1801424 (Refugee)

1801424 (Refugee) [2024] AATA 1132 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801424
COUNTRY OF REFERENCE:                   China
MEMBER:Xanthe Emery
DATE:8 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 January 2024 at 10:05am
CATCHWORDS
REFUGEE – protection visa – China – political opinion – father’s land appropriated by local government with no compensation paid – beaten and threatened after refusing to sign agreement, and father hospitalised – complaint letter to city government and fear of capture by police – political and economic conditions in China and preference for life in Australia – application completed by agency – vague and inconsistent claims and evidence, and no supporting documents or statements – departure with no problems and new passport issued – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 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 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 Home Affairs on 4 January 2018 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 30 August 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant applied for review of the delegate’s decision on 19 January 2018.
The applicant appointed a representative and authorised recipient in relation to the review on 14 January 2019. On 30 and 31 October 2023, that representative wrote to the Tribunal advising that he was no longer the applicant’s representative but that he continued to be the applicant’s authorised recipient and provided a form MR6 signed by the applicant.
CLAIMS AND EVIDENCE
Background
In his protection visa application, and in oral evidence to the Tribunal, the applicant provided the following details. He is a [Age]-year-old male from [Town], Fuqing, Fujian, China. He is married and has two children, aged [Ages], who reside with his wife in the Fuqing area. His parents reside in [Town], in the same home the applicant claims to have lived in his whole life prior to coming to Australia. The applicant claimed he is still married but that he and his wife are no longer together, that he is no longer in contact with his wife and does not know specifically where she lives or whether she is working. He claimed he speaks with his children about once a month when they visit his parents. The applicant gave evidence that his father was a farmer who grew wheat, but that neither of his parents were working anymore. He has one sister who lives in [Country].
He claims to have completed primary school, middle school, and vocational college in China. He told the Tribunal he worked in a factory manufacturing [Products] in China for about 7 or 8 years but that he was otherwise unemployed.
The applicant declared travel to [Country] between October 2016 and April 2017. In oral evidence to the Tribunal he claimed his sister was a resident of [Country] and he lived with her there for about six months. In his visa application form he declared he was working in [Country] but in oral evidence to the Tribunal he said he was not working there. He declared no other travel, other than to Australia.
According to the delegate’s decision, the applicant applied for a Visitor visa (Subclass 600) on 28 July 2017. That visa was granted to the applicant on 1 August 2017 and he arrived in Australia on 7 August 2017.
Evidence before the Department of Home Affairs
As stated above, the applicant applied for a Protection visa (Subclass 866) on 30 August 2017. Together with the visa application form, the applicant provided a copy of the biometrics page of his passport. An authorised recipient was appointed to receive the applicant’s correspondence in relation to the application.
In his visa application form the applicant claimed, in summary, as follows:
·He suffered persecution by the Chinese government because he revealed the government’s officials’ corruption.
·He had land in his hometown. One day the local government notified him that their land would be collected. But they did not receive any compensation so they disagreed to sign.
·One day the local government sent people to collect the land. They destroyed all the goods of the land and threatened him. They forced him to sign the collection agreement and he was beaten because he refused to sign it. After that his neighbour told him the compensation was corrupted by the local government.
·He wrote a complaint letter to submit to the city government. After the officials knew his behaviour they sent police to catch him. He was so scared he escaped China and fled to Australia.
·If he returns to China he will be persecuted by the police and once he goes to prison he will die, and will be mentally and physically persecuted.
·The authorities in China cannot protect him because the Chinese government is corrupt and collude with the police. They only care about their own benefits.
The applicant was invited to attend an interview with the delegate scheduled for 3 January 2018 but did not attend.
No additional information or evidence in relation to the applicant’s claims for protection was provided to the Department.
On 4 January 2018 the delegate refused to grant the applicant a Protection visa. The delegate found that there was an insufficient basis to be satisfied the applicant was at risk of being arrested or was involved in any land dispute with his local government. Accordingly, the delegate was not satisfied there was a real chance the applicant would be persecuted, or that there was a real risk of significant harm, if he returned to China.
Evidence before the Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 19 January 2018 and provided a copy of the delegate’s decision record with his review application.
The applicant appeared before the Tribunal on 12 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. Where relevant, the applicant’s oral evidence at hearing is referred to elsewhere in this decision.
At the hearing the applicant provided his new passport. This passport was issued [in] 2021 by the Consulate General of China in Sydney. No further written information or evidence in support of the applicant’s claims for protection has been provided to the Tribunal.
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-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether 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.
Nationality and receiving country
The applicant claims to be a citizen of China and provided the Department with a copy of his Chinese passport. The delegate was satisfied of the applicant’s identity and the authenticity of his passport. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China and that China is his receiving country for the purposes of assessing his claims for protection. There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than China.
Reasons, analysis and findings
At the commencement of the hearing, the Tribunal asked the applicant about his protection visa application. The applicant initially told the Tribunal that he had no help completing his protection visa application. However, when the Tribunal asked the applicant about the authorised recipient recorded in the application form, he said he went to an agency in [Suburb] and they applied for him. He confirmed he didn’t fill out the form and that they did. When asked whether he knew what his claims for protection in the form were, he said he was aware. When asked to briefly state the reason he did not want to return to China, the applicant said that ‘China is too dark’.
During the hearing the Tribunal discussed with the applicant his family, education, employment in both China and Australia, his places of residence in China and Australia, and why he fears returning to China. The Tribunal also discussed his travel to Australia. He said he came to Australia on a tourism visa. He initially said he applied for it himself, then said he had a legal representative complete it for him. He said he gathered all the documents and information and then the legal representative or agency in China submitted it for him. When asked why he applied to come to Australia at that time he said it was for tourism. The applicant confirmed he had no problems departing China.
The Tribunal asked the applicant about the application for his new passport, which was issued by the Consulate General of China in Sydney [in] 2021. He gave evidence that he applied online, and the passport was posted to him. He said he had no issues obtaining the new passport.
When asked why he doesn’t want to return to China the applicant said he was disappointed in China and that he likes his life in Australia more. When asked what he was concerned would happen to him if he had to return to China the applicant said he was worried his whole family would suffer from hunger. When the Tribunal asked why he was worried about that, he said China doesn’t have human rights and is not democratic. When asked who would harm him in China the applicant’s response was that probably no-one would harm him because it had been quite a while since the event.
The Tribunal discussed with the applicant whether he had experienced any harm in the past in China. The applicant gave evidence that his father’s land was taken by the government. He said they wanted to appropriate the land but wanted to pay only half the value of the land. He said they didn’t pay compensation and so there was a fight between the villagers, including his family, and the government people, and that it got physical and people were injured. The Tribunal repeatedly pressed the applicant for detail about the dispute, including what had happened and who specifically was trying to acquire the land, to which the applicant’s response was frequently that he didn’t know the details. The applicant gave evidence that the dispute about the land occurred after he returned from [Country] in April 2017 and before he travelled to Australia in July 2017.
The applicant claimed he was involved in the dispute about the land but did not join the fight. He said his father was injured. He said his father was hit by ‘them’. After repeated questions about how specifically his father had been injured, the applicant said his rib was fractured. The applicant said his father went to hospital, but he was unable to recall which hospital and said there was no documentation or evidence they could locate about the hospitalisation.
Asked specifically about his own involvement in the dispute over the land, the applicant said he was planning to report on them with some of his friends, and that they did report but it didn’t work out. The Tribunal asked for specific details about how they had reported or what was involved in reporting, to which the applicant responded that he wasn’t the leader. He named another person as his friend who was the leader and the village head. The applicant said he just did what he was told to do and didn’t know every detail. The Tribunal asked what it was that the applicant had been told to do and he said he was told to report with them. The Tribunal again asked what he had done, and the applicant said he wrote a letter. When asked where they were planning to report to the applicant said the ‘central government’ but when asked, could not tell the Tribunal whether that meant reporting to Beijing or to a different level of government.
The applicant gave evidence that ‘people from higher up, powerful people’ knew that the applicant and his friends were going to report on them, so they took action to stop them. When asked what this action to stop them was, he said they were trying to arrest people and hit people. The applicant was unable to articulate in any further detail who it was that he claimed to be reporting on or who it was that was trying to stop them from reporting. The applicant gave evidence that he was not arrested or hit but that these things happened to three friends whom he named, who he said were people from his village.
When asked whether anything further had happened to his father (following the claimed broken rib and hospitalisation) the applicant responded ‘No’, and that he didn’t remember. The applicant confirmed that the land was taken but could not say whether it was developed or what had happened subsequently.
The applicant said nothing else had specifically happened to him in relation to the claimed land dispute, that he had not been arrested, and had not had any contact from the authorities. He said he saw what happened to his friends and that he was worried and scared so he ran from China and came to Australia.
When asked whether there were any other reasons the applicant did not want to return to China, he said he liked his life in Australia more and was used to life here.
Overall, the Tribunal found the applicant’s oral evidence about his claims for protection to be vague and lacking in detail. Aspects of his oral evidence were inconsistent with the claims set out in the visa application (discussed further below). His evidence on other relatively straightforward matters frequently changed, which undermined his overall reliability as a witness. For example, when asked where his wife resided in China, the applicant provided a particular address, then later said this was his parents address and that he did not know exactly where his wife lived. When asked if he was assisted in applying for both the visitor and protection visas, the applicant initially said he completed these applications himself, but then gave evidence he had been assisted by an agent or legal representative.
Claims regarding appropriation of land
The Tribunal does not accept that the applicant’s or his father’s land was appropriated by the local government in China or by anyone else, and that he was subsequently involved in a dispute about the appropriation or reported or complained about the appropriation of the land or the amount of compensation paid for the land. As the Tribunal does not accept the land was taken, it also does not accept any of the claims in the visa application, including that the land was destroyed and the applicant was beaten and threatened, that he was forced to sign the collection agreement, that he wrote a complaint letter and the police were sent to catch him, or that he was persecuted because he revealed government corruption. The Tribunal finds that these claims have been fabricated.
The applicant’s oral evidence about the appropriation of land and the ensuing dispute and complaint or report was devoid of specific detail. The applicant was unable to describe what had happened in relation to the land. The applicant was unable to tell the Tribunal who was appropriating the land or who the dispute was with, other than ‘the government’ or ‘government people’. The applicant was unable to describe how he and others had ‘reported’ or what was involved in reporting, stating that he wasn’t the leader and didn’t know the details. The applicant said he just did what he was told to do but was unable to tell the Tribunal what it was he had been told to do, beyond saying that he wrote a letter. He was unable to tell the Tribunal who they were planning to report to, other than the ‘central government’, but said he didn’t know if that meant reporting to Beijing. When asked what had happened to the land after it was taken, he said he didn’t want to say what happened after that and that it was not mentioned to him.
The Tribunal discussed with the applicant its concern that the applicant’s evidence about the land dispute had been vague, and that he had been unable to give detail about things it expected he would know about, had he been involved. The Tribunal explained that this may cause the Tribunal not to accept there was a dispute regarding his father’s land or that he was personally involved in reporting or petitioning in relation to the land dispute. The applicant’s response was that he wasn’t a smart person, it had been a while since the events had taken place, and that he didn’t know how to express it.

The Tribunal accepts that several years have passed since the claimed dispute in early to mid-2017, and that the passage of time would affect a person’s memory and ability to recall specific details, or that recall of specific details may change over time. However, in this case, the Tribunal does not accept the applicant’s explanation accounts for his inability to provide any meaningful detail at all. Had the applicant been involved in events which he said caused him to flee or run from China, the Tribunal expects that the applicant would be able to recall some detail about his own claimed involvement or participation. That the applicant could not provide any detail leads the Tribunal to conclude the claimed events did not take place. The Tribunal has also considered the applicant’s explanation that he is not smart and is not able to express himself but does not accept that this would prevent him from recounting detail of activities he claimed he was a part of or his lived experiences.
There are also several inconsistencies between the claims in the visa application and the applicant’s oral evidence to the Tribunal. In his visa application the applicant said he was notified about the land being collected but that they didn’t receive any compensation and so he disagreed to sign; that people came and destroyed the goods on the land; that he was threatened and beaten; and that he wrote a complaint letter to the city government but that officials knew about his behaviour and sent the police to catch him.
The Tribunal put to the applicant that this was different to what he had said during the hearing, and that he said to the Tribunal that he was involved but nothing specifically had happened to him and did not claim to have had goods destroyed or been beaten or threatened. The Tribunal explained that these inconsistencies may cause it to find that those events didn’t occur, and it would not accept the land was taken or that he was involved in a dispute about the land. In response, the applicant said that those things happened but that he couldn’t provide details, didn’t know how to provide details, and that it had been too long.
The Tribunal does not accept this explanation for the inconsistencies between the visa application and the applicant’s oral evidence. The Tribunal repeatedly asked the applicant for details about various aspects of the claimed land dispute and he was afforded several opportunities to explain what had happened in China. The Tribunal also does not accept that the applicant would not be able to recall that goods on his land were destroyed and that he was threatened and beaten given that this was a key element in the applicant’s claims. The Tribunal finds that, in line with the applicant’s evidence at hearing, he was not harmed in any way in China as a result of a dispute over land and that the claims set out in the visa application are fabricated.
Additionally, the applicant has not provided any corroborating evidence in support of his claims, including in relation to the land being acquired, the complaint or report the applicant claimed to have been involved in, or his father’s hospitalisation. When the Tribunal put to the applicant its concern about the lack of corroborating evidence, and that it may lead the Tribunal to conclude the events didn’t take place, the applicant simply responded that he understood. The lack of corroborating evidence further undermines the applicant’s claims.
For the reasons above, the Tribunal does not accept that the applicant was of interest to the Chinese authorities when he departed China or now, or that he will be persecuted or imprisoned by the police in China if he were to return there.
The Tribunal does not accept that his or his father’s land was appropriated or that he was involved in any kind of dispute or complaint or reporting in relation to that land and rejects this claim in its entirety. Accordingly, the Tribunal is not satisfied he faces a real chance of persecution for this reason in China in the reasonably foreseeable future.
For the reasons above, the Tribunal is also not satisfied that there is a real risk that he will suffer significant harm in China in connection with the land appropriation dispute, or at all. As such, the Tribunal is not satisfied 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.
Remaining claims: Preference for life in Australia, hunger, and lack of human rights and democracy in China
As set out at [28], the applicant said he was disappointed in China, that he likes his life in Australia more, and that he was concerned his family would suffer hunger in China because there was no human rights or democracy. The applicant also gave evidence that probably no one would harm him in China.
The Tribunal’s understanding of the applicant’s claim is that he prefers his life in Australia and would prefer not to have to return to China because he considers the political and economic conditions there are less favourable. The Tribunal accepts the applicant has a preference to remain in Australia and has established himself here. However, this preference to remain in Australia does not provide a basis for the Tribunal to be satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm on return to China.
The applicant did not explain or articulate why he thought his family would suffer from hunger. He did not claim that his family were currently suffering from hunger, or that they were currently experiencing any harm at all. The applicant gave evidence that he was previously employed in China and was currently working about 60 hours per week in Australia. He did not claim that he would be unable to find work in China. The applicant also did not articulate or specify in any way how human rights problems in China and the lack of a democratic system of government impacted him personally, either in the past or future. He did not articulate any reason, including any reason in s 5J(1)(a) of the Act, why he personally was at risk of serious or significant harm. When the Tribunal discussed this with the applicant, he declined the invitation to comment. Based on the evidence before it, the Tribunal is not satisfied that the applicant or his family will suffer from hunger, or experience harm because of a lack of human rights and democracy, if he is required to return to China.
The Tribunal is therefore not satisfied the applicant faces a real chance of persecution for any reason, including any reason in s 5J(1)(a) of the Act, on return to China now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in China and is not a refugee in accordance with s 5H(1).
In light of the above findings, the Tribunal is also not satisfied that there is a real risk the applicant will suffer significant harm in China. As such, the Tribunal is not satisfied 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, and he does not satisfy the complementary protection criterion in s 36(2)(aa).
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.
Xanthe Emery
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 1132

8 January 2024

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