1805095 (Refugee)

1805095 (Refugee) [2024] AATA 1104 (20 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Amy Lee (MARN: 0215803)
CASE NUMBER: 1805095

COUNTRY OF REFERENCE: China
MEMBER:Michael Simmons
DATE:20 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 February 2024 at 12:21pm
CATCHWORDS
REFUGEE – protection visa – China – land resumption without compensation – passport renewal – credibility issues – exit procedures – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 22 February 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 12 October 2017.
The applicant appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. Her migration agent attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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 applicant confirmed during the hearing that her only reason for fearing harm were she to return to China is due to a property dispute with the authorities who she claims forcibly acquired the premises where she ran her business. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The issue in this case is whether the applicant faces either a real chance of serious harm or a real risk of significant harm were she to return to China. For the following reasons I have concluded that the decision under review should be affirmed.
Identity and background
The applicant confirmed information about her identity which is reflected in the biodata pages of her current and previous passports. Based on that information, I find that the applicant is a national of China. China is the receiving country for the purpose of this assessment
At the outset of the hearing the applicant confirmed that she was familiar with the information she had provided in her 12 October 2017 visa application, and that it was complete and accurate. She advised that her previous migration agent assisted her to prepare this visa application and confirmed that there was nothing in her application she wished to change or update. The applicant also confirmed that the submission she provided to the Tribunal via her current representative, dated 24 January 2024, was also accurate and that she was aware of its contents.
During the hearing the applicant often struggled to provide responses which addressed the substance of my questions, even after she was prompted to do so. She also changed some of her responses when I raised concerns with her regarding her oral evidence, such as in respect of her employment history. I asked the applicant how she supported herself whilst in China. She told me that after university she helped her parents in their [products 1] business, then later she opened her own small [product 2] shop in 2008. She confirmed that she only had a [product 2] shop in China and never had any other kind of business or employment.
I asked if she ever worked as [an occupation 1]. She told me that after university she wanted to, but she did not find the right business to do this. I noted that in her 2017 protection visa application she indicated she worked as [an occupation 1] from [specified year] to February 2016 at a company called ‘Shanghai [Business name 1]’. She told me that for that application a priest did all the paperwork and that she does not know what information was provided in it, and maybe the priest wrote that so she could get an Australian visa more easily. I noted that her evidence was that the priest helped with the visa to come to Australia, however this information was taken from her 2017 protection visa application lodged in Australia with the help of a migration agent. She said that the material used for her visa to Australia was also used for her protection visa in Australia.
I noted that at the start of the hearing she told me that she was familiar with the information in her protection visa application, that it was correct, and that she did not want to change anything. She stated in the preparation of the application the agent filled out all the paperwork. I reiterated that at the outset she had told me her visa application was correct. I asked her again if she was aware of the contents of her visa application, she told me that initially everything submitted for the protection visa application was prepared by her agent. I pointed out that was not my question and invited her to provide a response to my question. She said that the content of the application was information which she gave to her agent and the content was true. I asked if she knew what the content was, and she replied yes.
The applicant then told me that “I worked in Shenzhen [Business name 1], but I was not aware this information was put in the application by the agent. Probably this information was in my application for a visa to Australia”. I asked her to confirm whether she said, “Shenzhen [Business name 1]”. After a pause, she said “maybe it was Shanghai [Business name 1]”. I asked her to confirm which it was. She said I don’t know which one, the priest helped me to prepare the documents and paperwork. She then shifted her position again and said that she never worked for any [such related] company at all, and the only form of employment or business she had while in China was her own [product 2] store. Her shifting and inconsistent responses in respect of her employment history, and whether or not she was familiar with the details provided in her visa application, raises doubts as to the reliability of her evidence.
Property dispute
The applicant and I discussed the dispute over her commercial premises and the difficulties she claims this caused her. Overall, there were considerable discrepancies between her oral evidence, the details set out in her 2017 visa application and her 2024 submission. I raised a number of concerns with her about her account of the property dispute for which she failed to provide persuasive responses. In its entirety, her evidence was not credible. For the following reasons I am not satisfied that the applicant was involved in a property dispute with the Chinese authorities, or that she was ever of any interest to them for any reason.
When asked why she had applied for a protection visa, the applicant told me that “In China I was persecuted, and I got scared”. Asked to elaborate, she stated “I got scared because I was threatened and intimidated by them due to the house demolition matter”. I asked her to confirm what was demolished, and she then stated, “my [product 2] shop was demolished by force”. When asked to provide more detail about this matter, she told me that she did not get any compensation money, that she would lodge an appeal and if she did they would harm her. I asked why she would lodge an appeal if she believed this would cause them to harm her, and she replied that she will try and get her money back because her shop was taken by force. I then sought to clarify whether or not she had already lodged an appeal and she told me that she wrote something to the authorities to say she wanted her money back. She confirmed the January 2013 shop demolition was the only reason she feared returning to China.
In her visa application, the applicant states: “The [product 3 shop] which I owned was shut down because of health violations. However, there were no violations which had occurred, but they still shut me down. I believe it is because of the area which we are in. The government wants to claim it as their own and build more apartments on it. It is very close to transport, and there are many other shops close. After I was shut down, I tried to appeal to them, but they have told me that it is permanent, and I must leave.”
In the application she indicated that she owned the [product 3 shop] from February 2016 until March 2017. She stated that when she did not leave the [product 3 shop] she was attacked on her way home: “A group of men pushed me down and kicked me. They told me that I have to leave the [product 3 shop] and leave China if I want to be safe. I was scared for my life and had to listen to them. It is not safe for me in China anymore. The government decided to target me so that they could build more housing in China”.
However, in the January 2024 submission to the Tribunal the applicant provided a markedly different account of her problems in China. She indicated that during August 2012 she had a two storey shop that was 210 square metres and located in [District 1], Qingdao City and that she received notice from the government that this shop would be demolished. The government indicated they would compensate her RMB [amount] per square metre however the applicant believes the store is worth RMB [larger amount] per square metre. Due to this she refused to sign an agreement with the authorities, as did other shop owners. The electricity and water was cut off to her business then in January 2013 the shop was demolished without her permission. She wrote to the City government to protest and then people came to her house and told her she had disrupted public order and would be arrested if she continued. The applicant continued to protest to the Shandong Province Government, then rocks were thrown at her house and people were sent to crash into her car. Due to this she went to hide in [Country 1] for three years from 2014.
The submission provides that she returned in March 2017 because her mother was critically ill. Soon after her return she was asked to report to the police. Her compensation was not settled, and she continued to protest. When she was not at home the police came looking for her and her father in law warned her not to come home. She went to Laixi City to seek refuge and a priest at church knew about her situation and helped her apply for a visa to come to Australia.
I raised these very different accounts with the applicant, noting that the details regarding the demolition and the dispute were very different when comparing her visa application with the submission to the Tribunal, causing me to seriously doubt her narrative. This includes that the visa application indicates she owned a [product 3 shop] from February 2016 to March 2017 at Laixi City, Qingdao and that false health complaint were made, and a brick thrown through the window in an attempt for the government to take this building so they could build more housing. However, the submission to the Tribunal states that in August 2012 she had a shop in [District 1] of Qingdao, the business was interfered with, and the power and water was cut off, and in around January 2013 the shop was demolished by force. In response she stated that in regard to the visa application all the paperwork was dealt with by the agent, and she does not know exactly what was put in the form because she does not understand English. She said what she provided to the agent was true but that she does not know what the agent put in the form. I noted that was not what she told me at the outset of the hearing. She said that “what I told the agent is different to what the agent lodged”. I noted that before she had confirmed to me that she understood what was in her application and that it was correct, and that I was concerned she was now telling me something different. She replied that because she does not read English she does not know what was put in the application.
In support of her claims, the applicant provided documents described as a ‘house property certificate’ and ‘house demolition notice’. I raised with the applicant that DFAT reports fraudulent documents in China are very common and the scale of fraud is unmatched anywhere in the world. Fraudulent documents and the criminals who create them are highly sophisticated. Criminal syndicates may provide a suite of documents to asylum applicants.[1] I indicated I may have doubts as to the authenticity of those documents. I invited the applicant to respond to this information and she said that she had no comment.
[1] DFAT, ‘DFAT Country Information Report China’, 22 December 2021.
The applicant confirmed to me that she fears harm form the Chinese authorities. I noted that she has a current Chinese passport issued in 2021. She told me that she went to the Chinese consulate to obtain this document. She said: “it took a lot of trouble, they asked me to write a guarantee letter acknowledging that I made some mistakes”. She does not have a copy of this letter. When I asked her why she obtained this passport she told me because the old one expired a long time ago. I asked if she was planning on travelling and she said no. I asked again why she obtained this passport and she said she needs a valid ID document because she does not have any Australian documents. I asked if she has an Australian driver’s license, and she confirmed she does. I asked again why she obtained this passport. She said I don’t have any ID documents and the old passport expired so I did not have any valid ID documents. I asked whether her drivers license is a form of identity. She stated that I do not have the identity of an Australian citizen or permanent resident. I indicated I was having difficulty understanding why she needed a passport if she was not planning to travel, and she had other identity documents. She stated: “in the view of Chinese people one has to have identity documents to show where they belong to, I don’t have the Australian residential status, if I don’t have a passport that means I don’t belong to anywhere”. I asked her why, if she fears being harmed by the Chinese authorities, would she go to the consulate to renew her passport. She said: “I had no other option I had to go there, and they made me write the letter saying I was sorry then I got the new passport”. I expressed that I had real concerns about this aspect of her narrative, which did not suggest to me that she was fearful of the Chinese authorities and invited her to tell me anything else at all she wished in relation to her passport renewal. She replied that “In my view I think I will need a passport, does not matter which country, but I am not an Australian citizen it is not enough for me to have an Australian driver’s license I definitely need a passport from a country”. I do not consider her evidence on this matter to be persuasive. I consider that her decision to attend the Chinese Consulate to obtain a new Chinese passport in 2021 is not suggestive of her fearing harm from the Chinese authorities at that time.
We discussed the applicant’s departure from China, both on her way to [Country 1] in 2014 and Australia in 2017. I noted her ability to exit China on her own Chinese passport without attracting any adverse interest is not suggestive of her being of any interest to the Chinese authorities. I invited her to comment on country information from the Australian Department of Foreign Affairs and Trade (DFAT), which indicates that exit and entry are strictly regulated and monitoring capabilities at airports are comprehensive. The government knows when people enter or leave the country and DFAT assesses that it is almost impossible to exit China without the authorities’ knowledge.[2] There is nothing to suggest that the applicant took any steps to conceal her identity or otherwise avoid standard pre-departure checks when she left. I noted that the applicant’s evidence was that the police were pursuing her in 2017 when she left to come to Australia, and that her ability to leave the country via an international airport at that time suggests she was not being pursued by the authorities. She said because: “I did not kill anyone or commit any crime my name was not on any list, and that it was gangsters working with the police who were after me”. The fact that she was able to leave the country without attracting any official interest is, in my view, not supportive of her having the claimed profile of interest with the Chinese authorities, or of her being of any interest to them for any reason.
[2] DFAT, ‘DFAT Country Information Report China’, 22 December 2021; DFAT, ‘DFAT Country Information Report China’, 3 October 2019; DFAT, ‘DFAT Country Information Report China’, 21 December 2017; DFAT, ‘DFAT Country Information Report China’, 3 March 2015.

The applicant confirmed to me that she had provided all the relevant information she wished to provide. I offered the applicant a break to discuss the concerns that I raised with her and any further information she may wish to provide in reply with her representative, but she declined. I also invited the applicant’s representative to make submissions on the applicant’s behalf, but she indicated she had nothing to add.
On the totality of the material before me I am not satisfied that the applicant was party to a property dispute with the Chinese authorities. She has offered such different accounts of this dispute that I simply do not accept that it occurred. She has variously suggested that the property subject of the dispute was a [product 3 shop], a [product 2] store and a house; that it was located in [District 1] and also in Laixi City; and that the property was demolished in January 2013 and forcibly acquired in May 2017. When these discrepancies were put to her, she shifted from her earlier statement that she knew what was in her protection visa application and indicated that she was unaware and that her former agent must have provided the incorrect details. The applicant has twice departed China on her own passport. I am satisfied that she was not of any adverse interest to the authorities on those occasions for any reason. Despite claiming to fear harm from the Chinese authorities in connection with the dispute, of her own volition she attended the Chinese Consulate in 2021 to renew her Chinese passport. The applicant provided a shifting, vague and unpersuasive account and I do not regard her evidence to be reliable. I reject her claims in their entirety.
Is the applicant a refugee per s 5H?
The applicant confirmed during the hearing that she only fears harm in the future in China because of the property dispute. For the reasons set out above, I have not accepted that the applicant was involved in a property dispute in China. It follows that I am not satisfied that she faces any chance of harm in the foreseeable future in China for this reason. The applicant has not advanced any other reasons for fearing harm on return to China, and I am satisfied that no further claims arise squarely on the material before me. I find that at the time the applicant departed China she was of no adverse interest to the Chinese authorities for any reason.
I do not accept that there is a real chance of the applicant being harmed for any reason in the reasonably foreseeable future in China, by the authorities or anyone else.
The applicant does not have a well-founded fear of persecution per s 5J(1), and therefore does not meet the definition of refugee per s 5H.
Is the applicant entitled to complementary protection?
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm on removal to the receiving country. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention,[3] and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b).[4]
[3] MIAC v SZQRB (2013) 210 FCR 505.
[4] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Caseload Legacy) Bill 2014 (Cth).
For the reasons set out above, I have found that there is not a real chance of serious harm for this applicant for any reason if she returns to China. For the same reasons, I am not satisfied that there is a real risk of any harm to the applicant were she to return to China, including any of the kinds of significant harm set out in the legislation.
I am 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.
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 or supporting material to indicate 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.
Michael Simmons
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.
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[2024] AATA 1104

20 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Natural Justice