1805702 (Refugee)

1805702 (Refugee) [2021] AATA 217 (8 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805702
COUNTRY OF REFERENCE:                   China
MEMBER:Sean Baker
DATE:8 January 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 8 January 2021 at 2:56pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – ‘Shouters’ – listed as an ‘evil cult’ by the Chinese government – raised in a Christian household – father was an Elder in the Church – concerns with evidence of claimed Christian faith – undetailed and vague statements – father’s claimed detention – fraudulent detention release certificate – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 21 July 2017.
The Tribunal invited the applicant to attend the hearing by video link. The Tribunal exercised its discretion to hold the hearing by video link. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearing by video link, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video link. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The hearing was conducted with a Mandarin - English NAATI Level 3 interpreter.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant will be persecuted on return to China or, if not, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims
The applicant provided written claims. He claims to be a very devoted Christian who has been practicing at his local family church in China and Australia. From the 1980’s until now, the local family church, also called the ‘shouters’ has been listed as an ‘evil cult’ by the Chinese government and has suffered persecution.
·His father was arrested and detained for 16 days and this intensified the applicant’s strong fear of suffering harm from the government
·As a devoted Christian he cannot live without attending church gatherings.
·He fears being arrested and detained because of his faith.
·He did not experience harm in China.
He provided a statement in which he expanded on the above, stating that:
·He grew up in a Christian family. He came to Australia to study intending to return but when his family had financial problems he stopped studying and worked.
·He had previously sought advice from a migration agent about lodging a protection visa application but the advice he received was not encouraging and so he gave up the idea of applying for a protection visa. This was because prior to his father’s arrest and detention in January 2017, none of his family members had been in direct conflict with Chinese authorities.
·[In] January 2017 when his father was leading a gathering at their house in [City 1] their gathering was raided and his father was taken away for questioning as his father was an elder in the Church. The family gathering was held at his parents’ house.
·His father was detained for 16 days and assaulted, abused and intimidated by Public Security Bureau officers. His father has suffered physically and psychologically as a result of the detention.
·Friends at his church in Melbourne encouraged him to apply for a Protection visa when they heard about his father’s experience.
·Their family church is still banned and many church friends have suffered persecution. The law prohibits them practicing their faith.
The applicant provided his father’s detention certificate and a translation.
The applicant did not attend the scheduled department interview.
The delegate refused the application, placing no weight on the detention certificate of his father on the basis of country information that fraudulent documents were common, finding that there had been a delay in lodging the application and that the applicant had not attended the interview, and found they were unable to be satisfied the applicant would face persecution or a real risk of significant harm on return to China.
The applicant applied to the tribunal. He provided a copy of the delegate’s decision.
In his response to the hearing the applicant provided several online articles about the treatment of Christian groups and Christians in China.
Evidence and consideration
Christian faith
The applicant claimed he grew up in a Christian family and his parents had believed in Christianity for the whole of his life. Despite this, he was unable to provide any insight or more than very vague and general comments about what his parents had told him about Christianity or what he had learned of being a Christian growing up in a Christian household. He said they just told him to believe in Christ and had told him other things but he could not remember what. I noted I was not expecting him to remember everything but noted he said he had grown up in a Christian household but could not tell me much about that.
He said he had started attending gatherings formally [while a teenager], after he had been Baptised which he described as when he had become a Christian. When asked about his Baptism he was able to supply very little detail. He was unable to recall if he had said anything or what the adults who had performed the Baptism had said. He claimed this was because if was around fifteen years ago. I put to him that it may have been a long time ago but he himself had marked when he became a Christian as being from his Baptism, so this event appeared to be quite important to his faith, and it concerned me that he was unable to provide more than general details about it. He said he could tell me more but he needed some time to think. I asked him what the significance of the Baptism was and he said it meant you were willing to become a Christina and willing to die and come back to life with God. He said the significance of the water was that you were willing to live, die, be buried and come back to life with God.
The applicant was similarly unable to provide much detail about the gatherings he claimed to have attended. He said that at the gatherings they sang songs and did prayers. They ate the body and blood of Christ and shared. He was able to recall a simple prayer that he said they said at the gatherings.
The applicant said that he had a Bible, but it was a bit different from other Bibles as it was translated directly from the Greek by Witness Lee and included his explanation. I asked if there was a particular part of the Bible that was important or significant to him and he responded that there were many parts important to him. I asked if he could tell me about a few of them and he said he needed to think about it. he made general statements about believing in Jesus and then you can have immortal life and that he died to save humanity because of the mistakes made by humanity. He mentioned the story of Adam and Eve and original sin. When asked why this was important to him he said because Jesus used his own death to help us.
He related the story of Jesus and the leper and said this was significant to him because you need to be honest and according to your promise. He related the story of the loaves and fishes and said that this was significant to him because if you believe in Jesus you can get many benefits. He said he had heard about this story in a gathering last week.
The applicant explained that he had attended two churches in Australia, having moved churches as he heard there were people from his local Church attending the second Church, in [Suburb 1]. He said that prior to the pandemic he had been attending the [Suburb 1] Church for two years, going once a week. He said there were services in both Mandarin and English, there was a priest or father there but he could not tell me their name, nor could he tell me the names of the people or person who gave the Mandarin or English services. I put to the applicant that it seemed odd to me that he claimed to have been going to the [Suburb 1] Church for two years and yet could not give me many details including who gave the Mandarin service. He responded that this was because they just go there to discuss, he had only gone once a week and because of Covid he had not been there for a long time. He said he did not undertake any other activities with the Church.
Toward the end of the hearing I put to the applicant concerns with his evidence of his claimed Christian faith. I put to him that I was concerned that despite claiming he had grown up in a Christian household, and that his father was an Elder in the Church, he was unable to provide more than undetailed and vague statements about this aspect of his life as a Christian. He responded that it was quite a long time ago and he had been nervous. I noted a further concern that one of the Bible stories he had related to me had been one he claimed to have heard about last week. He confirmed that was his evidence. I noted that he claimed to have been Baptised into Christianity 15 or 16 years ago and it was of some concern to me that he told me about a story he heard last week, and it made me concerned about what he had learned in the previous 15 to 16 years. The applicant responded that that story he learned last week had made an impression on him, so he talked about it. I put to him that with these concerns and his lack of knowledge about the Church he claimed to have attended in Australia I may think he had attended Church in Australia only briefly, and may take the view that he had done so solely to strengthen his claims to protection. He responded that this was not true and he often went to Church. I noted that of particular concern, because he had said it was when he became a Christian, was his lack of detail about his claimed Baptism. I asked if he wished to tell me more about his Baptism now. He said he would, he said that two adults prayed and put him in a bath and did prayers and sang a song.
It is worth noting that I am aware that Christianity is practiced very differently in China. According to the most recent DFAT report:
The Shouters (also known as ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are a Chinese offshoot of Watchman Nee's Little Flock led by Nee's student, Changshou Li, otherwise known as ‘Witness Lee’. The Shouters were created in the US in 1962 and introduced to China in 1979. Witness Li created a ‘Recovery Bible’ by annotating the standard Bible and claimed that the gift of tongues could be taught, and that salvation could be had by saying ‘O Lord’ three times. The Shouters are named for their practice of stamping their feet while shouting as part of their worship. By 1983, the group had up to 200,000 followers across China.[1]
[1] DFAT Country Information Report People’s Republic of China, 3 October 2019, 3.105.
The Local Church have a range of practices and theology that differs from more mainstream theological sects. Witness Li or Lee re-translated the Bible and added extensive commentary, as referred to by the applicant in his evidence, but the Local Church also holds distinct views, considering humanity totally sinful, humans as divided into flesh soul and spirit, the practice of pray reading where people read together aloud from scripture, calling on God, and proscribed group rituals.[2]
[2] RRT Research Response, CHN31015, 8 December 2006.
More generally, it is understood that China has a long history of Christianity but also one that because of the way the State has sought to control, and because of successive waves of different evangelists as well as local re-interpretations such as that of Witness Lee, Christianity is divergent from many other parts of the world in practice and form.[3]
[3] See Sven-Erik Brodd (2019) Chinese Christianity in international perspective: some remarks on ecclesiology and fundamental concepts engaging East and West, International Journal for the Study of the Christian Church, 19:2-3, 81-102, DOI: 10.1080/1474225X.2019.1656465
I have had regard to the articles supplied by the applicant to the Tribunal. These demonstrate that those practicing Christianity, and in particular Shouters suffer significant hardships and harm amounting to persecution on the basis of their religion in China. They do not assist in establishing that the applicant is a member of the ‘Shouters’ nor a Christian.
Having carefully considered the applicant’s evidence about his Christian faith I find that his evidence does not support his claims, leading me to find that I am not satisfied that he is a Christian, practices Christianity, or comes from a Christian family.
I was very concerned with his inability to tell me anything detailed or meaningful about his claim that he grew up in a Christian family. Even taking into account that this was a long time ago and that he may have been nervous at the hearing, I consider it reasonable to expect someone who claims to have grown up in a Christian household to be able to describe what he learned or what life was like in that household. This is particularly the case here as the applicant has claimed that his father was an Elder in the Church, a position the applicant described as being the organiser of gatherings. Despite this the applicant was able to describe those gatherings in a vague and general manner.
This concern deepened when the applicant described his claimed Baptism, which he identified as the point at which he had become a Christian and formally attended gatherings. But again, he only described his Baptism in vague and general terms. When asked about this he said he needed more time to think, but despite being afforded a further opportunity to add detail or provide further information at the end of the hearing, the applicant added little.
He displayed some knowledge of Bible stories and was able to talk in very general terms about what these meant to his life, but of concern was the fact that one of the two Bible stories he related he said he had heard about last week. There was little in his evidence to demonstrate his claim that he has been a practicing Christian for 15 to 16 years, nor that he grew up in a Christian household.
Despite his claims to have attended a Church in [Suburb 1] for two years he was unable to tell me who conducted the services, nor provide any other details.
His evidence was profoundly lacking in any detail or in depth personal description of his faith or his life growing up in a Christian family. I found his lack of knowledge, or deep, rich and detailed explanations that would demonstrate a lived experience, to be significantly lacking for someone who has claimed to have grown up in a Christian family, whose father was an Elder, and who has been Baptised and formally attended gatherings and then attended Churches in Australia for approximately 15 or 16 years.
These concerns with his evidence lead me to disbelieve his core claims because he has not established, despite being given the opportunity, that he is in fact a Christian, a member of the local family church, also called the ‘Shouters’, or any other religious group, practices Christianity, has attended a Church or any Christian gathering in China, or comes from a Christian family. This leads me to disbelieve that the applicant’s father is an Elder in the Church or was taken away for questioning at a Church gathering and detained for any period of time, I do not accept that his father was assaulted, abused and intimidated by Public Security Bureau officers during this detention. I do not accept that his father has suffered physically and psychologically as a result of the claimed detention. This may lead me to consider that the detention release certificate did not establish or assist in establishing his father was detained and I may place no weight on the certificate.

I find that I do not accept that the applicant is a Christian, devoted or otherwise, member of the local family church, also called the ‘shouters’ or otherwise. I do not accept that he grew up in a Christian family. I do not accept that his father was or is an Elder in the Church, nor that his family are Christian at all. I do not accept that he has been practicing at his local family church in China. I do not accept that many Church friends have suffered persecution. I do not accept that the applicant practiced Christianity in China at all.
The applicant’s evidence about attending a Church in [Suburb 1] was also brief and undetailed. Despite claiming he had attended this Church for two years he was unable to tell me more than the briefest of descriptions of what occurred and was unable to identify anyone who led the services. Given his claim that he attended once a week, and for a number of years, I think it reasonable to expect that he would be able to provide more information and detail about his experiences there.
Given these deficiencies, I do not accept that the applicant has attended a Church in [Suburb 1] for two years, nor attended any other Churches for regular periods of time.
Given the very serious deficiencies in his evidence I have reached a positive state of disbelief that he has attended any Christian services or practiced Christianity, as a member of the ‘Shouters’ or otherwise, in any way in China or Australia.
His Father’s detention release certificate
The applicant provided a detention release certificate to establish that his father was detained in January – February 2017 for 16 days as he has claimed. Such certificates are issued after a person has been detained.[4] However, as I put to the applicant at hearing, a range of documents, including official documents such as this one, can be produced fraudulently in China.[5]
[4] See Australia: Refugee Review Tribunal, China: 1. Please provide information on the treatment of ordinary member of the underground Catholic churches in Henan Province. 2. Is it customary for the authorities to issue a Certificate of Release or a Notice of Prisoner's Release upon Completion of His Sentence once a prisoner has been released? 3. Is there a prison called Xin Yang in the outskirts of Luo He City?, 23 February 2007, CHN31415 , available at: 7 January 2021]
[5] See DFAT Country Information Report People’s Republic of China, 3 October 2019, 5.61 – 5.66.
As I explained to the applicant, when considered with my concerns with whether he was a Christian or came from a Christian family, I may consider the certificate to be fraudulent and give it no weight. The applicant responded that the detention certificate was true and he knew nothing about the prevalence of fraudulent documents.
On the basis of my findings above I have concluded that the applicant did not come from a Christian family, that his father is not an Elder in the Church nor that his father was detained at a Church gathering.
Given theses findings, it is clear that the detention release certificate for his father should be given no weight in my consideration. Further, on the basis of my findings and the country information, I find that the detention release certificate is a fraudulent document.
Delay and Department interview
I raised the issue of delay with the applicant. He told me that he had come to Australia in 2007 and had ceased studying after half a year, because his family had financial problems. He said that as his visa had not expired he stayed to earn money for his family. He said his visa expired in 2009 or 2010 but he had not returned to China at that time, he said because his family did not let him go back as they believed it was not safe for him to return, and told him that in the village nearby some people who believed in the Church were arrested by the police so it was not safe for him to return and they wanted him to stay in Australia.
He said they told him this around 2010. He said he was aware his visa had ceased but he could not go back. I noted that if someone does not have a visa they are liable to removal back to their home country and noted I was concerned he had not sought protection in 2010. He responded that at that time he asked an agent who told him there was no kind of visa he could hold. He said this was an international students agent but could not tell me their name or the name of their firm. I asked if he had asked anyone else what visa options he had and he said he had asked his friend as well and his friend told him he would not be successful as a refugee as his family had not received direct persecution from the Government, then his father had been detained in January – February 2017 so he had sought protection at that point. I asked if he had spoken to any other agents or lawyers prior to this and he said he had not.
I noted to him that I may think that if he was being told by his family in 2010 that it was not safe to return that he would be motivated to take further steps to try and apply or find another way to remain lawfully in Australia. He responded that he had wanted to return but his family had told him it was not safe.
I asked the applicant why he had not attended the Department interview. He said he had been sick so he could not attend. I asked if he had contacted them to reschedule and he said he did not because he did not know how to contact them. He said he had not gone and had just thought that when it was over it was over and he would wait for the notification of decision. I put to the applicant that his failure to attend or to contact the Department and reschedule may lead me to doubt the genuineness of his claims and the seriousness with which he took the application. He responded that he did not know he could reapply so he just waited for the notice.
I found the applicant’s explanations for his delay in applying and his reasons for not attending the Department interview to be entirely unconvincing. I find that, if the applicant had genuinely been told in 2010 that he should not return as it was not safe to do so that he would have been motivated to find a method of remaining in Australia rather than being unlawful and liable to removal. The fact that he did not do so for seven years leads me to disbelieve his claims that he was told it was not safe by his family in 2010 and to further doubts his core claims made above. This is compounded by his failure to attend the interview with the Department. This was an earlier opportunity for him to provide evidence to satisfy the decision maker that he was owed protection. He did not take it. His explanation for why he did not do so is wholly unsatisfactory and leads me to disbelieve his claims because I find that someone whose family had told them it was not safe to return, and whose father had then been detained for practicing his claimed faith, that he would have been strongly motivated to attend the interview or to contact the Department and arrange another time. He did neither. His actions, in delaying so long before seeking protection and in not attending the interview, in this case, appear to me to be clearly the actions of a person who is not in fear of persecution, nor considers there is a real risk they will suffer significant harm.
Does the applicant have a well-founded fear of persecution if he returns to China?
The applicant said in his written claims that he is a devoted Christian he cannot live without attending church gatherings and that he fears being arrested and detained because of his faith. At hearing he claimed he may even be killed because of his faith. He claimed to come from a Christian family and that his father was an Elder in the Church and was detained by the authorities. He claims to have attended several Churches in Australia. I have rejected all of these claims, above. I have found he is not a Christian and has not practiced as a Christian in either China or Australia. Consequently, I find that if the applicant returns to China he will not practice as a Christian, attend gatherings or engage in any other Christian activities. I have placed no weight on the detention release certificate for his father and found this document to be fraudulent.
I accept that the applicant is a Chinese national, who resided in [City 1], Fujian province. He has worked in Australia.
On the basis of what I accept of the applicant and the claims he has made and on the material before me that I accept and place weight on, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from the local authorities, the Chinese government or anyone else for reason of his actual or imputed religion, or for any other reason, if he returns to China, now or in the reasonably foreseeable future.
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).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to China?
As detailed above, I have not accepted the claims of the applicant and have found that there is no real chance that he will be harmed by the local authorities, the Chinese government or anyone else for reason of his actual or imputed religion, or any other reason now or in the reasonably foreseeable future if he returns to China.
When asked the applicant did not claim that he would be harmed on any other basis on return to China but restated his claims as above. I find that the applicant has not provided any other basis on which he claims he will be harmed on return.
It follows that I do not accept that there is a real risk the applicant will suffer significant harm from the local authorities, the Chinese government or anyone else for any of the reasons set out above or for any other reason or basis evident on the claims or material as a necessary and foreseeable consequence of him being removed from Australia to China.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
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.
…

[2021] AATA 217

8 January 2021

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