1805551 (Refugee)

1805551 (Refugee) [2024] AATA 2986 (12 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805551
COUNTRY OF REFERENCE:                   China
MEMBER:Hee-Jung Kim
DATE:12 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 April 2024 at 3:34pm
CATCHWORDS
REFUGEE – protection visa – China – non-appearance before the Tribunal – unregistered migrant worker – corruption in law enforcement – harassment by local police – criticisms of the government and/or the police in Weibo – bribe paid for passport’s issuance – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for 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 5 September 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
On 2 March 2018, the applicant applied for review of the delegate’s decision to the Tribunal. With his review application, the applicant provided a copy of the delegate’s decision record and a personal statement in response to the delegate’s decision.
On 29 February 2024, the Tribunal invited the applicant to appear before it on 12 April 2024 to give evidence and present arguments in relation to the issues under review because it considered that it could not decide the review in the applicant’s favour on the basis of the material before it. The invitation was posted to the applicant’s postal address which the applicant provided in his review application as the only address for correspondence in connection with the review.
The applicant did not appear before the Tribunal on the day of the hearing at the scheduled time and place. There is no evidence that the applicant contacted the Tribunal to explain his non-appearance or to seek an adjournment. On the day of the hearing, the Tribunal Registry staff made several checks of the Tribunal premises prior to and after the time of the scheduled hearing but the applicant was not present.
Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing and notified of the scheduled date, time and place. The applicant failed to appear and has not provided any reasons for his non-appearance. Since lodging his review application, the applicant has not corresponded with the Tribunal. In these circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it
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-5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa under s 36(2) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant claims to be a citizen of China and provided a copy of the biopage of his Chinese passport issued [in] 2016 to the Department. The delegate was satisfied of the applicant’s identity and that he is a citizen of China. In the absence of evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China and that China is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
Protection visa application lodged 5 September 2017
In his protection visa application, the applicant provided that he was born in [year] in Macheng city, Hubei province, is a Chinese citizen and does not have citizenship or a right to enter or reside in any other countries. He claimed he is Han Chinese, he did not list a religion and he stated his occupation as ‘[Occupation 1]’. He claimed he married in 2005 and provided the details of his wife currently in China. He did not provide the details of any other family members. He claimed that he lived at the same address in [Village 1], Macheng, Hubei province from [year] to August 2017, and did not provide any other addresses in China. He claimed that he completed middle school in Macheng in July [year] and worked as a [Occupation 1] from August [year] to August 2017 in Macheng.
He claimed that he bought his passport by paying the police. He departed China from Wuhan [in] August 2017 and arrived in Sydney, Australia [in] August 2017 on a visitor visa, using his passport.
In relation to his reasons for claiming protection in Australia, he provided very vague information which can be summarised as follows:
·He left China because the Chinese government hurt him. China has no freedom and human right, and its government is bad. The police beat him, locked him in the police station and did not give him food or let him work. He did not seek help within China or tried to move to another part of China because all of China is same and bad.
·If he returns to China, the police will beat and hurt him, lock him up and not give him food or let him work, because he is an enemy of China.
In support of his application, he only provided a copy of his passport issued [in] 2016 by the MPS Exit & Entry Administration in Hubei province. He did not provide any other documents or material in support of his claims.
Visitor visa application lodged 7 August 2017
The Department’s file included a copy of the applicant’s online visitor visa application form. The information relating to the applicant’s birth details and his residential address in China were consistent with the information in his protection visa application. It also provided the details of his parents, siblings (younger sister and brother) and wife.
In relation to his employment details, it stated that the applicant was employed as ‘[Occupation 2]’ at [Business 1] [from] August 2016, located in Macheng city, Hubei province.
Departmental interview on 16 February 2018
On 16 February 2018, the applicant attended an interview with the Department and provided oral evidence in support of his protection visa application. The delegate summarised the applicant’s evidence given at the interview in their decision record, a copy of which the applicant provided to the Tribunal with his review application. I have listened to the recording of the interview, and I am satisfied that the delegate’s decision record accurately reflects the applicant’s evidence given at the interview.
In summary, the applicant provided the following information:
·He was a migrant worker from Hubei province, living and working in Guangdong province in several different jobs until June 2017. His last job before departing China was at a [factory] where he worked for several years. His wife lived with him in Guangdong province. Since the applicant came to Australia, she has been living in her home province of Sichuan. They have no children.
·About 2-3 years ago, he was approached by plainclothes police in Guangdong province, who asked for his temporary residence permit as a migrant worker. He was unable to produce the permit because he hadn’t lodged his application and they asked him to pay a bribe of RMB1,000. The applicant refused to pay the police because the permit was available free of charge from the local authority.
·The following day, police patrol officers visited his home and said they were strictly enforcing the residency permit requirement. He was taken to the police station where he was questioned by the plainclothes officer from the previous day. The applicant told the officer that he was prepared to apply for the residency permit but he hadn’t yet got around to it. He was again asked to pay a bribe to be released. The applicant became upset and stated he was being falsely accused and asked to pay a bribe. An altercation ensued and the applicant was accused of verbally assaulting the police.
·The applicant was detained for several days. He was asked to pay several thousand RMB to settle the matter but he refused. On the 3^rd day of his detention, his wife came to the police station and made trouble. The police released the applicant because they became worried the issue would escalate.
·From around 1 year ago, the applicant started posting criticisms of the government and police on Weibo. He wrote about his experience to prove corruption and bribery in China. His posts were blocked straight away.
·The local authorities in Guangdong province continued to monitor and harass him. They took his mobile phone and beat him. The police would disturb him every 3-5 days and he needed to change his place of residence each month.
·The local authorities in Hubei province where his hukou is registered also harassed him during his annual visits there on Chinese New Year to see his family.
·In order to have his passport issued, he had to pay additional money. It is a genuine passport but he paid a friend who knows someone in the government over RMB1000 to have it issued.
No further written material or submissions in support of the applicant’s claims for protection were provided to the Department.
Delegate’s decision
The delegate found that the applicant gave persuasive evidence of his incident in Guangdong province where he experienced police harassment and corruption as an unregistered migrant worker. Having regard to the country information indicating that corruption at every level of law enforcement in China is widespread and police are involved in bribery and payment of illegal fees and ill-treatment in detention, the delegate accepted the applicant’s claimed incident as credible and that he was held in detention in Guangdong province for 3 days during which he was assaulted and mistreated. The delegate also accepted as credible that the applicant was released from detention after his wife visited the police station to raise her concern about the matter. The delegate found that the applicant was released without paying the bribe and without being charged. They also found that the applicant continued to live and work in Guangdong province after the release, maintaining a relatively stable residential and work history for 2-3 years before travelling to Australia and he did not face further significant police harassment.
However, based on the applicant’s unpersuasive description, the delegate did not accept the applicant’s claim that he was harassed weekly by the police in Guangdong province and he had to relocate monthly, and the local police in Hubei province also harassed him when he visited his family annually for Chinese New Year. They found that the applicant can relocate to live and work in other Chinese provinces given his experience as a migrant worker and the country information indicating many Chinese citizens lived and worked outside their home district. Similarly based on the applicant’s unpersuasive account, the delegate did not accept that the applicant protested against or criticised the Chinese government and/or police on Weibo, and that he paid a bribe for his passport to be issued. Accordingly, the delegate was not satisfied the applicant would face a real chance of serious harm or a real risk of significant harm because of his political protest activities and criticism of the Chinese government and police.
Evidence before the Tribunal
In his personal statement provided with his review application, the applicant claimed the following in response to the delegate’s decision:
·He believed that his evidence about the police harassment in Guangdong province was misinterpreted at the interview. His evidence was he was frequently harassed and asked for bribes or leave the province on a weekly basis, sometimes 2 or 3 weeks, and he had to change job in order to hide from the police, and this shows the seriousness of his situation. The delegate insisted the police visit only happened once 1-2 month, it was not a serious problem and he was able to live quite an easy life from Chinese police.
·He presumed his passport was genuine otherwise he would not have been able to leave the country, but the passport was obtained through bribery to a police officer at the cost of RMB10,000. It is common practice in China that money can buy almost anything and everything. Holding a genuine passport does not warrant that the holder is not seen as a threat to the Chinese government. The Chinese government turns a blind eye to those who are deemed to be a threat to the government and plan on leaving China because the government prefers them to go and never return.
·Contrary to the delegate’s suggestion that the applicant waited nearly a year before leaving China indicating he was quite safe in China, after he received his passport, the applicant applied for a US visa on 2 separate attempts and both were rejected by the US consulate in 2016 and 2017. Australian visa was his 3^rd effort to leave China.
·Whole of China is controlled by the Communist government and therefore, moving to other part of China cannot be a realistic and safe option, unless the Department can direct the applicant to a place in China where it is not ruled by the Chinese government.
·In recent years and months, China is forcing hundreds of million migrant workers to return to their home where hukou is registered.
As noted above, the applicant did not attend the scheduled hearing. He has not provided to the Tribunal any additional material in support of his claims other than the abovementioned personal statement, nor did he request more time to provide further material.
Assessment of claims and findings
It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).
The Tribunal has reviewed all of the material in the Department and Tribunal files, including the applicant’s interview with the delegate. His protection visa application lacked detailed information regarding his family composition and his written claims for protection were very vague and general. The written evidence about his occupation, employment and residential history was also different to his oral evidence at the Departmental interview. The Tribunal acknowledges the difficulties of an unrepresented applicant preparing a visa application in another language and considers the gaps in the protection visa application may be attributable to these difficulties. Accordingly, it prefers the applicant’s oral evidence at the Departmental interview where he was able to freely give details about his life in China in his own language through the assistance of an interpreter in the Mandarin and English languages. The Tribunal also does not draw an adverse inference from the inconsistent information about his employment in the visitor visa and protection visa applications, because it accepts the applicant’s oral evidence in relation to his employment history. In light of these and having regard to the available material, the Tribunal accepts the following in relation to the applicant’s background and life in China:
·The applicant was born in [year] in Macheng city, Hubei province and completed up to middle school there. His parents and 2 younger siblings reside in China. He married in 2005, his wife has been living in her home province of Sichuan since the applicant came to Australia and they have no children.
·He was living and working in Guangdong province as a migrant worker until June 2017. He worked in several different jobs and his wife was also living and working in Guangdong province. The applicant’s last job was at a [factory] where he worked for several years.
·He arrived in Australia [in] August 2017 on a visitor visa, using his own passport issued [in] 2016 by the MPS Exit and Entry Administration in Hubei.
Having listened to the Departmental interview, the Tribunal also finds that the applicant gave credible and detailed evidence regarding the harassment and request for bribery by the Guangdong local police in around 2015/2016 (according to the applicant ‘about 2-3 years ago’ from the time of the interview). Accordingly, the Tribunal accepts that the applicant was harassed and asked to pay a bribe by the Guangdong police for not having a temporary resident permit in 2015/2016, he was taken to the police station for questioning and accused of verbally assaulting the police when he got upset, he was detained for 3 days where he was mistreated until his wife came to the police station to raise the fairness of the applicant’s detention and the police released him so as not to escalate the matter.

As summarised above, the delegate did not accept the applicant’s claims in relation to the events following the incident in 2015/2016. The delegate’s decision record sets out several issues with the applicant’s evidence as discussed below.
First, having regard to the applicant’s evidence that he continued to live and work in Guangdong province for several years before travelling to Australia, the delegate did not accept as credible the claims the applicant raised late at the interview of the subsequent weekly harassment by police in Guangdong province which meant he relocated monthly, and that local police in Hubei province, which the applicant visited annually for the Chinese New Year, also harassed him at his family’s residence. The delegate was not satisfied that the applicant would have remained in Guangdong if the harassment from local police remained ongoing and protracted, because his hukou enabled him to live in Hubei. Further, given his evidence showing his experience as a migrant worker, the delegate was satisfied that the applicant had the capacity to relocate to live and work in other provinces.
The applicant in his personal statement to the Tribunal claimed that his evidence about the police harassment in Guangdong was misinterpreted at the interview. He claimed that his evidence about the frequency of the harassment was weekly to once every 2-3 weeks and he had to change job to hide from the police, but the delegate found the police visits occurred once 1-2 months. However, contrary to this claim, the delegate’s decision clearly refers to the applicant’s claim of being disturbed every 3-5 days or harassed weekly which meant he had to change his residence monthly. There is no reference or finding by the delegate in the decision of the police visit occurring ‘monthly or two months basis’ as suggested by the applicant.
Further, the applicant’s claim does not address the delegate’s concern that the applicant remained living in Guangdong province and worked in the same factory in Guangdong province, despite the claimed frequent harassments by the local police.
The applicant also claimed that moving to other part of China cannot be a realistic and safe option because the whole of China is controlled by the Communist government, and in recent years, China has forced hundreds of millions of migrant workers to return to their home place of hukou. However, he did not explain specifically why the Communist government control of China makes his personal relocation unrealistic and unsafe, nor provide any independent corroborating information that migrant workers have been forced to return to their home area.
Secondly, the delegate did not find the applicant’s description of his Weibo posting from about 2017 (according to the applicant, about 1 year ago, from the time of the interview) and being subject to further police monitoring and harassment persuasive, as the timing of this activity did not coincide with the Guangdong incident 2-3 years ago and the applicant’s evidence that he was working with the same employer in Guangdong until mid-2017, soon before his entry to Australia in August 2017. The delegate considered that his passport being issued [in] 2016 and that he did not apply for his visa until August 2017 did not suggest he sought to exit China as soon as possible.
In his personal statement, the applicant claimed that soon after his passport was issued, he applied for a US visa twice but both applications were rejected in 2016 and 2017, and the Australian visa was his third attempt to leave China. However, he did not provide any evidence such as applying for such US visas or refusal notifications to support this claim. He also did not provide any further explanation or evidence in relation to his claim to have posted criticisms of the government and/or the police in Weibo.
Thirdly, the delegate did not accept the applicant’s claim to have paid a bribe for his passport’s issuance because his description of this matter was not persuasive.
The applicant claimed in his statement that he presumes his passport is genuine, otherwise he would not have been able to leave the country, but he obtained it by bribing a police officer at the cost of RMB10,000. However, other than general assertions about bribery being common practice in China and that the Chinese government turns a blind eye to those who are deemed to be a threat and plan on leaving China because the government prefers them to go and never return, the applicant has not provided any further details about the circumstances of the claimed bribery including the identity of the police officer and how, when and where the money was paid.
Since lodging his review application with the personal statement discussed above, the applicant has not had any contact with the Tribunal and has not provided any further evidence or submissions in support of his claims for protection. As set out above, the applicant’s personal statement to the Tribunal does not satisfactorily address the problems with the applicant’s evidence at the interview in relation to the claims about the subsequent harassment by the police and his claim to have posted criticism of the Chinese government on Weibo nor provide more specific details to satisfy that the applicant is describing his personal experiences. The applicant did not attend a hearing before the Tribunal to provide more detailed oral evidence about his claims and to further address and explain the concerns identified by the delegate and the concerns arising from his personal statement.
Based on the applicant’s own evidence, the Tribunal has accepted that the applicant was living and working in Guangdong until June 2017 and he had worked for several years in his last job before departing China. Having regard to this and the lack of independent corroborating information, the Tribunal does not accept the applicant’s general assertion that China is forcing migrant workers to return to their hukou hometown. Consistent with the country information referred to by the delegate in their decision, more recent country information also indicates that internal migration has been a key feature of Chinese economic and social life for decades and a third of the population live in a place other than where their residence is registered with a local government.[1]
[1] DFAT Country Information Report – People’s Republic of China, 22 December 2021, [5.24].
Having regard to the available material before the Tribunal and in light of the concerns about the applicant’s evidence at the Departmental interview set out above, the Tribunal does not accept that: the applicant was frequently harassed by the Guangdong local police after the initial one-off harassment and detention in 2015/2016; he was also harassed by the Hubei local police when he visited his family home during Chinese New Year annually; he posted about his experience of police harassment and corruption or any criticism of the Chinese government on Weibo; or that he bribed a police officer or anyone else for his passport to be issued. There is no corroborating evidence before the Tribunal to be satisfied of the applicant’s new claim that he previously applied for US visas twice but those applications were refused.
Accordingly, the Tribunal does not accept that the applicant left China because of the frequent harassment by the police in Guangdong and Hubei or by any other Chinese authorities, or because of his posts critical of the government on Weibo. It does not accept that the applicant will be harmed in anyway if he returns to China now or in the reasonably foreseeable future as a result of these events or for any other reasons.
For the reasons set out above and having considered the available material and the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to China for his claimed reasons or for any other reason in s 5J(1)(a), now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied the applicant has a well-founded fear of persecution in China, and the applicant does not meet the definition of refugee in s 5H(1). The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligation 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 has found that the applicant will not be harmed for his claimed reasons or for any other reason upon return to China. For the same reasons set out above, the Tribunal is not satisfied that there is a real risk that the applicant will be harmed upon return to China. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hee-Jung Kim
Member

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

[2024] AATA 2986

12 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction