1806186 (Refugee)

1806186 (Refugee) [2024] AATA 869 (25 January 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1806186
COUNTRY OF REFERENCE:                   China
MEMBER:Joshua Le Vay
DATE OF DECISION:  25 January 2024
DATE CORRIGENDUM
SIGNED:19 March 2024
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

Paragraph 38 currently reads “The economic conditions faced by the applicant would apply to all citizens in Fiji.” The word “Fiji” should be replaced with “China”.
Joshua Le Vay
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1806186
COUNTRY OF REFERENCE:                   China
MEMBER:Joshua Le Vay
DATE:25 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 January 2024 at 12:19pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – member of underground church – physical health and depression cured – friends detained and tortured, and family harassed by police seeking applicant – petitioned against government corruption – claims discontinued at hearing – economic conditions – difficulty finding accommodation and work not serious harm, and no risk to capacity to subsist – two return visits and new passport – protection application made after student visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4)(b), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) CLR 379
SZBQJ v MIMIA [2005] FCA 143
SZIGC v MIAC [2007] FCA 1725
SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34
SZSPE v MIBP [2013] FCCA 1989; [2014] FCA 267
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 16 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 14 July 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.
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 (‘Department’), 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
Background
In his protection visa application form, the applicant provides the following information:
He was born in Hengshui, Hebei, China, in [Year]. He resided at the same address in Hengshui until departing for Australia for the first time in 2013. He speaks, reads, and writes Mandarin. He has ‘no specific ethnicity’ and has ‘no religion’. He has never married. Despite this he indicates that he has a mother-in-law who lives in China. He has not provided details of any other family members. He attended school in Hengshui from [Year] to [Year]. He then attended a [college] in Hengshui from [Year] to [year]. He arrived in Australia [in] June 2013, entering as the holder of a student visa and having departed China [in] June 2013. The passport on which he first entered Australia is lost.
In the Tribunal hearing, the applicant gave further evidence that he is single and has no children. In China he lived at the one address with his parents in Hengshui. His parents divorced shortly before the applicant first came to Australia. His parents remain in Hengshui, living separately. His mother remarried and has a daughter with her second husband, who she also subsequently divorced. The applicant has not met his half-sister. The applicant has no other siblings or half-siblings. He last spoke with his mother in 2022 and has not spoken with his father since the applicant was ‘small’. His mother works as [an Occupation] and his father worked in [Work sector]. He does not recognise the name given as that of his mother-in-law in his application. He has no family in Australia.
In China he attended school in Hengshui up to Year [Number], when he came to Australia. He entered Australia on a student visa which was obtained with the assistance of an agent, as arranged by his mother’s friend. He corrected that he first came to Australia in July 2013, and not June 2013, which accords with movement records received from the Department. He also said that his application wrongly states that his previous passport – which he used to first enter Australia – is lost: he has it in his possession but did not bring it to the hearing.
Arrangements for the applicant’s care were in place when he arrived in Australia. In Australia he attended [High School 1] in [Suburb], Sydney, for Years [Numbers]. He also attended a language course at [High School 2] in [Suburb]. After completing school, he commenced [a] course but dropped out after a month. He presently works as [an Occupation 2] and has previously worked in Australia as [various occupations]. He did not work in China since he was at school.
Evidence before the Department
Protection visa application
The applicant’s written claims for protection are contained in his protection visa application form. He makes the following claims:
·     He is a devout underground Christian
·     He has a health condition causing him to faint for which he consulted many doctors, none of whom was able to diagnose the condition. He suffered depression as a result.
·     Through an underground Christian friend, he became a Christian. As a result, his fainting was cured, he made friends, and he felt happy.
·     Many of his underground Christian friends were caught at their gatherings, detained, and tortured.
·     The police continually attended his home seeking to arrest him because of his religious practice and harassed his family. As a result, he fled China. He fears harm by the Chinese authorities because of his religious faith.
The applicant received assistance in completing the form.
The applicant provided to the Department a copy of his current passport, which was issued in Sydney [in] 2015 and is valid until [2025].
Interview with the delegate
The applicant was invited to attend an interview with the delegate on 16 February 2018. However, he failed to attend and provided no further information in support of the application.
The delegate’s decision
On 16 February 2018, the delegate made their decision. The delegate found that the written material does not provide a sufficient basis to be satisfied that the applicant is a Christian or that he faces harm of any kind for such a reason on return to China. The delegate noted that the applicant provided no reason for his failure to attend his protection interview. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Application for review
On 8 March 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. He provided the Tribunal with a copy of the delegate’s decision. He has provided no other supporting documentation to the Tribunal.
The Department file includes a copy of a bridging visa application lodged in November 2017 seeking permission to work. The Tribunal also has sight of the applicant’s movement records, showing his travel to and from Australia and his Australian visa history.
The applicant appeared before the Tribunal on 6 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was not represented.
The applicant produced his New South Wales provision driver licence. As noted above he did not produce his expired passport which he had left at home. Neither did he produce his original current passport.
At the start of the hearing the applicant confirmed that the information in his protection visa application is true and correct, and that he did not wish to make any changes. He could not recall if anyone assisted him in completing the application.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the Tribunal hearing the applicant was asked why he left China in 2013, when he was aged [Age] years. He replied that he came to Australia to study. He also said he wished to leave his parents because they argued. He said that there were no other reasons for leaving China.
When asked why he could not return to China, after a long silence the applicant indicated that there is government bribery and people were not free. When asked how this affects him personally, the applicant did not respond. The Tribunal asked the applicant if there are any other reasons why he cannot return to China. Again, the question was met with silence. Eventually the applicant said that he had nothing further to say. The Tribunal asked him directly if he feared any harm if he were to return to China. He responded that his mother would seek financial assistance from him. He also said that the Chinese government controls society and ‘makes everyone struggle’. When the Tribunal asked him to elaborate on his response, the applicant said that it is unequal in China, it is hard to find work there and the salaries are low, and that he would have difficulty finding accommodation. He said that he would not be able to live with his mother or father.
The Tribunal indicated to the applicant that it may consider that his reasons for not wishing to return to China do not amount to harm that would engage Australia protection obligations. The Tribunal also noted that in any case the applicant is working in Australia, and has worked in several other occupations in Australia, and that it may consider that he would be able to find work in China. The applicant chose not to provide a response.
The Tribunal put to the applicant the claims contained in his protection visa application. Despite confirming at the start of the hearing that the information in the form is correct, the applicant responded that these claims are not true and said that he did not enter some of the information in his application. He said that he is an atheist.
It was also noted with the applicant that he had provided a signed statutory declaration with his November 2017 bridging visa application, which as well as providing reasons for his need to work, set out other claims for protection: that he was persecuted by the Chinese government because he had made a petition about corrupt government conduct and that consequently the police beat him. The applicant said that these claims also are not true.
It was noted with the applicant that according to the movement record he had left Australia in April 2014 for about 3 weeks and again in September 2015 for 2 weeks. The applicant said that he returned on both occasions to visit his mother in China. On the first occasion he had returned to Hengshui. On the second occasion he met his mother in Nanjing where they stayed at a motel – he did not know why his mother chose to meet there. The Tribunal indicated that the applicant’s ability to travel to and from China without difficulty may indicate that he is of no adverse interest to the Chinese authorities, as does his ability to obtain a Chinese driver licence on his second return visit to China and a new passport in Sydney in 2015. The applicant confirmed that he experienced no difficulties in obtaining these documents. The applicant made no comment in response.
The Tribunal further noted with the applicant that according to the delegate’s decision his student visa was cancelled in March 2016 and that he did not apply for a protection visa until July 2017, some 16 months later, which may indicate that the purpose of applying for the protection visa was to remain in Australia to work rather than because he feared harm in China. Again, the applicant did not comment.
Towards the end of the hearing, only when the Tribunal asked the applicant whether his parents are Christian, did the applicant indicate that they are. He did not know their denomination and said that they never took him to church. He said that his father was once arrested and disappeared for a week when the applicant was aged 12 years. He was not aware of any other difficulties his father, or his mother, experienced as result of their religious faith. He did not know if his mother still attended church.
Assessment of claims
The issue in the present case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant provided a copy of the bio-data page of his current People’s Republic of China passport to the Department. The Tribunal has not had sight of the applicant’s original passport or his expired passport. The Department noted the poor quality of the copy of the current passport and that the applicant did not present his passport when he attended an identification test interview on 30 August 2017. Nevertheless, the Department was satisfied as to the applicant’s identity on the basis that he also provided a copy of an extract of his Chinese driver licence issued in Hebei [in] September 2015 along with a certified translation, his Chinese Identity Card and a [High School 1] identity card. The Tribunal has additionally sighted his New South Wales driver licence.
Based on the information provided, the delegate was satisfied of the applicant’s identity and citizenship. In the absence of evidence to the contrary, the Tribunal is also satisfied that the applicant is using his own identity and that his receiving country for the purposes of assessing his claims for protection is the People’s Republic of China.
Christianity
The Tribunal accepts, following his recanting of the claims made in his protection visa application, that the applicant is not a Christian, that he did not associate with Christians who were detained and tortured, and that the police did not seek to arrest him or harass his family. The Tribunal similarly accepts that the applicant did not petition the government about corrupt conduct and therefore that he was not beaten by the police as a result. The Tribunal has therefore not given the false written claims any further consideration.
The Tribunal is concerned that the applicant has previously given false information to the Department but accepts that he has sought to correct the record with the Tribunal in a display of honesty.
Difficulty in finding work and accommodation
On the applicant’s own account, he does not wish to return – at least in part – to China because he considers that it will be hard to find work there and that salaries are lower than in Australia, and that he would have difficulty finding accommodation. The Tribunal finds that any economic disadvantage to the applicant on return to China would not amount to serious harm and therefore the requirement in s 5J(4)(b) of the Act is not satisfied. The Tribunal specifically finds that there is not a real risk that the applicant will suffer economic hardship or will be denied the capacity to earn a livelihood, that threatens his capacity to subsist. The courts have found this to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[1] The applicant is working, and has worked, in Australia in various roles. The Tribunal notes that the applicant does not have a work history in China because he left when he was still a student. However, the Tribunal considers that he will be able to secure employment on return to China given his work history in Australia.
[1] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
Moreover, the courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[2] The economic conditions faced by the applicant would apply to all citizens in Fiji.
[2] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429
The Tribunal accepts that the applicant’s parents have divorced, that his mother has remarried and has a second child, and that she has again divorced. The Tribunal also accepts that the applicant is no longer in contact with his father and has not had contact with his mother for some time. However, this does not alter the Tribunal’s above assessment.
The Tribunal is not aware of any personal attributes which make the applicant particularly vulnerable.
Other matters

The Tribunal has considered the applicant’s claim that he cannot return to China because of government bribery, because people lack freedom / society is controlled by the government, and because the government ‘makes everyone struggle’. The Tribunal accepts that country information indicates that official corruption exists in China and that there are limitations on people’s freedom. However, the applicant has failed to explain how he would be personally affected by this, and the Tribunal cannot identify any information that would indicate that the applicant, on the basis of his personal characteristics and circumstances, would be at risk of serious harm in China because of general conditions there.
The applicant now says that he is an atheist, which the Tribunal accepts. The Tribunal notes that the applicant made an affirmation at the start of the hearing rather than taking oath. According to the US Department of State, 52.2% of the Chinese population are atheist or are not affiliated with a religion.[3] The applicant has not claimed that he is at risk of harm because of his atheism. In any case the Tribunal notes that country information does not indicate that atheists are at risk of harm for that reason alone.
[3] US Department of State, 2022 Report on International Religious Freedom, 15 May 2023
The Tribunal has also considered the applicant’s claim that he fears harm in China because his mother would seek financial assistance from him. The applicant failed to elaborate on how this would amount to harm. The Tribunal also notes that the applicant has returned to visit his mother twice, albeit it some time ago, from Australia and that on his account she remains in Hengshui and is working. The Tribunal considers that the applicant has not substantiated the claim that his mother seeking his financial assistance would cause him harm. The Tribunal finds that there is not a real chance of the applicant suffering any harm from his mother and therefore that there is not real chance of his suffering serious harm from her.
Neither does information provided by the applicant indicate any other reason why he may suffer serious harm. Even if it is accepted that his parents are Christian – a claim that was only raised by the applicant when the Tribunal initiated that line of inquiry – there is no indication that they presently have any difficulties as a result. Nor is there any reason on the applicant’s account to consider that their faith, if any, would cause the applicant any difficulties.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
For the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion, ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
In relation to the applicant’s claim that he will be unable to earn a similar income or have access to similar work opportunities in China compared to Australia, the Tribunal finds specifically that this does not amount to any of the types of significant harm defined in s 36(2A). In addition, the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[4] Any economic disadvantage that the applicant may experience due to general economic conditions in China would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions. As such, the Tribunal finds that the claimed harm does not amount to significant harm.
[4] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).
The Tribunal is therefore 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. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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 for a protection visa under s 36(2)(b) or s 36(2)(c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joshua Le Vay
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 869

25 January 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Appeal