1726417 (Refugee)

1726417 (Refugee) [2023] AATA 4606 (22 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Amy Lee (MARN: 0215803)
CASE NUMBER: 1726417

COUNTRY OF REFERENCE: China
MEMBER:Rodger Shanahan
DATE:22 November 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 November 2023 at 8:40am
CATCHWORDS
REFUGEE – protection visa – China – physical assault by police – detention – torture – false legal proceedings – mental health issues – delay in applying for protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 5 October 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 14 March 2017.
The applicant appeared before the Tribunal on 26 October 2023 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 was represented in relation to the review. The representative attended the Tribunal hearing.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant provided the following information as part of his protection visa application:
a.Why did you leave that country ? My father is a businessman and he had helped many companies to recruit people who wished to work overseas more than 10 years. He was an agent. In 2008, the developer in [Country 1] went bankrupt because of economic crisis, so 32 overseas workers became unemployed and they could not get their labor security and insurance. Because of complex social relationships in China, the criminal police could not get the labor cost of [amount]rmb which transferred by my father. So my father and i should bear the criminal responsibility. My father was sentenced to [term] imprisonment and i was sentenced to [shorter term] imprisonment with a [term] reprieve and a fine of [amount]rmb in [September] 2009, but the responsible person of the company in [Country 1] remain unpunished. The police extorted confessions by torture and i was suffered from cruel persecution in China. Later, I went to Australia with the help of a friend, I hope Australian government could help me;
b.What do you think will happen to you if you return to that country ? If I returned to China, my family cannot make ends meet, every year the court would enforce fines and i will be arrested to the detention house at least half a month, they would abuse me to death;
c.Did you experience harm in China ? Since I did not accept the court decision, the police used various tortures to extort a confession such as forbid us sleeping, watering us from head, etc;
d.Do you think you will be harmed or mistreated if you return to China ? If i go back to China, i will be arrested in the detention centre and suffer abuse. Because i can not make enough money to pay the workers in a short time.
An additional written statement was provided to the Tribunal just prior to the hearing. It is as follows:
Thank you to the Australian government for giving me a stable and normal life for 10 years and preventing my life from ending early. Below is a brief statement of my experiences in China. When I was arrested in a shop in 2009, I was tortured to extract a confession. In the Northeast weather of minus 30 degrees Celsius, I was wearing thin clothes and my hands were handcuffed next to the bathroom radiator for 3 hours. I was punched and kicked during the interrogation of my case. Afterwards, they kept coaxing me to tell the answers they wanted to hear (for example, asking me to make up lies that my father [Father A] asked me to falsify all the materials). If I didn't follow their instructions, they would hit me in the face, kick me in the stomach, and use their feet. I was detained, my back on an iron stool for 10 hours. (As a result, I still have trouble peeing.)
When the director of public security was interrogated me, he slapped me four times in the mouth, making my mouth full of blood, and asked me to sign a confession (please see the similar case of the reporter Cheng Lei’s detention). After the case was decided, my father was wrongly sentenced to [term] in prison, and I was wrongly sentenced to [shorter term]. In private, the judge and the police came to my family and told me not to dare appeal. If we appealed, they would sentence [the applicant] and [Father A] to the same term of imprisonment. Because the confession obtained after being beaten is enough for the verdict.
The judgment came with a civil lawsuit. My father and I had to repay a fine of [large amounts]. Every year after that, the court would come to the house to enforce the law. The food in our family is the source of income for everyone in the family. But every year after the autumn harvest, the village chief would bring the court's enforcement officers and 32 laborers to sell my family's grain. There is only enough rice left for us to last through the winter. Occasionally, a few people would come to my house to cause trouble after drinking, beating me and scolding me. Saying that we defrauded them of their hard-earned money and accompanied by all kinds of swear words. Some even broke things.
The first few times I called the police, and when the police came the police only persuaded them to leave. The police are understanding of what they do. After defrauding others of so much money, it is light to make such a fuss. Then they took me away and detained me for 14 days and then released me. As long as one of the 32 people goes to the court to report that I have money, they will immediately summon me to the court. If I don't have the money to pay the fine, I will be detained for 14 days. This was the case for the entire 3-4 years. I became depressed in this environment. I tried to commit suicide once and wanted to end my life. I still have scars left after cutting my wrists.
Later, with the help of [specified relatives], I came to Australia to study. Later, my mother, to survive, remarried and went to Shandong with little brother, and my grandmother was taken away by my aunt. (Although I came to Australia by plane, I feel the same way as the people from war-torn countries who came to Australia by boat. We don’t have to worry about our safety anymore. [Father A] is just an ordinary citizen who graduated from elementary school. He only gained some credibility after he went abroad to work in [Country 1] for 2 years in 1993 and made some money.
[Father A] was introduced by a friend to the director of the [City 1] Labor Bureau subsidiary [Business 1] to recruit personnel for the [Country 2] project. Later, the director introduced [Person A], the upper in-line, and the [Country 2] project was a [construction] developed by [a Country 3] development company. At the request of the director, all money should be given by [Father A] to [Person A] and redistributed by the company overseas. [Father A] has no ability to ask [Country 2] to withhold employees' wages. The main reason is that the economic crisis caused developers to go bankrupt. (See: Online document on the impact of the 2008 economic crisis on [Country 2]) 32 employees asked the Chinese foreign diplomatic mission in [Country 2] for help, which assisted them to return to China.
The relevant local government, because the incident affected adversely their achievements and they have to respond to these 32 workers complaints, sentenced [Father A] and [the applicant] (Later on it is heard that the municipal government had red-headed documents directing that they be heavily punished). During the entire case, my father's upper in-line people were ignored, and not investigated for the whereabouts of the funds. They only seized all the property of [Father A’s] family. If there was no backer behind him, it would be impossible for [Father A] to arrange for 32 people to go to [Country 2]. (See Interim Provisions of the State Council on Procedures for Expatriate Workers) Some rational people have been on their way to Beijing to petition.
In the end, [Person B] and three others were sentenced to one and a half years in prison for petitioning. The director of the Labor Bureau is now the head of the Labor Bureau, and the village chief has also been promoted [in] the six counties. The two of them are powerful and have officials protecting each other, and their relationship is complicated. So I don't dare to go back. Going back will lead to death. It would be better for me to die in Australia. (see: the local police chief and secretary of the political and legal committee for the sentencing certificate) The above are all facts. I request the Australian government to protect me and allow me stay in Australia to avoid risking my life if I return to China.
AAT Hearing
He was asked if he knew everything that was in his visa application and that it was true and correct, and he said that what he had given in the last two weeks was true but he had a few advisors before and wasn’t sure what they gave. He was asked if he had signed his application and he said that he did. Asked if he knew what was in it, he said he knew it in Chinese but not in English. He said that it wasn’t read back to him. He said he wrote the Chinese part and his agent translated it. He said that he used a migration company in [Suburb 1] as the agent.
He was asked if, prior to attending the hearing that he had checked his visa application and he said that he had. He said he knew the Chinese part. It was put to him that his agent could check it and that he could highlight any differences following the hearing. He was told that the application would be taken as correct unless told otherwise. The additional information appeared in sympathy with his original claim so it seemed to be okay.
It was put to him that in his application he had made claims of being tortured and he was asked if he had any evidence of mental health or any other medical evidence relating to the torture he alleged to receive in his statement. Asked why he hadn’t sought any, he said that there were no psychologists in China and he couldn’t see a doctor in prison. He was asked about the nine years he had been in Australia, and he stated that he had not sought any medical treatment.
He claimed that if he returned to China, he would be restricted from traveling outside his local area by a court and made to pay off his debt. They would do this because he had been accused of owing money. He had no other claims.
He and his father were involved in a legal case from 2007. The court made a decision in 2008 or 2009 that was against them but it was based on false information. People from the local area came to their house after the result and abused them and the local police did nothing to stop these people. His father was charged with fraud and sentenced to [prison term] and the applicant was sentenced to [shorter term] as an accessory, but the evidence was fraudulent. His sentence was a suspended one. This around 2009.
It was put to him that his sentence would have been finished around 2012 and he agreed. Asked why he had to leave China, he claimed that it was both a civil and criminal case and they had to pay compensation for 32 workers and from 2009-12 people just came to their house at the end of the year and took things that were valuable for themselves.
He suffered from depression and tried to commit suicide so his family sent him to Australia on a student visa. Asked if there was any medical evidence that he suffered from depression or tried to commit suicide given that depression is a medical condition that can last for a while. He didn’t see a doctor as he didn’t have a Medicare card and just relied on his friends to help. Asked if he ever had to report to a hospital or medical centre for depression he said that he hadn’t.
It was put to him that courts normally ordered how debts were to be repaid to people so it was hard to believe that people just came to his house and took things. He said there was an order from the court and there were law enforcement people when they took things from the house. Other times people just came and abused them. Asked what he meant when he said that people just took things, he said that the order said they had to pay these people and the court officials took their crops and sold them, then the courts gave the people the money as payment for the debt. He was asked to provide some country information about the court-directed debt repayment system in place in China.
He left China because he experienced this year after year and he was under a lot of mental pressure and tried to commit suicide. He got a passport around 2004 and was asked why he got one at this time and whether he travelled on it – he said he never travelled on it and never answered why he got it. He received a new passport in [2013] and he left China in March 2014. Asked why he delayed travelling given the pressure he claimed he was under. There were 44 countries that Chinese could travel to visa-free so it was strange that he delayed his travel.
He claimed that he could be ordered to return to China unless he went to places like the US, Canada or the like that had different political systems to China. He was asked why he didn’t go to one of the other 44 countries, some of which also had different political systems. He said that he didn’t know these countries, and he consulted agents who told him that Australia may be a suitable country to go to.
Asked what made Australia suitable and the others not, he said that they had an agent who could get them a US or Australian visa. The US required a face-to-face interview whereas the Australians didn’t. Asked what the problem was with a face-to-face interview, he said that the cost was the same but the agent said it was easier for Australia. Asked again what the problem with a face-to-face interview was, he said this would make it harder to get a visa. Asked why this would be the case if he was genuine, he said this was what the agent told him. He said that he was from NE China so his skin was darker and only rich people go to America and he wasn’t rich.
Asked what his purpose of coming to Australia was, he said that he felt there was no hope in his life so his family sent him to a new country and a new environment. He was asked if he came to Australia to seek protection or if there was another reason and he said that at the time he wanted to run away and he wasn’t aware there was protection. He gradually got better in Australia and then began working in [industry 1] and a workmate told him about protection.
He began working two or three days a week when he arrived. He came on a student visa – asked what he was studying, he said it was an undergraduate degree in [a subject] in [a named] University. He didn’t start his study because his English skills were poor. He was asked if he began his English language course which was normally required for degrees – he said there was no course. The agents just got them to Australia and that was what they were paid for.
Asked if he knew what was in his student visa application, he said that his passport and registration was correct. Asked if he knew that he was coming to Australia on a false student visa with no intention of studying, he said this was correct. Asked if this was the only service they provided, getting him the visa, he said this was correct.
He didn’t know anyone in Australia. Asked what happened when he got off the plane not knowing any English, he said that the agent arranged someone to pick him up and take them to a rented property and gave them papers with jobs and that there was no need to go to university. He knew the documents to get him a student visa were fake. It was put to him that the agent did more than just get him a visa, he also got him accommodation and a means to work. He said this was correct.
Asked why there was a two-week gap between him getting the visa and him leaving China, given he claimed there was an urgency to him having to leave China. It was hard to believe that he was in danger in China given he had a passport for [several] months and never left the country and took two weeks to leave after he had a visa to Australia. He said that he needed other documents to get a visa, one just couldn’t leave. He needed to go to a country with a system different to China’s such as the USA or Australia. It was put to him that he could have gone to Vietnam or Cambodia without a visa for instance. On arrival in Australia his ‘agent’ showed him how to get a job so it appeared that his reason for coming here may be economic.

He said he didn’t want to be involved in a war or drug-trafficking which is why he didn’t go to SE Asian countries. He believed there was great danger there. It was put to him that SE Asia was not at war and Vietnam for example was a popular tourist country - he said that Chinese couldn’t get protection there, unlike in Western countries.
It was put to him that he took three years to apply for protection in Australia even though he knew that he wasn’t a student. The visa was cancelled in June 2016 and he took another nine months before he applied for protection, continuing to work during that time. This raised further questions as to his true reasons for coming to Australia. He said he was unaware that there was something called a protection visa. Before his student visa was cancelled, he went to a lawyer to help him apply for a confirmation of enrolment but he didn’t do a good job and the visa was cancelled. It was put to him that he had to be studying to get a CoE. He said that he asked his lawyer to get him into an English course but he got rejected so he doesn’t know what happened there. Asked if he had any evidence, he said he could provide some and he was told that he could provide it later.
He was asked why he stayed here on a student visa even though he wasn’t a student – he was asked why he didn’t try to sort out his migration as soon as he arrived when he knew he wasn’t a student. He said he had been here for ten years and hadn’t found a way of regularising his immigration status. He just wanted to stay in Australia.
He was told about s 424AA and it was put to him that his student visa application from China included a degree from [a Country 4 university] and an academic transcript. There was also a statement from him about wanting to study in Australia. It also said that he had never been convicted of a crime. The concern was that he had allowed false information to be given to Australian authorities in order to be granted a favourable migration outcome and this went to issues of his credibility.
He said at the time he applied for a student visa he didn’t know these documents would be provided. He just gave his agent some Chinese documents. It wasn’t until he was picked up in Sydney that he was told he couldn’t go to university. Asked where he got the Chinese legal documents he provided to the Tribunal, he said they gave him them in person. It was put to him that country information indicated that the scale of fraudulent documents in China was unmatched in the world. It was put to him that the Chinese documents he gave could have been produced on any home computer and the [Country 4] documents were more complex but fake.
The Tribunal was concerned that he had knowingly provided false Chinese court documents to the Tribunal. He said the case in China was real and it could be shown on the Ministry website. He was advised that he could provide any additional information in support of the document following the hearing. He said that he understood.
He said that he spent a couple of days after he got his visa to Australia to pay people off, then he left three days later. It was put to him that the Tribunal had concerns that anything he had told the Tribunal was true. He said that he was unaware of any false evidence.
Following a short break the applicant the applicant said that he had no control over the student visa application but what he had subsequently provided was true. He now had security and there was no need for him to provide fabricated information. It was put to him that he was applying for a protection visa so there were reasons for him to do so. He said that he had been safe in Australia for nine years and there was no reason for him to give false documents. The adviser was given a week to provide additional information.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] March 2014 on a Chinese passport and a student visa. He did not study and his visa was cancelled on 15 June 2016. He applied for a protection visa on 14 March 2017. The Tribunal accepts the applicant is a Chinese citizen.
The applicant is [an age] year-old man who claimed that if he returned to China he would be restricted from traveling outside his local area by a court and made to pay off his debt. They would do this because he had been accused of owing money.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.
Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Torture Claims
The applicant made claims that he had suffered torture at the hands of the Chinese authorities. I do not accept that he ever suffered any form of torture at the hands of the Chinese authorities. This relies entirely on his oral testimony which (as noted below) I have found lacks credibility. He has never seen a medical practitioner or psychologist in China or Australia, despite describing actions taken against him that he claims left him with physical (and most likely psychological) injuries. I do not accept that this is because there were no psychologists in China. He provided no evidence to support this claim and regardless, he has not sought any psychologist in Australia in the nine years he has been here.
I also do not accept that he suffered from depression and had attempted suicide. Again, no medical evidence was presented. I do not accept that he did not seek such treatment because he had no Medicare card. He could have presented to a hospital and been treated if he required, or he could have paid directly to a medical practitioner. He has never presented to any medical facility.
Accessing an Australian Visa, Arrival in Australia and Delay in Application
The nature of the applicant’s visa application process and actions on arrival in Australia give rise to concerns in the Tribunal’s mind as to his true purpose for coming here. His agent’s rationale for choosing Australia as an arrival destination appeared to be predicated that it did not require a face-to-face interview and was therefore easier to obtain a visa.
Given the applicant was applying for a student visa using fake documents then it is a concern that his agent chose an easier (and hence less obtrusive) process where the fake documents and/or fake purpose of his visa may have been revealed through an interview. The fact that he feared being found out because he didn’t look ‘rich’ also adds to the Tribunal’s belief that seeking an Australian visa involved less scrutiny and was hence easier.
He used fake documents to obtain the student visa and knew full well that he was not coming to Australia to study. If this was simply a ruse to get the applicant out of China in order to seek protection on arrival in Australia then that may have been understandable. However, he did not apply for protection for three years after arrival, including nine months after his student visa was cancelled. He knew the documents used to get him a student visa were fake, never attended any education establishment but rather was met on arrival in Australia by a representative of the agent in China, taken to accommodation and given information to seek a job. All of this leads the Tribunal to conclude that the applicant’s motivation to come to Australia was purely economic and had nothing to do with seeking protection.
I do not accept that his delay in applying for protection was because he was unaware that this was an option and a workmate in [industry 1] told him about it. The applicant was aware from the day he arrived in Australia that he was here on a student visa that had been obtained fraudulently and yet made no effort to approach the Immigration Department or a migration agent/lawyer to ascertain his options in staying in Australia if he feared returning to China. He also failed to seek any guidance for nine months even after his student visa had been cancelled.
Arrest, Trial and Detention
I do not accept that the applicant was ever arrested along with his father over a labour contractual dispute, that he was tried, sentenced in court, fined or that he would be restricted from travelling outside his local area. This account relies nearly exclusively on his oral testimony which I have found lacks credibility. He provided what he claimed were copies of the legal documents relating to his case however I give them no weight.
They lack security features and could easily have been produced on a home computer, and country information indicates that the scale of document fraud in China is unmatched anywhere in the world.[1] I also note that the applicant had provided a fake degree and academic transcript from a [Country 4] university in support of his student visa application which indicates that he has access to a source of fake documents. The applicant claimed that his court case could be seen on the Ministry website – he was given additional time after the hearing to provide evidence in support of this claim however none was provided.
[1] DFAT Country Information Report – China, 22 December 2021.
The applicant’s lack of urgency in leaving China is also not consistent with the torture and mistreatment he claims to have received at the hands of Chinese authorities. To begin with the applicant had a Chinese passport from 2004 and there are a number of countries that he could have attempted to travel to after the alleged expiration of his sentenced in 2012. He claimed variously that he had to go to a country with a different political system to that of China (such as the US or Canada), or that he didn’t know of any other countries he could go to.
Even if this were the case, he received a new passport in [2013] and didn’t leave China until March 2014. He could have gone to an agent much earlier than he did if he was under as much pressure as he claimed. His visa was also granted on 11 March 2014 and yet he didn’t leave until [later in] March, nearly two weeks later. I do not accept that he took a couple of days after getting the visa to pay people off and that he left three days after that. This still leaves over a week unaccounted for.
Given I have not accepted that the applicant was ever arrested, detained, sentenced, fined or tortured, I am also not satisfied that people and/or officials came to their house in China and abused them or took away their possessions or produce.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that there is not a real chance the applicant will suffer serious harm for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever arrested, interrogated or tortured, detained, charged, tried and sentenced, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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 4606

22 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction