1800213 (Refugee)

1800213 (Refugee) [2023] AATA 4535 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Amy Lee (MARN: 0215803)
CASE NUMBER:  1800213
COUNTRY OF REFERENCE:                   China
MEMBER:Rachel Da Costa
DATE:31 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2023 at 9:56am
CATCHWORDS
REFUGEE – protection visa – China – demolition of family home – physically abused – voluntary returns to country on two occasions – entered and departed country with no issue – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 15 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 is a citizen of China applied for the visa on 7 September 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In her protection visa application form, the applicant provides the following information. She was born in China in [year]. She has never been married. She speaks, reads and writes Mandarin. She is not religious.
Her parents live in Bengbu town, Anuhui province, China and she is in contact with them by phone. Before coming to Australia, she always lived in [Town 1], Bengbu town, Anhui province, China. She completed primary school in [year] and from January 2007 to May 2017, she worked in a [specified] company in [Town 1].
She travelled to Australia on her Chinese passport issued [in] 2016. She held a previous passport but this was lost. She arrived in Australia [in] June 2017 as the holder of a Visitor visa.
In the hearing, the applicant gave evidence that she has not undertaken paid work since around December 2019. She got married in 2022 and now has two children. Her husband is from Fujian province in China and has also applied for a protection visa separately from the applicant.[1]
[1] There is no evidence before the Tribunal to indicate that the applicant’s husband has been granted a protection visa.
Evidence before the Department
Protection visa application
In her protection visa application form, the applicant claims as follows:
·     She had an old house in her hometown and the local government notified her that it would be demolished;
·     She did not receive any compensation so she refuse to sign the demolition agreement;
·     One day, the local government sent people to her home to demolish the house. They smashed all the goods and threatened the applicant and forced her to sign the agreement.
·     They beat her because she refused to sign the agreement.
·     She called the police but they ignored her.
·     She made a petition, wrote a complaint letter and submitted it to the city government in the hope of getting a reasonable explanation and compensation.
·     After the officials found out what she did, they sent police to catch her.
·     She was so scared she fled China and came to Australia.
·     The situation all over China is the same. The police and the government are corrupt so she cannot relocate.
·     If she returns to China, she will be put in prison and persecuted and she will die.
Interview with the delegate
The applicant was invited to attend an interview on 15 December 2017 to discuss her claims but she did not attend.
The delegate’s decision
On 15 December 2017, the delegate made their decision. The delegate found that based on the evidence before them, they were not satisfied of the applicant’s claims and found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 3 January 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. She provided the Tribunal with a copy of the delegate’s decision.
Pre-hearing submissions
Prior to the hearing, the applicant provided a written statement dated 31 August 2023 (written statement). In that statement she submits:
·     She came to Australia to escape harm and persecution in China;
·     In October 2016, she received a notice from the local government that the home she was living in was going to be demolished.
·     In April 2017, the house was demolished.
·     She refused to cooperate and was beaten and forced to sign an agreement. She does not have a copy of the agreement.
·     After the demolition, she contacted the police but due to corruption they did not assist or make any record of her complaint.
·     After that, she moved to her brother’s home.
·     In June 2017, she applied for a tourist visa to come to Australia and she departed as soon as it was granted.
·     She was fearful of being arrested or harmed by the government in China due to refusing to agree to the demolition.
·     She fears that if she returns to China to live there for the long term she will face arrest, beatings and possibly lose her life.
·     She has heard that the Chinese government are suspicious of all returning foreigners being spies and the Chinese government thoroughly investigates returning Chinese nationals from western countries and interrogates them.
·     Her friend told her about someone who was arrested and interrogated after returning to China and accused of doing things that were anti-Chinese government. That person needed to provide their innocence and ultimately their family had to pay the authorities for her release.
·     Although she returned to China in March 2019 and September 2019, both times were for less than one month and due to her father being severely ill. She risked her life to return to China to see him. He passed away in October 2019 soon after she returned to Australia.
·     Although she was not harmed by the Chinese authorities during those two visits, they were only brief stays in China and if she stays for the long term she may face harm for opposing the demolition.
·     She has two children in Australia, the youngest of whom was born [in year].
The hearing
The applicant appeared before the Tribunal on 7 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The Tribunal is satisfied that the applicant had the opportunity to participate fully in the hearing in a meaningful way.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the hearing, the applicant gave evidence that a lawyer in [Suburb 1] helped her to fill in her protection visa application form but she doesn’t know their name and later, they were arrested. She confirmed that everything in her application form was true and correct and there were no changes or mistakes she wanted to point out. She gave evidence that her current representative helped her to prepare her written statement and that it was all true and correct.
In the hearing, the Tribunal discussed with the applicant her family, education, employment, residential history, travel and migration history, the events she claims took place in China and why she fears returning there. The Tribunal found some aspects of the applicant’s evidence about events in China to be credible, but other aspects to be speculative, lacking credibility and not supported by the available evidence or independent country information, as explained below.
Demolition of the applicant’s house
The applicant gave evidence in the hearing about where she lived in China and the circumstances surrounding the demolition of her family home. Overall, the Tribunal found her evidence about these particular events to be credible.
The applicant gave evidence that she was born in [Village 1], [Town 1], Bengbu city, Anhui province. She lived in a house in this village with her mother and father. The applicant lived in the house with her parents in [Village 1] until the demolition of their house in 2017. The applicant also has a brother. He has lived in Zhejiang province since 2006. His wife passed away and he has two children.
The applicant gave evidence that [in] 2016, she and her parents received notification in writing that their house was going to be demolished. They were initially offered compensation of CNY [amount] but [in] February 2017 they were given a new document and the amount of compensation offered was reduced to CNY [amount]. The applicant didn’t agree with this reduced amount and refused to sign the relevant document and she and her parents refused to move out of the house. The applicant explained that as her parents are illiterate, she was the person helping them understand the documents.
The applicant and her parents had not been given a date for demolition of the house. On the day of the demolition, which was in April 2017, the applicant was at work and her mother called her to tell her people were there to demolish the house. The people, who were connected with the property developer, came to the house and threw everything out. The applicant came home and spoke to the people because her parents are rural people and they had asked her to help them take control of the situation. The people connected to the developer asked the applicant to sign the demolition agreement but she refused. They asked her again and she refused, so they threatened her and abused her. They told her that after she signed the agreement, it meant she and her parents agreed to move out of the house and would receive the compensation. The applicant claimed these people beat her when she refused to sign. When asked for details about this, she said they punched her face and body. The Tribunal asked her whether she required medical attention and she said she did not because the injuries were not serious. In the end, she signed the agreement. During this time, her parents were there and witnessed what happened but they did not get involved and they were not harmed.
The applicant called the police and wanted them to come and talk to the developer about getting compensation and she also wanted to report being beaten. The police did not come and help. Eventually, part of the house was demolished.
The same day as the demolition, the applicant and her parents left and travelled to Zhejiang province to stay with her brother. This is where the applicant remained for around two months until she departed China for Australia in June 2017. The applicant gave evidence that she and her parents went to stay with her brother after the demolition because they were scared and didn’t want to stay in their hometown. The applicant explained that she was scared because she opposed the demolition and was forced to sign the demolition agreement and was physically abused, so she didn’t want to stay there anymore.
The applicant’s parents stayed with her brother until September 2018. They received CNY [amount] in compensation after the demolition and used this money to build a new house in a different village called [Village 2], which is close to their previous village of [Village 1]. Then they returned to live in [Village 2]. This house in [Village 2] is where the applicant’s mother still lives. Her brother goes to visit his mother once a year. Her mother lives alone since the applicant’s father passed away in October 2019.
The Tribunal accepts the applicant’s evidence about the above events.
The applicant’s claims about her actions after the demolition
In her protection visa application form, the applicant claims that after the demolition, she made a petition and wrote a complaint letter and submitted it to the city government in the hope of getting a reasonable explanation and compensation. After the officials found out what she did, they sent police to catch her. She was so scared she fled China and came to Australia.
In her written statement, she does not reiterate these claims.
In the Tribunal hearing, the applicant was asked about her actions after the demolition and relocating to her brother’s house. The applicant gave evidence that she phoned the village committee and asked them to handle the situation. They said they would handle it but they didn’t do anything. Nothing further happened, and the applicant just applied for her visa and came to Australia. She had no further contact or problems with the authorities apart from the phone call she mentioned. The Tribunal asked her whether anything else happened or she had any other problems before departing China and she said there was nothing else.
The Tribunal reminded the applicant what she had claimed in her protection visa application form and she responded that it happened. The Tribunal put to her that she has just been asked about what happened and she didn’t mention those things. The applicant responded that she wrote the letter but she forgot to mention it. She does not have a copy of the letter. She conceded that the part about the police chasing her was not true and suggested that perhaps her lawyer wrote that in the form. The Tribunal expressed its concern about this and asked the applicant whether she had anything else to say. She said she did not.
The Tribunal has considered the applicant’s evidence and her responses to its concerns and prefers the evidence she gave spontaneously in the Tribunal hearing about what happened after the demolition and moving to her brother’s house, rather than the claims she made in her protection visa application form. The Tribunal considers that if the applicant had had further contact with the authorities leading to the police being sent to catch her, this is something she would have remembered and told the Tribunal. The Tribunal finds that after the applicant moved to her brother’s house, she asked the village committee to help her but nothing came of this and she had no further contact with the authorities and no further problems. The Tribunal does not accept that the applicant wrote a petition or a letter of complaint and submitted it to the city government, or that the police were sent to catch her and she was so scared that she fled China.
The applicant’s departure from China and subsequent return
In the hearing, the applicant gave evidence that she obtained her passport herself in China. It was issued [in] 2016. She had a previous passport but she lost that one and she can’t remember where.
She gave evidence that when she obtained her Visitor visa for Australia with the help of an agent. She departed China for Australia in June 2017 from [the] airport and did not have any problems at the airport.
The applicant gave evidence that since arriving in Australia, she has returned to China twice. This is consistent with information contained in movement records held by the Department. The applicant said she returned in March 2019 and September 2019 and each time stayed for about three weeks. The purpose of these visits was to visit her father because he was sick and she wanted to see him. While she was in China, she stayed with her mother and father at the hospital in [City 1] (which is another city in Anhui province) and didn’t stay at their home.
The applicant gave evidence that she did not have any problems with the authorities while she was in China on these visits. The applicant said this was because she was only in China for a short period of time so nobody apart from her family knew she was back. The Tribunal put to her that the authorities would have known she was back because she travelled on her Chinese passport. The applicant said she doubted this because she used the “self-check” services at the airport. The Tribunal explained to her that it might not accept that using this process she described means the authorities would have been unaware of her presence given she used her Chinese passport. The applicant responded that in China they have different levels of government. The Tribunal acknowledges that there are different levels of government in China but the applicant’s responses do not alleviate the Tribunal’s concerns. The applicant also gave evidence that she did not have any problems at the airport on these two trips in 2019 when she entered or departed China.

As discussed with the applicant in the hearing, country information from sources such as the Australian Department of Foreign Affairs and Trade and the Canadian Immigration and Refugee Board indicate that China has strict entry and exit procedures at its borders and persons of interest to the authorities can easily be detected and prevented from leaving China or detected on their return, and there is information sharing between different levels of government.[2] The Tribunal put to the applicant that given her evidence that she had no problems departing or entering China in 2017 and 2019, this might suggest she was not a person of interest to the authorities. The applicant responded that she doesn’t think it is safe for her to return and she is afraid to go back. The Tribunal has considered the applicant’s response but does not accept it.
[2] DFAT Country Information Report People’s Republic of China 22 December 2021 [5.31] – [5.35]; DFAT Country Information Report People’s Republic of China 3 October 2019 [5.40] – [5.41]; China: Exit controls and security measures at airports, particularly Beijing airport, for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification and facial recognition technology (2017 – August 2019), 3 October 2019, CHN106355.E, Research Directorate, Immigration and Refugee Board of Canada.
The Tribunal has considered the applicant’s evidence and relevant country information. Based on the fact that the applicant did not have any difficulties departing China in 2017 despite her objection to the demolition of her family’s house, and she has returned to China twice since that time to her home province to visit her parents and did not experience any difficulties with the authorities when passing through the airport or more generally during her three week stays, the Tribunal finds that she was not a person of concern or interest to the authorities at the time she first left China or when she returned in 2019.
The applicant’s claim that her mother told her not to return
In the hearing, the applicant claimed that another reason she fears returning to China is that her mother told her not to return and to cut connections with her. The applicant said this was in 2021. Her mother said people from the lower village or county government were coming to her place and asking about the applicant’s whereabouts and when she will return. The applicant does not know how many times this happened.
The Tribunal asked the applicant why she thought those people would be asking questions about her and why that was a problem. She responded that she was persecuted in China and physically abused and now they are asking her mother about her whereabouts.
The Tribunal asked the applicant why her mother told her she should cut her connection. The applicant said she thinks her mother is worried that the government people will find out the applicant was in contact with her and it would be better for her mother if they are in contact less often so people won’t find out they are still in contact. The Tribunal notes that earlier in the hearing, the applicant had given evidence that she is still in contact with her mother by phone once every month or two.
The Tribunal asked the applicant whether her mother has had any problems since moving back to [Village 2]. The applicant said she had not. The Tribunal put to the applicant that this might suggest the fact she is still in contact with her mother is not causing problems. The applicant responded that it is not frequent contact. The Tribunal has considered the applicant’s response but does not accept it.
Based on the evidence before it, the Tribunal is prepared to accept that in 2021, people from the lower village or county government asked the applicant’s mother about the applicant’s whereabouts and when she was returning to China. However, as the Tribunal has found that the applicant was not a person of interest to the authorities when she departed China in 2017 (shortly after the demolition of her family’s home) or when she returned to Anhui province twice in 2019 to visit her sick father, the Tribunal does not accept that these inquiries were made for an adverse reason or that they indicate the applicant has subsequently become a person of adverse interest to the authorities for any reason. It follows that the Tribunal does not accept that the applicant’s mother told the applicant not to return to China and they should cut their connection for either her mother’s protection or the applicant’s protection, or that the applicant has become a person of interest to the authorities. The Tribunal’s view is strengthened by the applicant’s evidence that she is still in contact with her mother every month or two and her mother has not had any problems despite this.
The applicant’s claim that the government will think she is a spy
In the hearing, the applicant reiterated her written claim that she has heard that if people return to China from overseas, the government will suspect them of being a spy and interrogate them. The Tribunal asked the applicant whether she had any evidence to support this claim. She said a friend of a friend of hers who returned from overseas was arrested because she was suspected of being a spy and the family gave money so the person could be released. She did not have any other evidence to support this claim about what happened to this friend of a friend and in the absence of further verifiable detail, the Tribunal does not accept it.
The Tribunal asked the applicant why the government would suspect she was a spy and she said it was because she is overseas. The Tribunal put to her that it might find it hard to accept that the Chinese government thinks every Chinese person overseas is a spy, and invited the applicant to respond. She said she did not have any comment to make. The Tribunal also explained it was not aware of any independent country information to support the applicant’s claim and might not accept it.
The Tribunal has considered the applicant’s claim that if she returns to China the government will suspect her of being a spy and will interrogate her, but in the absence of any probative evidence to support this claim the Tribunal does not accept it.
Does the applicant meet the refugee criterion?
The applicant claims that if she returns to China to live she will be arrested, beaten, imprisoned and possibly killed due to her role in opposing the demolition of her family’s house. As set out above, the Tribunal has accepted that the applicant opposed the demolition of the house, was abused and punched by the people who came to demolish the house and in the end, signed the agreement for the demolition and her parents received compensation. The Tribunal has found that the applicant asked the village committee for help, which she did not receive, and that was the end of the matter. As set out above, the Tribunal does accept that after the demolition, the applicant submitted a petition or a complaint to the city government or that officials sent the police to catch her or that she had any further problems with the authorities. As set out above, the Tribunal has also found that when the applicant departed China in June 2017 she was not a person of interest to the authorities and nor was she a person of interest when she returned to China twice in 2019 to visit her sick father. As set out above, the Tribunal also does not accept that the authorities asked the applicant’s mother about the applicant’s whereabouts in 2021 due to any adverse interest in her or that she has subsequently become a person of interest. For all these reasons, the Tribunal does not accept the applicant’s claim that if she returns to China to live she will be arrested, beaten, imprisoned and possibly killed due to her role in opposing the demolition of her family’s house. In light of this, the Tribunal finds that if the applicant returns to China in the reasonably foreseeable future she would not face a real chance of serious harm arising from these circumstances.
For the reasons set out above, the Tribunal does not accept the applicant’s claim that if she returns to China the government will suspect her of being a spy and will interrogate her. In light of this, the Tribunal finds that if the applicant returns to China in the reasonably foreseeable future she would not face a real chance of serious harm arising from these circumstances.
The applicant did not raise any other claims in her written or oral evidence and the Tribunal does not consider that any other claims arise on the material before it.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the reasonably foreseeable future that she faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[3] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, 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 she 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).
[3] MIAC v SZQRB [2013] FCAFC 33
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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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 4535

31 October 2023

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Immigration

Administrative Law

Statutory Interpretation

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