1807259 (Refugee)

1807259 (Refugee) [2019] AATA 6504 (17 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807259
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:17 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 September 2019 at 3:20pm
CATCHWORDS
REFUGEE – protection visa – China – competency to give evidence at Tribunal hearing – applicant suffered severe brain injuries – guardianship order – ability to communicate and responsiveness to questioning – applicant excused from further attendance – highly generalised claims – non-attendance of Departmental interview – claimed past mistreatment at the hands of local authorities or gangsters – medical and disability care in China – benefit of family support – 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

The applicant claims to be a citizen of the Peoples Republic of China (China) and is [age] years old. He was born in Shandong Province, China. [In] August 2017 he arrived in Australia travelling on a passport with an Australian visitor visa granted on 24 June 2017.
The applicant applied for a protection visa on 28 September 2017. He provided a copy of the biodata page of his Chinese passport issued [in] 2015. His claims were contained in the electronic application form submitted to the Department of Immigration and Border Protection (the Department).
The applicant was invited to attend an interview with the delegate on 12 March 2018. He did not attend the interview and did not provide any reasons for non-attendance.
On the 12 March 2018 a delegate of the Minister for Immigration refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision and it was made on 18 March 2018. The applicant provided a copy of the delegate’s decision together with his application for review.
While in Australia and after he applied for review he suffered severe brain injuries as a result of a pedestrian accident [in] 2018.
The Tribunal was first notified that the applicant was in hospital with severe traumatic brain injuries on 15 March 2019. Following that contact the Tribunal has received correspondence from the Department in relation to the resolution of the review. On 12 April the Tribunal was advised that a guardian had been appointed under the Guardianship Act 1987 (NSW) for one year from 28 March 2019. The guardianship order gave the guardian custody of the applicant necessary to carry out a number of functions, including: to advocate generally, to decide on hospitalisation, health and services and make decisions on access to legal services and passport issues.
Upon request the Tribunal provided access to the applicant’s application for review and supporting documents on 4 June 2019.
On 19 June 2019 the Tribunal received correspondence from [Mr A], Social Work Team Leader, [Department 1], [Hospital 1], NSW and a medical report by [Dr B], [a specialist], [Hospital 1] dated [April 2019].
The Tribunal scheduled a Directions Hearing for 2 August 2019 to discuss the conduct of the review with the applicant’s guardian. At that hearing the Tribunal explained the protection visa scheme and the requirements for an application for review. It explained that the Tribunal was required to conduct a review of a protection visa refusal where a valid application was before the Tribunal. It also explained the various options open to the applicant in how the review was to be conducted. It referred the guardian to the AAT Guidelines on Vulnerable Persons and forwarded a copy to the guardian. The guardian indicated at the Directions Hearing that the applicant should be invited to a hearing in accordance with the legislative requirements. He would arrange [Hospital 1] to conduct that hearing through it’s video conference facilities.
The applicant appeared before the Tribunal by way of video conference on 6 September 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, although the interpreter was excused early in the hearing.
The applicant, his support assistant and a Mandarin speaker appeared at the hearing. [Mr A], who is the Social Work team leader in [Department 1] at [Hospital 1], gave evidence on the applicant’s current circumstances. The applicant’s public guardian, [Mr C] attended the hearing by telephone.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.
The relevant law is set out in Attachment A.
Competency to give evidence at the hearing
A preliminary matter for consideration is whether the applicant is competent to give evidence at the Tribunal hearing.
The evidence on this issue is contained in;
·     the medical report provided by [Dr B],
·     the written statement of [Mr A], the social work team leader from [Department 1], [Hospital 1], and
·     the oral evidence given by [Mr A] at the Tribunal hearing.
The Tribunal also had the opportunity to observe the applicant when he appeared at the Tribunal hearing.
[Dr B] stated in his report [of] April 2019 that:
Injury Details
[The Applicant] sustained an extremely severe traumatic brain injury secondary to a pedestrian vs car motor vehicle accident [in 2018]. As per the medical discharge summary from [hospital], the Glasgow Coma Scale Score at the scene was 4. He is documented as having had seizures at the scene. His injuries are documented as bleeding in brain, fractures of the skull bones, left sided rib fractures. CT scan of the Brain on admission is reported as right temporal lobe and left thalamic intraparenchymal haemorrhage with mild mass effect, mild contusion anterior left thalamus. Extensive temporal bone fractures involving mastoid air spaces and middle ear. An MRI of the brain showed diffuse axonal injury. Other injuries include Left 4^th and 5^th rib fractures in two segments with associated pulmonary contusions /haemorrhage.
…. (Initial management)
Rehabilitation
He was transferred to [Department 1], [Hospital 1] for multi-disciplinary inpatient rehabilitation on 20/12/2018. At the time of transfer, he was confused and disoriented (in Post traumatic amnesia). He had dense left sided weakness. He was unable to follow simple one stage commands. He was transferred in and out of bed using a hoist. He was incontinent of bladder and bowel and required full nursing care.
Current Function and Cognition
He has continued to remain confused and disoriented (post traumatic amnesia) through his stay here. It is more than 6 months since his injury and hence he can be classified as being in a chronic amnesic state. Mandarin speaking interpreters are used for all assessments and medical ward rounds.
He is consistent in following simple commands. He has dense left sided weakness. He needs the assistance of two persons to step transfer. He continues to require full nursing care for all personal care tasks. He is continent of bowel and is inconsistent in using a bottle to pass urine. He is wheel chair bound and moves around the ward in an attendant propelled manual wheel chair. The feeding tube (PEG) has been removed. He is on a modified diet with thickened fluids. He needs help with opening packages for his meals and needs supervision while he feeds himself.There is a high risk of food going the wrong way due to poor coordination of the muscles that control swallow and ongoing impulsivity.
He has significant impairment of speech and language including very poor quality of his tonal volume (dysphonia).He has stiffness and tightness (spasticity) of the muscles in his left arm. He has had injections of Botulinum toxin to reduce the spasticity and remains on oral medication to help reduce the spasticity. He has been treated for extra bone formation in the muscles around the hip (Heterotopic ossification). He has had multiple episodes of urinary tract infections while in hospital. Investigations revealed a small stone in his right kidney and he is being seen by the urologists to plan further treatment if needed. He remains on low dose antibiotics to prevent further infections. He can be physically aggressive to nursing staff and is on medication and a behaviour support plan to help modulate his behaviour.
He is able to indicate his basic needs using a Mandarin to English communication booklet that has been prepared by the allied health team with interpreters. He has consistently Indicated a wish to return to live in China when asked this question on multiple occasions. He is awaiting a review by the ENT specialists to look for any changes to his vocal chords which could cause his poor tonal quality of voice.
He has significant intellectual and behavioural impairments which include poor memory, poor understanding of his current impairments, impulsivity, poor ability to regulate his temper, poor problem solving skills and poor planning. A formal neuropsychology assessment has not been attempted due to the extent and severity of his cognitive impairments.
Due to the lack of any family in Australia and due to his inability to make decisions for himself, a Public Guardian has been appointed to make decisions in his best interests.
He is an interim participant in the Lifetime Care and Support Scheme who will pay for any reasonable and necessary treatment, rehabilitation and equipment needs that are a consequence of his motor vehicle accident: There is ongoing discussion with Lifetime Care and Support to fund Mandarin speaking attendant care workers to help [the applicant] during his stay in hospital which can include personal care, social Interaction and possible outings outside the hospital. It is worth mentioning that [the applicant] has not been outside the hospital since his injury due to the lack of availability of a responsible person to take him out.
Prognosis
Based on the Glasgow Coma Scale Score at the scene, the initial CT scan Brain findings and the duration of post traumatic amnesia,[the applicant] has sustained an extremely severe traumatic brain injury.
He is currently medically stable. He is ready for discharge from hospital and transition to community based living. Due to [the applicant’s] consistent request to return to live in China, we have initiated exploring rehabilitation options for [the applicant] closer to his home town. We have also had preliminary discussions with the Lifetime Care and Support Coordinator re potential funding for rehabilitation, equipment and care needs in China.
It is now almost 7 months since his injury. While he is expected to make further functional and cognitive improvements over the next 1 and ½ years, this improvement should occur in the community with structure, support and assistance in daily living. This can be with informal family and community based supports with or without formal rehabilitation.
His long term prognosis is guarded at this stage, however, due to the severity of his head injury it would be reasonable to say that he will not be able to return to gainful employment and independent living. He will continue to require 24 hour care for all aspects of daily living. It is expected that he will have long term and permanent physical and cognitive impairments given the severity of his Traumatic Brain Injury.
The lack of any social interaction, language barrier preventing any meaningful communication with the staff and isolation from his family and friends have had an adverse impact on his mood. He also runs the risk of getting opportunistic infections from prolonged hospital stay.
[Mr A] wrote to the Tribunal on 19 June 2019 and advised:
[The applicant] is not in a position to instruct or represent himself due to a loss of cognitive capacity following an extremely severe traumatic brain injury which occurred [in 2018]. [The applicant] remains in a state of chronic amnesia, he is not aware of time or place, and also has significant expressive and receptive language impairments resulting from his brain injury; therefore he cannot communicate effectively or project his voice. [The applicant] is also dependent on all aspects of his care needs and activities of daily living.
[The applicant] would potentially benefit from a legal advocate or legal representation to act on his behalf due to his cognitive incapacity to participate or instruct.
To add further to this, it is to [the applicant’s] benefit to have the appeal case resolved as soon as feasible, as a prolonged Hospital stay is not in his best interest. [The applicant] is also socially and culturally isolated within this environment. Plans to exit the Hospital setting with supports cannot occur until his appeal matter is concluded for reasons that any discharge destination be it in Australia or repatriation to his family in China would require significant planning and supports to be put in place. [The applicant] is a participant in the Lifetime Care and Support Scheme which would fund his ongoing medical needs, support needs and equipment related to his traumatic brain injury whilst in Australia or if living overseas.
On 3 July 2019 the public guardian advised the Tribunal that it had made enquiries with Legal Aid (NSW) and the Refugee Advice and Casework Service (RACS) about providing legal services to the applicant. After considering information made available under the Freedom of Information legislation, both agencies advised that would be unable to assist the applicant.
The Tribunal observed the applicant at the Tribunal hearing for a short period. He was unable to communicate and was not responsive to questioning at the beginning of the hearing. He appeared highly agitated and [Mr A] advised that his prolonged attendance in the video hearing would be detrimental to his health and well-being. The Tribunal excused any further attendance by the applicant.
[Mr A] gave evidence that the applicant has chronic amnesia and is not aware of time or place. He is unable to process anything other than basic information and is unable to give instructions.
[Mr A] stated that the applicant has spoken to his wife and daughter by video conference and appears to know them and has expressed a wish to return home to China on a number of occasions. However, given the severity of his brain injuries [Mr A] indicated it was impossible to conclude how much he understood about his present situation.
The Tribunal has considered all the material before it and finds that the applicant is not competent to give evidence at a Tribunal hearing. The medical evidence indicates he has poor memory, has a poor understanding of his current impairments, impulsivity, poor problem solving skills and poor planning. He is only able to communicate on basic needs. The Tribunal finds that he is not competent to take an oath or make an affirmation and he is unable to answer questions or provide evidence on his claims.
Background
In his application for protection, the applicant claimed that he was born in Shandong Province, China and is now [age] years of age. He did not disclose a wife or children in his application form but [Mr A] indicated that the hospital had made arrangements for the applicant to have contact with his wife and daughter by video conference from China.
The applicant stated that he attended school and vocational college in Shandong and trained [in Occupation 1]. He claimed that he was a self-employed [Occupation 1] before he left China in August 2017.
Country of reference
The applicant claims he was born in Weihai City, Shandong and is a citizen of the Peoples Republic of China. He provided a copy of his Chinese passport which was issued [in] 2015 in Shandong.
Taking into account the available evidence, and noting there is no issue as to identity, the Tribunal is satisfied that the applicant is a citizen of China and that China is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant made a number of claims in his application form and provided a copy of the biodata page of his passport. He claimed that:
·In 2014 he opened [Business 1] to support his family.
·The local government came to [Business 1] for different inspections and fined him for various reasons.
·They asked for bribery money and whilst he initially gave them bribes it became difficult for him to comply and he later refused.
·The local government employed gangsters to come to [Business 1] and threatened him initially. He refused to give them the money so he was beaten up repeatedly. They prevented customers from coming to [Business 1].
·The applicant appealed to the police however the officers were so powerful that no one wanted to fight them; the officers were afraid of being reported so they sent gangsters to threaten him and watch him.
·He fears he will face harm and mistreatment should he return to China.
·The Police officers are so powerful that he will face harm no matter where he relocates to in China.
No other evidence has been provided to support his claims. He did not attend an interview with the delegate and there is no other evidence from witnesses or other sources which support his claims.
The applicant’s current circumstances
The applicant claimed, and the Tribunal accepts, that he was born and grew up in the city of Weihai, Shandong Province. Weihai is reported to have a population of 2.8 million residents and is a major seaport.[1] It also accepts that he was a self-employed [Occupation 1] in China.
[1] Weihai Encyclopaedia Brittanica online;
The applicant departed China [in] August 2017 and has been living in Australia since that date.
The Tribunal accepts that after the applicant sought review he had a pedestrian accident in November 2018 in which he sustained severe brain injuries which have had a massive impact on his physical and mental health. He is currently a patient in [Hospital 1] with 24 hour nursing care and social supports as set out in the evidence provided by [Dr B] and [Mr A].
[Mr A] provided gave oral evidence, which the Tribunal accepts, that the applicant has expressed a wish to return to China on a number of occasions. However, he also pointed out that given his serious brain injuries it is impossible to determine whether the applicant has an understanding of his current circumstances.
[Mr A] gave evidence that the applicant recognised his wife and daughter when they had contact with him by video conference from China. [Mr A] stated that the applicant is socially and culturally isolated in hospital and it would be in his best interests to have his situation resolved either by repatriation to family and home in China or into the community with some community support in Australia. He stated that as a victim of a pedestrian accident in NSW, the applicant was entitled to ongoing life time care in China or Australia from the NSW Life Time Care and Support Scheme[2]. He stated that the scheme provided funding for ongoing medical needs, physical care and equipment such as electronic wheelchairs. The hospital has investigated services for the applicant on the basis that he will either be repatriated to China or he may remain in Australia. In this respect they have made contact with an organisation near the applicant’s home in China which can provide this support.
[2] Caring for people severely injured on the road; icare
Medical and disability care in China

The Tribunal has considered the latest Department of Foreign Affairs country information report on China with respect to health care.
Health
China ranks 90 out of 188 countries listed on the UNDP’s 2015 Human Development Index. Average life expectancy at birth in China is 74.83 years with geographical variations, particularly between urban and rural areas. Health care varies significantly between urban and rural areas. High quality public health care is available in the main urban centres, but only those with the relevant urban hukou (household registration) have access (see Hukou (household registration) system). Health care in rural areas is of a lower standard, and public provision is patchy. China’s unusually high household savings rate partly reflects the need for families without urban hukou (including migrant workers in cities) to save for future health costs.[3]
[3] DFAT Country Information Report People’s Republic of China 21 December 2017
China has made significant efforts to tackle inequality in its health care system in recent years, and now offers almost universal subsidised primary health care which covers approximately 95% of the Chinese population.[4]
[4] ‘China - International Health Care System Profiles’, Fang, H, The Commonwealth Fund, n.d.p.2 CIS7B839419765; ‘Urban-rural differences in the association between access to healthcare and health outcomes among older adults in China’, Zhang, X, Dupre, M, Qiu, L, Zhou, W, Zhao,Y, & Gu, D, US National Library of Medicine, National Institutes of Health, 19 July 2017, p. 11, CISEDB50AD9208
An academic article published in the United States National Library of Medicine, National Institutes of Health, discusses urban-rural differences regarding access to health care. According to the article:
In rural China today, the majority of the older adults can access to healthcare and can receive medical treatment for their health problems. This is because the Chinese healthcare system has greatly improved in recent years, with coverage reaching more than 95% of the population as of 2015 in both urban and rural areas. In most rural areas, local/village doctors and nurses are widely available and physician visits are relatively inexpensive and prescription medications are generally accessible. Nevertheless, there are rural residents who do not have adequate access to healthcare and are often the most vulnerable, frail, and poorest older adults who are unable to receive preventative care and/or timely treatment(s). Although the healthcare system has been greatly improved in rural areas, the health insurance program in rural China is not as good (or beneficial) as programs in urban areas. In rural areas, financial barriers are often considered the underlying reasons for inadequate access to healthcare—and largely attributable to the lack of pensions, lower income, higher out-of-pocket cost, and greater co-payments compared with urban areas. Consequently, rural older adults may face disproportionately greater difficulties in getting adequate medical services when needed relative to their urban counterparts.[5]
[5] Urban-rural differences in the association between access to healthcare and health outcomes among older adults in China’, Zhang, X, Dupre, M, Qiu, L, Zhou, W, Zhao,Y, & Gu, D, US National Library of Medicine,National Institutes of Health, 19 July 2017, CISEDB50AD9208, p. 11
With respect to disabilities, the United State Department of State reported that numerous organisations, both government and non-government, exist to support the disabled:
Nearly 100,000 organizations existed, mostly in urban areas, to serve those with disabilities and protect their legal rights. The government, at times in conjunction with NGOs, sponsored programs to integrate persons with disabilities into society.[6]
[6] ‘Country Reports on Human Rights Practices for 2016 – China’, US Department of State, 3 March 2017,OGD95BE926885, p.61
A March 2016 report published by China Source discusses the progress China has made in recent decades to accommodate and support disabled persons. The report provides an overview of the state mandated China Disabled Persons’ Federation:
The China Disabled Persons’ Federation (CDPF), established in 1988, initially was under the Ministry of Civil Affairs; it then became an independent government agency growing into a nationwide umbrella network with about 90,000 fulltime workers and reaching every part of China. The CDPF is committed to promoting humanitarianism, the human rights of people with disabilities, and the integration of people with disabilities in all aspects.
[…]
The Chinese health care system is currently experiencing a transition from “public expense” to market-based. This means the individual, the employer, and the state share the financial responsibilities. Many people with disabilities are unemployed, and they cannot afford to purchase medical insurance.
Providing rehabilitation services, delivered through rehabilitation centers as well as through Community-Based Rehabilitation (CBR) initiatives, is the major responsibility of the China Disabled Persons’ Federation (CDPF). CBR has the goal of improving the physical functioning and independent living skills of people with disabilities with the end result being to facilitate their participation in both social life and their community.
The Chinese government and nongovernmental organizations also work in collaboration to respond to the needs of people with disabilities. This is particularly true for people in poverty stricken rural regions who cannot afford rehabilitation services.[7]
[7] ‘A Glance at People with Disabilities in China’, China Source, 7 March 2016, CX6A26A6E17089
Does the applicant meet the refugee criterion?
The Tribunal has considered the claims made by the applicant but is not satisfied that if the applicant returns to China now or in the foreseeable future he faces a real chance of persecution from local officials, gangsters or any other persons for reasons of his imputed political opinion or membership of a particular social group.
The applicant’s written claims are highly generalised; he has not provided any plausible detail and he has not given specific details of the place, timing or motivation for the claimed past mistreatment at the hands of local authorities or gangsters in China. He has not explained specifically who he fears will harm him if he returns to China and their motivation for harming him.
The Tribunal does not accept, on the basis of the evidence before it, that the applicant faces a real chance of harm from gangsters, local officials or any other persons. It does not accept that the local police will fail to protect him from harm because the local officials and gangsters are too powerful. In any event, the Tribunal does not accept that the applicant has established a nexus between his claims and the provisions of s.5J(1) of the Act.
The Tribunal accepts that since he arrived in Australia, the applicant has sustained serious and disabling brain injuries. If the applicant returned to China he would require significant medical, disability and social support. The country information indicates that China provides disability care to its citizens on a non-discriminatory basis and that the provision of services are reasonable, particularly for those, such as the applicant, who live in urban areas and have access to medical and support services. The evidence before the Tribunal indicates that beyond the services provided to Chinese citizens, the applicant will have the benefit of funding from the NSW Life Time Care and Support scheme if he returns to China. There is no evidence or country information which indicates that the applicant would be targeted for harm for reason of his disability if he returned to China and the Tribunal finds that he would be able to access reasonable non-discriminatory access to medical care and disability support.
For reasons set out above, the applicant was unable to provide any further evidence at the Tribunal hearing to support his claims for protection. The Tribunal notes that the applicant has expressed a wish to return to China but given his medical condition it does not consider that this necessarily indicates that the applicant is abandoning his claims. He simply does not have the capacity to understand or appreciate the significance of expressing a wish to return to China or, to form an intention to abandon his claims.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in section 5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
For reasons set out above the Tribunal is not satisfied that the applicant will face significant harm at the hands of local officials or gangsters if he returns to China.
The Tribunal accepts that the applicant has serious and disabling brain injuries. It has considered his situation if he returns to China and, for reasons set out above, does not accept that he will face a risk of significant harm if he returns to China. If he returns he will be able to access the disability services provided to Chinese citizens and will have the added benefit of being able to access the funding and support from NSW Life Time Care and Support scheme. The evidence before the Tribunal indicates that he has some contact with his wife and daughter. This suggests if he returns to China that he will not be as socially isolated as he would be in the Australian community where it appears that he has no family members.
Having considered the applicant’s circumstances singularly and on a cumulative basis, and for the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion 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.
Louise Nicholls
Senior Member

ATTACHMENT A
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.
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.
…

[2019] AATA 6504

17 September 2019

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