1801462 (Refugee)

1801462 (Refugee) [2024] AATA 1659 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Amy Lee (MARN: 0215803)
CASE NUMBER:  1801462
COUNTRY OF REFERENCE:                   China
MEMBER:Jane Marquard
DATE:25 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 January 2024 at 8:44am
CATCHWORDS
REFUGEE – protection visa – China – petitioning – home demolition – inadequate compensation – credibility concerns – lack of documentary evidence – inconsistencies – no issues departing country – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration & Ethnic Affairs [1997] FCA 1198
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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 Home Affairs on 5 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is a [age]-year-old woman from Nanchang, Jiangxi, People’s Republic of China (China). Nanchang is a large city in Jiangxi.
The applicant first arrived in Australia [in] May 2017 on a FA 600 (Visitor) visa.
On 7 June 2017 she applied for a TU-500 (Student) visa which was refused by the Department of Home Affairs (the Department) on 25 August 2017.
She applied for the protection visa, which is the subject of this review, on 6 September 2017. She claimed, in her application for the visa, that if she returns to China she will be imprisoned and will die in prison, as she had petitioned against the lack of compensation paid for the demolition of the family home. The Tribunal notes that the Department of Foreign Affairs and Trade in its 2021 report notes that millions of disputes are raised each year through petitions in government offices, many of which are resolved, but some of which result in violence towards petitioners.[1]
[1] Department of Foreign Affairs and Trade, ‘Country Information Report China’, 22 December 2021.
A delegate of the Department refused the visa on 5 January 2018. The delegate was not satisfied that the applicant had petitioned in relation to a house demolition or that the applicant would face any harm on return to China.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[3] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[4] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]
[3] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[4] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
a.are a refugee (the refugee criterion);[6] or
b.qualify for complementary protection (the complementary protection criterion);[7] or
c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[8]
[6] Section 36(2)(a), Migration Act 1958 (Cth) (the Act).
[7] Section 36(2)(aa), the Act.
[8] Sections 36(2)(b)(c), the Act.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J (3)).
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 of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
The applicant must satisfy the statutory elements
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.
EVIDENCE BEFORE THIS REVIEW
The Tribunal has taken into consideration evidence adduced to the Department, as well as evidence before this Tribunal, and independent information about China. The applicant provided written submissions to the Tribunal on 5 September 2023 and appeared before the Tribunal on 23 October 2023 to give evidence and present arguments. The applicant was represented in relation to the review by Amy Lee of Amy Migration Services, who appeared at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The evidence is referred to where relevant in the findings and reasons set out below. The findings and reasons incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[9]
[9] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
FINDINGS AND REASONS
The key issues in this matter are:
·Whether the house belonging to the applicant’s family was demolished in China, and the circumstances of the demolition and compensation.
·Whether the applicant petitioned, protested and was arrested as a result.
·Whether there is a real chance of serious harm were she to return to China in the reasonably foreseeable future.
·Whether there is a real risk of significant harm if the applicant were to be removed from Australia to China.
These and other threshold issues are discussed below.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a Chinese passport, issued in 2015 and expiring in 2023. The Tribunal is satisfied that the applicant is a national of China, and China is the receiving country for the purposes of the legislation.
Personal particulars and background
The Tribunal accepts the information provided by the applicant about her family background and her work history in China. Although there were some omissions in her application, the information has now been provided to the Tribunal and there is no reason to doubt it.
The Tribunal accepts that the applicant was born in Nanchang, Jiangxi, ‘one of the biggest cities in Jangxi’. She said that she lived on ‘the fringe of the city’ in a developing area. Her street had many houses and there were small corner stores. There were farming plots about [number] km away from her street. She lived with her parents in a house with [number] bedrooms, owned by her father. She has no brothers or sisters. Her grandparents have passed away and she never knew them. Her mother has [number] brothers and [number] sisters. Her father has one brother and one sister. She has cousins from both sides, and many lived near her. She saw her relatives occasionally when growing up, at festivals such as Chinese New Year.
Her father worked in [industry] for one company until he passed away in 2018, which was after she came to Australia. Her mother, who has never worked, is still alive. Since her father passed away, the applicant has supported her mother financially. Her mother lives in Nanchang with the applicant’s cousin, as her mother’s sister has passed away. The applicant speaks to her mother often by telephone.
The applicant completed high school in 1990 and then moved to Guangdong for work and lived there until she moved to Australia. Guangdong is about 1,000 km from Nanchang and it took ‘more than 10 hours by train’ to travel there. She told the Tribunal that she moved to Guangdong ‘to make money’. She went alone as she ‘heard there were jobs there’. After she arrived, she looked for a job through an agency and stayed in a small motel. She found a job in an [specified] factory as a [Occupation 1]. After this, she found a few different jobs. She also owned a small business selling [specified goods]. She spent most of her time in Guangdong and occasionally went to her hometown. Before she travelled to Australia, she was working in her business selling [specified goods] in Guangdong. She went home to visit her family in Nanchang two or three times a year for Chinese New Year or for festivals.
The applicant did not mention in her application that she lived in Guangdong. When the Tribunal asked her about this at the Tribunal hearing, she said that she was not asked, so she did not mention it. This is not correct as the application form has a section for inserting places of residence. She has claimed that her agent filled in the form. Clearly she provided some details to the agent, for example her parents’ names, so it is unclear why she did not include details of her residence in Guangdong. Nonetheless she has now clarified that she lived in Guangdong for this time period, and this evidence is accepted by the Tribunal.
The applicant is a Han Chinese and has ‘no religion’.
At the Tribunal hearing she told the Tribunal that she has a son in China. Asked why she had not mentioned in her application form that she had a son, she said she did, but ‘he did not live with her’. She said that she did not know that she had to mention it. It was put to her that on the application form there is a section asking for details of her family members. She asked ‘where is that?’. She said that she just gave the agent a passport and there were no specific questions from him. The Tribunal asked her why she had included details of her parents but not her son. She said that the agent did ask about her parents. She said that she was separated from her son’s father after being together for 10 years. She thinks they split up in 2014 and prior to that they were living together in Guangdong. The Tribunal asked her why she had said that she lived alone. She said that she thought that the Tribunal was referring to a later time.
The Tribunal notes that the applicant did not provide correct information in her application form about her family members, who she lived with and place of residence. Notwithstanding this, the Tribunal has accepted her evidence at the Tribunal hearing about these matters, giving her the benefit of the doubt.
Did the applicant and her family petition the government for compensation for demolition of their house, and did she protest to developers and was she arrested?
The key question in this matter is whether the applicant suffered harm due to petitioning the government and developers because her family was not compensated for demolition of the family home.
In the application for the visa, the applicant stated:
‘I was persecuted by the government because made petition. I have an old house in my home town. One day the local government noticed us that our house would be demolished. According to policy, but I did receive any compensation. After that we heard that our compensation was corrupted by the local government official’s. We are so angry, so I and other wrote complaint letter to submitted to city government, to hope that get a reasonable explanation and compensation. One day when I was working, my neighbour called me and said that the demolition team wanted to demolish my house, my father was beaten because prevent their behaviour. And then I called the police but the police ignore our case. After that, the local government’s officials knew our behaviour, they sent police to catch us. I was so scared, escape China and fled to Australia’.
In written submissions to the Tribunal dated 5 September 2023, she said that the family were first notified in around March 2012 about the demolition plans, and the house demolition began in around May 2015 and was completed in May 2016. Their house had [number] bedrooms. She said that the original compensation agreed was for RMB1,000,000 but only RMB 500,000 was paid. It was promised that they would be paid in May 2016, in three instalments. Only the first instalment, of RMB 500,000, was paid by the developers, [Company 1]. She said that the money paid was not sufficient for her family to buy another house. She also told the Tribunal at hearing that when the developers visited her home, they said the house would be demolished in 2015. They said that they would pay the compensation in May 2015 and RMB 500,000 would be the first instalment. Her parents planned to buy a new house with this money. She said that between 2012 and 2015 the developers were negotiating with other householders. The applicant said that all the people in the street were sent the same demolition notice. She said that there were hundreds of houses.
She told the Tribunal at hearing that between 2013 and 2015 her parents lived in the house and did not hear anything from the developers. Her father called her to say that the house was demolished in May 2015. By this time her parents had moved out and had taken everything out of the house. They moved out in April and rented a house and later they moved to live with cousins. Her mother moved in with her younger sister in Nanchang ‘after the demolition of the house’. She made various claims in her application and to the Tribunal about petitioning, protesting and arrest. These claims are discussed later in the decision.
She said at the Tribunal hearing that nothing further happened ‘after she was arrested in March 2017’. She was worried she would be detained again ‘in revenge’. She listened to advice of friends until she came to hide in Australia. She did not return to Guangdong. She was asked about the place that she rented. She said that it was not valuable. It was furnished by the landlord. She had no further problems from the authorities between March and September 2017 as she had agreed that she would not cause further ‘trouble’. A travel agent helped her ‘escape’ with a tourist visa. People told her to apply for a student visa, which she did.
In the written submissions to the Tribunal dated 5 September 2023, she said that her father has now passed away and never recovered from being beaten. Her mother has told her not to return as she will be interrogated and harmed especially as she has a record. She said that her son is studying in China and has told her he suffers prejudice as she is in Australia.
Asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries. The full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 stated:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[10]
[10] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
For these reasons, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[11] The Tribunal has noted research in Canada has found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[12] An Australian study found that Tribunal members may rely on assumptions which can be inconsistent with psychological literature.[13]
[11] Fox v Percy (2003) 214 CLR 118.
[12] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, < Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

Given the problems encountered by asylum seekers in presenting evidence, and the research cited, the Tribunal has taken a ‘reasonable’ approach to fact-finding, mindful that there may be factors that consciously or otherwise influence decisions.[14] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[15] in regard to the process of credibility assessment. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[14] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.
[15] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
The Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[16] which also reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind. The courts have suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims[17]. A similar approach is taken in the Department’s Refugee Law Guidelines[18] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’)[19], which provides useful guidance for this Tribunal.
[16] AAT, Migration and Refugee Division Guidelines on the Assessment of Credibility, available on the AAT Website, SZLVZ v MIAC [2008] FCA 1816 at [25].
[18] , Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017.
[19] UNHCR Handbook, re-issued February 2019 at [203-204].
However, the benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.’[20] The Tribunal is not required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437) and claims must be assessed for their credibility.
[20] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204.
Taking these cases and guidelines into consideration and considering the evidence carefully and in totality, the Tribunal does not accept that the applicant petitioned against lack of compensation paid in respect of demolition of her family home which then led to her arrest. The reasons for this, considered cumulatively, are set out below.
Firstly, the applicant has been unable to provide any documentation relating to the demolition, compensation paid, her arrest or her father’s admission to hospital. She said that the certificate of title was with the developers, and she did not bring the demolition notice with her to Australia as she was afraid customs officers would see it. She also said that she had asked her family to look for it but they could not find it. At the Tribunal hearing she confirmed that they were notified about the prospective demolition in March 2012. She said that her parents were sent a document from the local government, which stated that the house would be demolished for redevelopment as the houses were old. The Tribunal asked her if it was stated in the document that compensation would be paid. She said that the notice did not specify compensation, but they discussed this with the developers. She was asked if she could provide a copy of the document and she said that she did not know where it was. She was in Guangdong at the time and her parents called her and informed her about it.
She told the Tribunal at hearing that following the receipt of the notice, they were ‘in discussion with the developers about compensation’. In 2012 they were offered 1 million RMB to be paid in three different instalments. Asked how they knew who the developers were, she said the developers, [Company 1], came to them in 2013 and talked to them at home and offered them I million RMB. Her parents called her and told her about this. She said that her parents were happy with the amount of compensation offered. The Tribunal asked her if there was a written agreement between the developers and her parents. She said that they were given a document from the developers but ‘not an official one’ Asked if she had a copy of this document, she said that she did not. She said that her parents had it, and they lost it, ‘maybe when her mother was moving house in 2015’. She said that she never saw the document, but she heard about it.
Asked by the Tribunal if her parents took any photographs of the house or demolition, she said that they did not. She was asked if any of her neighbours had photographs or documents relating to the demolition. She said that she did not know. She said at the Tribunal hearing that her parents received their first instalment of compensation in 2015 after the house was demolished. She was asked if she had any evidence from the bank account of payment of that money. She said that the money was received by her father, and she has no evidence.
She was also asked by the Tribunal if she had any documents from the police relating to her arrest. She said that they illegally detained her, so she had no documents. She also said that her mother does not have hospital records from her father’s admission to hospital and did not take photographs of his injuries.
Asked if there were media reports about such a large demolition project involving 100 houses, she said that in China that volume of houses being demolished is an insignificant number.
The Tribunal accepts that the applicant may not have brought a demolition notice with her to Australia due to fear of it being found by customs. The Tribunal also accepts that there may not have been police records if there was not a ‘legal detention’. However, as put to the applicant at the Tribunal hearing, the Tribunal does not accept, given the scale of the alleged demolition, that there would not be some documentation available that she would have been able to obtain from her mother, such as notices, letters, petition letters, photographs, hospital records, bank account details or media reports, if in fact the demolition took place as claimed. She told the Tribunal that her father went to hospital and had fractures such that it would be expected some medical reports would be available. She argued to the Tribunal that China is ‘big’ and her family experienced only a ‘tiny incident’; however, this does not explain why some kind of documentation is not available.
Secondly, the evidence the applicant has provided about the sequence of events leading to her claimed arrest and the circumstances of the arrest, have been inconsistently provided in the evidence to the Department and the Tribunal, and the inconsistencies are material. In her application she said that she wrote a complaint letter to the city government. She said that ‘one day when she was working’ her neighbour called her to say that the demolition team wanted to demolish the house and her father was beaten. She said that she called the police but the police ignored the case.
The written evidence to the Tribunal was different in that she also referred to a protest and claimed that she was arrested. In written submissions to the Tribunal dated 5 September 2023, she said that the company told her that they had paid the money to the government. She said that she submitted a complaint to the government around July 2016 and when there was no response she went to the Nanchang Local Government Complaints Bureau to follow up and protest in November 2016. She also said that her father was beaten in early 2017 and she reported this to the police but they did not help her and instead detained her for 15 days in March 2017. She said that during her detention she was not given enough to eat and was interrogated every day and warned not to protest.
Evidence at the Tribunal hearing was different again. She did not mention her complaint letter or protest until the end of the hearing when asked why she had not referred to it when relating what had happened. Instead, when asked if over this period of time they had done anything else to try and get the money, she said that her father had sought out the developers many times and had gone to the local government to ask for the money and to a special petitioning office. She said that her father went in person and sent letters and had told her about this. She also said at the Tribunal hearing that she was with her father when he was beaten up, which was different to her earlier evidence, and again said that she was arrested and detained for 15 days, information which was not included in her application.
Her evidence at the Tribunal hearing was as follows. She told the Tribunal that following the first payment, the next instalment was meant to be paid between 2015 and 2016, however there were no further payments made. She said that her father went to the developers between May 2015 and November 2016 and asked for money many times.
She said that on one occasion her father went to the developers and a physical altercation occurred and her father was hurt with fractures to his arm and chest. He had to go to hospital. The Tribunal asked the applicant if her father reported the altercation to the police and she said that he did. She said that she called the police as she was in Nanchang and had gone to the developers with him. The Tribunal asked her why she said earlier when asked who went to see the developers that her father did. She said that he went once, then in July 2015 she went with her father to see the developers as he was visiting at the time.
The Tribunal asked her to describe what happened when she went to see the developers with her father in July 2015. She said that at first she went to see them ‘to have a negotiation’, but during the conversation they denied they owed money and they had an argument. She said that there were many people there. She was asked roughly how many were there and she again said there were ‘many’. Asked to specify how many, she said that there was one representative with lots of security officers. Asked to describe how the physical altercation began, she said that she and her father asked for money, then security officers surrounded them and asked them to leave without making a scene. They told the developers that they would not leave ‘and that was how the fight began’. Asked if she was assaulted, she said that she had minor bruises.
She told the Tribunal that when she and her father left the building, her father went to hospital, and she called the police. She said that the police did not do anything and ‘arrested her’. She said that she and her father had caught a bus to get to the developers’ office. She was asked how her father got to the hospital, and she said that they called an ambulance. She said that the fight took place inside a room. The ambulance parked by the entrance and the security officers carried her father out. She was asked when it was that she called the police. She said that she called after she had been beaten up and while she was at the developers’ office. She said that the police ignored her and said that she must not make a fuss. They arrested her. Asked when they arrested her, she said that she was in the lobby, and they took her to the police station. She said that the security officers called the ambulance after she left. She was asked how she knew that the ambulance parked by the entrance and that the security officers carried him out if she had left. She said that one of the security officers called her and told her on the way to the police station. She said that she told them to send him to hospital.
She was asked what the police said to her. She said she was ‘not injured and was young’. There ‘was blood’ and her father was’ lying on the floor’. There were two men and they interrogated her. She was asked if she queried why they arrested her, and she said that they told her she was ‘causing trouble.’ She said that their message to her was to ‘not make trouble’. Asked what they interrogated her about, she said that they interrogated her about ‘not making trouble’. She said that they did not ask her anything. She said that the police and developers were’ all in the one boat’.
She then said that the compensation was paid in May 2015, and she was arrested in November 2016. When the Tribunal asked her to confirm that her father had been to the developers before this, she said this was incorrect and in July and October 2016 she went with her father to the developers and in March 2017 she was arrested. She was asked if over this period of time they did anything else to try to get the compensation, she said that her father had sought out the developers many times and had gone to the local government to ask for the money and to a special petitioning office. He went in person and sent letters. He told her about this. She said that she was visiting from her job in Guangdong in July and October 2016 and March 2017. On the other occasions he went on his own as she was working in Guangdong.
She said that after she was arrested, she was detained for 15 days. Asked why she was detained for such a long period, she said that they detained her ‘not to cause any more problems’. She said that they interrogated her and ‘forced her not to make any trouble’. She was asked what they interrogated her about, and she said that they just told her not to make trouble. She was asked to describe a day in detention. She said that they kept her in one small room and two police officers took turns ‘to come every day to force you’. Asked what they were forcing her to do, she said that they forced her to agree ‘not to make any trouble’. She could not sleep or eat so she pretended to agree not to petition and then they released her. She was asked if her family had tried to get her released. She said that her father was in hospital and did not have time for her. She was asked what happened to her employment while being kept in detention by the police. She said that she was fired in March 2017 as she did not return in time.
The applicant was asked at the Tribunal hearing about the inconsistencies in her evidence to the Department, in written submissions and to the Tribunal at the Tribunal hearing. She was also asked why the Tribunal should not disregard the new evidence about being arrested, given that she had not provided this evidence when she made her application. Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence, where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, s 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence. The applicant said that her previous agent wrote a very simple and approximate protection visa application and did not ask many questions. As put to the applicant at hearing, the Tribunal does not accept that she would not have told the agent about the key aspects of her claims, including arrest, if in fact that happened, or ensured that this was included in her application, as these were important elements of her claims. The Tribunal does not accept that she would not have discussed her arrest if this had in fact taken place. The Tribunal does not accept that the explanation given is reasonable and has not accepted the evidence of the arrest.
The Tribunal recognises that psychological research on memory of trauma[21] does suggest that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. The Tribunal has taken care in assessment of evidence to acknowledge that not all memory deficit correlates with lack of truthfulness, as research demonstrates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[22] In this case, there is no medical evidence of trauma, and the Tribunal is not satisfied that the omission of the key evidence and the inconsistencies have a medical explanation.
[21] M Conway, ‘Episodic Memories’ (2009) 47 Neuropsychologia 2305; J Herlihy, L Jobson, and S Turner, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’ (2012) 26 Applied Cognitive Psychology 661; C Brewin, ‘The nature and significance of memory disturbance in posttraumatic stress disorder’ (2011) 7 Annual Review of Clinical Psychology 203.
[22] H E Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law 469.
The court noted in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 that a decision-maker can consider inconsistencies in assessing credibility, but it is the evidence as a whole that should be assessed, and the significance of the inconsistency within that context. The Tribunal has considered the evidence in its entirety and not in isolated parts, an approach supported in a number of cases including Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997) and the Migration and Refugee Division ‘Guidelines on the assessment of credibility’.[23] The Guidelines state that the Tribunal must consider all evidence before it assesses whether contradictions, omissions or inconsistencies are material to an applicant’s claims and would lead to an adverse finding of credibility.[24] The Tribunal is satisfied that the inconsistencies are material in this case.
[23] AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, type="1">
Thirdly, there were aspects of the applicant’s evidence at the Tribunal hearing which contained minimal detail, or was so confused, that, in combination with the other factors discussed in these findings, caused the Tribunal to question whether the incidents took place. For example, when asked how many people were at the developers’ office, she could only say ‘many’, even when asked for a rough estimate of how many people there were. In the evidence referred to above, she was asked to describe a day in detention and did not provide any detail, only referring to the police coming every day to ‘force her’. When asked for details about what they were forcing her to do, she could only say ‘to not make any trouble’ rather then providing detail about what they required from her. She also said that they interrogated her, but then said they did not ask her questions. In respect of the incident at the developers’ office, she said that the security officers carried her father to an ambulance parked at the entrance. She also said that by this time she had been arrested and left the office. Asked how she knew where the ambulance was parked she said the security officers called her, an explanation which appears somewhat unfeasible. She also said that her father petitioned for compensation, and told her about it, but later said that she accompanied him on some occasions.
Fourthly, it does appear unlikely that if she was involved in petitions or protests, she would not have known if other families received compensation if there were 100 houses demolished on her road, and the demolition took a number of years to happen. When she was asked if the other people in the road received compensation from the developers, she said that she did not know. She was asked if her parents contacted neighbours to see if they were having difficulties in getting their compensation. She said that she did not know. She said that she only joined her parents on a few occasions and was not with them all the time. While it is reasonable that if she was not there frequently she may not have known what happened with neighbours, this does not accord with her evidence that she was significantly involved with petitioning and was arrested as a result.
Fifthly, the applicant was able to travel freely to Australia notwithstanding that she claimed to have been arrested in 2017. When this was put to her she said that she was able to do this as she had agreed not to make any trouble. Independent country sources report that China has sophisticated surveillance systems and if persons of interest attempt to travel they are stopped at borders. The Department of Foreign Affairs and Trade report states that exit and entry is strictly regulated and 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 tax, customs, police or judicial authorities. This technology is used to create an exit control list. [25]
[25] Department of Foreign Affairs and Trade, ‘Country Information Report China’, 22 December 2021.
While the report is recent and methods are probably more sophisticated now than in 2017, it appears unlikely that if she was wanted by the police after such a recent arrest, she would have been able to depart freely.
The Tribunal notes further that the applicant did not enquire about protection or apply for a protection visa when she first arrived in Australia, despite claiming that she ‘escaped’ China after being arrested. Although this is not a sole reason for finding that the applicant’s claims are not credible, (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346) it would have been expected that the applicant would have applied at the earliest opportunity if she had a genuine fear of serious harm. Even though she used an agent, she applied for a student visa and it was only when this was refused, in September 2017, that she applied for a protection visa. She has said that she ‘did not understand anything’ and ‘her friend’ gave her advice, but if she did have an agent, it would be expected that she would have asked about seeking protection, if in fact she was ‘escaping’ as suggested by her. The Tribunal notes that she told the Tribunal that she applied for a passport in 2015 as she ‘wanted to go somewhere on holiday and was getting prepared’. The Tribunal is satisfied, given the reasons set out above, and her actions in Australia, that it is more likely that she travelled to Australia on a visitor visa to have a holiday, rather than to escape as claimed. The passport application in 2015, the visitor visa application and the travel, and the lodgement of a student visa and then a protection visa, strongly suggested a planned orderly departure rather than a genuine flight from imminent danger.
Have the police visited the applicant’s mother’s home since she left China?
The Tribunal does not accept that the authorities have sought out the applicant’s mother or questioned her mother since the applicant left the country. The Tribunal makes this finding as it has already made a finding of non-satisfaction that the petitioning and arrest took place, such that it follows that the authorities would have no interest in the applicant. Furthermore, she only made this claim at the end of the hearing, when asked why the government would have any interest in her in 2023 when these events took place in 2017. If the police had visited her mother it is likely she would have told the Department or Tribunal about it earlier. She told the Tribunal that her mother said that if she returns she may still be arrested, because they have reported to the upper level of government and ‘they are all connected’. She was asked how her mother knows that they have reported the matter to the upper level government, and she said that the police went to the house to warn her mother after she came to Australia. Asked when this happened, she said they have continued to petition, and each time after they petition they have visited. The Tribunal does not accept this evidence, given that it was not provided earlier, and the Tribunal does not accept that the family petitioned against the lack of compensation paid, for reasons set out earlier.
The refugee criterion
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[26].
[26] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Is there a real chance of serious harm if the applicant were to return to her home country?
The applicant claimed in her application that if she returns to China, she will suffer persecution by the police, be taken to prison and she will die. She said that she cannot move elsewhere in China as the whole of the country was the same and the government was corrupt. She said that the government colludes with the police. She told the Tribunal that she is afraid because she constantly appealed and lobbied in relation to the demolition of her house. She said that she would continue to petition if she returned as she would like to get the compensation back. She was asked why she did not just stay in China and get the money back. She said that in China she is afraid that she will be arrested.
For a person’s fear of persecution to be well founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Refugees Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept[27]; not only must a person fear persecution, there must also be a prospect of that fear being realised.
[27] See comments in UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s .5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[28]
[28] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.
The Tribunal is not satisfied, for reasons set out earlier in this decision, that the applicant or her family petitioned in relation to lack of compensation paid for demolition of their family home. The Tribunal is also not satisfied that the applicant was arrested as a result of protesting or petitioning, or that the police visited her mother after she left the country. As this is the basis of the applicant’s claim of fear of harm if she were to return to China, the Tribunal is not satisfied that there is a real chance, that is a substantial and non-remote chance of serious harm, were the applicant to return to China in the reasonably foreseeable future. The Tribunal is not satisfied that the authorities would seek her out for any kind of harm were she to return to China in the reasonably foreseeable future. The Tribunal is also not satisfied that she would petition or protest if she returned, given that the Tribunal does not accept that she did so in the past.
The applicant told the Tribunal in written submissions that her son suffers ‘prejudice’ because she is in Australia. At the Tribunal hearing she said that he has been bullied because other children say that he has no parents, with no one taking care of him. Clearly this harm is directed towards the applicant’s son, rather than the applicant, and in fact may be alleviated were she to return to China. The Tribunal is not satisfied therefore that there is a real chance of serious harm to the applicant due to claimed bullying of her son.
Findings on refugee criterion
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation were she to return to China in the reasonably foreseeable future.
Does the applicant meet the complementary protection criterion?
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that the applicant and her family petitioned for compensation for demolition of the house, or that the applicant was arrested. The reasons for these findings are set out earlier in this decision. The Tribunal has also found that the applicant does not face a real chance of serious harm from authorities, as it has not accepted that the authorities would seek her out on the basis of the claimed petitioning and arrest in the past. For the same reasons, on the basis of the decision in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.
Findings on complementary protection
The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A - 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 1659

25 January 2024

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Immigration

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Statutory Interpretation

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Procedural Fairness

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