1809001 (Refugee)

[2024] AATA 3218

1809001 (Refugee) [2024] AATA 3218 (1 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809001

COUNTRY OF REFERENCE:                   China

MEMBER:Suseela Durvasula

DATE:1 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 July 2024 at 9:27am

CATCHWORDS
REFUGEE – protection visa – China – home demolition – inadequate compensation – credibility concerns – inconsistent evidence – limited and vague details – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of China, applied for the visas on 29 August 2017. The delegate refused to grant the visas on the basis that the applicants were not persons to whom Australia owes protection obligations.

3. The applicants are husband (first-named applicant) and wife (second-named applicant). The first‑named applicant (hereafter called ‘the applicant’) appeared before the Tribunal on 9 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. At the hearing, the applicant told the Tribunal his wife had returned to China in February 2024. He was the only applicant making claims for protection and his wife was relying on his claims as a member of his family unit.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issues in this case are whether there is a real chance, if the applicants return to China, that they would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk that they will suffer significant harm.

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

    Country of nationality

13. The applicants have provided copies of their passports to the Department and Tribunal which show they are Chinese citizens. The Tribunal finds, based on the applicants’ passports, that they are nationals of China and has assessed their claims on this basis.

    Applicant’s background

14. The applicant is a [age]-year-old Chinese national who was born in Shandong province. He is married to the second-named applicant, who is a [age]-year-old Chinese national.

15. In the protection visa application, the applicants state they have two children – a daughter aged [age] and a son aged [age]. The children live in Tancheng, China, where the applicant’s parents also live. The applicant states that he lived in Tancheng, Shandong, from his birth until he came to Australia in 2017. He completed middle school and was employed as a labourer from 1997 to 2017.

16. The applicants arrived in Australia [in] June 2017.

17. At the hearing, the applicant gave further information about his background. He stated that he grew up in a village in [Town 1] in Shandong province. His mother still lives in the same house where he grew up. His father passed away in 2018. His wife is currently staying with his mother in the family home. She returned to China in February 2024, as his mother was unwell and needed someone to care for her. His two children attend boarding school and stay with his mother during the holidays.

18. The applicant confirmed that when he was in China, he always lived at his mother’s house in [Town 1]. This is the only place he has ever lived in China. He lived there until he came to Australia in 2017. He never lived in Zibo city or in Tancheng.

19. In relation to his work, the applicant stated that he did [specified] work in China. He worked in the local area and the surrounding area. He continued to stay overnight at the house in [Town 1].

20. At the hearing, the applicant provided a copy of his passport which shows a [Country 1] visa issued [in] September 2015, valid for 15 days, and several entry and exit stamps for the [Country 2] between December 2016 and April 2017.

21. The applicant explained that he went to [Country 1] in 2015 for one week as a tourist. In relation to his travel to [Country 2], he thought he was travelling there as a tourist, but it was a scam. When he got there, he was locked up and made to work illegally. He was not paid. He believes the travel agent had conspired with some locals to make him work there. He stayed in both [City 1] and [City 2] for about 5 months. When he returned to China, he had no difficulties from the authorities.

22. Later in the hearing, the Tribunal discussed with the applicant that the fact that he returned from [Country 2] in April 2017 and departed China in June 2017 and had no difficulties from the authorities during that time appeared to contradict his evidence that he had difficulty from the authorities and local gangs and had to depart China because he feared for his safety. It also contradicted his evidence that he was in hiding for less than a year before he left China.

23. The applicant stated that he when he returned from [Country 2] in 2017, nothing had happened at that time. They were talking with the government about the compensation but nothing had been decided at that time. The Tribunal then asked when the local government authorities sent the gangs after him. The applicant stated it was 2018 or 2019. The Tribunal noted that the applicant was already in Australia at that time. The applicant then stated that was a mistake and he cannot remember exactly when it happened. He then stated that the problems had already started happening when he went to [Country 2]. The Tribunal noted that in his statement, the applicant had stated that the government had started planning to build a road in 2013. The applicant then stated that he could not remember as it has been a long time.

    Protection visa claims – application

24. In a statement in English provided with the visa application, the applicant makes the following claims:

    a)    He was born in Zibo city, Shandong.

    b)    He suffered persecution by the Chinese authorities because of a demolition issue and local officials ‘corrupting’ his compensation.

    c)    The applicant and his parents lived in their own house in a village in Zibo city. In 2013, the government wanted to build a national road to Jinan (the capital of Shandong province) that would go through his village.

    d)    The government promised to compensate them for the house and farmland. The officials asked them to sign a blank contract and left the amount of compensation blank.

    e)    Local government staff took the residents to a new regional location where they would be housed. The residents were surprised that the area was far away from the town and inconvenient. They had no choice but to accept.

    f)     When they checked the compensation, they were only given RMB 20,000 for each family which was insufficient to build a house.

    g)    The applicant went to the local council for an explanation. They told him that the local council could only get RMB 600,000 for 34 families.

    h)    They went to the Zibo city council who told them they had transferred RMB 6 million to the local council.

    i)   The applicant was angry that local council officials had taken the compensation money. He approached the local council to ask for more compensation but was refused. The secretary official asked security to drive him away.

    j)   He then appealed to the Zibo city council but no one replied.

    k)    After he came back home, the secretary official hired gangs to threaten and slap them. Gangs frequently came to their home and punched them. The applicants were scared so they escaped to Australia.

25. At the hearing, the applicant stated that a housemate who knew English helped him with the protection visa application. The applicant verbally stated his claims and this person wrote it down in English. He remembers what he said in the application and is confident that everything in the statement is correct.

    Protection visa claims – Tribunal hearing

26. When asked why he left China and why he does not want to return, the applicant stated that it was due to a property issue and it was all mentioned in his statement. After staying in Australia for a few years, he found that people in Australia were nice and kind and he would prefer to stay here.

27. When asked what he feared if he returned to China, the applicant stated that the government still has an issue with him and his wife has told him there is still trouble at home. When asked if he could be more specific, the applicant stated that they were supposed to receive financial assistance from the government, but they did not pay enough so there were insufficient funds to build a new property. They only paid RMB 20,000. They showed them a different location where they could live but it was in a remote area.

28. If he goes back, the government will give him some trouble. Previously, when the government wanted to take the land, he did some extreme things and they found local gangsters to harass him. They had a lot of disagreements about the property. As the authorities did not pay them, they threatened the applicant and he had to leave China.

29. The Tribunal asked the applicant where the property in question was located and who lived there. The applicant stated that it was his parents’ ancestral home where he had lived in China. It was located in [Town 2] in [Town/County 1]. The house was demolished in 2018 or 2019, after he came to Australia. His mother and wife were now living with a neighbour, very close to the house that had been demolished.

30. The Tribunal put to the applicant that he had earlier stated that he had always lived at his family home in [Town 1] when he was in China and his mother and wife were currently living there. He was now stating that his family home was in a different location and had been demolished. The applicant responded that [Town/County 1] was the county and [Town 2] was within that area. He repeated that the family home had been demolished and his mother and wife were now staying with a neighbour nearby.

31. The Tribunal discussed with the applicant that in his written statement provided with the application, he had stated that he and his parents owned a house in Zibo city. In his application, he had stated that he lived in Tancheng. At the hearing, the applicant stated that he had never lived in Zibo city and his family home was located in [Town 2] in the [Town/County 1] area. Tancheng county was a larger area and [Town 2] was part of that. His written statement was translated by his friend and some of the English translation regarding this issue may not have been accurate.

32. The Tribunal asked the applicant when the government authorities first approached his family about building a road and offered the compensation. The applicant stated that he could not remember.

33. The Tribunal asked the applicant for more details about the approaches he made to government about the compensation. The applicant stated he tried to speak to the local authorities in [Town 2] but they did not reach agreement. He then talked to the [Town/County 1] government. They told him he needed go back to the local government authorities and they could not help him. The Tribunal asked if the city government told him anything else about the project or the amount of compensation, and the applicant stated there was nothing else.

34. The Tribunal asked the applicant for more details about the disagreements he had with local government authorities. The applicant stated they had some physical conflicts. When asked what he meant by this, he stated that the government authorities had more people and it was not a fair fight so he had to run away. He ran away to hide in other areas and did this for less than one year.

35. The Tribunal put to the applicant that he had earlier stated that he lived at the same address in China until he came to Australia, which was his family home, and he had continued working in the nearby area and slept at the home overnight. He had not mentioned at the hearing, or in his protection visa application, that he had hidden elsewhere. The applicant stated that he stayed near his family home.

36. The applicant stated that the authorities already built the road a few years ago – he did not know exactly when this occurred. They have paid his mother the compensation. The Tribunal asked the applicant why the authorities would still seek to harm him if he returned to China, given that it had been 7 years since he had left China and the road had now been completed. The Tribunal noted that the applicant’s wife had returned to China and continued to live in the same area and had not come to any harm. This may indicate that the authorities would not seek to harm the applicant if he returned to China.

37. The applicant responded that the authorities had asked his wife and mother for his location. They consider him to be a threat. If he returns to China, he will go to the local authorities again and see if he can get a proper response from them. If he returns there, he cannot guarantee he will be safe. The previous people he had a dispute with will find him and threaten him. When asked who these people are, the applicant stated they are people from the ’underworld’. His wife has returned to China, but she is still scared.

    Summary of applicant’s claims

38. The applicant’s claims may be summarised as follows. The applicant claims that his family home was taken by the government and demolished to build a road. The applicant claims he and his family were offered inadequate compensation in return. The applicant complained to the local government and had a disagreement with them. He claims the authorities sent gangsters to harass and beat him. He complained to the city authorities, but they did not assist. He claims he had to go into hiding just before he came to Australia. The applicant claims that local authorities have been asking his wife about his whereabouts and when he will return. The applicant claims that if he returns to China he will be harmed by the local authorities and gangsters. He claims he will continue asking the local authorities for more compensation money.

    Second-named applicant

39. At the hearing, the applicant confirmed that the second-named applicant was not making her own protection claims and was relying on his claims. The second-named applicant did not appear before the Tribunal and the applicant advised she had returned to China. The Tribunal is satisfied the second-named applicant was given an opportunity to attend the hearing to give evidence and present arguments. The Tribunal has therefore assessed only the claims made by the applicant.

    Findings on applicant’s claims

40. The Tribunal accepts the applicant’s evidence that he lived in [Town 2] in [Town/County 1]. The Tribunal accepts that he never lived in Zibo city, contrary to what was written in his protection visa statement.

41. For the reasons set out below, the Tribunal does not accept the remainder of the applicant’s claims.

42. Firstly, the applicant provided inconsistent evidence at the hearing about where he was living in China and about the property he claimed was demolished. At the beginning of the hearing, the applicant stated he had lived at the same address at his family home from his birth until he departed for Australia, and his mother and wife continue to reside there. He stated that he had worked in the nearby area and slept at his family home overnight. Later in the hearing, the applicant stated that his family home had been demolished and his mother and wife lived nearby with a neighbour. He also stated that he lived in hiding for less than a year before he left China in June 2017. The applicant’s inconsistent evidence about the property in question and where he was living in China, leads the Tribunal to doubt his claims that his family home was demolished and that he was in hiding before he left China in June 2017.

43. Secondly, the Tribunal finds that the applicant provided limited and vague details about his dispute with the local authorities. He could not recall when the local government first approached him and his family about the road and acquisition of their property. He did not know when the road had been built. He could not describe in detail, his disagreements with the local government, other than stating that there were some physical conflicts. He could not describe in detail, the approaches he made to the local and city governments, other than stating that he tried to speak to them and they could not reach agreement. The Tribunal is mindful that the events may have happened some time ago and that some protection visa applicants may not be able to remember specific details about past events. In this case, however, the applicant was unable to provide details about key events that related to important parts of his claims.

1. Thirdly, the Tribunal finds the applicant omitted mentioning a key event at the hearing that was in his protection visa statement. In his statement, the applicant stated that when he approached the city council, they told him they had transferred RMB 6 million to the local government. The applicant realised this money had been corruptly taken by the local government and he became angry. The applicant did not mention this part of his claim, when asked at the hearing if the city council had discussed any other matter with him. He only stated that they told him to go back to the local council.

2. The Tribunal has considered the applicant’s explanation that he did not think it was necessary to mention the corruption and money issue in too much detail at the hearing. The Tribunal has also had regard to the fact that his written statement was translated by another person. The Tribunal does not accept that this explains the omission, given that this appeared to be a key part of his claims and one of the reasons why he claimed to be disgruntled with the local government and wanted to take action. He also confirmed at the hearing that he was confident that everything in his written statement was correct. The fact that the applicant did not mention this aspect of his claim at the hearing leads the Tribunal to doubt that the applicant in fact had a dispute with the local government.

3. Fourthly, the Tribunal finds the applicant gave contradictory and inconsistent evidence about the events leading up to his departure from China. At the hearing, the Tribunal discussed with the applicant, his evidence that he returned from [Country 2] in April 2017 and departed China in June 2017 and had no difficulties from the authorities during that time. This appeared to contradict his other evidence that he had difficulty from the authorities and local gangs and had to depart China because he feared for his safety. It also contradicted his evidence that he was in hiding for less than a year before he left China.

4. The applicant responded that when he returned from [Country 2] in 2017, nothing had happened at that time. He was talking with the government about the compensation, but nothing had been decided. The Tribunal then asked when the local government authorities sent the gangs after him. The applicant stated it was in 2018 or 2019. The Tribunal noted that the applicant was already in Australia at that time.

5. The applicant then stated that that was a mistake and he cannot remember exactly when the gangs came. He later stated that the problems had already started happening when he went to [Country 2]. The Tribunal noted that in his written statement, the applicant had stated that the government had started planning to build a road in 2013. The applicant responded that he could not remember as it had been a long time.

6. The Tribunal finds that the applicant’s evidence, as set out above, demonstrates that he did not know when critical events in his claims occurred or in what order they occurred. He claimed that local government authorities sent gangs after him in 2018 or 2019, when he was already in Australia. He confirmed that he did not have any difficulties after he returned from [Country 2] in April 2017 after a 6 month stay. He later changed this evidence to state that the problems occurred before he left [Country 2] and that he was in hiding for a period just before he came to Australia.

7. The Tribunal is mindful that the events may have happened some time ago and that some protection visa applicants may not be able to remember specific details about past events. In this case, however, the applicant changed his evidence several times in response to apparent contradictions, which leads the Tribunal to not accept the credibility of his claims.

8. Finally, the Tribunal finds the applicant’s claim of facing future harm if he returns to China is not credible. The applicant was unable to give a plausible explanation as to why the local government authorities or local gangsters would be interested in harming him now that the claimed house demolition is complete and the road has been built. On the applicant’s own evidence, he did not petition or agitate the local government, or protest against the demolition. He simply made enquiries about the level of compensation. The applicant departed Australia 7 years ago and has not had any contact with the local government or gangsters since that time. His wife recently returned to China and is living in the same village where the claimed demolition took place. Given the concerns the Tribunal has with the other aspects of the applicant’s claims, as outlined above, the Tribunal does not accept that gangsters or local government authorities have been asking his wife about his whereabouts.

9. The Tribunal has considered the independent country information from the Department of Foreign Affairs and Trade which indicates that ‘land disputes are a particularly common reason for protest’ and ‘disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation’.[1] There continue to be reports that ‘local governments forcibly seized and demolished the homes of citizens without providing adequate replacement housing or financial restitution’.[2] The Tribunal accepts, based on this information, that land disputes are reasonably common in China. However, these reports do not overcome the Tribunal’s concerns about the credibility of the applicant’s claims. Given the number of inconsistencies, omissions, contradictions and lack of detail in the applicant’s claims, the Tribunal is unable to accept them.

   [1] DFAT Country Information Report People’s Republic of China (22 December 2021) (DFAT report) at 3.88.

   [2] US Department of State, 2022 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau and Tibet), Property seizure and restitution, and past harm – overall assessment

10. The Tribunal has found above that the applicant has omitted key aspects of his claims; has provided inconsistent and contradictory information; and has provided limited details about his claims. Having regard to the findings and consideration of the evidence above, the Tribunal does not accept that the applicant has given a credible account of all aspects of his claims and does not accept that he is telling the truth about why he cannot return to China. The Tribunal finds he is not a credible witness.

11. For the reasons outlined above, the Tribunal does not accept that the applicant’s family home was demolished by the government to build a road. The Tribunal does not accept that the applicant and his family were offered inadequate compensation. The Tribunal does not accept that the applicant complained to the local government and city government and had a disagreement with the authorities. The Tribunal does not accept that the government sent gangsters to harass and beat him. The Tribunal does not accept that he went into hiding just before he came to Australia. The Tribunal does not accept that local authorities or gangsters have been asking his wife about his whereabouts and when he will return. The Tribunal does not accept that the applicant will continue asking the local authorities for more compensation money if he returns to China.

    Future harm

12. In relation to his future conduct, the Tribunal does not accept the applicant would face harm from gangsters or government officials, as it has not accepted that he or his wife were threatened or harmed by those groups before he left China, or since he has been in Australia. The Tribunal does not accept that the applicant will continue asking the local authorities for more compensation money if he returns to China. For these reasons, the Tribunal is not satisfied there is a real chance the applicant will face serious harm if he returns to China, now or in the reasonably foreseeable future.

    Overall assessment

13. The Tribunal has considered the applicant’s claims individually and cumulatively. Having considered the evidence as a whole, the Tribunal is not satisfied that if the applicants return to China, now or in the reasonably foreseeable future, they face a real chance of serious harm.

14. Accordingly, the Tribunal is not satisfied that either of the applicants has a well‑founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal is not satisfied the applicants meet the definition of refugee in s 5H(1) of the Act.

    Complementary protection

15. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa) – that is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk they will suffer significant harm.

16. The Tribunal takes into account the above findings of fact in relation to the ‘real chance’ test and its findings that the applicants would not face serious harm if they were removed from Australia to China. The Tribunal has not accepted that the applicants would face any harm from government authorities or gangsters if they returned to China. Therefore, the Tribunal also does not accept that the applicants would face ‘significant harm’, as that term is defined in s 36(2A). That is, the Tribunal does not accept the applicants will be arbitrarily deprived of their lives; or that the death penalty will be carried out on them; or that they will be subject to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

17. The Tribunal is not satisfied, on the evidence, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm. The Tribunal does not accept that the applicants are persons to whom Australia has protection obligations under s 36(2)(aa) of the Act.

    CONCLUSION

18. For the reasons given above, the Tribunal is not satisfied that either 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

19. The Tribunal affirms the decision not to grant the applicants protection visas.

    Suseela Durvasula
    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.

    …