1808999 (Refugee)

1808999 (Refugee) [2024] AATA 2499 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1808999
COUNTRY OF REFERENCE:                   China
MEMBER:Paul Noonan
DATE:14 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 June 2024 at 4:23pm

CATCHWORDS
REFUGEE – Protection Visa – China – land disputes – made a petition to reveal the local authority’s corruption – other migration visa options had apparently been exhausted – applicant has presented significantly contradictory evidence – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 8 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 26 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 17 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent DFAT China report was issued on 22 December 2021.
CLAIMS AND EVIDENCE
Background
The applicant is a [age]-year-old man, born in Shijiazhuang, Hebei Province, China. He speaks, reads and writes Mandarin and stated that he does not identify with an ethnic group or religion. He finished middle school and has not undertaken any further education. In Australia he has been working in [industry].
The applicant told the Tribunal that his parents live in his home area in China and his two sons live with them. His former partner lives there as well and he was divorced from her six years ago. In China he used to work on a farm and he never had a stable job. His family has a long history of farming the same land. His younger brother still farms the same land. He remains in contact with his family in China and talks to his parents regularly and his brother on occasion.
The applicant informed the Tribunal that his family farm is about 10 kilometres from a town of about 10,000 residents. The farms in the area are run by individual families.
In Australia the applicant stated that he has been working in [industry]. He has no religion and has never had any involvement in politics.
The Tribunal accepts all of the above to be true.
CONSIDERATION
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The delegate was satisfied that the applicant’s country of nationality is China, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to his Chinese passport, a copy of which is retained on the Department’s systems and file, and accordingly it has assessed his claims with respect to China as the country of reference or receiving country for the purposes of this appeal.
Migration history
The applicant was first granted a Student (TU-573) visa on 3 March 2014 while he was still residing in China. He arrived in Australia on [date] March 2014 and has not departed Australia since then. This visa ceased on 20 July 2016. He applied for a Student (TU‑500) visa on 8 July 2016 which was deemed invalid on 11 July 2016. He lodged a further application for a Student (TU-500) visa on 11 July 2016 and was granted an associated Bridging (WA‑010) visa. This application was refused on 4 November 2016. The applicant then proceeded to lodge a Protection (XA-866) visa on 19 June 2017.
Documents before the Tribunal
The applicant supplied a copy of the delegate’s decision to the Tribunal. As noted at hearing, the Tribunal also had access to the Department file which contained his original written claim for protection.
Claims for protection
In his written claim for protection the applicant stated (in summary) that he feared persecution in China from the authorities because he made a petition to reveal the local authority’s corruption. This was because local authorities had seized a potato field on his farm on behalf of a developer and they had not offered him any compensation. When the authorities found out they sent police to arrest him, but he evaded capture. He then decided to flee to Australia. He was not personally harmed in China but now fears he will be arrested and that he will die in prison if required to return to China.
When questioned by the Tribunal about his current fear of persecution in China the applicant stated that he fears retribution by local authorities because he had not cooperated with them when they seized a portion of the family farm to build a freeway. He had refused to sign an unsatisfactory compensation agreement that the local authorities asked him to sign. They had come to his workplace and made a scene when he did this. He submitted that as he refused to sign the compensation agreement the matter remains open and unresolved. His father has been trying to lodge a petition to a higher authority and as a result has received further threats of harm.
The applicant also submitted that his son has [medical condition] and he needs to stay in Australia and work to help pay for his treatment.
When questioned about past harm in China the applicant submitted that the local authorities had enlisted gangsters to clear his land of crops and he had been bashed when he resisted them. He had then complained to the police and they came and arrested him and bashed him in response. He stated that he was arrested around the beginning of 2013 after trying to arrange a petition and he was arrested between four to eight further times subsequently by the police.
Credibility concerns
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well‑founded’ or that it is for the reason claimed. Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
… care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal notes that DFAT assesses that land disputes are a particularly common reason for protest in China. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs’, who intimidate protestors or cut utilities have been used and are allegedly hired by local governments. DFAT assesses that people who organise or participate in protests over land critical of the state are subject to a high risk of official discrimination.[2] As such the applicant’s claim in this respect has some plausibility with respect to country information alone. However, the applicant’s personal history and evidence has led the Tribunal to conclude that his claim to fear persecution for this reason is not credible for the following reasons.
[2] DFAT Country Information Report, China, 22 December 2021, p. 25.
Firstly, the Tribunal raised with the applicant that his evidence was internally contradictory in several important aspects from his original written claims. This included that he had not been offered compensation with respect to the commandeering of his land by the local authorities and also that he had not been arrested and that he had not suffered past harm personally in China.
The applicant submitted that his lawyer had assisted him in preparing his written claim. He had trusted the lawyer to put his claims down accurately and he had not had his claims read back to him. He stated that he had tried to get a copy of his instructions to the lawyer but had not been able to do so.
The Tribunal notes that the applicant listed in his written claims that he had received assistance in completing his claim form from a person not listed as a registered migration agent. The form indicates that the contents of his claim were read back to him. The Tribunal is very concerned by these significant inconsistencies in the applicant’s evidence. The Tribunal would expect that the applicant would have sought to ensure his written claims for protection were accurate and, if he had suffered arrest and past significant harm from the local authorities, that he would have ensured this was clearly stated. His explanation that he simply trusted the person assisting him to write down accurately what he told them is a weak and implausible explanation, given the extent of the serious inconsistencies identified by the Tribunal. Further, the claim form states that in fact his claims were read back to him. The Tribunal raised this with the applicant and he simply denied that this had occurred. The Tribunal does not accept as plausible that this specific question on the claim form would be answered in the affirmative if in fact this had not actually occurred. The Tribunal is satisfied the applicant’s written claim for protection was prepared by the applicant in conjunction with another person and that the contents of the claim were read back to the applicant prior to him then signing and submitting the claim. Given this, the applicant’s subsequent significantly inconsistent evidence, with respect to past harm he suffered and compensation offers, causes the Tribunal to have serious concerns as to the credibility of the applicant’s evidence in this respect and to accordingly doubt the overall credibility of this claim to fear persecution.
Secondly, the applicant significantly delayed applying for protection and pursued other migration avenues for many years. He first arrived in Australia on [date] March 2014 and then subsequently made two further applications for student visas before finally lodging a protection visa claim on 19 June 2017, when his other migration visa options had apparently been exhausted.
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[3] Even a three‑month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[4] In Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 the Court observed in regard to a delay in lodgement of a protection application: ‘In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant’s alleged fear of persecution. It is a rational consideration open on the material.’
[3] Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
[4] Subramaniam v MIMA (1998) VG310 of 1997.
The Tribunal raised these delay concerns with the applicant. The applicant submitted in response that, when he had first come to Australia, he had not known what to do. He had just followed instructions from his migration agent at the time. It had taken him some time to realise that he should have been applying for a protection visa.
The Tribunal finds the applicant’s explanation for the significant delay in applying for protection and his prior pursuit of other visa types to be implausible. This is because the Tribunal would expect that the applicant would have sought to understand his protection options, especially in circumstances where he gave evidence that he had the active advice of a migration agent. His explanations for the delay are not reasonably plausible. The fact that he did not seek to understand or pursue his protection options, or discuss his reasons for not wishing to return to China with his migration agent, and instead continued to pursue student visa renewals for many years with the aid of a migration agent, significantly undermines the credibility of his claim to have fled China genuinely fearing persecution.
Thirdly, the applicant gave contradictory evidence with respect to the situation of his brother and father who reside on and farm the same land in China to this day. He gave evidence, when the Tribunal asked detailed questions about their situation, that they had not received any compensation as they had also refused to sign the compensation agreement that was presented to them. When it was put to the applicant that this may indicate that he would be able to safely return and live unharmed like his brother and father, the applicant submitted that they are unharmed despite refusing to sign the compensation agreement, because they have simply given up protesting. He suggested that he will never give up his protest and as such would attract the adverse attention of the local authorities. However, in evidence given earlier in the hearing, the applicant informed the Tribunal that his father had recently lodged a petition to a higher authority with respect to the actions of the local authorities and had been threatened as a result.
The Tribunal finds that the applicant has contradicted himself with respect to the situation of his father variously stating that he is unharmed because he has given up protesting but also that he continues to protest and has been threatened as a result. The Tribunal would expect consistent evidence with respect to the important evidence of the current situation of his fellow landholding family members. This causes the Tribunal to further doubt the overall credibility of the applicant’s claim to fear persecution for this reason.
Conclusions

The Tribunal finds that the applicant has presented significantly contradictory evidence with respect to his claim to fear persecution for reason of a corrupt land action by local Chinese authorities with respect to past harm, arrest history and the situation for his fellow family members who still reside on and farm the claimed family land in China. Further, his significant delay in applying for protection and his associated migration history further undermine the credibility of his claim.
For all of the above reasons, the Tribunal does not accept the applicant to be a credible witness. It does not accept that his family land was appropriated by corrupt local Chinese authorities. The Tribunal does not accept that he was arrested and beaten by the Chinese authorities or agents of the Chinese authorities or the police for refusing to sign a compensation agreement, nor that he left China for fear of harm for any reason claimed.
The Tribunal has also considered the applicant’s claim, introduced at hearing, that he needs to stay in Australia to support the medical treatment costs of his son. The Tribunal has found that the applicant is not a credible witness. The Tribunal notes that the applicant did not present any medical evidence with respect to this claim. Given the Tribunal’s findings with respect to the applicant’s lack of credibility as a witness, the Tribunal considers that he has introduced this claim at the last minute merely for the purpose of attempting to strengthen his claims for protection. The Tribunal does not accept that the applicant’s son in China is suffering from [medical condition]. It follows that the Tribunal does not accept that the applicant’s son requires financial support from the earnings of the applicant in Australia for medical treatment reasons.
For these reasons, the Tribunal does not accept there to be a real chance the applicant would suffer serious harm from the local Chinese authorities or their associates or the general Chinese authorities, or that there is a real chance that he will suffer serious harm due to his son being unable to access medical treatment, as a result of the applicant returning to China. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for any reason claimed if he returns to China, either now or in the reasonably foreseeable future.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
For the reasons given above, the Tribunal has not accepted that the applicant’s family land was appropriated by corrupt local Chinese authorities, that he was arrested and beaten by the Chinese authorities or agents of the Chinese authorities or the police for refusing to sign a compensation agreement, nor that he left China for fear of harm for any reason claimed, nor that his son has [medical condition] and is reliant upon the applicant’s earnings in Australia to access treatment. The Tribunal has not accepted there to be a real chance that the applicant would face serious harm for any reason claimed if he returned to China either now or in the reasonably foreseeable future. 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 the Refugee Convention definition.[5] For the same reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis.
[5] 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], Flick J at [342].
For these reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to China.
Overall conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
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.
…

[2024] AATA 2499

14 June 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction