1731095 (Refugee)

1731095 (Refugee) [2023] AATA 4657 (13 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731095
COUNTRY OF REFERENCE:                   China
MEMBER:Suseela Durvasula
DATE:13 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 December 2023 at 10:51am
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – petition against corruption – land resumption without compensation – physical assault – demolition of home – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 5 July 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.
The applicant appeared before the Tribunal on 7 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Background
The applicant is [an age]-yearold Chinese national who was born in Fuqing, Fujian Province. He is married with [specified children]. His wife, children and parents also live in Fujian.
In his protection visa application, the applicant states he lived in [Village A], Fujian from his birth until January 2005; in [Country 1] from January 2005 to January 2013; in [Village A], Fujian from January 2013 to January 2016 and Gansu (North-Western China) from January 2016 to July 2017.
The applicant completed his education up to primary school. In relation to his employment, he states he was employed in farm work in Fujian, as a worker in [Country 1] from 2005 to 2013 and employed part-time in Gansu from January 2016 to June 2017.
The applicant departed China [in] July 2017 from Shanghai. He travelled to Australia on a Chinese passport issued in Gansu [in] 2017, arriving [later in] July 2017 on a visitor visa. He submitted a copy of his passport with the visa application.
The delegate invited the applicant to attend an interview on 29 November 2017 but the applicant did not attend.
At the hearing, the Tribunal asked the applicant about his current personal circumstances and background. The applicant stated that his wife currently lives with his parents at Address A in his hometown at [Village A] in the countryside in Fujian Province. The house is his parents’ home. His wife does casual work at a [work site]. His [children are] married. One [child] lives in the same village [details deleted]. He is in regular contact with his wife and she is okay.
The Tribunal asked the applicant about his address history in China. He stated that he lived at Address A in [Village A] with his wife before he left China. He slept there at night and went from there to the airport to depart China. He has not lived anywhere else in China. He was working [at a work site] in his hometown before he left China.
Later in the hearing, the applicant stated that he had also worked in Gansu Province, North-Western China for 6 months in 2016. He also worked in some other provinces when he was younger, before he was married.
The applicant travelled to [Country 1] in 2005 and stayed there for 8 years until 2013. He travelled on a tourist visa that was valid for 6 months and stayed on unlawfully after his visa expired. His brother also lives in [Country 1]. It did not work out for him to stay longer in [Country 1] so he returned to China in 2013.
The Tribunal asked the applicant how his protection visa application was prepared. The applicant stated he was introduced to a lawyer in [Suburb 1]. He explained that his house was demolished and he got into a fight and explained what had happened. He did not check the information in the application.
The applicant’s claims
In his protection visa application, the applicant states that he suffered persecution in China because he made a petition to reveal the government’s official corruption. He has an old house in his hometown. One day, the local government notified him that his house would be demolished but he did not receive any compensation. He and other residents did not agree to sign the demolition agreement.
One day when he was working, his wife called him to say the demolition team had come to his house. They smashed their goods and threatened them. The applicant was very angry and decided to petition to reveal the unfair treatment. After the city government knew of his behaviour they sent the police to catch him. He was scared so he escaped China and fled to Australia. If he returns to China, he fears he will be persecuted by the police and taken to prison.
At the hearing, the Tribunal asked the applicant why he left China and what he feared would happen on his return.
The applicant explained that after he returned from [Country 1], he had some money so he bought some land near his family home in [Village A]. He wanted to build a new house as his parents’ family home was getting old. He applied for permission through the village party secretary, but the party secretary did not approve the building. He was not sure why the building was not approved, but later he thought that the party secretary may have wanted money. He went ahead and started building the house anyway.
The Tribunal asked the applicant why he proceeded with building the house when it had not been approved, given that it risked being demolished because of the lack of building approval. The applicant responded that many people were constructing houses like that at the time in his area.
The construction started in February 2014 and it went on for 6 months. The applicant worked on the construction. He got his neighbours’ consent to build the house and finished constructing one level.
In July 2014 the applicant got into a fight with his neighbours and people from the land bureau over the construction. The applicant beat the neighbour’s son as he was trying to defend himself. He stopped the construction for a month. In August 2014 the local government authorities told him he could not build a second storey and they demolished the house.
The Tribunal asked the applicant whether he had any documentary evidence or photographs of the land, the building work or the demolition. The applicant said he had some documents and photographs but they were on his old mobile which had been lost.
The applicant did not take further action to protest against the demolition, petition the government or seek compensation. He was unable to do anything about it. He tried to get his cousin to help him through connections but his cousin was unable to assist and told him to ‘lay low’.
The applicant stated he did not stay in his hometown after the incident and hid in different places as he was worried the neighbours and local government officials would try to find him and harm him. He went to Gansu to work.
The Tribunal noted that the applicant had earlier stated that he had worked in Gansu Province in 2016 and asked where he was between August 2014 and January 2016. He stated he was hiding at his daughter’s home in the same village. The Tribunal asked why the local government officials had not tried to find him at his daughter’s place as it was in the same village. The applicant stated that his daughter was not at home so the door was locked, although he repeated he was staying at her house at the time.
The applicant stated that in 2016 he went to Gansu for work and he applied for a passport from there. He was too scared to go back to his hometown. His cousin helped him get a visa to Australia. He went to Guangzhou to get his visa and left from Shanghai. He had no difficulties departing China.
The Tribunal put to the applicant that he had earlier stated that he had been living in his hometown at his family home just before he left China. The applicant then stated that he went to his hometown for 2 days just before he departed to say goodbye to his wife.
If he returns to China he fears government officials from the land bureau will look for him and want to beat him up. His wife told him that he better not come home. He also fears harm from his neighbours as they have connections and he beat the neighbour’s son. The Tribunal asked the applicant why the officials and neighbours would be interested in him now, given that more than 9 years had passed since the events in 2014. The applicant claimed he cannot return to his hometown. His neighbours were talking to his wife and were threatening to send people to Australia to find him.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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 issues in this case are whether there is a real chance, if the applicant returns to China, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide 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.
Country of nationality
The applicant provided a copy of his passport to the Department with his application which shows he is a Chinese citizen. The Tribunal finds, based on the applicant’s passport, that he is a national of China and has assessed his claims on this basis.
Summary of applicant’s claims
The applicant’s claims may be summarised as follows. The applicant claims that in 2014, he acquired some land in his hometown in [Village A], Fujian. He claims he sought permission from the local government authorities to build a house on the land but permission was refused. The applicant claims he nevertheless proceeded to build the first storey of the house. He claims that local government authorities demolished the house in August 2014 when it was half built. He also claims he got into a fight with his neighbours in July 2014.
The applicant claims that after these events, he went into hiding as he feared that local government authorities and his neighbours would try to find him and harm him. He claims that he hid at his daughter’s house in the same village and later went to Gansu Province to work in 2016. The applicant claims that if he returns to China he will be harmed by his neighbours and by local government officials.
In his protection visa application, the applicant also stated that he and other residents refused to sign a demolition agreement when the local government wanted to demolish his home. After the demolition, he petitioned local government authorities and the city government sent police to catch him. At the hearing, the applicant stated these events did not happen. He had only told his lawyer that he had built a new house and it was demolished and he went into hiding. He did not check what was put in his protection visa application. The Tribunal has considered the applicant’s explanation and accepts that the account he gave at the hearing are his actual claims. The Tribunal finds the applicant is not claiming that he petitioned local government authorities, or that the city government sent police to catch him, or that he refused to sign a demolition agreement.
Demolition of applicant’s home in 2014
The Tribunal has some concerns about the plausibility of the applicant’s claim that he proceeded to build a house on his land despite not obtaining the necessary building approvals from the local government authorities. The applicant also did not have any documentary evidence or photographs of the land, the building work or the demolition. The Tribunal is nevertheless prepared to give the applicant the benefit of the doubt and accept his evidence that he was able to acquire some land from the income he earned in [Country 1] and that he wanted to build a larger home for his family.
The Tribunal has also considered the independent country information which indicates that ‘land disputes are a particularly common reason for protest’ and ‘disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation.’[1] There continue to be reports that ‘local governments forcibly seized and demolished the homes of citizens without providing adequate replacement housing or financial restitution’.[2]
[1] DFAT Country Information Report People’s Republic of China (22 December 2021) (DFAT report) at 3.88.
[2] US Department of State, 2022 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau and Tibet), Property seizure and restitution, >
On the basis of the applicant’s evidence at hearing and the independent information above, the Tribunal accepts it is plausible that the applicant started building a house in 2014 and the house was demolished by local government authorities in August 2014 as it did not have the necessary building approvals. The Tribunal accepts it is plausible that he got into a fight with his neighbours over the illegal construction.
Claim that applicant went into hiding due to fear from local government authorities and neighbours
For the reasons set out below, the Tribunal does not accept the credibility of the applicant’s claims that he went into hiding due to fear from local government authorities and neighbours.
Firstly, the Tribunal finds the applicant gave inconsistent evidence at the hearing about where he was living after the demolition in August 2014. Initially the applicant told the Tribunal that he lived continuously at his home in [Village A] with his wife until he left China. He stated he did not live anywhere else. He also stated he was working [at a work site] in his hometown before he left China. Later in the hearing, he stated he went into hiding after 2014 and lived at his daughter’s place in his home village from 2014 to January 2016. He then went to Gansu Province for work. When the Tribunal put these inconsistences to the applicant at hearing, he repeated that he stayed at his daughter’s place in his home village. He only went back to his family home for a couple of days before he left China to say goodbye to his wife.
The Tribunal has considered the applicant’s explanation. The Tribunal accepts the applicant went to Gansu between January 2016 and July 2017, based on the information in his protection visa application and the fact that his passport was issued in Gansu in [2017]. However, the Tribunal does not accept that he was in hiding at his daughter’s place between August 2014 and 2016, given he had earlier clearly stated that he had lived at his own home and worked in his local area in [industry 1]. Given the inconsistencies in the applicant’s evidence about where he was living, the Tribunal does not accept that he went into hiding after the demolition in August 2014. The Tribunal finds, based on the applicant’s evidence, that he continued to stay in his own home and work in his local area until he departed for Gansu in early 2016.
Secondly, the Tribunal finds the applicant continued to stay in his hometown without incident after the demolition in August 2014 for almost 18 months until early 2016. He was not arrested or questioned by the local authorities or harmed by his neighbours during this time. At the hearing, the Tribunal put to the applicant that this information may indicate that he was not of interest to the local government authorities or his neighbours. The applicant had no response to this.
The Tribunal has not accepted above that the applicant was in hiding at his daughter’s place after the demolition in August 2014, but that he continued to live at his own house in [Village A]. Even if the Tribunal were to accept that the applicant stayed at his daughter’s place on occasion, the Tribunal considers that the local authorities or his former neighbours would have been able to locate the applicant, given that he was living in the same village with a family member. The fact that they did not do so demonstrates that they had no interest in harming him.

Thirdly, the applicant was unable to give a plausible explanation as to why the local government authorities would be interested in harming him after the house demolition was complete. On the applicant’s own evidence, he did not petition or agitate the local government or protest against the demolition. On his own evidence, the house construction was done without the necessary building permits. As put to the applicant at the hearing, under the Chinese Constitution, rural land is owned by collectives, not individuals. The Constitution allows for the State to expropriate or requisition land for its use, provided that affected individuals are compensated.[3] In response the applicant stated that others have connections with the government and he does not. The Tribunal is not satisfied that this adequately explains why the local government authorities would be interested in harming him once the house demolition had been completed, given that he did not agitate or protest further.
[3] Constitution of the People’s Republic of China 1982 (amended 14 March 2004), National People’s Congress of the People’s Republic of China, Article 10 (accessed 7 December 2023).
In summary, for the reasons set out above, the Tribunal does not accept the applicant’s claim that after the house demolition in August 2014, he went into hiding and could not return to his family home as he feared for his safety. The Tribunal does not accept that local government officials or his neighbours wanted to threaten or harm him after August 2014.
Future harm
At the hearing the Tribunal asked the applicant about his family’s current circumstances and what he would do if he returned to China. The applicant stated that he has contact with his wife and she is okay. The Tribunal put to the applicant that his family have continued to live in his hometown without any incident. This includes his wife, who lives near the property that was demolished. These factors, along with the significant passage of time (6 to 9 years) since the original incidents, may indicate that local government officials or his neighbours would not have an interest in harming him if he returned. The applicant stated that his wife had told him they were threatening to send people to Australia to find him.
The Tribunal has considered the applicant’s claims. In relation to the applicant’s future conduct, the Tribunal does not accept that he would protest or petition against the local government officials if he returned to China, given that he did not protest after his house was demolished in 2014. The Tribunal does not accept the applicant would be harmed by his neighbours or local government officials, given that he continued to live in his hometown without harm or incident for 18 months following the demolition in August 2014.
It follows that the Tribunal does not accept the applicant would be harmed if he returns to China, given the significant passage of time (6 to 9 years) since the original house demolition and his departure from China. The Tribunal does not accept that government officials or his neighbours have been asking his family about his whereabouts or that they will try to find out where he is now, given the Tribunal’s finding that he was not of interest to them when he departed. The Tribunal finds the applicant would be able to return to live and work in his hometown or find work in other provinces, as he did previously, without facing serious or significant harm.
Therefore, the Tribunal does not accept there is a real chance that the applicant will face persecution involving serious harm from local government officials or his neighbours, now or in the reasonably foreseeable future, if he returns to China.
Overall assessment
The Tribunal has considered the applicant’s claims individually and cumulatively. Having considered the evidence as a whole, the Tribunal is not satisfied that if the applicant returns to China, now or in the foreseeable future, he faces a real chance of serious harm for any of the reasons in s 5J(1)(a) of the Act.
Accordingly, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal is not satisfied the applicant meets the definition of refugee in s 5H(1) of the Act.
Complementary protection
The Tribunal has also considered whether the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act – that is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk he will suffer significant harm.
The Tribunal takes into account the above findings of fact in relation to the ‘real chance’ test under the refugee criterion and its view of the applicant’s future conduct and circumstances if he were removed from Australia to China. The Tribunal is satisfied the applicant would be able to live with his family in his hometown, find [industry 1] work or other jobs in his hometown or in other provinces and would not experience adverse treatment from the authorities. The Tribunal is not satisfied there is a real risk that the applicant will experience significant harm as that term is defined in s 36(2A) of the Act.
The Tribunal is not satisfied on the evidence, 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. The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Suseela Durvasula
Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4657

13 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice