the failure to provide corroborative testimony compel the conclusion that the applicant’s assertions cannot be accepted. The Tribunal does not accept the matters asserted by the applicant are the basis for his claim for protection in Australia.

11. It is also relevant that the applicant travelled to Australia as a student in 2008 but did not claim protection until 29 April 2016 having returned to China in December 2015. He has not explained the delay in applying for the protection visa. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[1] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[2] In Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 the Court observed in regard to a delay in lodgement of a protection application: ‘In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant’s alleged fear of persecution. It is a rational consideration open on the material’. In the Tribunal’s view the applicant’s delay in lodging a protection visa application further suggests that the basis of the claim for protection should not be accepted.

    [1] Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.

    [2] Subramaniam v MIMA (1998) VG310 of 1997.

12. In determining whether a person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Tribunal they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.[3] The applicant has not yet explained why he became involved in the JW religion in Australia to the satisfaction of the Tribunal. The Tribunal is not satisfied that the involvement of the applicant in the JW faith as asserted was not undertaken otherwise than for the purposes of strengthening his claim.

    [3] Migration Act 1958 (Cth), s 5J(6).

13. The Tribunal has considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s 5J(1)(a) of the Act.

14. Having regard to the evidence the Tribunal makes the following findings:

    a)the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

    b)the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to China, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

    c)the Tribunal is not satisfied that there is a real chance of persecution that relates to all areas of China;

    d)the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;

    e)the Tribunal is not satisfied that the applicant is a refugee in accordance with s 5H(1) of the Act; and

    f)the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act.

    Complementary protection criterion assessment – s 36(2)(aa)

15. 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 has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.

16. The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or if that harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case must be provided by the applicant.

17. While the Tribunal is required to adopt a reasonable approach to such matters, the Tribunal is not required to make the applicant’s case out for the applicant. Neither is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. In respect of the Tribunal’s assessment in regard to complementary protection, the Tribunal adopts the findings stated above in relation to the refugee criterion assessment.

18. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

19. There is no suggestion that the applicant satisfies s 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).

    DECISION

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

Peter Booth
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.

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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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