1821273 (Refugee)

1821273 (Refugee) [2024] AATA 2234 (8 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821273
COUNTRY OF REFERENCE:                   China
MEMBER:Patricia Tyson
DATE:8 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 March 2024 at 11:31am
CATCHWORDS
REFUGEE – protection visa – China – religion – underground Christianity – parents leaders and organisers, and applicant interested and occasionally attended from young age – police raids, father imprisoned and applicant detained – inconsistent and unconvincing evidence of past and current practice and apparent unfamiliarity with bible or teachings – delays in departing after passport issued, and in applying for protection – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulation 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND TO THE REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 11 November 2017. She claimed to fear harm on account of her Christian religion. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Evidence to the Department
In her protection visa application, the applicant said that she is a Christian from Fushun city in Liaoning Province, China. She made claims for protection that can be summarised as follows:
·The applicant’s father was a devout underground Christian, respected in their local church and her mother often organised underground church meetings. The applicant was interested in religion from a young age and would occasionally attend the underground meetings.
·With a crackdown and persecution from the government, Fushun’s followers were facing death threats. The applicant’s father was caught and humiliated and the applicant fled China with the help of church members.
·The applicant’s father had been repeatedly warned and imprisoned by the government for his beliefs. In [Year] police came to a secret gathering he had organised at home. They interrupted the sermon, dispersed the believers and confiscated religious material. Police, national security, the religious office and joint defence team came to the home, took the computer and stools from the house and took the applicant’s father to the police station for interrogation. He was sentenced to imprisonment for a year, without legal proceedings, and sent to [Prison].
·[In] May 2017 the applicant was caught in a family meeting of over ten people with her father at a brother’s home. It was viewed as an illegal party by the government. Over 20 police broke in from national security, religious office and joint defence team. They smashed the facilities and took away the bible. They also took phones and deleted videos people had taken. The applicant and her father were taken to the police station where they were asked to tell the details of the meeting, write a letter of guarantee and were brutally abused. The applicant was subjected to ill-treatment where a paper tube was put into her nose and set on fire, and she fainted. She had cold water poured on her. Her father was interrogated on a tiger stool and persecuted by three policeman. He was hit if he fell asleep. The applicant and her father did not confess. They were fined 5000 yuan each and released.
·The applicant fears if she returns to China, she will face prison and death.
The applicant submitted a copy of her Chinese identity card and Chinese passport.
The applicant was invited to attend an interview with the Department in May 2018, but failed to attend.
Evidence to the Tribunal
The applicant was invited to attend a Tribunal hearing in Sydney on 27 February 2024. She responded to that invitation on 16 February 2024, indicating that she wished to take part but advising that she had moved to Queensland. She requested to participate in the hearing by telephone. The applicant was sent a further invitation to attend the hearing on 27 February 2024 by video via Microsoft Teams. The applicant responded on 23 February 2024 to advise that she would attend.
The applicant appeared before the Tribunal on 27 February 2024 to give evidence and present arguments. Although the applicant appeared via Microsoft Teams, she dialled in by telephone rather than appearing by video. Following a brief adjournment, the applicant appeared so have difficulty with Microsoft Teams and the remainder of the hearing was conducted by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the hearing, the applicant reiterated and expanded on her written claims. The applicant confirmed at the hearing that there are no other reasons she fears harm in China, apart from her religious claims. Her evidence is discussed in further detail below, as relevant.
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.
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.
FINDINGS AND REASONS
The issues in this case are whether the applicant’s claims are credible and whether there is a real chance or risk of her being harmed in China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and third country protection
The applicant has provided a copy of her Chinese identity card and Chinese passport. I accept on this, and her oral evidence, that she is a national of China as claimed. There is nothing before me to suggest that the applicant has a right to enter and reside in any country apart from China, and I find that s 36(3) of the Act does not apply.
Background
The applicant claims to have lived in Fushun city prior to leaving China. She previously lived in Kaiyuan city, which is also in Liaoning province. She is educated to high school level. In China she had worked in various factories and, most recently, a [store]. She left that job in June or July 2017. She was previously married for around five years and has an adult child. Her mother, father, [sibling] and [child] remain in China. The applicant’s passport was issued in [2017]. She applied for a tourist visa in late September 2017, which was granted in early October of that year. She arrived Australia around a week later, [in] October 2017. She currently works in a [Workplace].
Claims about Christian religion and past events in China
The applicant’s claims turn on her supposed Christian religion and claim to have been detained after a raid on a house gathering in May 2017. For context, religion is restricted in China. China officially recognises five religions, including Protestantism and Catholicism, but has introduced a campaign to ‘sinicise’ religion. State-sanctioned religious organisations aim to ensure that a ‘correct’ version of religion is practiced by adherents, emphasising principles such as patriotism, party leadership and loyalty to the Party. There are official governing bodies for both Protestant and Catholic churches in China, and regulations and restrictions aiming to enhance government control over religious leadership. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down and religious leaders have faced charges such as subversion of state power. Many Christians worship in unofficial ‘house’ churches.[1] Some Christian groups have beliefs diverging from the orthodox teachings of Christianity groups and some, particularly in rural areas, may have melded Christian and Chinese folk traditions.[2]
[1] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report People’s Republic of China’, 22 December 2021.
[2] UK Home Office, ‘Country policy and information note China: Christians', November 2019; Research Directorate, Immigration and Refugee Board of Canada Research Directorate, ‘CHN200760.E China: Treatment of members of house churches [also known as jiatang churches; jiatang congregations; family churches; home churches; unregistered churches], including Protestant, Catholic, and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse (2019–October 2021), 18 October 2021.
In her visa application, the applicant indicated that she is of Christian religion. She claimed in her written statement that she was interested in religion from a young age and would occasionally attend underground meetings. At the Tribunal hearing, the applicant reiterated that her religion is Christianity. When asked what denomination, she responded ‘Jesus’. She said there was no particular name for her religious group. She claimed to have been baptised in her hometown sometime between [Ages] years of age, by her father. She is now in her [Decade]. She said this involved senior people touching her head and reading the bible. The applicant described that they did not have a proper church but that people with the same interest would gather together and read the bible. She said she did not have a bible but there would be bibles at the gatherings, and that her father had a bible. I asked if she knew the name of the bible he had and she said there were too many, describing him having many bibles.
Overall, I found the applicant’s evidence about her current religious practice unconvincing. The applicant said that she does not attend church in Australia. She had said she had been once with a friend but found it different to a Chinese church and said it was in English. Also, she needs to work. Asked if she currently practices Christianity, she said that when there are activities back in her hometown she turns her video on and interacts with them. She explained that people in China will gather and read the bible and she will attend by video over WeChat. She said these gatherings would usually consist of seven or eight people. Her father usually attended, although less frequently now due to health issues, and her mother also sometimes attended. She says she does this maybe every 10 or 14 days and claimed she had been attending gatherings this way since coming to Australia. Her most recent attendance was a few days earlier when she had attended a gathering in her father’s house by video. I put to the applicant that I had read that Chinese authorities can monitor or access data on WeChat.[3] She claimed this just applied to audio and text messages and said they could not monitor or access content in a video call. I asked what made her sure of that and she said she just knew it. Her assertion that authorities would be unable to monitor gatherings taking place over WeChat is at odds with the country information.
[3] Research Directorate, Immigration and Refugee Board of Canada, 'China: Monitoring of Chinese citizens outside of China, including Falun Gong (Falun Dafa) practitioners, by Chinese authorities; consequences upon return to China (2020–September 2022)', 11 October 2022, 20221031115105
The applicant provided inconsistent and unconvincing evidence about whether she has a bible. When I asked if there were other ways she practiced her religion in Australia besides attending gatherings by WeChat, the applicant said she reads the bible in the morning if she has time. I asked if she had a bible with her now (noting she had said she was attending the hearing from her home) and she said no. As I put to the applicant, at the beginning of the hearing she had sworn an oath. She had confirmed that she had a bible with her and had been asked to put her hand on it. In response, the applicant claimed that she had been using her phone. She said she dreaded to have a bible with her so only used her phone. She claimed to be unsure if she was allowed to have a bible with her so would not usually have it. When asked who would stop her from having a bible, she said that in China the police would. I asked if she was worried she would not be allowed a bible in Australia and she said she was not sure. When I raised the incongruity between this and her having applied for protection in Australia, she said she was scared because of the way she had been treated in China. She claimed that she uses a platform on her phone to access the bible, asked which bible she accessed, she said many.
I also hold significant concern over the applicant’s apparent lack of familiarity with the bible or Christian teachings. The applicant has claimed she read the bible two to three times a week and said she was currently studying the 27 new chapters. She said she had also read the bible in China. I asked if anyone at the gatherings would be teaching and she said it was usually her father. She agreed it would be accurate to say she had been reading the bible weekly since she was somewhere between [Ages], which would mean she has been regularly reading it for over twenty years.
Despite bible reading seeming to be the main element of her religious practice, the applicant seemed almost entirely unable to identify or engage with any sort of teachings of Christianity or stories from the bible. I asked the applicant what she had most recently read and she said it was stories of Jesus. She said she was nervous and could not describe it in detail. I asked if there was a story she could tell me about and she said John’s gospel and Matthew, but did not expand on this. Asked if there as any particular part that had meaning to her she said ‘the power of mother’s love’. She said she was nervous, but claimed this part was saying that even though a mother’s power might be weaker than a father’s, it is enough to change the world. I asked if there were any particular bible stories that had meaning to her and she said no. Asked what she could tell me about Jesus’ life, she said that he told us to be a good person. I asked if she knew the story about how he died and she said she could not explain. Asked if she knew any stories about Jesus, she said she really cannot explain right now. A little later in the hearing, she was able to identify the name and profession of Jesus’ father and the name of his mother. I asked again if she knew any stories about Jesus and at that point she said she only knew he was tormented. However, when asked what she meant, she said she could not answer that.
I also asked the applicant questions about the impact or role of Christianity in her life. She claimed that Christianity was important to her because it lead her to be a good person, help others and get something good in return. When I probed for further detail, she said that she just has that belief in her heart and lives according to what she thinks to be a good person. When I raised my concern to the applicant that despite her claim to have been reading the bible for around twenty years, she was not really able to tell me anything about Christianity, she responded that she was nervous and could not remember. She said that she was currently learning [Subjects] and so her life was quite tense.
Considering the above evidence, I do not find the applicant’s claims about her religion credible. I take into account that on the applicant’s claims, her religious practice has consisted of attending small gatherings with fellow believers, often lead by her father, rather than any sort of religious services, teaching from a religious leader, or structured bible studies classes. I am also mindful of the country information set out above that Christian groups in China may depart from orthodox Christian beliefs and practices. However, even taking this into account, on the applicant’s own evidence, her religious practice in both China and Australia has focused on regularly reading the bible and yet she was unable to speak about any aspect of the bible in any meaningful way. Nor was she able to give anything beyond a superficial response when questioned about the impact or role of Christianity in her own life. It was only after repeated opportunities that she was able to offer the most basic information about Jesus. While I note that she referred to being nervous, I do not accept this accounts for the applicant’s inability to engage in any real of discussion of her claimed beliefs.
The applicant’s evidence about claimed events in China was similarly unconvincing. While she was able to refer to the detention of her father in [Year] and to give an account of a police raid on a gathering and her arrest and detention in May 2017 that was similar to her written claims, there were elements of inconsistency in that account. In the written claims, she specifically states that she was caught at a meeting at a brother’s home. When describing the incident at the hearing the applicant initially referred to the police coming to ‘one of our practitioners homes during a gathering’. However, when I later asked where the gathering had been held, she stated it was at her father’s home. I asked again and she confirmed that it was in her father’s home (which on her evidence was where she was also living at that time). I also note that whereas in the written claims she said there were more than ten people at the gathering, she stated at the hearing that there had been five to six people in total at the gathering that day, including herself and her father.

When these inconsistencies were raised with the applicant, she said that the statement was written about six to seven years ago and it is normal that there are some inconsistencies. When asked which version was correct, she asserted that it was not at her father’s home but at some other practitioner’s home, and said again that she was trying to recall something that had happened six or seven years ago and it was normal for there to be discrepancies. While I accept that the events in question were some time ago, I note that the applicant initially made no suggestion that she could not recall the location of the meeting or how many people were present. Even accepting that her memory may have faded with the passage of time, I do not accept that she would have forgotten or mistaken something as significant as whether she was at her own family home or some other location on the occasion (the only occasion, on her claims) that she was taken to a police station and detained.
As I also raised with the applicant, despite her claim that these events caused her such fear that she left China, there was a delay between her being issued a passport in early July 2017 and her application for a visitor visa in late September. She claimed that it took some time for the visa to process, that she needed to understand things first, needed time to find someone after she got the passport, as it was impossible for anyone to leave immediately after their passport issued. I note that I was referring to the time of application for the visa, not when it was granted, and that when I had earlier asked about the process for applying for a visitor visa, the applicant had said that it was done by a travel agency and she just had to provide whatever details they needed. The reasons she has provided do not account for the delay of over two months between receiving her passport and lodging her visa application. The delay seems inconsistent with her claims to have been leaving China because of a fear of harm.
The applicant made additional claims at the hearing that even prior to the May 2017 incident, police had often come and conducted random checks at their home, to see if gatherings had taken place. She also claimed that since she has left China police often go and harass and question her parents, and if there is a gathering, take people away. She claims her father has been taken away several more times although she could not remember when, and had been interviewed about the applicant. She also said her father had told her that one of the other men from the gatherings had been arrested and put in jail. The applicant further claimed police had been to her home on around 6 February 2024 to check if she was back. She said they had been doing this on and off, claiming she was fleeing away, and on that last occasion had threatened they would interview her, meaning arrest her, if she came back.
I raised my concern that it was difficult to understand why police would be continuing to make inquiries about her as recently as February of this year considering that, on her claims, she had been detained on one occasion and released. In response, the applicant said that even after she got her passport they had been inquiring about her and although she had not had activities they had still been to her house. This seems different to evidence given by the applicant earlier in the hearing. I had asked her if she had any further problems with the authorities after her release in May 2017, and she replied that she had no more connection with them. When I raised the contradiction between this and her new assertion that they had come to her house to inquire about her in that period, she stated that she had not been home when they visited. The applicant had been directly asked about further problems with the authorities before leaving China. I find it difficult to believe that she would not have raised the issue of police coming to inquire about her prior to her departure – irrespective of whether or not she was home at the time – if in fact that had occurred.
Considering the evidence as a whole, I do not find the applicant’s claims to be credible. I do not accept any of her claims, including: that her father is a Christian who held and attended gatherings or that he was arrested in [Year]; that the applicant considers herself a Christian; that she has ever attended Christian gatherings either in China or Australia; that there was a gathering that was raided in May 2017 leading to her and her father being detained, mistreated and fined; that authorities have harassed her family, questioned them about the applicant, detained her father or otherwise ever shown any interest in her or her family. I do not accept that the applicant is a person of adverse interest to Chinese authorities. As I do not accept that the applicant is or considers herself to be Christian, I do not accept that she would identify as Christian or seek to practice Christianity in China in any way in the future.
Given these findings, I am not satisfied that there is a real chance of the applicant being harmed in China in the reasonably foreseeable future and find that she does not have a well-founded fear of persecution within the meaning of s.5J.
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).
Alternative criteria for the visa
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 Federal Court has held that ‘real risk’ imposes the same standard as the ‘real chance’ test in the refugee criterion.[4] For the same reasons given above, I am not satisfied that there is a real risk the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[4] MIAC v SZQRB (2013) 210 FCR 505.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Patricia Tyson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2234

8 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Appeal