1724522 (Refugee)

1724522 (Refugee) [2023] AATA 4365 (4 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1724522

COUNTRY OF REFERENCE: China
MEMBER:David McCulloch
DATE:4 October 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 October 2023 at 1:31pm
CATCHWORDS
REFUGEE – protection visa – China – forced abortion – pressure from parents-in-law – state protection – period of unlawful residence – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2, r 1.12
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 25 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 18 July 2016. The applicant attended an interview with a delegate of the Department on 22 September 2017. The delegate refused to grant the visas.
[Name] (the applicant) is the primary visa applicant and [name] (‘applicant husband’) is the second-named applicant.
The applicant appeared before the Tribunal on 26 September 2023 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant husband did not attend the hearing. The Tribunal asked the applicant at the hearing why her husband was not attending. She indicated that he had a stomach bug. The Tribunal put to the applicant that his attendance might have been useful given that he husband could corroborate the applicant’s claims. She indicated that his attendance was not necessary.
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–5LA, 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.
Sections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouse and dependent children.
The Tribunal is satisfied on the evidence that the applicant husband is the spouse of the applicant, and therefore is a member of the same family unit as the applicant.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – People’s Republic of China, 22 December 2021, a copy of which was provided to the applicants in advance of the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history is cited from the delegate’s decision record and applicant’s Movement Record. The applicant was granted a Tourist (Subclass 600) visa offshore on 29 January 2015. The applicant arrived onshore holding that visa [in] March 2015. That visa ceased [in] June 2015. The applicant applied for a Protection (Subclass 866) visa, which is the subject of this review, on 18 July 2016 and was granted a Bridging Visa C on 29 July 2016. The applicant’s Bridging Visa C ceased on 6 December 2016 and she was granted another visa of the same kind on 6 December 2016. That visa remained in effect to 30 January 2018. On 30 January 2018 the applicant was granted a third Bridging Visa C which remains in effect to date of this decision. The applicant was unlawfully onshore from [June] 2015 to 28 July 2016.
The following information is apparent from the protection application form. The applicant was born on [date] in Tianjin City, China. She is of Han Chinese ethnicity, and she did not indicate what her religion is. The applicant speaks, reads and writes Mandarin. The applicant married her husband in Tianjin City [in] August 2013. The applicant’s mother, [and specified family members] reside in Tianjin, China and she calls them once a week. The applicant resided at three different addresses in Tianjin City from [specified year] to March 2015[Between specified years], the applicant completed primary school in Tianjin City. [Between specified years], she completed middle school in Tianjin City. The applicant completed high school from [between specified years]. The applicant indicated she was retired at the time of her application.
The applicant husband’s migration history is cited from the delegate’s decision record and his Movement Record. The applicant husband was granted a Tourist (Subclass 600) visa on 19 December 2014. He arrived onshore holding that visa [in] March 2015. His visa ceased [in] June 2015. On 18 July 2016 he was listed as a dependant on his wife’s protection visa application and was granted the associated Bridging Visa C on 29 July 2016. That visa ceased on 6 December 2016, and he was granted another Bridging Visa C on 6 December 2016 which ceased on 30 January 2018. On 30 January 2018 the applicant husband was granted another Bridging Visa C which remains in effect to date of this decision. The applicant husband was unlawfully onshore from [June] 2015 to 28 July 2016.
The following information is apparent from the applicant husband’s protection application form. The applicant husband was born on [date] in Tianjin City, China. He is of Han Chinese ethnicity, and did not indicate what his religion is on his protection application form. The applicant husband speaks, reads and writes Mandarin. He married his wife in Tianjin City [in] August 2013. The applicant husband’s father, mother, [and specified family members] all reside in China and he stated he calls his son ‘sometimes’. From [year] to March 2015, he resided at the same address in Tianjin City. He completed primary school [between specified years] and middle school from [between specified years] in Tianjin City. The applicant husband worked as a farmer in Tianjin City.
The applicant husband did not raise his own claims for protection, and indicated he relies on his wife’s claims.
The applicant provided the following statement to the Department which sets out their claims for protection (not corrected for spelling or grammar):
My name is [name]. My husband's name is [name]. We got married in [August], 2013. Although it was a blended family, we lived in harmony. We lived with my parents-in-law, who had very feudal ideology. I had a son before I got married with my husband. So they had prejudice and were on guard against me. They were worried I would be partial to my son and defraud them of their property. So they forced my husband and me to have a baby of our own so as to strengthen our marriage.
I did not want to have more children because I was no longer young and it’s hard to have another baby both physiologically and physically for a woman at my age. However, my parents-in-law tried every means to force me to be pregnant. They even went on a hunger strike. So I had to agree with them. My husband and I had tried for a long time and finally I was pregnant in [year]. We were both happy and cautious due to age. My pregnancy reaction was so serious that I vomited over a dozen times a day. I even threw up bile. After three month suffering, the fetus was stabilized. We all had a relief. On [date], my mother-in-law offered to go for prenatal examination with me. It turned out my mother-in-law was an acquaintance of the doctor who did ultrasound for me. The doctor told her I was pregnant of a girl. After we got home, my mother-in-law said to me unpleasantly "I want a grandson. You are pregnant of a girl so go and have an abortion." When I refused, my parents-in-law threatened to kill themselves with a bottle of pesticides. Finally, my husband and I had to go and have an abortion in the hospital. I could never forget that freezing equipment and the freezing operating room, as well as post-operative bleeding and pain.
After being released, I secretly went to the police station and reported them. I told the police about my experience. But the police said it was my family matter and they could not interfere. I was in pain, feeling so unfair to suffer so much at my age. After the abortion, I always had sore back and legs. I was much weaker than before physically. Although my husband and I tried hard to get me pregnant, we failed. Since I was unable to be pregnant again, my parents-in-law kept speaking sarcastically or ironically to me. I could hardly stand their mental torture to me anymore. I tried to get rid of their control. China's economy is getting more prosperous. However, the deep-rooted feudal idea to look up on male and down to women is still widespread. Many pregnant women are forced to have abortion in order to have boys later. Under the influence of family planning policy, many families are crazy to have a boy. The feudal ideology is a hangman, which slaughters countless women and new lives. Thus, [in] March, 2015, my husband and I fled to Australia. We want to have a new life. Please approve our application. Thank you.
INDEPENDENT INFORMATION
The 2021 DFAT report on People’s Republic of China provides the following information (original emphasis removed):
Women
3.109 High levels of development in recent decades have improved prospects for women. China was ranked 39th out of 189 countries in the 2019 UNDP Gender Inequality Index (where 1 is considered the most equal). Despite high scores for gender equality, some entrenched patterns of discrimination remain. China’s culture is heavily influenced by Confucianism which emphasises a role for women in the home. In 2019 President Xi called on women to ‘shoulder the responsibilities of … care of the old and young’. An historic traditional preference for boys over girls has devalued daughters within the family.
3.110 Discrimination is reported in the workplace. For example, job ads may explicitly seek a male candidate. China has a gender pay gap of 22.5 per cent. Some pregnant women report having their employment terminated because of their pregnancy. Women also mandatorily retire earlier than men (at age 55 for white collar workers and 50 for blue collar workers versus 60 for men).
3.111 DFAT understands that domestic violence is common but often underreported because of traditional values of family harmony and a view that family matters are private matters. Spousal rape is not criminalised. Mediation (rather than criminal charges against a violent partner) is an option that is commonly used in domestic violence cases. While traditionally a hidden crime, recent social media and popular music and culture have been used to draw attention to domestic violence.
3.112 There are widespread reports of an increase in domestic violence due to COVID-19 related lockdowns. Reliable data on domestic violence cases does not exist (due to underreporting by victims/survivors and government, and potential for police to not respond to complaints). DFAT still assesses that such an increase in violence is possible and notes media reports of increased demand for domestic violence services during the pandemic.
3.113 The Domestic Violence Law introduced in 2016 has introduced greater protections for women facing domestic violence. The rollout of protections including legal assistance, shelters and protection orders has been uneven across different provinces; some provinces have enacted their own protections (which are subordinate to national legislation). Chinese police claim thousands of incidents have been investigated and thousands of women have been protected under the law. The Asia Foundation reviewed the laws in 2020 and found that some judges and police officers were not well trained in the new law. DFAT has seen several reports that say police often ignore complainants. The traditional idea of marriage being the ‘bedrock’ of society means police and courts may not take complaints of violence seriously. The 2020 US Department of State Human Rights Report noted that not all victims of domestic violence receive state support and that many people are unwilling to give evidence in court even if that option is available.
3.114 Domestic violence shelters are available in some communities. These shelters might be supported by local government. Non-government services that provide legal assistance or counselling might be shut down by authorities as shelters are intended to serve a government function. A confidential source cited in the Netherlands Ministry of Foreign Affairs 2020 Country of Origin Information Report on China said there are over 1,500 shelters known as ‘relief stations’. These are not specifically for domestic violence victims but can also be used by homeless people or victims of human trafficking.
3.115 Some women have reported that courts will not grant their divorce applications, again because of traditional values. The new Civil Code, which came into force on 1 January 2021, also introduces a one month ‘cooling off’ period for divorce (there is no cooling off period in cases where domestic violence is alleged). Chinese feminists argue that even though the period does not apply to domestic violence cases it still makes it more difficult for women to escape from abusive relationships because of the existing reluctance by courts to grant divorces.
3.116 Overall, DFAT assesses that in general women China face a low risk of official discrimination, except for women experiencing domestic violence, as noted above. Women may be able to relocate elsewhere to escape from domestic violence (see Internal Relocation) but in doing so would lose their social and family support networks. State protection may be available to women experiencing domestic violence, but it is not guaranteed.[1]
[1] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, pp. 28–29.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Rdandhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicants are citizens of China and accordingly their claims will be assessed against China.
Based on the applicant’s evidence in both the interview with the delegate and in the Tribunal hearing the Tribunal is persuaded as to the truth of the applicant’s claims that her parents-in-law pressured her into having an abortion because the child was a girl. The Tribunal is persuaded the parents-in-law pressured the applicant to return living with them where they applied pressure that she take action to get pregnant with a boy.

In the hearing, the applicant stated that a day or so after she had been released from confinement by her parents-in-law she and her husband went to the police. The applicant indicated that the purpose in going to the police was to request that they take action to request that the parents-in-law stop applying pressure to the applicant in relation to becoming pregnant and having a boy. The applicant indicated that the police declined to do this saying that the matter was purely a civil one. The Tribunal accepts that this occurred.
In the hearing the applicant indicated that from this point on from [specified month] she and her husband went to live in their home in Tianjin City and returned only occasionally to the parents-in-law, which was two hours’ drive away. The applicant referred to ongoing pressure nevertheless from her in-laws.
The applicant indicated that until they left for Australia in March 2015 they travelled to at least six different cities in China, in one case for a month and in other visits for 10 to 15 days to escape the in-laws.
The Tribunal asked the applicant if these visits to other cities stopped the pressure from the in-laws. The applicant indicated that they did not because her husband would answer the telephone calls from his parents. The Tribunal put to the applicant that she and her husband could avoid the difficulties from the in-laws by living elsewhere in China and her husband not revealing to his parents where they were living.
The applicant in response indicated that her in-laws would be able to find out their whereabouts in China because they could obtain information from the police as to where her and her husband were living. The Tribunal put to the applicant that it was not inclined to consider it plausible that citizens in China could obtain places of residence of third parties from police in the absence of any independent evidence provided to establish this.
The Tribunal put to the applicant that it might consider if it was true that the applicants relocated for between 15 days in the month to six different cities in China to escape pressure from the in-laws that this would have been included in the written claims of the applicant provided as part of the application for the protection visa. In response, the applicant indicated that she did not provide details of these relocation attempts to the person that helped her with the application.
The Tribunal acknowledged to the applicant that the situation of what the applicant had to go through in terms of the pressure for the abortion was an extremely stressful and traumatic experience for which the Tribunal had sympathy for the applicant. However, as [an age]-year-old woman the applicant was beyond childbearing age and therefore on return to China the applicant would not likely be pressured by her in-laws to get pregnant with a male child as it happened previously.
In response the applicant indicated that while this was true her parents-in-law would continue to apply pressure to the applicant and her husband that they separate including because of their fear that on their death the assets of the in-laws would go to the applicant and her son from the applicant’s first marriage. The applicant indicated the emotional blackmail that her in-laws would inflict in terms of threatening to kill themselves.
The Tribunal put to the applicant the delay in applying for the protection visa in the context of being an unlawful non-citizen as undermining of the extent of the claimed fears in returning to China. The Tribunal noted the applicant arrived in Australia [in] March 2015 and was an unlawful non-citizen from [June] 2015 until 28 July 2016. The protection visa had been applied for in July 2016.
In response, the applicant indicated that she and her husband initially came to Australia as tourists and it was only after being here for a period that she learnt about the option of the protection visa. The Tribunal put to the applicant that it might consider that if she feared harm for protection purposes in returning to China she would have investigated and applied for a protection visa at a much earlier opportunity. In response, the applicant indicated that had she known earlier about the option of the protection visa she would definitely have applied for it.
The Tribunal has credibility concerns as to the truth of the applicant’s claims to have, between [specified month] and March 2015, travelled with her husband to six different cities in China to escape pressure from her in-laws. The Tribunal considers that if this were true it would have been included in the applicant’s written statement for protection given its relevance to core claims. The supposed trips to escape pressure towards the applicant from the husband’s parents are inconsistent with the applicant’s evidence that the in-laws found out where they were because the applicant husband would answer the telephone calls from his parents and tell them. This obviates the point of the relocations.
The Tribunal considers it undermining to at least some degree of the extent of the claimed fears from the in-laws that the applicants delayed for 16 months from arrival in Australia in applying for the protection visa including allowing themselves to be unlawful non-citizens for 11 months.
As indicated, the Tribunal believes that the applicant’s in-laws applied pressure for the applicant to have an abortion and subsequently applied pressure that she get pregnant again with the desire that she have a boy. While the Tribunal does not consider that the applicants reported the issue to the police for the purpose of seeking a criminal charge against the applicant’s in-laws, it does accept that the applicants approached the police requesting that they talk to the in-laws in relation to their behaviour and pressure being applied to the applicant.
However, given that the applicant is now beyond childbearing age that removes the risk that the applicant faces of the parents-in-law applying pressure on the applicant in terms of becoming pregnant again or seeking a termination if a future child was not a boy. Therefore there no longer exists a real chance of serious or significant harm being suffered by the applicant on that basis.
The Tribunal accepts as plausible that the parents-in-law of the applicant may still apply pressure to the applicants to end the marriage and inflict emotional blackmail in doing so. However, the Tribunal is not satisfied that requests and pressure in this respect amount to serious or significant harm. The Tribunal is not satisfied that there is a real chance that the applicant’s in-laws would act in the future in any other way towards either applicant in terms of inflicting serious or significant harm.
Given these findings the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed. As indicated, the applicant husband is not making claims on his own behalf but is relying on the applicant’s claims.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk of her suffering significant harm.
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David McCulloch
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 4365

4 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Natural Justice