1807814 (Refugee)

1807814 (Refugee) [2020] AATA 3915 (9 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807814
COUNTRY OF REFERENCE:                   China
MEMBER:Denise Connolly
DATE:9 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 September 2020 at 10:32AM
CATCHWORDS
REFUGEE – protection visa – China – dispute with district government about appropriation of elderly father’s land for development – arrest, beating and detention – credibility – vague and inconsistent claims and evidence – obtained and departed on own passport – country information – process for petitioning authorities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 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 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 12 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 10 November 2017. The delegate refused to grant the visa because she was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal, by conference telephone, on 31 August 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
During the hearing there was some disruption caused by an intermittent alarm in the background. The applicant explained it was her car alarm. The Tribunal waited for the applicant to attend to this distraction before proceeding to take her evidence. It is satisfied this disruption did not interfere with the applicant giving her oral evidence and participating meaningfully in the hearing.
CLAIMS AND EVIDENCE
Evidence provided to the Department
When making her protection visa application the applicant made the following claims. She was born on [Date] in [Town], Yantai City, Shandong Province, China. She does not have the right to reside in any other country. She speaks, read and writes in Mandarin. She is an atheist. She is not married. Her father resides in China. She arrived in Australia [in] August 2017 as the holder of a Subclass 600 Visitor visa issued in China on 18 July 2017, using her passport issued by the Chinese authorities on 23 May 2017. Prior to coming to Australia, she lived in Shandong Province. At the time of making the application she last worked on a farm in Shandong Province.
In a written statement attached to the application the applicant claims she was a villager of [Village], [Town]. In October 2016 the government advised her land would be appropriated and the villagers would be compensated 12,000 yuan per mu of land. In February 2017, before the villagers were compensated, the land was sold by the government at 500,000 yuan per mu to real estate developers. At the end of February 2017, the developers sent workers to start the demolition by force. The villagers tried to guard their land to prevent the demolition. On [Date] March 2017 hundreds of riot police were sent to suppress the villagers. More than a dozen villagers were wounded.
The applicant claims that in mid-March, she and 6 other villagers petitioned about the town government’s land acquisition, to the Laishan District government, but there was no response. However, in April, while shopping in town, a car stopped beside her and a few young men beat her with wooden sticks before escaping in the car.
The applicant claims that in May 2017 she and 3 other villagers went to petition the Yantai Land Resources Bureau but were sent away. [In] June 2017 the police arrested her for fighting the government. She argued back and they beat her. The police incited other prisoners in the same cell to bully her. She was made to sleep on the floor. She was deprived of food. Five days later she promised she would not fight against the government and she was released. The village committee, under the instruction of the town government, stopped all her welfare and tried to suppress her. They used her as a warning to others who chose to fight against the government. She found it hard to survive and fled to Australia to seek protection.
Evidence provided to the Tribunal
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records the applicant’s migration history. On 14 July 2017 she applied for a Subclass 600 Visitor visa which was granted on 18 July 2017. She arrived in Australia [in] August 2017. On 10 November 2017 she applied for the protection visa.
The applicant did not attend her scheduled protection visa interview on 12 March 2018.
The delegate formed the view that the written material does not provide a sufficient basis to be satisfied that the applicant is of adverse attention to authorities because of her past petitioning activity, or that she faces harm of any kind for such a reason if she returns to China. The delegate was not satisfied there is a real chance that on return to China the applicant would suffer persecution. She was also not satisfied there are substantial grounds for believing that, as a consequence of being removed to China, there is a real risk she will suffer significant harm.
Hearing on 31 August 2020
At the hearing the Tribunal explained the requirements of the law. The following is a summary of the oral evidence provided by the applicant.
The applicant indicated she was assisted in her protection visa application by a friend who speaks English. The applicant gave her friend the information about her personal experience, and it was used to complete the visa application.
The applicant’s mother died in 2008. Her father, aged [Age], is still alive. He no longer works. Previously he worked as a farmer growing [produce]. He is no longer living on the land, as it was appropriated by the village in October 2016. He lives with the applicant’s older sister in the same town in Shandong. Her father received compensation but it was minimal as he received only [amount] yuan in total. Her father had previously owned [number] mu of land. The Tribunal noted that the applicant’s evidence regarding the amount of compensation appeared to inconsistent as her written claims she indicate the compensation was [amount] yuan per mu. The applicant indicated her father was not actually paid hat amount of compensation.
The applicant told the Tribunal that she worked as a farmer on her father’s land before she came to Australia. She lived with her father. She was previously married but divorced in about 2011. She has one child, aged [Age]. She did not include information about her child in her visa application because she rarely spoke to the child before she came to Australia. The child lives with the father.
The Tribunal asked the applicant about the circumstances in which she travelled to Australia. She indicated she came to Australia in 2017 because her father’s land had been appropriated by the government. The Tribunal noted it is often the case that land is appropriated in China but owners are compensated. The applicant confirmed the land belonged to her father. She indicated however that the land was the source of her income.
The Tribunal explained that the country information indicates that there is law and a process that a party can go through if they believe they have been inadequately compensated[1]. It explained that it may not accept the applicant suffered detention and torture merely because she had petitioned about inadequate compensation, a process provided for by law.
[1] DFAT Country Information Report People’s Republic of China, 3 October 2019, page 39
The Tribunal asked about the petitioning. The applicant stated that her father was the leader of the petitioners however he was old so she took him to the government office to petition. The Tribunal asked when she first did this. She indicated she could not remember. She then changed her oral evidence and stated she was a leader of a group of protesters and was persecuted so she fled China.
The Tribunal asked the applicant when she applied for her passport. She indicated she applied in May 2017. It asked whether she was of adverse interest to the authorities in May 2017 when she claims to have petitioned. She indicated that she was not because the government had not engaged officials to harm her; they used local hooligans to attack her. The Tribunal asked to clarify whether the adverse contact regarding opposition to the petitioning was with only local hooligans. The applicant repeated that her father was the leader of the petitioners but, because of his age, the government could not arrest him, so they arrested her instead. The Tribunal sought to clarify this evidence. It asked the applicant again whether she was of adverse interest to the authorities when she applied for her passport. Initially her response was vague, indicating she did not know whether she was of adverse interest to the authorities in May. After a pause she repeated her written claims fluently and in detail, stating she was arrested in June after she went to the government to protest and she was targeted, apprehended, detained, tortured, sleep deprived, and bullied by cellmates until she wrote a confession. The Tribunal noted that this evidence was somewhat different in nature and level of detail to her earlier oral evidence. The applicant indicated that initially developers only used local hooligans to harm her.
The Tribunal asked the applicant if she was of adverse interest to the authorities when she departed China. She indicated she did not know. The Tribunal noted that she had been able to retain her passport and depart China after her alleged arrest, detention and torture. It indicated that this may suggest she was not about adverse interest to the authorities when she departed China. It explained there is country information indicating that if the government deemed the applicant to be a potential threat for petitioning she may be refused a passport or prevented from travelling.[2] The Tribunal explained that her ability to keep her passport and travel overseas may raise doubts about whether she had come to the adverse attention of the authorities as she described. It explained that it may not be satisfied that she was of adverse interest or that she will be harmed if she returns to China. The applicant stated that she thinks she will be harmed if she returns to China and she cannot go back.
[2] 2019 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau, and Tibet) – Bureau of Democracy, Human Rights, and Labor
The Tribunal explained that, even if it accepts the applicant’s father’s land was appropriated and he was inadequately compensated, it may still not be satisfied that there is a real risk a real chance the applicant will be harmed if she returns to China. The applicant stated she will be harmed because she was the leader of protests. The Tribunal noted that the applicant previously stated that her father was the leader. The applicant repeated that she took her father to the protests.
The Tribunal asked the applicant when she first became of adverse interest to the authorities. The applicant indicated she could not remember. She then indicated that it was probably in February or March. The Tribunal questioned in those circumstances how she could have applied for and been issued with a passport by the Chinese authorities, and kept it, if she was of adverse interest. The applicant indicated that because she is a citizen of China the government is obliged to issue her with a passport. She indicated the government had no issues with her. The Tribunal asked the applicant why it should be satisfied that she would be harmed if the government had no issues with her. She did not know. She indicated she had never heard of the authorities confiscating passports.
The Tribunal asked the applicant why she applied for her passport in China. She indicated she did so because she was scared as she had been physically attacked by hooligans and detained by the police for 6 days. The Tribunal noted her earlier evidence was that she was detained in June after her passport was issued in May.
The Tribunal asked the applicant about her employment experience in Australia. She stated she works casually as [an occupation]. She indicated that she secured her employment in Australia through a friend, her first landlord in Australia.
The Tribunal explained that it may form the view the applicant can return safely to China, live with family, secure some form of employment and subsist in China. It also noted that there are several cities in Shandong where she is likely to be able to secure employment. The applicant indicated that she could not return to any city or province in China because the whole country is controlled by the CCP and she would have the same problems. The Tribunal explained that if that was the case it may have concerns as to why she could depart China without any problem. She had no comment.
The Tribunal asked the applicant if she had any other oral evidence she wished to have taken into account. She confirmed that she had nothing more to tell the Tribunal.
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 under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant claims to be a citizen of China. She provided to the Department a copy of her Chinese passport issued [in] 2017. The delegate was satisfied the applicant provided sufficient evidence confirming her identity. Accordingly the Tribunal finds that the applicant is a national of China and it is her receiving country for the purpose of assessing her claims for protection. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.
Does the applicant have a well-founded fear of persecution?
The Tribunal has considered the applicant’s claims to have been harmed in China and to fear harm if she returns. For the following reasons the Tribunal does not accept the applicant’s claims or that she has a well-founded fear of persecution.
The Tribunal considers the applicant’s oral evidence to be vague, and, at times, inconsistent and lacking in detail. It notes that she could not remember when she first took her father to petition the authorities. It notes that initially she indicated she was not of adverse interest to the authorities in May 2017, when she was issued with her passport, however she subsequently indicated she did not know if she was of adverse interest to the authorities in May 2017. The Tribunal notes however that she has indicated in her written claims that it was her petitioning the Yantai Land Resources Bureau in May 2017 that lead to her arrest by the police [in] June 2017. It also notes she thought she was probably of adverse interest in February or March. It also notes that she was uncertain if she was of adverse interest to the authorities when she departed China and that she has stated the government had no issues with her. However when asked why she cannot return to China she claimed she could not return to any city or province in China because the whole country is controlled by the CCP and she would have the same problems. The Tribunal is not satisfied the applicant has clearly outlined what those problems will be. It is also concerned that her evidence regarding her interest to the authorities is vague and inconsistent.
The country information in the DFAT report referred to above confirms there is law and a process enabling citizens to petition the local government seeking compensation for land appropriation. DFAT records that sources report that local officials are encouraged to ensure protests do not reach Beijing. In these circumstances the Tribunal does not accept the applicant would be of adverse interest to the authorities merely because she travelled once with her father in March 2017 to petition the town government and then once again in May 2017 to petition Yantai Land Resources Bureau. The Tribunal also notes the applicant’s oral evidence regarding the leadership of the petitioners/protesting is inconsistent and raises concerns about whether the claim is true. Initially she indicated her father lead the group, then she claimed she led the group, then she repeated that her father was the leader.

The Tribunal also notes the applicant was vague in her oral evidence about whether she was of adverse interest to the authorities when she departed China. Yet in her written statement she claims that after her arrest and detention in June 2017 the village committee, under instruction from the town government, stopped all her welfare and tried to suppress her. The Tribunal is of the view she did not repeat this claim in her oral evidence at the hearing because it is not true. Having regard to the applicant’s evidence and the country information the Tribunal is of the view that, if the applicant had come to the attention of the authorities as she has described, because of petitioning/protesting, she would have had difficulty departing China so soon after her alleged arrest and detention in June 2017 and subsequent deprivation of welfare.
The Tribunal is not satisfied the applicant, or her father, led a group of petitioners/protesters and this resulted in her detention, torture and harm. While she eventually repeated this claim in her oral evidence it is not satisfied two attempts to petition two different government offices over two months would result in her being arrested, beaten, detained, tortured, and deprived of food, bedding and sleep. It finds the applicant has manufactured these claims for the purposes of the visa application.
Considered overall the Tribunal is not satisfied the applicant petitioned the government regarding the acquisition of her father’s land and inadequate compensation, and that this resulted in her being harmed by hooligans. It does not accept she was arrested by the police, beaten, detained, tortured and deprived of food, bedding and sleep. It does not accept her welfare was stopped and she was used as an example to warn against attempts to fight the government. It does not accept she has been, or is of, adverse interest to the authorities. It finds she has manufactured these claims to achieve her preferred migration outcome.
The Tribunal has not accepted the applicant’s claims to have been harmed for petitioning/protesting. It is not satisfied she will petition or engage in any conduct in China that will cause her to come to the adverse attention of the authorities or anyone else, because of the appropriation of her father’s land or inadequate compensation. There is no other evidence before the Tribunal to indicate that she will come to the adverse attention of the authorities, or anyone else, for any other reason.
Accordingly the Tribunal is not satisfied the applicant has a subjective for of harm in China for the reasons she has claimed. It does not accept she has a well-founded fear of persecution. It is not satisfied that the applicant has a well-founded fear of persecution for reasons of her political opinion, or imputed political opinion, or for any other reason set out in the Act, or that there is a real chance that she would be persecuted for one or more of those reasons. Therefore, she does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Is the applicant entitled to protection under 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, the Tribunal has considered whether she meets the criterion for the grant of a protection visa under the complementary protection criterion.
As indicated above, the Tribunal has not accepted the applicant’s claims to have been harmed or to fear harm because her father’s land was appropriated and inadequately compensated, and she petitioned/protested. It does not accept she will suffer any harm in the future because of these claims. It has considered whether she will be able to subsist in China if she returns. The Tribunal notes the applicant has been able to secure employment in Australia, as [an Occupation]. It accepts she has worked in the past as a farmer. It is satisfied that, even if the applicant cannot return to work on her father’s land, she has employment experience that will enable her to secure some form of work if she returns to China. It also notes she has family in China and it is satisfied she will be able to live with her family if she returns. The Tribunal is satisfied the applicant will be able to subsist if she returns to China.
There is no other reliable evidence before the Tribunal to indicate there is a real risk the applicant will suffer significant harm, as defined in the Act, as a necessary and foreseeable consequence of the applicant being removed from Australia to China.
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she 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) of the Act.
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.
Denise Connolly
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.
…

Most citizens could obtain passports, although individuals the government deemed potential political threats, including religious leaders, political dissidents, petitioners, and ethnic minorities, routinely reported being refused passports or otherwise prevented from traveling overseas.

[2020] AATA 3915

9 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction