1806487 (Refugee)

1806487 (Refugee) [2022] AATA 1448 (30 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1806487

COUNTRY OF REFERENCE: China
MEMBER:Melissa McAdam
DATE:30 March 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 March 2022 at 11:08am
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – opposition to government corruption – land resumption – inadequate compensation – demolition of residence – physical assault – fear of killing – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, 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 9 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 6 November 2017.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The applicants are husband and wife from China. The following is a summary of the claims and information they provided in their Protection visa application:
a.The first named applicant was born in Heilongjiang, China in [year]. The second named applicant was born in Xinjiang, China in [year]. They submitted copies of their Chinese passports.
b.They married in 1998. They lived in Daqing in Heilongjiang. The first named applicant has a son born in [year] who resides in China.
c.The first named applicant worked as [an Occupation 1] in China. The second named applicant worked as [an Occupation 2] in China.
d.Because of a newly-built plan, the local government wanted to toll the applicants’ house. They sent many government officers to the house to persuade the applicants to sign the contract to sell the house to them. They told the applicants that they would give the applicants some money for compensation, but the money was not enough for the applicants to buy a new apartment. Therefore, the applicants refused to sign the contract.
e.After failing to persuade the applicants, the government sent some gangsters to their house to beat the first named applicant up and smash all the items in the house. They also threatened the first named applicant that they would continue coming to visit him until he agreed to sign the contract. The first named applicant could not sign the contract because he knew it was unfair. The gangsters kept visiting the applicants’ house and harming the first named applicant which made him badly injured. They threatened the first named applicant that they would not allow him to live in peace and would kill him. The first named applicant was really scared of them. He felt that his life would be dangerous.
f.The first named applicant called the police to ask for help, and also wrote a letter to the Complaint Office, but nobody came to help him.
g.The first named applicant tried to move to the town nearby, but the gangsters found him and punched him. They told him that they would do something worse to his family if he still wanted to move.
h.The gangsters have threatened the first named applicant before that they will not allow him to live in peace and they told him that they would kill him. He feels that his life will not be safe. The government can get profits from the plan, so they tried to force the first named applicant to sign the contract by sending the gangsters to threaten him. Therefore, he does not think that the government will protect him.
i.In China, he needs to report his new location to the local police station if he wants to change his household. As soon as he reports it, he will be found by the government officers. They will send the gangsters to torture him again and again.
j.After full consideration he decided to leave China. The applicants departed China in October 2017 and arrived in Australia on Visitor visas.
Departmental Interview
According to the Delegate’s decision record the applicants did not attend their scheduled Protection visa interview.
Delegate’s Decision
The Delegate was unable to be satisfied on the information before her that the applicants had a well-founded fear of persecution in China, or that they were owed complementary protection.
Information to the Tribunal
Tribunal Hearing
The applicants appeared before the Tribunal on 28 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The following is a summary of the information provided by the applicants at the hearing:
a.The first named applicant does not want to return to China because of the demolition of their residence. They were kicked out and have no home to return to. Their home was demolished in 2001 after their marriage. It was demolished because of construction in the countryside.
b.The compensation they received was very minimal, about 40 yuan per square metre, so the applicants moved to Daqing City in Helongjiang. Their child, [named], was only [age] years old when they went to Daqing City.
c.In Daqing the first named applicant worked as [an Occupation 3] while his wife looked after their child. They lived in Daqing for a few years. Their child reached school age but they were unable to obtain temporary residence permission in Daqing, so they went to Jilin Province
d.They went to Yanbian in 2008 and stayed there seven to nine years. The applicant worked as [an Occupation 3] in Yanbian. His wife worked in [specified work]. Their son attended school. Their son is now in Australia. He came here in 2017 on a Student visa.
e.When they tried to obtain an official temporary residence permit their original addresses were exposed so they could not stay and decided to go abroad.
f.The first named applicant’s parents have passed away. If he returns to China he does not have a residence or medical insurance. He can’t return to his home village because his parents passed away after his house was demolished. They became very sad. He cannot get a home in his village, because they are trying to appeal to different governments but they are stopped all the time by people and the village and town governments.
g.He cannot get an apartment in China because he cannot return as his hukou has been cancelled.
h.He has saved a little amount of money in Australia, about $40,000. This is not enough to buy a residence in China.
i.He cannot return to China because his wife is a native on Xinjiang.
j.It will be very hard for his wife and son to find work and the first named applicant has health problems after he suffered a [medical condition] in 2019. [Details of symptoms deleted]. He works as [an Occupation 4] in Australia but his boss is kind and gives him light duties.
k.The Tribunal asked if anyone had tried to hurt the applicants in China. The first named applicant responded that highway construction people and the village government destroyed the applicants’ house by force. There were physical fights and the first named applicant has a scar on his [body].
l.On the day of the demolition the applicants tried to stop their house being demolished and physical fights occurred. The first named applicant’s [body parts] were cut requiring four stitches. No one else was hurt. This was the only physical fight which occurred. They did not dare get involved in any other.
m.The applicants went to the village government to talk about the compensation. The local authorities received a fair bit of money but when it got to the applicants it was a minimal amount.
n.The applicants wants to stay in Australia and live peacefully and calmly. They pay their taxes in Australia. They never took any payments during the pandemic.
o.In China there is widespread use of the Internet. The authorities are still looking for the applicants. The issue with the local government was never resolved. They always disturbed the applicants’ lives in Daqing. This happened through the telephone and [social media]. They received messages not to cause trouble. The Tribunal put to the applicants that they weren’t causing trouble. The second named applicant responded that they were still making enquiries at the demolition office in the village, for many years, even after they came to Australia. They are still hoping to receive more compensation.
p.The Tribunal put to the applicants that the information they were providing at hearing was different from the information in their Protection visa application. The first named applicant responded that because they did not know English they sought help from an overseas student. Maybe he wrote different information in the application form. They do not know what was written in their Protection visa application because it was done by the second named applicant orally and the student then wrote it down and lodged the application. They paid the student $200.
q.The second named applicant and her son had a hukou in Xinjiang. Wherever they went the police would come and make enquiries about them because they were from Xinjiang. It is a sensitive issue. Her mother warns her not to say anything improper. Her family are not having any problems in Xinjiang.
r.The second named applicant is worried they might implicate her parents if they return to China. It is very unstable in Xinjiang and people can’t say much. The second named applicant and her family are of Han ethnicity. Her mother is in her [age range].
s.The second named applicant thought of visiting Xinjiang but dared not as she didn’t want to implicate her parents. Her mother is on a retirement pension and if the second named applicant and her husband have a lawsuit against the government it may affect her mother’s pension.
t.The lawsuit is about the compensation they received for the demolition of their residence. The lawsuit is not in any court. They did not go to any court. They just went to see the local government officials. Due to their financial situation they could not do anything. They went to see other levels of government but because of the village officials they had to give up.
u.They went to the town and county officials but the officials did not want anything to do with the applicants. They told the applicants to go back to the village government. The county they went to was Wangkui. This was between 2001 to 2003.
v.The first named applicant suffered a [medical condition] in 2019. They cannot afford to buy a new residence because he is ill.
w.They can’t live in Xinjiang because the second named applicant’s hukou has been transferred to her husband’s hukou. Also she has been abroad so the authorities are checking on her. The applicants’ son was born in Xinjiang so he was added to the second named applicant’s hukou at the time. After the applicants married in 1998 she and their son were transferred to the first named applicant’s hukou. The transfer happened about 5-6 years after their marriage. It took this time because people need to be physically present in the place of the hukou they are being transferred to and her husband’s place was far away.
x.They can rent a home in China but they have medical issues. The first named applicant cannot make a lot of money and they have no medical insurance. They have Medicare and feel safe in Australia.
y.It is unsafe in China because the second named applicant’s identity card has Xinjiang on it as her origin. This will be seen and it will be hard for the second named applicant to find work. She has worked in China but this was before they had a housing issue and the policy was not so strict. People from Xinjiang can work and rent places but others are reluctant to deal with them.
z.They have no other problems in China.
Country information
DFAT’s latest country information report on China, published in December 2021, contains the following:
Hukou (household registration) system
Hukou is a household registration system rooted in an ancient system that has parallels in other parts of East Asia such as Japan and Vietnam. In modern China, hukou registration with the local government entitles a resident to use government services such as education or health services in that local government area. In practice it might be a better reflection of their place of birth or even their parents’ place of birth rather than their place of residence.
It is very difficult to get a hukou in one of China’s major cities like Beijing or Shanghai, which have quotas for new residence permits. A points system to apply for a hukou exists in some cities (over 5 million people) where good employment records, education and housing might be an advantage. Reforms in 2019 have made it easier to get a hukou in medium-sized cities (1 to 3 million residents) and removed limits on key population groups, including graduates of universities and vocational colleges. This means that urbanisation and its associated development benefits may continue without putting additional pressure on megacities like Beijing and Shanghai.
Migration away from cities to regional areas also occurs but much less commonly. The very high cost of living in some large cities and demanding working culture in corporate China has forced some young people to return to their family and home regions. Former emigrants might be enticed back by improved infrastructure and services in rural areas that has accompanied China’s rapid development.
…
Uyghurs
Uyghurs are an ethnically distinct, predominantly Sunni Muslim people native to Central Asia. An estimated 11 million Uyghurs live mostly in Xinjiang but also as a minority in Gansu, Qinghai, Tibet and Hunan. Human rights groups, some Western governments and parliaments and academics, among others, allege Chinese authorities have undertaken policies such as restrictive family planning (including forced sterilisation and abortions), Han inward migration and labour transfer to reduce the Uyghur population density in Xinjiang. About 42 per cent of Xinjiang residents are Han Chinese (with different proportions in different parts of Xinjiang) and their proportion of the population has grown by about 2 per cent since 2015.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants submitted copies of their Chinese passports. On the basis of these documents and their oral information the Tribunal is satisfied the applicants are both citizens of China. The Tribunal assesses the applicants’ claims against China as their country of nationality and receiving country.
The applicants claim to fear harm in China because the local government wanted to take their home without adequate compensation, and sent gangsters to harm the first named applicant. They also claim that their house was demolished by the government and that they received inadequate compensation from the government. They claim they have initiated a lawsuit against the government. They claim they have lost their hukou. They claim that the second named applicant will have difficulties in China because she originates from Xinjiang province.
The applicants’ claims have changed significantly from the information presented in their Protection visa application to the information presented at their Tribunal hearing.
Initially they claimed that they continued to refuse the government’s request to sign over their home so the first named applicant was repeatedly beaten and their home attacked by government thugs. The first named applicant also went to another town but was found and beaten more.
However at hearing the applicants claimed that their house in their village was demolished and they received inadequate compensation from the government. There was one incident of physical confrontation in which the first named applicant was injured trying to stop the demolition of the house. The applicants moved to the city and did not return to their village.
At hearing they stated that they gave this information orally to the student who completed their application and do not know why the written information differed from their oral statements.

Some of the biodata information in the Protection visa application accords with the applicants’ oral evidence. In the Protection visa application it is written that the first named applicant was born in [Town 1], a town about [distance] from Daqing city, in Heilongjiang province. It also records that he attended schools in [Village 1] in [Town 1] up until [year]. The written information in the Protection visa application states that the second named applicant was born in Xinjiang and attended schools there. The Protection visa application confirms that both applicants are of Han ethnicity.
However other biodata information in the Protection visa application contradicts the applicant’s evidence at hearing. It is written in the Protection visa application that from [year], or [an earlier year], the applicant worked at companies in Daqing City. It also states that from birth until he left China in October 2017 the first named applicant lived at the one address in Daqing City. The Protection visa application further records that the second named applicant moved from Xinjiang to Daqing City in June 1998 and lived at the same address there as the first named applicant, and that she worked at private companies in Daqing City from [specified year] until September 2017.
While the claims presented in the applicants’ Protection visa application and at hearing both involve the local government wanting to unfairly acquire their home for development purposes the specific details of what occurred do not match. In the Protection visa application the applicants refused to sign their home over to the government and the first named applicant was repeatedly assaulted and their home attacked. One brief move to another town by the first named applicant was attempted but failed. There is no indication that the applicants otherwise moved away from their home in their village, just that they continued to refuse to sell their home to the government and they continued to be attacked and harassed by government gangsters. However at hearing they stated their home was demolished by the local authorities and inadequate compensation was paid to the applicants. This occurred in about 2001. There was one confrontation in which the first named applicant tried to stop the demotion and was injured. The applicants then moved to Daqing City where they remained for several years before moving again to Jilin.
The employment and residence histories recorded in their Protection visa application shows them living and/or working in Daqing City in the 1990s, well before 2001. This would mean they were not living in the first named applicant’s home village at the time they claim the government demolished their home.
The applicants have presented different versions of the substantive elements of what occurred and when. The Tribunal does not accept that the student they claimed wrote their Protection visa application provided incorrect information despite the applicants giving him correct information. In view of the significant contradictions the Tribunal considers their claim to have problems with the local authorities demolishing their home or trying to forcibly acquire it, are not credible. The Tribunal does not accept that the applicants were living in the first named applicant’s home village when the local government wanted to acquire or demolish their home for development purposes. The Tribunal does not accept that the local government was trying to acquire, or demolished, the applicants’ home in China.
It follows that the Tribunal does not accept that the first named applicant was attacked by gangsters or injured trying to stop the demolition of his home, or that the applicants’ home was attacked. It also follows that the Tribunal does not accept that the applicants have a lawsuit against the government due to the demolition of their home or that they have made complains to any person or body regarding the local government’s actions against them.
The applicants claimed at hearing that they no longer have a home in China and have lost their hukou because they moved away from their home villages after their marriage. Given the evidence of the very lengthy employment and residence connection to Daqing City, up until their departure from China, the Tribunal does not accept that the applicants did not possess a valid hukou or have lost their hukou. Further the Tribunal has not accepted that the applicant’s home was demolished or acquired by the local authorities. Therefore there is no apparent reason that the applicants would lose their hukou in China. In view of these findings the Tribunal does not accept that the applicants have lost their home or their hukou in China.
The applicants have been consistent in their claims that the second named applicant originates from Xinjiang province. There is inconsistent evidence about when the second named applicant left Xinjiang, being either [year] or [year] however the Tribunal accepts that the second named applicant was born in Xinjiang and that she lived there for the first period of her life and went to school there.
The available information shows that security measures are heightened in the Xinjiang province. However the information also indicates that the target of surveillance and security measures are the Uyghur people in Xinjiang, not people of Han ethnicity. The Tribunal has not been able to locate any independent information indicating that Han people who originate from Xinjiang face any obstacles obtaining employment or accommodation in China because they are from Xinjiang. On the basis of the information before it the Tribunal is not satisfied there is a real chance or risk of the second named applicant facing difficulties obtaining employment and/or accommodation because she originates from Xinjiang province.
The applicants claim that the first named applicant has suffered a [medical condition] which has affected his ability to work. They have not provided any medical evidence of this but the Tribunal is prepared to give them the benefit of the doubt that it is so. The Tribunal accepts that the first named applicant’s employment opportunities in China will be adversely impacted by his health condition. However there is no indication that this will give rise to a real chance of harm for reason of his race, nationality, religion, membership of a particular social group, or political opinion in China. There is also no indication that any person or government or organisation in China intends to cause him significant harm as result of his health impairment. The Tribunal is therefore not satisfied that the applicant’s health condition gives rise to a well-founded fear of persecution or a real risk of significant harm, on return to China.
The applicants have not raised any other claim to fear serious or significant harm in China and none arise on the information before the Tribunal.
For the reasons given above the Tribunal is not satisfied that the first named applicant or the second named applicant have a well-founded fear of persecution in China as defined by s.5J of the Act. The Tribunal is also not satisfied there is a real risk the first named applicant or the second named applicant will suffer significant harm upon return to China.
The Tribunal is therefore not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or s.36(2)(aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Melissa McAdam
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.
…

[2022] AATA 1448

30 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing