1811387 (Refugee)

1811387 (Refugee) [2022] AATA 943 (10 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811387
COUNTRY OF REFERENCE:                   China
MEMBER:Gabrielle Cullen
DATE:10 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 February 2022 at 11:45am
CATCHWORDS
REFUGEE – protection visa – China –applicant fears harm from village committee member and local government officials – significant inconsistencies – applicant is not a witness of truth – delay in lodging the visa application – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 29 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 is a citizen of China, claims to fear harm if returned to China as she and her husband protested against the corrupt behaviour of the local government officials.
The applicant arrived in Australia on a visitor visa [in] August 2014. Information from the Department decision[1] indicates she absconded from the tour [in] September 2014 and remined in Australia as an unlawful non-citizen until she applied for a protection visa. She applied for a protection visa, to which this decision relates, on 22 August 2017.
[1] Submitted with the Application for Review
The applicant was invited to attend an interviewed by the Department via her email address [redacted] to be held on 29 March 2018. She did not attend the scheduled interview. She provided the same email address for correspondence to the Tribunal.
The delegate refused to grant the visa on 29 March 2018 on the basis that, on the evidence before her, she was unable to be satisfied the applicant will be persecuted on return to China.
The applicant applied for review of the Department decision and attached the decision of the Department.
The applicant appeared before the Tribunal on 7 February 2022 to give evidence and present arguments and, where relevant, the evidence from that hearing appears in this decision. The applicant was assisted by an interpreter in the Mandarin and English languages
The issues to be considered in this case are as follows:
·Is the applicant credible as to her claims?
·Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act?
·Does she meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision (see Attachment A).
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s protection visa application dated 22 August 2017, identity documents and her claims for protection in an attached statement.
·Oral evidence provided at the and Tribunal hearing held on 7 February 2022.
·Department of Foreign Affairs and Trade (DFAT), Country Information Report, China 22 December 2021.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
The applicant made the following claims in her statement attached to her protection visa application dated 22 August 2017:
My name is [redacted] and I was born in Henan China. I had a very happy family, a good husband and a cute son. But, our life was destroyed by the corrupted government officials. We found nowhere to be fairly and justly treated, and we even received threat of gangland forces hired by these evil government officials. With the help of friends and relatives, I escaped to Australia. I did not know that Australian government can give protection to people who suffer oppression. I lived a passive life and was unwilling to open my mind to others. Gradually, I was moved by friendly and warm-hearted people here, and after hearing what I experienced in China, they suggested me seek Australia's protection. They told me I should not hide myself anymore and I should believe that Australian government will give me a hand, so I made preparation for a visa protection.
Due to poor family, instead of continuing further study after I completed middle school study, I helped my parents with farm work, and after a few years I went out to be a part-time worker. My husband and I fell in love [in] February 1998 and two years later we got married, we lived a happy life together. Later our son was born on [date], and although his arrival brought more joy to our family, it also gave us more pressure. We thought that we should work harder to provide our son with a better growth environment. In order to make our son well-educated, we need to spend more money on training him, so my husband and I discussed how to better raise our family. After deep consideration, we decided to go back hometown to do farming because for one thing the state advocated self-employment and we thought that always doing part-time job could not be a good plan for the future, and for another thing we were both familiar with farm work. In the year of 2006, we went back, except making use of our own farmland, we also rent farm to raise chicken and ducks. Through our effort, we had more income and led a better life. But a man called [Mr A] who worked for the village committee was jealous of us and wanted to get some benefits from us. His power was enough to make trouble for our life, we were forced to give money to him. If we could not satisfy his demand, he could abuse of his power to threaten us, such as taking the farm we rented back. We were unwilling to see our effort come into nothing, so we had borne his oppression for a long time. What's worse, this man won the election for village head in the year of 2013. In order to win the election, he spent a lot of money on it. Actually, his money was from people like us. Most of them did not dare to offend him and had to obey his requests. With more power, he also had more appetite for money. We were continuously forced to give him more benefits. My husband told me that we should reported his offences to the authorities, otherwise we had to bear his endless oppression. I supported my husband and we hope that
our government can give us a hand. But it was just our personal wishes. We later heard that one of [Mr A]'s uncle was a government official who always could help shield [Mr A]'s offences. They were the same kind of person and always did bribery thing for their own interests. They soon learnt what we had done and began to take revenge on us.
Soon they got the chance. The government made land acquisition to construct road and our farmland was asked to be used. According to our nation's policy, we could get compensation, so even we were unwilling to lose our farmland which was the main source of our income, we were forced to agree. But we did not receive the correct amount of compensation because of their hindrance. They abuse their power to make our life tough. We could hardly afford our daily expense and we felt depressed. Not matter how much effort we did to ask government for help, [Mr A] and his men always could escape from legal liabilities and then could adopt various kinds of means to fight back. One day my husband was seriously beat by some strangers, and they even tried to rape me. I was shocked by their behaviours and always be alert to everything after that. My husband borrowed some money from relatives and then asked me to escape from the cruel environment for the moment and he would stay and keep fighting.
I am thoroughly disappointed at the corrupted government and found nowhere to be fairly treated in that country. There is no real democracy, no fairness and justice. The government is only open to the rich. I had fled away the cruel reality and led a passive life for the past few years. Now I try to apply for a visa protection, I sincerely hope Australian government can consider my situation and offer me protection, thank you.
At the Tribunal hearing held on 7 February 2022 the applicant reiterated her claim to fear harm from [Mr A], local government officials ,the mafia and the uncle of [Mr A][2] if returned to China. She said she departed from her home on their farm in [Hunan] where she had lived for approximately 10 years with her husband , son and parents-in-law and travelled to the airport. She said 2 years after she departed her husband and son left the farm to live in Changsha City so her husband could work. She said she is in occasional contact with her husband and son.
[2] The applicant uses both [Mr A] and [Mr A variant] in her statement to describe the same person. No adverse finding is made of this. At hearing she used [Mr A].
She said her parents-in-law continue to live on the farm. She said her parents-in-law who own the farm where she had lived before she departed China is 3 Mu and it had always been that size. She said that on her parents-in laws farm they grew cotton and rice.
As to why she came to Australia in 2014 she said her husband subcontracted a [farm] and as they were making good money, they had to give money to greedy officials, whose appetite for money became bigger and bigger and later these officials prevented them from subcontracting the [farm]. She confirmed it was a [farm] they sub-contracted.
The Tribunal asked her numerous questions about the [farm] and when they subcontracted it, and when they were forced to pay money to the local officials, share subcontracting it and then give it up. It raised concerns as to the internal consistency of her evidence, which is outlined below.
As to why she came to Australia in 2014, she said that she and her husband accused the officials in Court of their corrupt behaviour extorting and the Mafia beat her husband. She said they threatened them that if they continued to take action, they would harm their child. She said she came to Australia in fear but at the time did not want to talk to anyone and tell people what happened. She said they faced these difficulties at the hands of [Mr A] and his uncle who were local officials. She said her husband was beaten by the Mafia hired by these people. She referred to making accusations against these people and officials at Court, first in Hanshou in 2013 and next in Changsha City in 2013. As to the complaint she made she said they were given the right to sub-contract the [farm] for 10 years but that did not happen. She said they stopped the accusation in 2013 but these officials continued to harass them in the village and said they were not going to stop it.
As to why she fears return to China, she referred to their past difficulties from the local officials. As to what she thinks will happen to her on return, she said she did not know and referred to the lack of human rights in China. When asked what she meant by this she referred to the treatment of the corrupt officials in China. As to who she is afraid of in China; she referred to the corrupt officials. She confirmed that she fears return from local officials and the mafia.
The Tribunal questioned her repeatedly as to the difficulties she and her family faced from these officials and their men; she said her husband was beaten, her parents -in-law bullied and they faced harassment. She said nothing personally happened to her.
The Tribunal raised with her concerns as to the credibility of her evidence, including inconsistencies and omissions in his evidence, which where relevant are outlined below. It also raised with her the delay in applying for protection. The Tribunal has considered he responses when these matters were raised which are outlined and considered below.
Assessment of claims
Is the applicant credible as to her claims?
On the basis of the applicant’s identity documents, including her passport and evidence provided at hearing, the Tribunal accepts that the applicant is a national of China. Therefore, for the purposes of s.36(2)(a) of the Act, the Tribunal accepts that China is the country of nationality, and for the purposes of s.36(2)(aa) of the Act the Tribunal accepts that China is the receiving country.
As to the applicant fearing return for the reasons she claims, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness as to being harassed, nearly raped, her husband being beaten, her parents-in-law being bullied and fearing harm in China as she, together with her husband protested against local officials or for any of the reasons she claims. It finds the applicant’s testimony inconsistent and a fabrication for the reasons set out below. This leads the Tribunal to find that the applicant is not a witness of truth and as a result did not face any of the difficulties she claims.
It is the applicant’s claim that she departed China in fear and because of the difficulties faced by her and her family in China. However, she has provided the following inconsistent evidence as to the events which led her to depart China, which leads the Tribunal to find she is not credible as to both her and her family ever having faced the difficulties she claims at the hands of the corrupt local officials, [Mr A] and mafia and adds to the finding she is not a credible witness.
Firstly, the applicant has provided the following inconsistent evidence between the Tribunal at hearing and in her statement to the Department.
·At the Tribunal hearing she said and confirmed that the farm she and her husband rented or sub-contracted, where they were forced to pay money to [Mr A] and other officials was a [farm] which also grew [other products]. In her statement to the Department, she stated that the farm they rented was a chicken and duck farm and there was no mention of any [specified farms] being rented or sub-contracted. At hearing she indicated that the farm owned by her parents-in-law and which they lived on was a cotton and rice farm. At hearing she said they only farmed [products] on the sub-contracted [farm].
·At the Tribunal hearing when asked the difficulties faced by her and her family, she said her husband was beaten by the mafia, her parents-in-law bullied and they were harassed. She said they threatened to harm their child if they did not stop the Court action. In contrast, in her statement to the Department while she also said her husband was beaten, she also claimed that they tried to rape her. Despite repeated questioning as to the difficulties faced at hearing, she did not refer to anyone attempting to rape her and said at the Tribunal hearing when directly asked that nothing personally happened to her at the hands of the mafia, [Mr A], local officials or their men.
·In her statement to the Department as to the difficulties she faced, together with her husband she referred to the government acquiring land to construct a road through their farmland. She claimed that they were forced to agree but did not receive any compensation and as a result could not afford their daily expenses. She referred to the abuse of power by [Mr A] and the local officials. However, despite repeatedly being asked as to the difficulties she and her family faced in China and what happened she did not refer to this incident either on the family farm where they lived or on the subcontracted farm. She also indicated that the farm owned by her husband’s parents was 3 Mu and had always been 3 Mu.
When the Tribunal raised with her these inconsistencies, she indicated that she was being truthful, but she had depression and the mistakes arose because of her agent who wrote the claims for her. She said she told her agent the difficulties she faced but he did not read it back to her. The Tribunal, for the reasons that follow, does not accept these as explaining these significant inconsistencies. Firstly, as raised with her at hearing there is no evidence of any agent acting for her either before the Department or the Tribunal. There is no indication that she has or had an agent in her application form submitted to the Department. Further her application form to the Department is signed by her in which she confirmed all the information provided is truthful. In addition, the email address for correspondence before the Tribunal and Department has not changed and there is no evidence also in the Application for Review that there is an agent or anyone else that is the authorised recipient other than the applicant. The Tribunal is of the view if the inconsistencies arose because of an agent there would be evidence before the Department that she used one but there is not. Further she claims the inconsistencies arose as she was suffering from depression, however her evidence was vague and evasive when the Tribunal asked for medical evidence as to this illness and the effects it has or has had on her ability to provide consistent evidence. She said at hearing that she had depression from 2007 to 2018/209 and then it improved. She said she had been to hospital in Australia. When the Tribunal asked her whether there was any evidence that she was diagnosed with depression she answered in the negative. When the Tribunal questioned this as she claimed she had been to hospital in Australia she said she bought her medication from the shop across the road from the hospital and there is no record of that. The Tribunal is of the view if she sought help for her depression in a hospital, she would be able to provide evidence of this. On the basis of her evidence, including lack thereof of any medical evidence as to her suffering depression and this affecting her ability to provide consistent evidence, the Tribunal does not accept this as the reason for the inconsistencies outlined above.
The Tribunal views the above outlined inconsistencies to be significant and it adds to the Tribunal’s finding that she did not face the difficulties she claims in China for the reasons she claims which led her to depart China in fear and it adds to the finding she is not a credible witness.
Further, she provided the following internally inconsistent evidence as to when she and her husband, sub-contracted or rented the [farm] which she claims led to the difficulties with [Mr A], his uncle, the mafia and the local officials.
·Initially she claimed that they fist subcontracted the [farm] in 2011 and stopped subcontracting it in 2012. She confirmed they subcontracted the farm for 1 year.
·She later stated that they first subcontracted the farm in 2001 and in 2006 they were forced to operate it with others. She said as the officials were scared, they would make complaints they forced them to join with others in sub contacting the [farm]. She said in the later half of 2006 they were kicked out of sub-contracting the [farm]. She said they did not then sub-contract another [farm].
When the concern was raised with her, she said in 2001 they first sub-contracted the [farm], then in 2002 they were not allowed to do it anymore, then in 2006 because of their complaints, they allow them to enter into a partnership with others to sub-contract and operate the [farm] and then they were kicked off. She later said they started their accusations in 2012/2013.The Tribunal is of the view the applicant’s response does not explain the inconsistency. The Tribunal views the inconsistency as significant and is of the view that if true she would be consistent as to the when they operated the [farm] that led to the difficulties. Her inconsistent evidence adds to the finding she is not a credible witness.

Further, the Tribunal also views as undermining her claim that she departed China in fear, her behaviour in living her home on the farm owned by her parents-in-law to the time of her departure from Australia. Her evidence was that where she lived was in the same area as where they sub-contracted the [farm]. At hearing she indicated she travelled from her home to the airport and had lived on the farm owned by her parents-in-law for about 10 years before her departure. Her evidence was also that her husband continued to live on the same farm for 2 year after she departed. When the concern was raised that her living in her home until she departed questioned whether she faced the difficulties from the local officials and fled in fear from them in 2014, she said that if the Tribunal has doubt that is its problem. She said she stayed at home in order to make the accusations against the corrupt officials. The Tribunal has considered this response, however, is of the view that if she left in fear from the local officials, mafia and others and fears return because of making complaints against them in or around 2013 and for the other reasons she claims, both she and her husband would not have remained living at home in the same village as where they operated the [farm] until she departed and in her husband’s case, 2 years after she departed. This is particularly so as she claimed her husband was beaten, she was nearly raped and they were threatened. Her behaviour in living at her home until she departed adds to the finds she is not credible that she left in fear of harm from the local officials. It adds to the finding she is not a credible witness.
Further, the Tribunal also views the applicant’s delay in applying for protection in Australia as inconsistent with her claim that she fears return and that she departed China in fear due to the difficulties she and her family have faced in China, including being beaten, nearly raped and harassed by local or village officials. As raised with the applicant, evidence outlined in the Department decision[3] indicates she arrived in Australia on a tourist visa [in] August 2014 and applied for a protection visa on 22 August 2017, to which this decision relates being a period of three after her arrival. It further raised with her that it is of concern that for over two and a half years prior to applying for protection she did not hold a visa and was living unlawfully in Australia. The applicant’s evidence as to the reason for this delay was that at that she did not know the Australian Government offered protection to people escaping oppression. She also said she did not know people in Australia, kept quiet and did not want to communicate as she was suffering depression. She said she thought all governments were corrupt like the Chinese Government.
[3] Attached to the Application for Review.
An applicant’s delay in applying for refugee status is a relevant consideration in the assessment of credibility of an applicant’s claims for refugee status. The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims refugee status, may be considered when assessing the genuineness, or at least the depth, of an applicant’s subjective fear of persecution. As was suggested to the applicant by the Tribunal at hearing, such a delay may lead the Tribunal to conclude that the applicant is not genuine in her fear of persecution or that she faced the difficulties she claims, in that if she genuinely feared persecution she would have applied sooner. In particular, the Tribunal raised with the applicant that if she fears return because she fled in fear and has a fear of harm on return, it expects she would apply for asylum on her arrival or soon after, rather than three years after her initial arrival. The Tribunal added that this is particularly so as for most of this period prior to her application for a protection visa she was unlawfully in Australia without a visa. The Tribunal does not accept the reasons for her delay in applying for protection as it expects that if she truly feared persecution and fled due to a fear of harm she would have applied sooner . It does not accept it took her 3 years to know people and to find information about applying for asylum or that it took her 3 years to know the Australian Government was not corrupt like the Chinese Government. It also does not accept her claimed depression had anything to do with her being unable to communicate with people or apply for asylum and for the reasons outlined above has concerns as to the credibility of this claim.
The applicant’s delay in applying for asylum therefore adds to the finding she is not a credible witness as to facing the difficulties she claims and fearing return for the reasons she claims.
Credibility summary
For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns, the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, and the manner in which responses can differ depending on the nature of and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making these findings, the Tribunal has considered the applicant’s claim that she has had depression but for the reasons outlined above does not accept that this explains or excuses the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making these findings, the Tribunal accepts that some information has been consistent over time, including that she and her husband had to pay bribes to [Mr A] , his uncle who was a local official and her husband was beaten, as well as that they complained which caused them these difficulties. However, the Tribunal considers that these matters are relatively easy matters to recall and that her consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
As the Tribunal has found, on the basis of the cumulative evidence before it, that the applicant is not a witness of truth, it follows it does not accept that either the applicant, her husband, parents-in-law or anyone else faced any of the difficulties she claims from any corrupt local officials, mafia, [Mr A] or [Mr A variant], is uncle or men working for them. It follows it does not accept the applicant and her husband ever subcontracted a [farm] or chicken ad duck farm at any time. It does not accept that as they did so well, they had to pay bribes, money, food, drink, and other benefits to [Mr A] who worked for the village committee or his uncle or anyone else. It does not accept it got worse and the appetite of the corrupt officials got worse, they lost their subcontract in the farm or had to go into partnership with anyone else. It does not accept that they reported the oppression by [Mr A], his uncle or the mafia or anyone else to the authorities or to the Court on two occasions in Honshou or Changsha in 2013 or on any occasion.
Based on the Tribunal’s finding on lack of credibility the Tribunal also does not accept that the government wanted to construct a road through their farmland, they were forced to agree but did not receive the correct amount of compensation. It follows it does not accept [Mr A] or his uncle abused their power and no matter what they did [Mr A], his men and uncle could escape their liabilities.
It follows it does not accept that either the applicant, her husband or parents-n-law were harassed, bullied, threatened with harm including harm to their child, her husband was beaten by the mafia and they tried to rape her. It does not accept that because of them giving money, the harassment and losing the contract they could not afford their daily expenses and she became depressed because of the situation. It follows it does not accept her husband borrowed money from relatives so she could escape or that she fled China in fear for her safety for any for the reasons she claims.
Based on her lack of credibility, it follows it does not accept she fled China in August 2014 to avoid the harm from corrupt officials, [Mr A], his uncle, his men or the mafia or anyone else in her home area for any of the reasons she claims.
The Tribunal rejects the applicant’s claims of fear of harm in their entirety and does not accept at the time she departed China in August 2014 that she and her family were of interest to corrupt officials, local authorities, [Mr A], His uncle, or anyone else. It follows it does not accept she fears return for the difficulties she claims she faced in China.
Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act and meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the credibility findings above, and as it does not accept the applicant or her husband, child or parents-in-law faced the harm or threats of harm she claims or are of any interest to [Mr A], his uncle, the mafia, local officials and the Chinese Government and its officials, it follows the Tribunal does not accept that were the applicant to return to China now or in the reasonably foreseeable future, she or her family would face any of the difficulties she claims for the reasons she claims due to any of the difficulties she or her family faced in China prior to her departure. It follows it does not accept that were she to return she will be arrested, imprisoned, beaten, threatened, harassed, detained, harmed, tortured, raped, and have to report to local authorities or be unable to earn a livelihood for the reasons he claims or that any of her family members, including her husband would face such difficulties.
It follows the Tribunal does not accept that the applicant or her family including her husband, child and parents-in-law face a real chance of persecution involving serious harm were she to return to China in the reasonably foreseeable future at the hands of the Chinese Government and its authorities, including the local officials, [Mr A], his uncle, their men or the mafia or anyone for any of the reasons he claims.
Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that she or her family will suffer significant harm on her return to China at the hands the Chinese Government and its authorities, including the local officials, [Mr A], his uncle, their men or the mafia or anyone for any of the reasons he claims.
Summary
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of her being subjected to serious harm in China in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if she returns in the reasonably foreseeable future. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of her being subjected to significant harm on return to China. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm as defined in s.36(2A).
CONCLUSION
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) of the Act 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Member

ATTACHMENT A - CRITERIA FOR A PROTECTION VISA
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…

[2022] AATA 943

10 February 2022

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Immigration

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Natural Justice

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