1731566 (Refugee)

1731566 (Refugee) [2024] AATA 1956 (1 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731566
COUNTRY OF REFERENCE:                   China
MEMBER:David McCulloch
DATE:1 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 May 2024 at 9:19am
CATCHWORDS
REFUGEE – Protection Visa – China – Police officer extort money from the shop – not satisfied that there are gangsters in China who have ongoing adverse interest towards the applicant – not satisfied the applicant has a well-founded fear of serious harm – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA (1994) 52 FCR 437
Yao Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 11 December 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 8 September 2017. The applicant did not attend the interview with the delegate to which he was invited. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 24 April 2024 at 9.30 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented by a registered migration agent who attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – People’s Republic of China, 22 December 2021. The Tribunal gave to the applicant a copy of this report at the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the protection criteria are met.
The applicant’s migration history is as follows. On 9 August 2017 he was granted a multiple-entry three-month temporary Tourist Visa (Subclass FA-600). The applicant entered on that visa on [date] August 2017. The application for the protection visa was made on 8 September 2017.
The following information is evident from the application for the protection visa. The applicant was born on [date] in [Area 1], Jilin, China. The applicant lists both parents as living. The applicant is in contact with relatives outside of China by phone. The applicant lists one address lived at from birth until coming to Australia in [Area 1], Jilin. The applicant’s highest level of education is finishing high school in July 1987. From August 1987 until 1 August 2017 the applicant was the manager of a [shop]. The applicant indicates that he ran the shop. The applicant indicates that he left China legally.
In terms of claims for protection, the applicant indicates that he ran his own [shop] in his hometown for many years. It was a good business and operated well. Local government officers often came to the [shop] and asked the applicant to give them money. It was a kind of bribery. The applicant gave money to avoid unnecessary troubles. They came to the shop frequently and asked for more and more money which was out of the applicant’s reach. The applicant began to refuse to give them money. The applicant was detained by police for disobeying the rules. After the applicant returned home, he was kicked out and threatened by gangsters sent by the police. The applicant continued to be tortured for a long time. The applicant thought it would not be safe in China and therefore came to Australia.
In terms of specific harm, the applicant refers to being detained by police. He also indicates that he was kicked and threatened by the gangsters after he returned home. The applicant indicates that he went to the local police station to ask for help. Nobody came to help him and he was detained instead. The applicant indicates that he tried to move to another city, but he was found by the gangsters and they threatened that they would do something worse if he still wanted to move. The applicant indicates that if he returns to China he will be harmed by the gangsters.
Independent information
The 2021 DFAT report on China provides the following information (underlining added):
Corruption
2.20 China ranked 78 out of 180 countries and territories in Transparency International’s 2020 Corruption Perceptions Index (where 1 is perceived to be least corrupt). The 2020 Global Corruption Barometer for Asia found that, while 64 per cent of Chinese citizens considered corruption had decreased in the previous 12 months, 62 per cent still perceived government corruption to be ‘a big problem’.
2.21 Transparency International estimated 28 per cent of public officials accepted a bribe in 2020. The 2020 US Department of State Human Rights Report notes frequent corruption in court decisions, and areas ‘heavily regulated by the government’ such as land-usage rights, mining and infrastructure development. Bribery in healthcare is also reported, for example offering cash for prioritised procedures. See also documentation and fraud and entry and exit procedures.
2.22 What might be considered corruption in the West may be viewed as guanxi in China. Guanxi, (literally ‘connection’) is a system where progress in business or government relies on patronage networks – giving and receiving ‘face’ (mianzi - esteem, prestige) and exchanging favours or gifts. Good guanxi can obtain favourable business, social and legal outcomes, and bad guanxi can make them impossible.
2.23 The government takes corruption seriously as a threat to its legitimacy. Penalties for corruption can include death for serious and high-profile cases. On taking office in 2013, President Xi launched a nation-wide anti-corruption campaign against high and low‑ranked corrupt officials. Within five years the crackdown led to arrests of over 1,800 officials, including very senior political figures. Corruption charges can be interpreted broadly. Allegations of corruption by officials are investigated by Party organs in the first instance (the Central Commission for Discipline and Inspection and the National Supervisory Commission). While officials are generally investigated by these organs for alleged crimes related to fraud, financial misappropriation and other activities traditionally defined to constitute corruption, these organs appear also to investigate officials deemed to lack loyalty and ideological purity. Individuals critical of the Party and its leadership can also face detention and other consequences ostensibly for corruption charges.[1]
[1] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, p.10.
[…]
TREATMENT OF RETURNEES
5.28 DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear. See the relevant section of the report for information on treatment of specific Groups of Interest.
5.29 Those wanted for outstanding warrants could still be charged on return to China. The general statute of limitations for crimes is five years (for a crime where the maximum penalty is up to five years in prison), ten years (where the maximum penalty for a crime is five to 10 years in prison), 15 years (where the penalty for a crime is not less than 10 years in prison) and 20 years (where the maximum penalty is life in prison or death). In practice, a person who flees from prosecution and then returns is likely to be arrested.[2]
[…]
Exit and entry procedures
5.31 Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.
5.32 National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list. DFAT is also aware of instances where members of certain ethnic minority groups have been denied passports.
5.33 If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons. There is a legitimate risk that family members of an individual under investigation by Chinese authorities could be subject to an exit ban. This is not only for sensitive charges but also economic charges such as fraud.
5.34 Exiting China by land outside of border crossings would be very difficult. The far western borders are less policed but also much harder to cross due to very harsh conditions. Border checks exist at Hong Kong and Macanese ports and land crossings, and special provisions are in place at the Mongolian border to allow passage of Mongolian and Russian citizens that use ‘one-time passports’ that allow travel to only one country. The borders with Vietnam and Myanmar are more porous but efforts have been made in recent years to strengthen them. China is reportedly building a 4.5 metre fence on its Southeast Asian borders. Checkpoints have been set up in Vietnamese border areas and local villagers help officials to patrol remote areas.
5.35 DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[3]
[2] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, p.39.
[3] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, p. 40–41.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451, where he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to] … an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191, where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of China and accordingly his claims will be assessed against China.
There are multiple and significant differences in evidence between the claims and background information in the application form for the protection visa and the evidence given by the applicant in the hearing.
In the hearing, the applicant indicated that the [shop] that the applicant ran was opened in about 1992 and closed in 2002.
The applicant indicated in the hearing that the business closed because of difficulties created by a senior police officer who demanded money from the business. The amounts demanded increased and the applicant was unable to pay. The applicant indicates that he was detained by police on countless occasions and also physically harmed by gangsters. The applicant indicates that he cannot return to China because the police officer has now been promoted to a higher position and would cause adverse attention towards the applicant on return to China.
In contrast, the written claims state that he ran the [shop] from 1987 until a few weeks before he came to Australia in 2017, as compared to the application indicating the [shop] ran from 1992 until 2002. The written claims indicate that the applicant was detained by police on one occasion, as compared to the hearing which refers to countless detentions. The written claims indicate that the applicant’s fear of returning is from gangsters rather than a police officer who has now been promoted and who was the one who originally targeted the [business] for money.
The applicant in the hearing indicated that the core difficulties occurred at around the time that the [shop] was forced to close in 2002 and for the period over the following couple of years. In the hearing the applicant indicated that he remained living in his home area of [Area 1] until moving to [Country 1], where he lived from 2012 until 2017. The applicant indicated that he returned to China for about three months before he came to Australia in August 2017.
In contrast the applicant’s written claims indicate that he relocated to a different city to avoid the difficulties that occurred around the time money was being demanded from the [business] (namely around 2002 and for a couple of years thereafter).
The Tribunal put to the applicant in the hearing that these multiple differences in terms of issues relating to his core claims for protection are not insignificantly undermining of the applicant’s credibility and the truth of what is indicated either in the application form for the protection visa or in the hearing.
In response, the applicant indicated that he provided, on arrival in Australia, his truthful claims to the agent in Mandarin but this is not his native language as he is ethnically [Country 1 ethnicity]. The applicant indicated that he does not know what was included in the application form. The representative pointed out in the hearing that the agent was not registered, is not acknowledged as assisting in the application form and was clearly unprofessional.
Thus, the applicant is claiming that the truth of the situation is what the applicant has indicated in the hearing.
The Tribunal does not accept that the multiple differences in terms of issues relating to claims for protection are reasonably explained by language difficulties or an unprofessional agent not including the actual information that the applicant provided to the agent. While the Tribunal is prepared to accept that Mandarin is not the applicant’s native language, he requested a Mandarin interpreter at the hearing and given the level of the applicant’s comprehension in the hearing, he appeared able to communicate effectively with the use of the interpreter.

While the Tribunal accepts that the individual who assisted the applicant with the original application form was not an authorised agent, the Tribunal has significant difficulty accepting that this person would have misrepresented the applicant’s claims for protection and relevant contextual information to the extent of the multiple inconsistencies on core matters.
The Tribunal noted to the applicant in the hearing that key background information in relation to him is not reflected in what is provided in the application form. In the hearing the applicant indicated that in the early 1990s he lived in [Country 2] for two years. In the hearing the applicant indicated that from 2012 until 2017 he lived in [Country 1]. The applicant indicated that he was married in 2008 and divorced in 2017.
In contrast, in the application form the applicant indicates that he lived in his hometown in China from his birth until coming to Australia in 2017. The applicant does not indicate a wife when asked to provide details of family members.
In the hearing the applicant reiterated that these issues are due to the agent not providing full information.
These matters are not core to the claims for protection but the lack of accuracy in terms of key contextual matters leads to the view that due care has not been taken in the application for the protection visa which reinforces doubts as to the overall credibility of the applicant on more direct matters relating to claims for protection.
The Tribunal questioned the applicant in the hearing about the difficulties he faced in China for the three months he was there before coming to Australia in August 2017. In response, the applicant indicated that he avoided difficulties by staying at home.
The Tribunal put to the applicant that it did not seem that he was of adverse interest on a national basis from authorities as he had returned to China presumably through normal channels from [Country 1] in 2017 and departed for Australia presumably through normal channels later in the year. It might have been expected that if the applicant was of adverse interest he would have been stopped by authorities when entering and exiting China on these occasions.
In response, the applicant maintained that he was a person of recognised adverse interest in China by virtue of the promotion of the police officer who sought to extort money from the [shop]. The applicant explained that he avoided difficulties in entering and exiting China by going to airports away from his home area and that, in any event, he was questioned extensively before being able to enter or leave.
The Tribunal considers that independent information indicates that China has sophisticated alert and control measures for individuals of adverse interest. It is significantly undermining of the claim that the applicant is of any widespread adverse interest in China that he was able to return to China from [Country 1] in 2017 and to depart China for Australia later in the year.
The Tribunal put to the applicant that, given he does not appear to be a person of nationally recognised adverse interest, if there remained difficulties from this promoted police officer, he could relocate to some other part of China to avoid harm.
In response, the applicant maintained that this police officer had the position and influence to track him down wherever he may live in China.
The Tribunal is not persuaded of this given the applicant’s entry and exit from China through normal channels in 2017.
The multiple inconsistencies, including core relevant matters such as whether the [shop] operated up until shortly before the applicant came to Australia or was closed in 2002, and whether the applicant was detained by police on one or ‘countless’ occasions, together with other credibility issues identified, result in the Tribunal not considering the applicant a truthful or credible witness. The Tribunal is not satisfied as to any core claims for protection.
The Tribunal is not satisfied that individuals who extorted money from the applicant’s [shop] caused the applicant to be detained by police on any occasion, nor that they sent gangsters after the applicant who forced the applicant to leave his home or otherwise harmed him. The Tribunal does not accept that these are reasons for which the applicant decided he needed to leave China for his safety in 2017. The Tribunal does not accept that there is a police officer in China who has been promoted to a high level who has an ongoing vendetta against the applicant such that they would cause him serious or significant harm on return. The Tribunal is not otherwise satisfied that authorities in China have any adverse interest in the applicant such that he would be noted as a person of adverse interest in government systems and questioned or detained on arrival in China or thereafter. The Tribunal is not satisfied that authorities in China view the applicant in any adverse way such that there is a real chance they would cause him serious or significant harm. The Tribunal is not satisfied that there are gangsters in China who have ongoing adverse interest towards the applicant such that there is a real chance they will inflict upon him serious or significant harm.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm or significant harm as a result of not meeting extortion requests by local government officers, police or gangsters in relation to a [shop] run by him.
The applicant in the hearing referred more generally to difficulties faced as a result of him being ethnically [Country 1]. The Tribunal noted that the application for the protection visa makes no claim of difficulties on this basis. In response, the applicant referred to language barriers to explain a lack of claims on this basis. As indicated, the representative submitted that the agent used was neither registered nor reputable.
In the hearing, the applicant referred to difficulties related to being part of a minority group in obtaining necessary permits and licences and the like as well as potentially having to pay higher fees. The applicant referred to discrimination.
The Tribunal is not persuaded that language difficulties for the applicant in Mandarin explain why no claims are made in the application form for the protection visa of harm based on being ethnically [Country 1]. The Tribunal considers it unlikely that if claims were made on this basis to a representative, even if not registered, such claims would not have been included in the application form for the protection visa.
A written submission by the applicant’s current representative in advance of the hearing also makes no claims based on the applicant’s [Country 1] ethnicity. It indicates that the applicant was forced to leave the country due to the behaviour of a local government official.
While the Tribunal accepts that there may well be some discrimination towards ethnic [Country 1] in China, the failure of the applicant to make this claim originally or otherwise before the Tribunal hearing results in the Tribunal forming the view that such difficulties have not risen to a level of serious harm or fallen within any definition of significant harm.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, the applicant faces a real risk of significant harm.
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.
David McCulloch
Member

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

[2024] AATA 1956

1 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing