1808810 (Refugee)

[2024] AATA 1954

1808810 (Refugee) [2024] AATA 1954 (25 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1808810

COUNTRY OF REFERENCE:                   China

MEMBER:Linda Holub

DATE:25 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 March 2024 at 12:59pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – Roman Catholic from young age – activities in village and city – meetings raided and participants detained and interrogated – lawful departure on own passport three months later – country information – insufficiently detailed claims and evidence similar those of another applicant – mixed claims about attendance in Australia – some attendance and basic knowledge – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Li v MIMA (1997) 74 FCR 275
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

Background

2.    The review applicant was born in Pingtan County, Fujian Province, China in [Year] and is a citizen of China. He speaks, reads, and writes Mandarin Chinese. His ethnic group is Han, and his religion is Catholic. He was married in [Year] and has a [child] born in [Year] and a [child] born in [Year] who reside in China. His parents also reside in China, and he sometimes contacts them through the WeChat application.

3.    The applicant departed China legally using his own passport. Department records indicate he first travelled to Australia [in] July 2017 travelling on his Visitor (class FA) (subclass 600) visa, granted on 5 July 2017 which as due to cease [in] October 2017.

4.    On 11 October 2017 he lodged the application for Protection and was granted an associated Bridging visa A on 28 November 2017 that is currently in effect. It was refused by the Department on 8 March 2018 and on 29 March 2018 he sought review of the Department’s decision at the Tribunal.

Issues

1. The issues in this review are whether there is a real chance that, if he returns to China, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

6.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

7.    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.

8.    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.

1. 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).

2. 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.

3. 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

1. 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.

Country information

1. The March 2015 DFAT Country Report on the People's Republic of China, which was the report current at the time of the applicant’s departure from China states:

5.26 DFAT assesses it would be difficult to depart China on a fraudulent passport owing to the sophisticated technology used and the degree to which surveillance by immigration and security agents occurs at China’s major airports. Overt bribery of border protection agents by an ordinary Chinese citizen would be difficult because of sensitivities to corruption, the professional and comparatively well-paid status of the Public Security Ministry, and the high-profile nature of its work. DFAT is aware of fraudulent documents being used in support of visa applications (such as hukou registration, proof of employment, academic transcripts, banking statements and ID cards). DFAT assesses these documents are relatively easy to produce and are commonly used in visa applications. DFAT has been told of the existence of sophisticated syndicates that service call centres set up specifically to provide targeted background stories in support of fraudulent documents used in visa applications.

1. The October 2019 DFAT Country Report on the People's Republic of China includes the following information relevant to the applicant’s claims:

Religion in Fujian

3.33 While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.

3.34 Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.

3.35 Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.

3.36 DFAT assesses that individuals in Fujian have historically practised religion more freely within state[1]sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion).

…. The last two paragraphs under the heading Government Framework regarding religion includes the following information:

3.48 DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues.

3.49 While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.

Catholics

3.89 The Chinese Catholic Patriotic Association (CCPA) has managed Catholic affairs in China, including the appointment of bishops, since 1957. The CCPA does not recognise the authority of the Holy See to appoint bishops. Relations between the Vatican (which recognises Taiwan) and the PRC have varied over time. Between 1993 and 2010, the Vatican had discreet input or even right of approval for bishop candidates in some provinces prior to their ordination by the CCPA. Since 2010, the CCPA has ordained most bishops without Vatican input. In April 2013, the Regulation on the Election and Consecration of Bishops required candidate bishops to pledge support publicly for the CCPA. Approximately 40 Vatican-ordained bishops remain independent of the CCPA.

3.90 In 2016, the Vatican and CCPA agreed on the ordination of two bishops, but there is still no agreement on the treatment of bishops ordained by each respectively but not recognised by the other. In-country contacts say discussions between the Vatican and Chinese officials have led to little change in the treatment of members of the underground Catholic Church. In May 2017, Vatican-appointed Bishop Peter Shao Zhumin was arrested and detained at a location unknown to the Vatican or his family. Bishop Thaddeus Ma Daqin was released from four years of house arrest in 2016 after he published a statement strongly supporting the CCPA. In 2018, China reached a provisional agreement with the Vatican under which Pope Francis recognised several Chinese state-appointed bishops who had been ex-communicated.

3.91 In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. Sources report this is no longer required in areas where the Catholic Church has built trust with local officials over time.

3.92 DFAT assesses Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive. Catholics in China face a low risk of societal discrimination.

CLAIMS AND EVIDENCE

Protection visa application

Protection claims

1. The applicant applied for the visa on 11 October 2017.The Tribunal has before it the Department’s file relating to the application for protection.

2. The applicant’s claims for protection were summarised by the delegate in their decision record as follows:

   ·     The applicant was born in [Village], [Town 1], Pington County, Fujian Province on [Date].

   ·     His parents were devoted Catholics and under their influence, he started to become a Catholic in his fourth grade of primary school. He often participated in Catholic family gatherings, in evangelism and listened to the sermon from the priests. He also did mass prayer with others. All of this became a part of his life.

   ·     One morning in January 2014, he was doing mass in [A]. Not long after they started, they got interrupted by hasty knocks on the door. When the door was opened, the village leaders took some people to rush in. They drove them into another room and began to search everywhere in the house. They took away their scriptures, computers and so on. After that, they began to reprimand and threaten them. They said that they were all cult members and that they would be arrested for illegal religious beliefs. While trying to get back their bibles, computers and other equipment, they experienced some conflict with village leaders.

   ·     Their belongings in [A]’s place were smashed and the were injured. They were taken to the police station where they were abused, threatened and intimidated. They were detained for a week. The priest who organised the activity was arrested and held alone in another room. They were requested by the police to give them information on the priest, however, they did not have any information.

   ·     After this the village leaders started to monitor the Catholics in the village, so they had no chance of getting together. They all lived in fear in their village.

   ·     In March 2014, he went to work in Shanghai and got to know some Catholics and started to participate in their family get-togethers there. On the morning of [Date] April 2017, while doing mass, the police came in and arrested all of them.

   ·     Police from [Town 2] police station discriminated against them.

   ·     While being interrogated, they said, “you are on the blacklist for being a cult member”. Police from Pudong New Area Public Security Bureau will take you away”. After being locked up in the police station for two days, he was sent to Pudong New Area Public Security Bureau for trial.

   ·     The police took turns to interrogate him and asked him why he believed in cults, what they did during their meetings, whether they were planning any anti-social, anti-government activities and where were the other placed for their meetings.

   ·     The applicant was speechless with the ability to distort the facts. Besides, he did not think they were wrong to be Catholics. So, no matter what they asked, he refused to answer. The police became very angry and locked him up in a small black room for seven days to reflect on his actions.

   ·     The Chinese government has formed a complete system for the persecution of religious believers. No matter where he goes, his identity as a cult member would never change. He was scared to be persecuted by them, so he came to Australia [in] July 2017.

The delegate’s decision

1. The applicant attended a Departmental interview on 2 March 2018 with the assistance of a Mandarin interpreter. In the delegate’s decision it notes that while the applicant’s testimony was significantly brief, he attempted to answer all questions asked. The delegate also noted that given the applicant’s responses at interview, it was clear that he had attended Sunday mass at some stage and possesses some basic knowledge of the Catholic faith. However, the delegate stated they would have expected the applicant to be more forthcoming with information when discussing some of the core beliefs of the Catholic faith.

2. The delegate found that overall given the limited detail provided by the applicant in both his written and oral claims, that they were unable to be persuaded that the applicant is a follower of the Catholic faith, nor that he was baptised. Further, the delegate did not accept that the applicant attended an underground church within his home region and during his time in Shanghai. The delegate did not find the applicant to be a credible witness.

3. Referring to a number of independent sources of country information, the delegate recognised that the Chinese Government continues to implement restrictions and monitoring mechanisms on several religious groups including the Catholic faith. However, the delegate was not fully satisfied that the applicant followed the Catholic faith in China or in Australia. In addition, the delegate was not satisfied that he attended an underground, unregistered church in China as stated in both his written and oral testimony. The delegate held concerns regarding the applicant’s active involvement in the Catholic community in Australia since his arrival. Furthermore, the delegate considered that as the applicant was able to depart China legally on his own passport, indicating, as the country information suggests that he was of no interest to the authorities at the time of his departure for Australia from China.

4. Overall, the delegate was not satisfied the applicant is a person in respect of whom Australia has protection.

Applicant identity and country of reference

1. The applicant claims to be a citizen of China. He provided a copy of his People’s Republic of China passport, issued [2016] and ceasing [2026].

2. The Tribunal finds that the applicant is a citizen of China, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

Review application

1. The applicant applied to this Tribunal for a review of the delegate’s decision on 29 March 2018. He provided a copy of the delegate’s decision but not did not provide any other material to the Tribunal in support of the application for review. Aside from seeking access to Medicare, the applicant has otherwise not engaged with the Tribunal.

2. The applicant was not represented in relation to his application for review.

3. On 25 January 2024 the applicant was invited to appear before the Tribunal on 27 February 2024 to give evidence and present arguments.

4. On 27 February 2024 the applicant sent an email to the Tribunal advising that they would not participate in the hearing.

5. On 28 February 2024 the Tribunal wrote to the applicant acknowledging the receipt of his email advising and referred to the fact that the email address is an email address not associated with this review. The Tribunal requested that he confirm that he is requesting the Tribunal decide on his application without taking further steps to allow him to appear to give evidence and present arguments, noting that this does not guarantee that the decision made will be positive.

6. As the Tribunal had not received a response, on 21 March 2024, a Tribunal officer called the phone number provided by the review applicant to follow up its email of 28 February 2024. The message advised that the number is no longer connected. The officer checked the number and tried again receiving the same message.

FINDINGS AND REASONS

CONSIDERATION OF CLAIMS AND EVIDENCE

Assessing the applicant’s claims

1. The mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).

2. The only information before the Tribunal is the applicant’s own assertion of the facts which are outlined in his written application. The Tribunal is unable to establish from this information that he will be persecuted if he returns to China because he is a religious believer and has been identified by the Chinese authorities as a cult member.

3. The applicant did not provide sufficient detail regarding his claims that he was raised as a Catholic by his parents and that he participated in various church activities since his childhood. Further, The Tribunal was unable to establish that the events he claimed to have occurred in January 2014 actually occurred and that the congregation were driven into another room and following a search of the house, their scriptures and computers were taken away and they were reprimanded and threatened and described as a cult. Based on the information made available by the applicant regarding his claims, the Tribunal was unable to establish other aspects of his claims including that belongings were smashed and that they were injured, taken to the police station where they were abused, threatened, intimidated, and detained for a week. Insufficient information was provided by the applicant in regard to his claims regarding the subsequent monitoring of Catholics in the village, which made them fearful and prevented them from getting together.

4. Insufficient detail was also provided in relation to the applicant’s move to Shanghai in March 2014, where he went to work and how he got to know some Catholics there. In addition, he did not elaborate on his participation in family gatherings and in relation to the claimed police raid [in] April 2017 during mass and the congregation’s arrest. Nor was sufficient detail provided regarding the interrogation that followed and their detention for two days at the police station and his subsequent referral to the Pudong New Area Public Security Bureau for trial, where having refused to answer questions the applicant claims to have been arrested for seven days.

5. Had the applicant attended the hearing, I would have also put to him concerns that his application was very similar not only in content but in the way in which his claims were expressed to that of another applicant. I would have given him an opportunity to respond to my concern that the similarity between the applications raised concerns that his claims were not genuine.

6. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. I have regard to previous judicial decisions that a decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, the Tribunal is satisfied it is also materially applicable to the assessment of complementary protection claims.

FINDINGS AND REASONS

1. The applicant’s claims in his application for protection submitted to the Department were vague and unsubstantiated and as a result, the Tribunal attempted to elicit more information by inviting them to a hearing.

2. The Tribunal is concerned that the applicant chose not to attend the hearing which was scheduled for him to provide oral evidence in support of their claims. No reason was provided by the applicant for his non-attendance. The Tribunal is of the view that if the applicant was genuinely concerned that he was at risk of harm if he returned to China, he would have attended the hearing or sought an adjournment if he was unable to attend on the specified day and at the specified time. The fact that he did not do so raises concerns about the veracity of their claims.

3. It is the responsibility of the applicant to make their claims and to provide as much detail as possible in order for the decision-maker to reach a level of satisfaction that certain events occurred or did not occur.

4. Based on the country information, which is outlined above, the Tribunal accepts there is greater scrutiny by the authorities on the actions and activities of adherents of various religious groups and organisations and intensifying official persecution and repression in recent years. However, in view of the lack of detail provided by the applicant, the Tribunal is not satisfied that:

• the applicant was raised as a Catholic by his parents and that he participated in various activities since his childhood.

• in January 2014 when the family had gathered with other members of the congregation that people entered the house of the host and that they were driven into another room of the house and their scriptures, computers and so on were taken away and they were reprimanded and threatened and described as a cult.

• their belongings were smashed, and they were injured and taken to the police station where they were abused, threatened and intimidated and detained for a week.

• Catholics in the village were subsequently monitored, so they had no chance of getting together and lived in fear.

• in March 2014 he moved to Shanghai and got to know some Catholics and participated in family gatherings there.

• [in] April 2017 there was a police raid during mass and the congregation was arrested and he was detained for two days at the police station and was sent to trail at Pudong New Area Public Security Bureau where having refused to answer questions, he was arrested for seven days to reflect on his actions.

1. The Tribunal has taken into consideration the country information which indicates that DFAT assesses it would have been difficult to depart China on a fraudulent passport. The available information indicates that the applicant departed China on his own passport. The applicant did not explain how if he was sent to trial at Pudong New Area Public Security Bureau where he was arrested for seven days to he was able to depart China on his own passport around three months later.

2. Based on the paucity of information and evidence put forward by the applicant the Tribunal is not satisfied that the events claimed by the applicant in January 2014 and in April 2017 actually occurred. On that basis, the Tribunal does not accept that he was harmed in any way before he left China.

3. In his written application the applicant did not make any claims, nor he did he provide any evidence that he has continued to practice Catholicism or any other religion since arriving in Australia. However, the Tribunal notes that in the delegate’s decision the applicant claimed that he attends Sunday mass at a church in the Sydney suburb of [Suburb] on a regular basis. There was further discussion about the priests serving in that parish. However, without the benefit of the applicant’s oral evidence, the Tribunal is not satisfied that he has done so nor about his current religious beliefs and practice nor about his intentions if he were to return to China.

4. The fact that the applicant did not attend the hearing to provide evidence suggests he is not at risk of serious or significant harm and likewise raises doubts about the veracity of his claims.

5. It is not unreasonable to expect that had he been a serious adherent to his faith that he would have continued to practice it in Australia and would have attended the hearing and could have provided evidence of this. The fact he has not done so, raises further doubts in the mind of the Tribunal that he was an adherent of the Catholic faith before he left China.

6. The similarity between the applicant’s claims and that of another applicant (both in terms of content and language) is of concern to the Tribunal that his claims are not genuine.

7. On the evidence before it, the Tribunal does not accept that the applicant is wanted by Chinese authorities because of his religious beliefs or because he has been identified as a cult member. Nor does the Tribunal accept that he continues to practice Catholicism or that he would do so were he to return to China.

8. Considering the totality of the information and evidence made available by the applicant and the cumulative concerns outlined, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returns to China. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China. Therefore, she does not satisfy the criterion at s.36(2)(a) of the Act.

9. The Tribunal has also considered the alternative criteria in s.36(2)(a)(a) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports that there are substantial grounds for believing that, as are necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore, the applicant has not satisfied the requirements s.36(2)(a)(a) of the Act.

10. 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)

11. For the reasons given above the Tribunal is 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 (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

1. The Tribunal affirms the decision not to grant the applicants protection visa.

Linda Holub
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.

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1. Protection visas – criteria provided for by this Act

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1. 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.

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