1808889 (Refugee)

1808889 (Refugee) [2021] AATA 719 (16 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1808889
COUNTRY OF REFERENCE:                   China
MEMBER:Paul Windsor
DATE:16 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 February 2021 at 2:27pm
CATCHWORDS
REFUGEE – protection visa – China – harassed by gang over gambling debts – home damaged and wife injured – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 426A, 441A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 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 21 August 2017.
In his protection visa application the applicant indicated he was born on [date] in Laixi city in Shandong province, China. He stated that he is ethnic Chinese and indicated he married in March 2007 and has a wife and [children] in China. The applicant stated he departed China legally [in] June 2017 and arrived in Australia [in] August 2017, entering on a visitor visa (the date of arrival in Australia appears to be an error as the applicant has not indicated he travelled anywhere else after departing China [in] June 2017).[1]
[1] See the Departmental file.
In his application the applicant indicated that he sought protection in Australia because he owed money to a ‘usury’, which he borrowed to repay a large gambling debt. He said he was harassed by a local gang contacted by the usury when he could not repay the loan, resulting in damage to his house, theft of his property and his wife being injured during a confrontation with the gang.[2]
[2] See the Departmental file.
The delegate refused to grant the visa, finding that the applicant, who did not attend a scheduled interview with the delegate, had not substantiated his claimed fear of persecution is well founded or is for one or more of the reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion, the delegate also was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act.
The applicant applied to the Tribunal for review of this decision on 31 March 2018. He provided a copy of the delegate’s decision record to the Tribunal.[3]
Failure to participate in the scheduled hearing
[3] See the Tribunal file.
On 1 February 2021 the Tribunal wrote to the applicant advising that the Tribunal had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The applicant was invited to appear by telephone before the Tribunal to give evidence and present arguments at a hearing at 9:00 am on 16 February 2021. The applicant was advised that the Tribunal would contact him on [number] (the contact telephone number he provided in his review application). He was asked to advise the Tribunal if this number is not correct or if he would prefer the Tribunal to call him on another number. The applicant was requested to read and complete an attached ‘Response to hearing invitation’ form within 7 days of receipt of the letter.
The applicant did not respond to the hearing invitation letter or otherwise contact the Tribunal, including to advise a different telephone contact number.
The hearing invitation letter also advised the applicant that if he was not able to participate in the proposed telephone hearing he should advise the Tribunal as soon as possible. He was advised to note that the Tribunal will only change the date if satisfied he has a very good reason for being granted an adjournment and, if the Tribunal did not advise him an adjournment had been granted, he must assume that the hearing will go ahead.
The applicant was advised that if he did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.
The applicant was sent SMS reminder messages regarding the hearing on 9 and 15 February 2021 to the mobile phone number he provided in his review application.
On 16 February 2021 six attempts were made to contact the applicant on the number provided: at 8:46 am; 8:47 am; 8:50 am; 8:55 am; 9:00 am and 9:05 am.[4] All attempts to contact the applicant by telephone failed.
[4] See the relevant case note in the Tribunal file.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act and the hearing invitation (sent by email) was not returned to sender. The two SMS reminders about the hearing did not return ‘message undeliverable’ responses. The applicant did not respond to the invitation to attend the hearing and has not contacted the Tribunal to provide an alternative telephone contact number, to seek an alternative time for the hearing, or to explain why he would not be participating in the hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection were set out in his protection visa application. His claims were as follows (as written by the applicant):[5]
[5] See the Departmental file.
Select the country or countries from which this applicant is seeking protection and cannot return to. Country CHINA
Provide reasons why this applicant left that country:
Due to my gambling habits in the past, I have accumulated a large sum of debt. In order to pay back my gambling debt, I sought for an usury. However, having this loan did not help. I could not pay back the usury. As I failed to pay back the loan, the usury company contacted the local gang and they began harassing me for the money. They monitored my house everyday and sent people to follow my family and I wherever we went. I reported this to the local police but they refused to offer assistance. Upon hearing that I reported the gang to the police, the gang became more and more aggressive. They smashed the windows at my house, broke in multiple times and snatched whatever they found to be valuable. During a confrontation with the gang when they broke in again one night, my wife got injured and was rushed to the hospital. I sought for help from the police once again but they refused to get involved, just like before. I became utterly disappointed at the incapability of the police force and I felt hopeless and despaired. A friend of mine then suggested that my family should move into a different part of China but since I didn't want to burden my family, I applied for an Australian visa and came to Australia. A few days ago I heard from my wife across the phone that the gangsters have continued to keep a watch over our house and frequently harassed my family demanding for my whereabouts. She said that I should stay in Australia and not return as it is very dangerous in China and the government does not care at all.
Did this applicant experience harm in that country or those countries? Yes
As I failed to pay back the loan, the usury company contacted the local gang and they began harassing me for the money. They monitored my house everyday and sent people to follow my family and I wherever we went. Upon hearing that I reported the gang to the police, the gang became more and more aggressive. They smashed the windows at my house, broke in multiple times and snatched whatever they found to be valuable. During a confrontation with the gang when they broke in again one night, my wife got injured and was rushed to the hospital.
Did this applicant seek help within the country or those countries after the harm? Yes
I reported the cases to the police twice but they refused to offer help and protection.
Did this applicant move, or try to move, to another part of that country to seek safety? No
A friend of mine then suggested that my family should move into a different part of China but since I didn't want to burden my family, I applied for an Australian visa and came to Australia.
Explain what the applicant thinks will happen to them if they return to that country:
A few days ago I heard from my wife across the phone that the gangsters have continued to keep a watch over our house and frequently harassed my family demanding for my whereabouts. I am afraid that once I return, my family will be in greater danger. I will also be taken away by the gangsters.
Does this applicant think they will be harmed or mistreated if they return to that country? Yes
I am afraid that once I return, my family will be in greater danger. I will also be taken away by the gangsters.
Does this applicant think the authorities of that country can and will protect this applicant if they go back? No
The government does not care about cases like mine at all. All they care about is whether one has good connections or is wealthy. I reported my cases to the police twice but they refused to help. I am utterly disappointed at the incapability of the police force and I feel hopeless and despaired.
Does this applicant think they would be able to relocate within that country to an area where they would not be harmed? No
There is no safe place in China.
Findings and reasons
Identity
On the basis of the copy of his Chinese passport submitted to the Department,[6] the Tribunal accepts that the applicant is a national of China and that his identity is as claimed. The Tribunal accepts that China is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[6] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his receiving country of China, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Assessment of claims
The mere fact that a person claims fear of persecution 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 claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Having considered the applicant’s written statement of claims the Tribunal finds that he has not provided sufficient detail or evidence to support his claims that he owed money to a ‘usury’ which he borrowed to repay a large gambling debt, and that he and his family were harassed by a local gang contacted by the usury because he could not repay the loan, resulting in damage to his house, theft of his property and his wife being injured during a confrontation with the gang. This is for the following reasons, considered cumulatively.
Firstly, the applicant has provided no detail regarding his claimed large gambling debt, such as how much he owed and how and when he accumulated such a debt. Similarly, while he claimed to have borrowed money from a ‘usury’ in order to repay his claimed gambling debt, the applicant has not provided any relevant details, such as when and how much he borrowed and the terms of the claimed loan, including the interest rate, duration of the loan, size and frequency of the repayments, and whether he had to provide any collateral for the loan. The applicant has not provided any supporting documents, such as a copy of a loan agreement, or, if this was not possible, explained why this was not possible. The applicant, who indicated he was working as a [manager] for [a named business] in Shanghai from January 2014 until he departed China in June 2017, has not indicated why he was unable to meet the repayments on the claimed loan.
Second, while the applicant claims that he reported to local police on two occasions that he and his family were being harassed by a local gang he claims were sent by the ‘usury company’, but the police refused to help, he has not provided any information regarding why police indicated they would not help. He also did not provide copies of any police reports he made. In this regard, while it might be possible that local police would consider the applicant’s claimed failure to meet loan repayment obligations to be a ‘private matter’, it seems less likely that they would not assist him and his family if a gang had smashed windows at his house, broken into his home on multiple occasions stealing anything of value, and had injured his wife to the extent that she had to be rushed to hospital.
Third, the applicant provided no evidence in support of the claims that his home was broken into, windows were smashed and property was stolen, or that his wife was injured requiring hospitalisation. If these things had occurred it might be expected that the applicant would have submitted copies of photos of the damage, and/or copies of insurance claims for stolen property, and/or would have provided copies of medical/hospital reports for his wife.
Fourth, the applicant states that a friend suggested he and his family should relocate to another part of China to avoid the harassment, but he indicates that he came to Australia instead, so as not to ‘burden’ his family. This seems ludicrous, however, in light of his comment that gangsters continued to watch over his home and frequently harassed his family (the written statement in his application indicates that as well as his wife, he has [children], who would now be [specified ages] – and that the youngest, who was born on [date], would have been only [age] when the applicant departed China [in] June 2017). If he did depart China in the claimed circumstances, he would have left his family with a terrible burden of harassment by a violent gang.
Fifth, despite stating that a few days before he submitted his protection visa application he heard from his wife that gangsters continue to keep watch over the house and frequently harass her regarding his whereabouts, and that she had advised him to stay in Australia because it is very dangerous for him in China, the applicant has not provided any further information regarding his family’s circumstances. If this claim was true, the Tribunal would expect that the gangsters would have escalated their harassment of the applicant’s vulnerable family, to force the applicant to engage with them and make arrangements to repay the claimed debt. This could possibly have resulted in his family members suffering serious or significant harm. The applicant, however, has provided no further information regarding what has happened to his family members in the over three years he has remained in Australia since lodging his protection visa application in August 2017. He also has not provided any information regarding what he is doing in Australia, how he is supporting himself and his family, and whether he has had any further contact with the claimed ‘usury’ and/or gang.

If the applicant had participated in the hearing, the Tribunal would have asked him in detail about these issues. On the available evidence, the Tribunal is not satisfied that the applicant has established his claims to owe money to a ‘usury’ and that he and his family faced harassment and harm from a ‘usury’ and/or their gang agents.
After carefully considering the available evidence, the Tribunal has concluded that the applicant has concocted his claim to have borrowed a large sum of money from a usury/money lender, which he cannot repay, and that he and his family were harassed, their property was damaged and stolen, his wife was injured and gang members have demanded to know his whereabouts. Accordingly, the Tribunal does not accept that the applicant sought but was denied help and protection by local police.
As the Tribunal finds that the applicant does not owe a large amount of money to a usury/money lender, which he cannot repay and he/his family have not been harassed by a gang acting on behalf of a usury/money lender, the Tribunal finds that there is not a real chance or a real risk that the applicant would suffer serious harm or significant harm from a usury/money lender and/or their gang agents should he return to China.
As the Tribunal finds that the applicant does not face a real chance of suffering serious harm or a real risk of suffering significant harm should he return to China, the Tribunal finds that the applicant does not require the protection of the Chinese authorities.
Does the applicant have a well-founded fear of persecution if he returned to China?
For the reasons given above, the Tribunal does not accept there is a real chance that the applicant will suffer persecution involving serious harm from a usury/money lender and/or their gang agents, for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, if he was to return to China, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to China, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from a usury/money lender and/or their gang agents, or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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.
Paul Windsor
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.
…

[2021] AATA 719

16 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies