1729603 (Refugee)

1729603 (Refugee) [2020] AATA 4026 (28 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1729603

COUNTRY OF REFERENCE: China
MEMBER:Tania Flood
DATE:28 July 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 July 2020 at 1:03pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – appeal against land resumption – physical assault by police – detention in psychiatric hospital – witness to torture – demolition of home – internal relocation – state protection – forced COVID-19 quarantine – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
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 dependant.
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 9 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 20 July 2017. The delegate refused to grant the visa on the basis that there is not a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act nor a real risk that the applicant will suffer significant harm if he is removed from Australia to China.
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 (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to China for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a Protection visa, the visa applicant is [an age]-year-old citizen of The People’s Republic of China. He was born in Jining, Shandong China. He resided at a single address in [County 1], Jining, Shandong. His parents reside in China and he does not have family members in Australia. He completed primary school and middle school in China. Before coming to Australia, he owned and worked at a factory in Jining, from [year] to 2017.
He arrived in Australia [in] May 2017 as the holder of a [Visitor visa]. He applied for a Protection visa on 20 July 2017. On 9 November 2017 a delegate of the Minister refused his Protection visa application.
The applicant made the following claims on his Protection visa application forms:
He opened a factory in his hometown and had good business. However, the local government told him that his factory would be ‘collected by the developer’. He refused to sign the agreement after learning that the amount of compensation was one third of the market price.
One day while he was working at the factory, the developer sent people to smash all the goods and force him to sign the collection agreement. He was beaten. He called the police but they ignored him. His friend told him that the developer colluded with the police.
After he submitted a complaint letter to the City Government, the officials sent police to catch him. He fled China out of fear.
He claims that if he returns to China he will be persecuted by the police, and he will die if he goes to prison. He claims the Chinese government and the police are corrupt.
Protection visa Interview
The applicant was invited to a Protection visa interview with the Department on 7 November 2017 but did not attend.
Submissions to the Department
The applicant did not make any submissions to the Department in support of his application.
Submissions to the Tribunal
The applicant has not made any submissions to the Tribunal in support of his review.
Oral evidence to the Tribunal
In order to slow the spread of coronavirus (Covid-19) the applicant was invited to appear before the Tribunal by telephone. He appeared before the Tribunal twice to provide evidence in support of his claims.
On the first occasion the applicant provided the following testimony:
He engaged a migration agent to assist him to make his application for a Protection visa. He understands that migration agent has since been arrested. He said he told the migration agent about his circumstances in China but does not know what information the migration agent included in his application as it was not read back to him and he does not speak English.
The applicant said he was born in [County 1] in Jining, Shandong Province. He said he never lived anywhere else in China apart from his birthplace and he confirmed that he remained living at his address in [County 1] until his departure from China.
The applicant stated that approximately one month before his departure from China his parents moved to live with his sister in Jining City and his wife and [children] moved home to live with his in-laws in another part of [County 1]. He said they moved because they were being bullied and harassed by the village head over matters relating to his relationship with the village head.
The applicant stated that he is in regular contact with his wife and children and they have not been bothered by the authorities since they moved in with his in-laws. He said this is because the village head is only interested in pursuing him.
The applicant stated that he left China after the village head attempted to demolish his house. He said that at the end of 2016 the village head sent hooligans to smash the windows of his house. He said the house was only ever partly demolished and this occurred after his move to Australia in 2017. He said that some other households were also told their houses would be demolished but to his knowledge this did not occur.
The applicant said he was targeted by the village head because in 2015 when he was working as [an occupation] in a local factory he witnessed the torture of another citizen. He said he released the person when the torturers departed the factory and the village head assumed he was responsible for that. He said that thereafter the village head has held a grudge against him and he was fired from his job at the factory.
The applicant said that after he was fired from his job in 2015 he moved to work in Zibo which is about [distance] from his home. He said he worked there for about six months and returned to his village in 2016 when his family informed him that the demolition had commenced.
The first Tribunal hearing interrupted when it became apparent the applicant was not in a private setting despite advising otherwise at the commencement of the hearing. The applicant reported that signal failure was interfering with his and the Tribunal’s ability to hear the conversation. For these reasons the Tribunal decided to adjourn the hearing to a later date.
During a second Tribunal hearing the applicant testified as follows:
He repeated his earlier testimony about the events which occurred at the factory in 2015. He said that he witnessed a group of hooligans physically torture a person for 3 to 4 hours including placing toothpicks under the persons fingernails. He confirmed the torturers where unaware of his presence. When asked why he did not leave the factory and raise an alarm he said that he thought it would be useless to report the matter to the police as the village head was involved and he enjoyed a close relationship with the head of police. He added that he was scared and didn’t respond as he should have. He said he did not report this matter to the county authorities as he left that up to the injured person to do.
The applicant repeated his earlier evidence that he encountered no problems while working in Zibo. He said that during the months he was away hooligans hired by the village head visited his family home to ask about his whereabouts. The Tribunal asked whether these hooligans were similar to the ones he had witnessed torturing the person in the factory and he replied “yes”.
The Tribunal questioned why the applicant returned to his village in 2016 knowing that such persons were looking for him. He said it was because his house was going to be demolished and he had to return.
The applicant said that he was not offered any compensation for his house and he refused to agree to it being demolished. He said the village head sent hooligans to smash his windows and they also dumped a load of dirt outside his front door to block the entrance. He said that he went to the county government to complain and on the same evening hooligans came to his house and physically attacked him, beating him almost to the point of unconsciousness. He said they left him in that condition and he was too scared to report the matter to the police. He said he waited for a month but did not get any response to his complaint to the county government and so borrowed money from relatives and friends and travelled to Beijing to lodge a complaint at the national level. He said that when the train arrived back to his hometown he was met by people who put him in a car and drove him to a psychiatric hospital in Jining City. He said he was locked away with people with mental illnesses. After a month he said the doctors realised he did not have a mental illness and so they quietly released him.
The applicant said he was released from the institution at the end of 2016 and thereafter he went to hide away in different relatives houses as he was too scared to return home. The Tribunal put it to the applicant that he made no mention of being institutionalised or forced into hiding during the first hearing when he was asked about his whereabouts prior to departing China. The applicant said that his evidence is the truth even if his dates are not strictly accurate.
The applicant stated that friends advised him to go to Australia to seek protection. He said he obtained a passport in [2017] through the local county bureau of public security. The Tribunal put it to him that it is difficult to accept he willingly presented at the county bureau of public security while claiming to be living in hiding and expressed surprise that he was issued with the passport without incident. He responded that he was too afraid to return to his family home in the village but it was an easy matter to go to the county office to apply for the passport. He said he was not a wanted criminal but the victim of personal harassment by the village head.
The Tribunal asked the applicant how he managed to provide for himself and his family from the beginning of 2016 until his departure from China in May 2017. He said that he had some savings and borrowed money from family and friends. He said his children were living with his in-laws and so he didn’t feel financially stressed.
The Tribunal put it to the applicant that it appears he lived for six months in Zibo without any difficulty and suggested he could do so again in order to avoid any harm from the village head. The applicant responded that his stay in Zibo was temporary and it wouldn’t be possible to live anywhere else permanently because his and his children’s hukou’s are tied to the village. The Tribunal referred to DFATs 2019 Country Information Report which indicates that in 2019 the Chinese Government relaxed hukou restrictions in small and medium sized cities and instructed cities with populations between 1 and 3 million to end all household registration restrictions under the hukou system. The applicant maintained that he would need to seek permission to move to another area and this would require him to visit the local government authority.
When asked if there is any other reason why he fears returning to China the applicant referred to a person in similar circumstances who returned to China from Nigeria in March 2020. He said the person was placed into quarantine with persons infected with coronavirus and succumbed to the illness himself. The applicant stated that the village head used the excuse of the virus to harm the person who subsequently passed away. He said he fears the same thing will happen to him.
The Tribunal put it to the applicant that he would in all likelihood be placed into quarantine in the location of his re-entry into China along with all other people in similar circumstances. The applicant maintained that the local authorities are required to send a car to the airport of his arrival to personally escort him back to his area. He said the village chief would use that excuse to place him at risk of infection. The Tribunal invited the applicant to provide independent evidence to support his claim that this is the standard procedure of the government but he said he does not have anything to provide at this time.
FINDINGS AND REASONS
Country of reference
The applicant has claimed throughout these proceedings that he is a citizen of China. There is no information before the Tribunal to the contrary. On this basis, for the purpose of this review, the Tribunal accepts the applicant is a Chinese national.
Witness to torture in 2015
The applicant claims that his problems arose because in 2015 he witnessed the torture of an individual by hooligans acting on the command of the village head in the factory in which he worked. The applicant claims he freed the individual when the hooligans left the scene and that the village head has held a grudge against him ever since despite that he never acknowledged freeing the individual. He said that it is because of this that his house was demolished.
For the following reasons the Tribunal is not persuaded that the events in 2015 occurred as claimed:
The applicant informed the Tribunal that the claimed torture of the individual involved serious physical abuse and went on for about 3 to 4 hours before the hooligans left the factory. He claims he was alerted to the fact by the victims screams. As discussed during the hearing the Tribunal finds it difficult to accept that the applicant would have withstood this ordeal for such an extraordinarily long period of time when he could easily have left the scene. The Tribunal notes the applicant’s claim to have been too scared to raise the alarm but considers at the very least he might have exited himself from such a horrible scene. Relevantly, the Tribunal notes the applicant’s evidence that the hooligans were not aware of his presence and therefore it appears he could have left the premises unhindered.
As to his claim to have been too scared to act as he knew the village head enjoyed a close relationship with the head of the local police the Tribunal finds this is not in keeping with his subsequent actions. Notably, the applicant claims he returned to his village after working in Zibo when he learnt that his house was to be demolished. While it is acknowledged that an announced demolition of one’s property is a significant event the Tribunal questions his decision to return home when on his evidence hooligans, whom he knew were capable of acting brutally and torturing people outside of the law, had been searching for him at his family home in his absence. Relevantly, on the applicant’s evidence he was aware that there were other avenues open to him to protest the planned demolition of his house, such as by petitioning of higher-level authorities. Also, the Tribunal finds it significant that the applicant did not fear reporting the village head to higher level authorities at the county and national level.
For these reasons the Tribunal is not persuaded that the applicant witnessed the claimed torture in 2015.
House demolition and petitions to government
The applicant claims that when he objected to the demolition of his house the village head sent hooligans to smash his windows and obstruct entry to his premises. Following this he went to the county level authorities to make a complaint. He claims that on the same evening of his trip to the county office he was badly beaten by hooligans acting on instructions from the village head. Despite this the applicant claims that he then took the decision to travel to Beijing to petition the national authorities which then caused him to be institutionalised in a psychiatric hospital for about one month and upon release to go into hiding moving from one relatives house to another.

During the first Tribunal hearing the applicant was asked a series of questions about where he lived in China before coming to Australia. He claimed to have only ever lived in his home village and that this was the last place he spent any time before he departed China. He also confirmed that his parents and wife and children moved to different locations just one month before he departed China. In the course of these discussions the applicant never mentioned that he had been institutionalised against his will or forced to go into hiding in other locations in the months before his departure from China as he claimed during the second Tribunal hearing. When this was put to the applicant he merely responded that the evidence he gave is the truth.
The Tribunal acknowledges that the first Tribunal hearing was relatively short, lasting just one hour due to signal interruptions reported by the applicant in his chosen location for the interview. The Tribunal has considered whether this accounts for his failure to mention the events referred to above but is not persuaded that this adequately explains the omission of such significant events. The Tribunal considers the applicant had an opportunity in the course of the conversation about his whereabouts in China prior to coming to Australia to report that he was not living at his home address in the months before his departure from China because he had been institutionalised in a psychiatric hospital and went into hiding after he was released. The Tribunal considers forced admission to a psychiatric hospital and an inability to return to one’s home due to fear of harm to be significant issues and the applicant’s failure to bring this to the Tribunal’s attention in the context of a relevant discussion is of serious concern to the Tribunal.
In addition, the Tribunal found the applicant’s approach to the delivery of his evidence during the second hearing significantly different to the first hearing. During the first hearing his evidence was relatively brief and he seemed to contradict himself at times. By way of example he first claimed that he returned home to the village in 2016 because his family informed him that the demolition had commenced whereas later he claimed that the demolition activity only commenced in 2017 after his departure from China. When the Tribunal started to explore this apparent contradiction with him during the first hearing is when he claimed to be experiencing signal difficulties and the Tribunal determined it was not in his best interests to continue with that hearing. During the second hearing the Tribunal observed that the applicant provided a more articulate, lengthy and detailed account of each of the different aspects of his claims. The Tribunal considered his evidence was likely rehearsed and has concluded that between the first and second hearings he embellished and/or elaborated on his evidence in order to present a stronger case.
The Tribunal is also concerned about the ease with which the applicant obtained a passport in the claimed circumstances.
Despite claiming to have been forced into hiding in order to preserve his safety he claims he was able to physically present at the county public security bureau to process the application for his passport which was issued without question. By way of response the applicant claimed that he was not a wanted criminal and while he feared going back to his home village he was confident that a short visit to the public security bureau in the county would not cause him any problem.
The Tribunal has considered the applicants response but as discussed with him during the second hearing DFAT’s 2019 country information report indicates that passports are issued at the county level and authorities can refuse passports to people who they deem to be acting against the interests of the state. The Tribunal notes the applicant’s evidence that on the very same evening he reported the village chief to the county authorities he was attacked and beaten in his home by hooligans working on behalf of the village head. In order for this to have occurred the Tribunal is of the view the county officials must have informed the village head that the applicant had made a complaint against him. If that were true the Tribunal considers the applicant had already come to the attention of the county officials at this time. Furthermore, he then heightened his visibility by travelling to Beijing to petition the national authorities. His evidence is that this action was also relayed back to his locality and resulted in him being forcibly institutionalised.
According to the applicant he first raised his objections to the planned demolition of his house at the beginning of 2016 and took various steps in the ensuing year and half before he departed China to raise the matter at first the county level and then the national level. The Tribunal considers it likely that his petitioning activities in all likelihood would have raised his risk profile. On his evidence he applied for the passport just one month before he departed China in May 2017. If the applicant’s claims are to be believed and he petitioned the county and national authorities and was treated in the severe manner that is claimed because of this the Tribunal considers it likely he would have been a person of interest at the county level by the time he made his application for a passport. That he was then issued a passport without any difficulty adds to the Tribunal’s concerns about the claims he has made.
Furthermore, as can be seen from the abovementioned account of the applicant’s evidence there is no connection between the claims raised in his application for a protection visa and the claims made orally to the Tribunal. The Tribunal acknowledges the applicant’s assertion that this is the fault of an unscrupulous migration agent and might otherwise have given some weight to the claim. However, in light of the credibility concerns expressed above the Tribunal is not persuaded that this accounts for the differences between his written and oral evidence.
Having considered the available evidence and for the reasons outlined above, the Tribunal is not persuaded that the applicant has provided a truthful account of the reasons for his departure from China. The Tribunal is not prepared to accept that he was targeted by the village head because he was a witness to torture; that his house was partly demolished in retribution for freeing the tortured individual; that the applicant petitioned the county and national level authorities over this matter; that he was beaten by hooligans or forcibly placed in a psychiatric institution for objecting to the village head’s proposed demolition of his house. Nor does the Tribunal accept the applicant was living in hiding for any period of time before he departed China. It follows that the Tribunal does not accept that there is a real chance the applicant will suffer serious harm if he returns to China now or in the reasonably foreseeable future in connection with these claimed events.
Forced quarantine in China due to Covid-19
The applicant claims that if he returns to China now or in the reasonably foreseeable future he will be collected from the airport by authorities from his village and placed in quarantine with persons infected with the coronavirus. He claims that the village head will use these circumstances as an excuse to further persecute him over the events of the past. However, as noted above the Tribunal does not accept the applicant suffered the claimed past harm in China at the hands of the village head and therefore does not accept he will be targeted in this manner.
The Tribunal considers the applicant will be treated no differently to any other Chinese citizen returning home during the Covid-19 pandemic. A report posted by China Briefing ( provides information on quarantine policies for inbound travellers by province. This states that in Shandong Province all inbound travellers will go through a health information form check, temperature check, symptoms check, epidemiological screening, medical screening and lab test screening. All confirmed, suspected and symptomatic persons and their close contacts will be transferred to government designated places. The Tribunal considers the approach is reasonable and not unlike procedures being implemented globally in an attempt to slow the spread of the virus. The Tribunal is satisfied the applicant will not suffer serious harm as a result of the requirement to undergo such procedures on return to China.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is satisfied that there is not a real chance he will suffer serious harm if he returns to China now or in the reasonably foreseeable future for the reasons claimed or for any other reason. The Tribunal finds he does not have a well-founded fear of persecution in China and therefore he does not satisfy the criterion at s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated above the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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.
…

[2020] AATA 4026

28 July 2020

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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