1728894 (Refugee)

[2023] AATA 3104

1728894 (Refugee) [2023] AATA 3104 (30 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Hong Bin Xie (MARN: 0854415)

CASE NUMBER:  1728894

COUNTRY OF REFERENCE:                   China

MEMBER:Alan McMurran

DATE:30 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 June 2023 at 6.36pm

CATCHWORDS
REFUGEE – protection visa – China – no response to s.424 letter – not entitled to appear before the Tribunal – proceed to a decision on the available information – land appropriation – inadequate compensation – involvement in one protest – claims generalised and no particulars – decision under review affirmed

LEGISLATION
Administrative Appeals Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 424, 424C, 425, 427, 441A
Migration Regulations 1994 (Cth), Schedule 2

CASES
BZADA v MIC and RRT [2013] FCA 1062
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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 lodged 20 November 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant who claims to be a citizen of China, applied for the visa on 28 July 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee criteria under ss 36(2)(a) of the Act. The delegate did not accept that the applicant faces a real chance of persecution in China, as the applicant’s receiving country, for one or more of the reasons mentioned in s.5J(1)(a) of the Act.

3.    The delegate further found that there was not a real risk of serious harm to him should the applicant be removed to China and therefore the applicant was not a person to whom Australia owes protection obligations outlined in s36(2)(aa)of the Act (the complementary protection assessment).

4.    The Tribunal is satisfied as to the applicant’s Chinese identity based on his produced passport information, and as determined by the applicant’s narrative in the application form, and his biometrics, verified in an identity test interview by a Department officer on 6 October 2017 and which the applicant had attended. The Tribunal accepts that information.

5.    The applicant was represented in relation to the review.

6.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Tribunal process

7.    The applicant is represented in relation to the review by a registered migration agent.

8.    At the time of lodgement of his application to the Department, the applicant had engaged a person to assist him named as [Ms A], who provided a PO Box address at [Suburb 1] in Sydney. This was the address provided to the Department for communications, together with an email address. The applicant was notified at that email address by the Department on 7 November 2017 and by post, with a copy of the decision, now under review.

9.    On 20 November 2017, the applicant provided the Tribunal with a copy of the Department’s decision letter on lodgement of the application for review. The Tribunal review application was lodged online with the applicant’s nominated address and contact details, including email address, and where [Ms A] was set as the recipient for AAT communications.

10.  On 12 December 2019, the Tribunal was advised by email from the applicant of a change to his contact details. He also sought a letter to apply for his Medicare card. The Tribunal recorded the change of address as advised by the applicant.

11.  On 5 April 2023, the case was constituted to a Tribunal Member for determination. On 6 April 2023, the Tribunal sent a letter to the applicant inviting him to provide information. The letter set out details of the delegate’s decision and sought information as to how the applicant met the refugee criteria. Relevant provisions of the Act were extracted and included in the letter. The applicant did not respond.

12.  On 13 April 2023, the Tribunal sent an invitation to the applicant to attend an in-person hearing with a Mandarin interpreter also in attendance to assist him, for 3 hours, at 10.30am on 4 July 2023. Importantly, the invitation included relevant links to the Tribunal’s relevant Practice Direction and for contact. It asked the applicant to provide all documents, including any witness statements intended to be relied upon by 27 June 2023. A hearings’ information Fact Sheet was also included and a telephone number provided for contact. No response was received to the invitation.

13.  On 25 May 2023 upon reviewing the file, the Tribunal sent a letter to the applicant under s 424(2), inviting the applicant to provide information. That letter repeated the earlier request made on 21 March 2023, noting no response had been received to that letter. The Tribunal then requested a response by 8 June 2023. The letter warned the applicant that a failure to respond within the time given for the response meant that the applicant would lose any entitlement he might otherwise have to appear at a hearing to give evidence and present arguments. The applicant did not respond.

14.  On 4 June 2023, the Tribunal received notification of a change of contact details from the applicant’s newly appointed migration agent. On 5 June 2023, a Tribunal officer contacted the representative to confirm his appointment as the relevant forms provided by the agent had marked ‘cancellation’ of representative. The representative noted this was a mistake and that the applicant wished to appoint him, Mr Hong Bin Xie ,as the representative. The representative was asked if he was aware of the hearing invitation for 4 July 2023, and the officer undertook to provide him a copy. He was also reminded of the information request letter of 25 May 2023, which he said he had seen and was aware a response was required ‘very soon’.

15.  On 5 June 2023, the Tribunal officer provided the representative with a copy of the hearing invitation and the s 424 letter reminding him that a response was required by 8 June 2023. The representative responded the same day noting the discussion with the Tribunal officer and the emailed information which he had received, and that he had passed the information on to the applicant and would “let you know once I receive the instruction from my client”. The Tribunal waited but did not receive any response. No request was made for an extension of time to reply or to provide information. No response was received to the hearing information as to whether the applicant intended to appear.

16.   On 13 June 2023, the Tribunal wrote to the representative setting out the chronology and advising that as no response had been received, the hearing set for 4 July 2023 was cancelled. The Tribunal received no reply. The Tribunal has checked all the contact details and is satisfied that contact with the applicant has been made in accordance with s441A of the Act and to the applicant’s nominated email addresses as recorded.

17.  No request has been made to adjourn the process, and no suggestion made from the representative that the applicant was unable to respond with information as invited and to participate in a hearing.

18.  S424C applies in this instance, where the applicant has been invited under s424 to provide information. S424C(1)(b) provides that where the applicant has been invited in writing to give information and does not do so before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information.

19.  S425(3) provides that where s424C(1) or (2) applies, the applicant is not entitled to appear before the Tribunal. The Tribunal finds in this case that s425(3) applies and the applicant has lost any further entitlement he might otherwise have had to appear to make submissions and provide oral evidence and argument. On 15 June 2023, the Tribunal informed the applicant directly that the hearing has been cancelled. The Tribunal is required to act in a fashion which is both ‘fair and just’.[1] The Full Federal Court has held that failure to properly consider whether a case might be adjourned, when dealing with a request or making an ‘unreasonable refusal’ to adjourn, may amount in some circumstances to jurisdictional error by the decision-maker[2]. In this instance there has been no request made to adjourn the proceedings, for example, to allow the applicant to obtain further assistance or other representation. But nonetheless, the Tribunal has considered whether it should still adjourn the review of the delegate’s decision in the exercise of its discretion under s427(1)(b) of the Act.

[1] The Act, s 422B(3).

[2] MIAC v Li (2012) 202 FCR 387

20.  There has been some significant delay since lodgement of the review application in 2017, and which has provided the applicant a considerable opportunity in that time to make inquiries about the review, and to seek assistance, and to provide information, as many applicants do, and to ask about progress if there is a concern about the delay. The applicant has not done so. The Tribunal has found no reason to adjourn the process of its own volition, given the lack of any communication from the applicant or on his behalf and without such information as might have been provided when invited, so as to warrant an adjournment.

21.  The Tribunal is mindful of its obligation under s2A of the Administrative Appeals Act 1975 to pursue the objective for its decision-making of providing a mechanism of review that is fair, just, economical, informal and quick. Trying to balance those requirements, where fairness is paramount, against the need for efficiency in the process, and taking into account the significant delay in this case, although not of the applicant’s making, the Tribunal has found on balance this is not a case where an adjournment is warranted.

22.  On 13 June 2023, the Tribunal’s email informed the applicant that the hearing had been cancelled. The Tribunal has waited until 30 June 2023 but has heard nothing further from the representative or from the applicant or anyone else on his behalf. The Tribunal accordingly has decided to proceed to a decision on the available information at the time of its decision and without a hearing.

Criteria for a protection visa

23.  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).

24.  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.

25.  The relevant provisions and applicable criteria provided for by the Act, are extracted in the attachment to this decision.

26.  The Tribunal has set out the legislative framework below, and the mandatory considerations and following that, consideration of the applicant’s claims and submissions.

Issues on review

27.  The issues arising from the relevant provisions that are required to be determined by the Tribunal are as follows:

(a)Is the applicant a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?, that is:

(i)Is the applicant outside his country of nationality?;

(ii)Does the applicant have a well-founded fear of persecution (s.5J)?; and

(iii)Does the real chance of persecution relate to all areas of China, being the applicant’s country of origin (s.5J(2))?

and, if not,

(b)Is the applicant a person in respect of whom Australia has protection obligations on complementary protection grounds?, that is:

(i)Are there substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm?, and, if so,

(ii)Would it be reasonable for the applicant to relocate to an area of China where there would not be a real risk that the applicant will suffer significant harm?, or,

(iii)Could the applicant obtain from an appropriate authority in China, protection such that there would not be a real risk that the applicant will suffer significant harm?, or,

(iv)Is the real risk one faced by the population of China generally and not faced by the applicant personally?

(c)Is the applicant a member of the same family unit as a person in respect of whom Australia has protection obligations, as a refugee, or on complementary protection grounds, and does that person hold a protection visa of the same class?

28.  In considering these issues, the Tribunal notes that the fact that a person claims fear of persecution and consequent ‘serious harm’ for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ and therefore a ‘real chance’ arising, or that it is for the reason claimed.

29.  Similarly, that an applicant claims to face a real risk of ‘significant harm’ does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

30.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, 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 decision-maker to establish the relevant facts. Reliable fact-finding creates an objective basis for decision-making as opposed to speculation or assumption which carries no weight.

31.  A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. Section 5AAA of the Act makes it clear that it is an applicant’s responsibility to specify all the particulars of the protection claim(s), and in respect of whom Australia has protection obligations and to provide sufficient evidence to establish and support the claim(s).

32.  The Tribunal notes and has regard to the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

“As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.”

33.  Whether the applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future. The Tribunal acknowledges that to do so without the benefit of a hearing is often made more difficult.

Legislative framework - Refugee

34.  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.

35.  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).

36.  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).

Well-founded fear and ‘real chance’ of persecution

37.  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.

38.  The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[3]

[3] Chan Yee Kin v MIEA (1989) 169 CLR 379.

39.  Furthermore, the decision-maker in considering the application of the ‘real chance’ test, as it is referred to, needs to pay regard to the “reality not the appearance” [4] of a real chance, meaning careful consideration of the factual material available and the individual circumstances and context.

[4] Per Mansfield J in SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723 at [30]; see also BEQ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 621 per Farrell J.

40.  Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[5]

[5] FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

41.  If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).

Serious harm

42.  For the purposes of s 5J(4) of the Act, s 5J(5) provides that the following are instances of serious harm: (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.

Modification of behaviour

43.  Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country.

44.  However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic. It does not apply to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter or conceal his or her true political beliefs.

45.  It would not apply to an applicant having to conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.

If not a refugee-Complementary protection

46.  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’).

47.  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.

Significant harm

48.  ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A) of the Act: 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

49.  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.

50.  Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[6]

Relocation

[6] (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180])

51.  Under 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.

52.  The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC[7] and SZFDV v MIAC[8] 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.

[7] SZATV v MIAC (2007) 233 CLR 18;

[8] SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

Mandatory considerations

53. Subsection 499(1) of the Act provides that the Minister may give written directions to a person or body (e.g. the AAT) having functions or powers under the Act, if the directions are about the performance of those functions, or the exercise of those powers. Sub-paragraph 2A of section 499 requires that a person or body must comply with a direction.

54. Ministerial Direction Number 84 of 24 June 2019, issued under s 499 of the Migration Act 1958, states that:

Where the Department of Foreign Affairs and Trade has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

Reports take into account relevant and credible open source reports, as well as information obtained on the ground.

55. 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’ as prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade[9] (DFAT) expressly for protection status determination purposes, and to the extent that they are relevant to the decision under consideration.

[9] DFAT Country of Origin Information Reports (COI) prepared with Department of Home Affairs, Country of Origin Information Services Section (COISS). Dependence

Background

Visa history

56.  The applicant’s visa history is limited to the information available from the Department’s file[10]. This discloses that the applicant arrived onshore on a Subclass FA 600 Visitor visa [in] July 2017. The applicant had applied for the visitor visa granted on 18 May 2017. He has remained onshore since that time and is currently on a Bridging visa A, granted 6 September 2017.

[10] [Department file number]

57.  The applicant lodged his protection application for a XA Protection (Subclass 866) visa recorded on 28 July 2017. The applicant was notified on 27 October 2017 of an intended interview with a Department officer scheduled for 7 November 2017 to consider his protection claims for the visa. According to Department records, the applicant did not attend the interview to discuss his claims.

58.  The Department decision notes that the written material in support of the visa, comprised the application and the applicant’s passport, but did not provide ‘a sufficient basis’ to conclude that the applicant was at risk of harm ‘of any kind’ on his return to China.

Summary of Application information

59.  The only information available for this review as to the applicant’s claims is found in the application form[11] which includes the applicant’s answers to the relevant questions[12]. The only other document provided is a copy of his Chinese passport. No other written submissions or evidence in the form of documents or witness statements or supporting or corroborating material from the applicant has been produced or submitted. In effect, the Tribunal is considering the same information as was before the Department.

[11] Department file as copied to AAT at folios 45-69

[12] Department file - Application form QQ at folios 62-63

60.  The application form sets out personal details of the applicant all of which are not repeated here. In summary, the applicant is a [age] year old citizen of China of Han ethnicity, living in Shandong province, before travelling to Australia. He is married and has a [age] year old son. His immediate family all remain living in Shandong province. He states his occupation as [Occupation 1] when he departed China, and says he was employed in China as a [Occupation 2] before that from July 2015 to July 2017. He states otherwise, he was supported financially by his parents. The applicant has not identified any Australian-citizen relatives or Permanent residents living in Australia and travelled on his own when he left China as a tourist. He had travelled to [Country 1] in July and September 2016. He states he has no other contacts in Australia and has not applied to migrate to any other country.

61.The applicant’s exit from China was checked and authorised by the MPS Exit and Entry Administration as marked in his passport, which reveals that the applicant’s departure was security-checked before he left, freely and without hindrance.

CONSIDERATION OF CLAIMS AND EVIDENCE

62.  The issue in this case is whether the applicant, who is outside his country of nationality, is a refugee and meets the refugee criterion for protection in s36(2)(a) of the Act, as required and set out in the legislative summary above, based upon the information provided in this instance in the answers to the questions in the application form. There is no other available information submitted for consideration.

63.  In the alternative, where the Tribunal finds the applicant is not a refugee, the Tribunal must consider whether the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.

64.  The applicant’s protection claims are contained in his answers to the relevant questions, in the online application form. The answers verbatim are set out as follows[13]:

[13] See folios 62-63 of the Department file copied to the AAT

Provide reasons why this applicant left that country or those countries:

I TOOK PART IN THE PROTEST AGAINST THE UNFAIR HOUSE DEMOLITION AND REPORTED CORRUPT OFFICIALS. I FACED REVENGE AND PERSECUTION. MY COUNTY GOVERNMENT NOTIFIED US THAT OUR HOMETOWN AREA WOULD BE DEMOLISHED AND RENOVATED. THE DEVELOPER EXPLAINED THE COMPENSATION TO US WITH BAD AND ARROGANT ATTITUDE. THEY CAN ONLY OFFER 1/3 OF THE MARKET PRICE. OUR HOUSEHOLDS WOULD SUFFER HUGE LOSSES. WE STRONGLY DISAGREED. SO MY FRIEND AND I ORGANISED A PROTEST WITH OTHER RELOCATION HOUSEHOLDS. WE CAME AND GATHERED AT THE COUNTY GOVERNMENT BUILDING. WHO COULD EXPECT, SHORTLY AFTERWARDS THE PROTEST, POLICES RANSACKED RELOCATION HOUSEHOLDS HOMES INCLUDING MY FRIEND. I WAS LUCKY ENOUGH TO ESCAPE. I HEARD THAT PROTESTORS WERE CRUELLY TORTURED IN DETENTION CENTRE. THE POLICE KNEW THAT I TOOK PART IN THE PROTEST TOO, SO THEY WANTED TO ARREST ME. I WAS TOO AFRAID TO GO BACK TO CHINA. I FLED TO AUSTRALIA AND SEEK HELP.

Did this applicant experience harm in that country or those countries?

No

Did this applicant move, or try to move, to another part of that country or those countries to seek safety? No Give details for why this applicant did not try to move to another part of the country or those countries.

NO, CHINAS OFFICIAL CORRUPTION IS VERY SERIOUS. OFFICERS TRY TO PROTECT AND COVER EACH OTHER. THE POLICE IS THE BULLY OF OFFICERS.

why they would harm or mistreat this applicant.

IF I GO BACK TO CHINA, OFFICERS COLLUDING WITH THE POLICE WILL CONTINUE TO HARM ME. THE WHOLE POLITICAL SYSTEM IS CORRUPTED AND THEY WORK TOGETHER WITH EACH OTHER. THEY WILL NOT SET ME FREE

Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

No THE POLICE COLLUDED WITH OFFICERS, THEY COVER AND HIDE EACH OTHER. THEY WILL KILL ALL OPPONENTS

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

No

Give details about why this applicant is unable to relocate.

THE ENTIRE CHINA IS THE SAME, THEY COVER EACH OTHER AND NO MATTER WHERE I GO, THEY WILL FIND ME OUT AND KILL ME.

65.  In summary, the applicant contends that:

·The applicant’s local county government proposed to demolish and renovate the applicant’s hometown area;

·The compensation offered was inadequate

·The applicant helped organise and participated in a demolition protest at the county government building

·This resulted in police ransacking local households afterwards and detaining protesters who were tortured in a detention centre

·The applicant was known to police from the protest and fled to Australia before they could arrest him

·Official corruption in China is everywhere and serious, and police protect themselves and bully others, arresting those who oppose them and colluding with authorities, killing all opponents

·If he returns to China, he will be arrested, wherever he may go.

Findings -  Are the applicant’s claims made out?

1. Firstly, the applicant’s claims are very generalised and give no particulars. The applicant gives no timeline as to when and where the claimed events occurred. He states that he has not been harmed or arrested or detained by police. He does not explain any detail about the protest, such as when it took place, how he organised it, who was present, and what happened.

2. Secondly, there is nothing to update the current circumstances in his hometown, the situation with the officials from the county government and the local police, and what may have happened since 2017, and whether any personal ‘threat’ concerning the applicant still exists and how he knows that, so that it could be concluded that there is a reasonable likelihood the applicant may be harmed in the foreseeable future, were he to return.

3. Thirdly, as there was no hearing, and no responses from the applicant despite requests for information, the Tribunal was unable to explore these claims in any detail.

4. Fourthly, the applicant himself has not taken the opportunity to provide information and further particulars to detail the events which happened and the fear he claims to hold. No names are mentioned as to the local authority involved and witnesses, no statements submitted, nor what may have happened to his friend and others from various households and whether the demolition proceeded and if any compensation as proposed by the local authority was paid. He provides no information from his family, with whom he is in contact, his wife and adult child and parents, who continue to reside in the area, and whether they have been threatened or harmed because of his activities protesting.

5. The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. The Minister (or the Tribunal on review) does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[14].This is consistent with the well-settled proposition that it is for the applicant to make his or her own case.

   [14] Section 5AAA of the Act, inserted by item 1 of sch 1 to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) with effect from 14 April 2015

6. The Tribunal has carefully considered the applicant’s claims as detailed in his application for a protection visa, both individually and cumulatively. The Tribunal did not offer the applicant the opportunity to attend a hearing, when he failed to provide additional information in support of his claims, and where he had been advised of the delegate’s decision, and the need to respond to the Tribunal within a particular time.

7. Without the benefit of the provision of further information or documentation from the applicant and in the absence accordingly of a hearing, the Tribunal is unable to be satisfied of the claims raised by the applicant in his application.

8. The Tribunal does not accept the applicant’s statements at face value and gives them no weight. The only relevant fact from the statements is the applicant’s admission that the applicant has not been harmed or threatened by police. He is apparently ‘known’ to police for protesting, but afterwards he was freely able to depart the country without hindrance. He does not say he intends to continue protesting when he returns to China. There is no evidence produced to base a finding that the police in this instance, who are not identified, have themselves acted corruptly or in a threatening manner to the applicant or his family and so as to threaten him for challenging the local government and to enliven the claim within the refugee criteria identified in s 5J(1) of the Act.

9. The Tribunal finds on the bare facts available that without more detail, the claims are nothing more than fanciful, far-fetched and implausible. It is not possible on any reasonably objective basis to conclude from the available information that the applicant is at risk of serious harm and has a well-founded fear of persecution in China in the foreseeable future, so as to meet the refugee criterion.

10. The Tribunal has compared the applicant’s very generalised claims against the available country information about protesting in China.

    DFAT country information report – Republic of China December 2021

11. In accordance with Direction No.84 made pursuant to s.499 of the Act, the Tribunal has also had regard to country information assessments prepared by the Department of Foreign Affairs and Trade with the assistance of COISS.

12. From the most recent DFAT country information report, referenced as ‘Report People’s Republic of China 22 December 2021’, the Tribunal has extracted relevantly the following assessments. The report takes into account a “general, rather than exhaustive country overview” and “based on DFAT’S on-the-ground knowledge and discussions with a range of sources in the People’s Republic of China and Australia.”[15] The following assessments are relevant:

    [15] Purpose and Scope at ch 1; paragraph numbers refer to the extracted paragraphs from the report.

    Protesters and petitioners – including land protests [and ‘complaints’]

    Disputes with government may be raised at petitioning offices, also called ‘letters and visits’ offices, a type of government service office. Millions of disputes are raised every year. Local authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means local authorities are incentivised to retaliate against petitioners, which might include charges such as ‘picking quarrels and provoking trouble’. According to the 2020 US Department of State Human Rights Report, local governments have sent personnel to Beijing to force petitioners in the capital to return home. While examples of violence and, in extreme cases, deaths are reported, many complaints are resolved through the petitioning process.

    DFAT assesses that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.

    Police

    The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. These agencies often collectively and individually called the local ‘Public Security Bureau’ (PSB). The People’s Armed Police (PAP) is a paramilitary force organised under the People’s Liberation Army (PLA) responsible for internal security and stability (such as combatting riots and terrorism, but also domestic monitoring of perceived security threats), maritime security and support of the PLA. The PAP is also active in Xinjiang. Regular police generally do not carry firearms and gun crime is rare in China.

    Police maintain public order and social stability, which are overriding priorities for the CCP. Loyalty to the Party is important among police ranks, as it is in all government positions. Police, including at lower levels, can be investigated for corruption (which is a threat to stability and Party legitimacy) and loyalty offences.

    Police carry out day-to-day crime fighting activities and investigate crimes. Day-to-day crime rates are low in China but where crime does occur, DFAT understands that police investigate thoroughly and prosecute alleged criminals.

    Police are subject to little oversight, having the ability to issue their own warrants without the involvement of a court (or ignoring regulations where this is required). For example. according to the US Department of State Human Rights Report, while investigations into police killings are often announced, the findings of those investigations are often not announced. DFAT is not able to verify this. Freedom House’s 2021 Freedom in the World report describes police impunity as ‘the norm’.

    Police have access to enormous amounts of data and other evidence. Social media is monitored and an unprecedented number of closed-circuit television cameras have been rolled out during the COVID-19 pandemic as part of efforts to control the virus.

    Arbitrary Arrest and Detention

    Arbitrary arrest and detention is commonly reported, especially in cases of political sensitivity and to exercise political leverage. This may, in instances, take the form of enforced disappearance, as family and friends may not know that a person has been taken into detention. Safeguard Defenders, a Spanish human rights NGO, alleged in a 2020 report that some detainees were forced to take false names to further obscure their location from friends, family and the public.

    Residential Surveillance at a Designated Location (RSDL) is sometimes used to detain activists, human rights lawyers and government critics, as well as people accused of national security or terrorism crimes or serious corruption. It may also be used if a suspect does not have a fixed place of residence. RSDL may be used to detain people for up to seven months before their formal arrest or release.

    The primary distinction between RSDL and ‘black jail’ (a secret, extra-legal detention facility) is that RSDL is a formal feature of the Chinese legal system. RSDL also reportedly often entails treatment more severe than in black jails, and occurs in government-run, custom fit-for-purpose facilities, whereas black jails are quasi-administrative holding centres for petitioners and criminals.

    Administrative detention is imposed for crimes of a minor nature that are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law. It can involve detention in one’s home, an apartment rented by police, a hotel or other premises. It is imposed by public security organs at the local (county) government level. While there are various forms of administrative detention in China with different procedures and time-limits, the maximum period of administrative detention for any one act is 15 days, and where multiple periods of administrative detention are imposed concurrently for several acts, the maximum period of detention is 20 days.

    Internal Relocation

    Internal migration has been a key feature of Chinese economic and social life for decades. Migration to cities in the wealthy eastern provinces is particularly popular. A third of the population live in a place other than where their residence is registered with a local government. Urbanisation has been a key feature of China’s rapid economic development. There are no legal impediments to relocation, but the hukou system may limit freedom of movement in practice. As Mandarin is spoken throughout the country, DFAT assesses that Han Chinese[16] have little difficulty in resettling in different parts of the country (see Race/Nationality).

    [16] This applicant is Han Chinese

    Summary

1. In summary, the Tribunal finds the available country information assesses the following:

   ·     Those Chinese citizens with a higher profile and who are effectively activists critical of the State face a high risk of official persecution and repression.

   ·     High profile political activists as well as critics of the Chinese Communist Party and the government may be targeted and monitored and may come to the attention of authorities through their activities and may be at high risk of detention and imprisonment.

   ·     Petitioners asserting, agitating and complaining of local corruption or any other matter critical of the State are subject to a high risk of official discrimination.

   ·     ‘Petitioning’ authorities is nonetheless a common approach adopted by citizens seeking to complain over compulsory acquisitions and inadequate compensation and to reach resolution of private disputes in a less complex environment; the government officially encourages resolution but outcomes may vary greatly from locality to locality and many claims are beset by corruption and where police fail to intervene.  

   ·     Disputes resulting in protests tend to be localised and the applicant is able to move to other safe areas within China, away from the area of dispute and protest; internal relocation is a common event in China for many Chinese and the applicant would not be prevented from moving away.

   ·     Policing is subject to little oversight and will vary according to context and location, but in summary, may also be aligned with the degree of activism and profile on the part of a complainant and protester.

   ·     Corruption and corrupt officials who may support unlawful detention and punishment are themselves at risk of prosecution and imprisonment although the actual level of prosecutions in such cases is uncertain and inconsistent.

2. On the available information, the applicant does not claim to have a profile as an activist or troublemaker. He attended a once-only protest which he and others organised. The State through police and local government is generally not likely to intervene in localised disputes unless an issue critical of the government or highly-placed officials is pressed or it is orchestrated or organised and the organisers are then targeted to avoid further or possible threats to public order and stability. There may be instances of corrupt behaviour however where police may choose either not to act, or alternatively, to arbitrarily arrest and detain individuals because of political interference from other corrupt officials. There is no evidence to support such a conclusion in this instance and in the context of the applicant’s claimed once-only involvement in a public protest.

3. The Tribunal finds that in this instance there is no reliable evidence to satisfy a finding that the State will offer no protection to the applicant in the future. The available country information shows that police are often most interested in preventing public disorder, and threats to the standing of the government where and when arising. Where these events may have occurred sometime in 2017, and there is no evidence of any continuing protests involving the applicant’s hometown concerning any demolition proposals since then, the likelihood of further police action at the current time (2023) or beyond seems remote.

4. A 2017 COISS report[17] notes on the petitioning system current at the time of this applicant’s experience: “The petition system has become a separate dispute resolution system parallel to the judicial system, with the aim of settling disputes and obtaining appropriate remedies using the administrative procedure. The petition system has some advantages for the individual in comparison to the judicial system, being a relatively simple procedure, at low cost, and one which may work more efficiently than the judicial procedure. In addition, the traditional belief that officials at higher levels and in central authorities are more honest and just than local lower level officials draws many Chinese people to use the petition system instead of the judicial process to solve their problems.”

   [17] Q & A report titled ‘Protesters and Petitioners’ dated 4 December 2017;

5. There is no evidence that claims on the issue of compensation as raised in this instance are still the subject of dispute, or any ongoing protesting and petitioning in the applicant’s hometown. The DFAT information indicates that the primary concern for local authorities and police is to avoid civil unrest, such as might be caused by street protests, but it is still open to citizens to use the petition process referred to above to pursue claims for compensation in an orderly manner and which “draws many Chinese people to use the petition system instead of the judicial process to solve their problems”. There appears no reason in this instance why the applicant could not have pursued the petitioning process rather than protesting to pursue his goal to recover more compensation. Whether that was considered or not is not explained.

6. There is no evidence in this case that the applicant is himself a political activist who has a profile known to Chinese authorities and who is likely to be drawn to their attention on his return on account of any anticipated or continued protesting activities which may then involve local authorities and police. The applicant does not give a history of having any significant profile as a protester.

7. There is no evidence that the applicant has engaged in any other protest activities since attending a single event in his hometown in or about 2017. Given the lapse of time since that event and the lack of contemporary information, it is not possible to form a view as to the foreseeability of any serious harm which might befall the applicant on his return. It seems most likely that the applicant is of no interest at all to police or local authorities and could safely return home in 2023 and thereafter without fear of arrest or detention.

8. The applicant claims a subjective fear not based on current information, which appears on a foreseeability test as not well-founded and is both far-fetched and remote, following on the elapsed time interval where nothing has been reported for more than 6 years. Where there is no evidence of any continuing protesting by the applicant or anyone on his behalf since 2017, the Tribunal can place very little weight upon statements where he contends he will be seriously harmed or killed in the foreseeable future by State authorities, unwilling to protect him.

9. The Tribunal finds the applicant’s claims are implausible and exaggerated, not well-founded and are rejected in total.

10. For these reasons, the Tribunal does not accept that the applicant faces a well-founded fear of persecution in the foreseeable future and a real chance of serious harm should he return to China and is therefore not a refugee within the meaning given by the Act.

    Relocation and complementary protection-  Can the applicant safely relocate to another part of the country?

11. The Tribunal has considered the guidelines aligned against the application in this instance but found nothing cumulatively in the context provided by the applicant that might require the Tribunal not to be guided by policy in consideration of the Tribunal’s decision.

12. Policy points to the likelihood or foreseeability of a real chance of persecution based on the available objective information, and foreseeability of persecution, not only in the applicant’s local area, but anywhere in China.

13. The Tribunal has found on the available country information that there is no real chance of persecution of the applicant either in the foreseeable future on his return to his country of origin, either in his former local area in Shandong province with his family, or anywhere in China he might choose to locate.

    Conclusion

14. 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).

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). For the reasons expressed above, the Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

16. 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.

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

    DECISION

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

    Alan McMurran
    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.

    …