1821954 (Refugee)

[2024] AATA 4207

1821954 (Refugee) [2024] AATA 4207 (26 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821954

COUNTRY OF REFERENCE:                   People's Republic of China (Hong Kong Special Administrative Region)

MEMBER:Ben Goulding

DATE:26 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 26 July 2024 at 4:45pm

CATCHWORDS

REFUGEE – protection visa – China – political opinion – pro-democracy protests in Hong Kong – threats from the Chinese authorities – change of name – British National (Overseas) passport – Taiwanese family citizenship – return visits to Hong Kong – delay in applying for protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 424A, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 October 2015. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.

3. The applicant appeared before the Tribunal on 8 May 2024 and 22 July 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The applicant’s background

12. The applicant is [an age]-year-old female from Hong Kong.

13. The applicant travelled to Australia on an apparently genuine British National (Overseas) passport held in the name of ‘[the applicant]’. The applicant previously travelled to Australia as the holder of a passport in the name of ‘[Alias A]’. According to Department records, that passport indicated that the applicant was a national of China. The applicant’s change of name and receiving country are addressed below.

14. At hearing, the applicant gave evidence that since arriving in Australia, she has commenced a relationship with a citizen of Taiwan and they have had two children together. At the time of the first hearing, the oldest child was age]-years-old and the youngest child was only [age].

15. The applicant lodged a protection visa application with the Department on 20 October 2015.

    Consideration of application by the Department

16. In summary, the applicant made the following claims in her protection visa application:

    a.Her parents were prosecuted in Hong Kong following their participation in anti-Chinese protests in 2010.

    b.She was abandoned by her parents, and they claimed she was not their child.

    c.The Chinese government will prosecute her due to her parents’ conduct and involvement in Falun Gong.

    d.Her fellow Falun Gong practitioners have suffered persecution.

17. The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of her claims. The delegate refused the applicant’s protection visa application on 10 July 2018 on the basis of not being satisfied that the applicant would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act and, as such, is not a refugee as defined in s 5H of the Act. The delegate also considered the applicant’s claims under the complementary protection criterion and determined that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Hong Kong, there is a real risk that the applicant will suffer significant harm. As such, the Department was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).

    Consideration of application by the Tribunal

18. The applicant appealed the Department’s decision to the Tribunal on 30 July 2018. Following this, the applicant was invited to a hearing on 8 May 2024.

19. After the hearing, the Tribunal wrote to the applicant on 14 May 2024 and invited her to respond to information under s 424A of the Act. This information is dealt with in more detail below. On 27 May 2024, the applicant provided the following further information and evidence in support of her claim:

    a.A statement responding to the adverse information; and

    b.Hong Kong Post notification of registered item dated [in] December 2023.

20. On 25 June 2024, the Tribunal contacted the applicant and asked her to provide evidence of the identity of her children and partner. Following this, the applicant provided the following:

    a.Birth certificate for her eldest child, [named];

    b.Confirmation of registration for a birth certificate for her second child, [named]; and

    c.Photographs of her children and family.

21. On 2 July, the Tribunal wrote to the applicant and asked her to provide the passport for her partner. The applicant replied the same day and attached a copy of the biodata page of the passport for her partner, [Partner A]. The passport was issued by the Republic of China (Taiwan) and confirmed that [Partner A] was born in [Country 1].

22. Following receipt of this further information, the applicant was invited to a second hearing on 22 July 2024.

    Evidence at hearing

23. At the commencement of the first hearing, the Tribunal provided the applicant with a summary of the claims provided in her protection visa application. Whilst the applicant confirmed that some of the information was correct, she informed the Tribunal that the claim to be a Falun Gong practitioner was incorrect and that she had never participated in Falun Gong. The applicant also gave evidence that she attended the political protest in Hong Kong with her father, rather than it being her parents who attended the protest as claimed in her application.

24. The Tribunal asked the applicant a series of questions about the political protest in 2010 and the involvement of her family. In summary, the applicant gave the following oral evidence:

    a.[In] January 2010, the applicant and her father participated in an anti-Chinese protest in Hong Kong. The applicant recalled that there were more than 10,000 people at the protest, and the applicant and her father camped out over night with other protesters. The applicant held a placard and joined in chants against the Chinese government. The applicant recalled that her placard called for [democracy], and [elections for] the people of Hong Kong, not the Chinese government.  The applicant confirmed that her mother was not involved in the protest movement.

    b.Following the protests, the applicant and her father were harassed by unknown people. The applicant recalled receiving many telephone calls and letters. Some of the letters she received had photos of her in attendance at the protest. Those letters came with a warning that she should cease her activities.

    c.The applicant also received regular phone calls, occasionally in the middle of the night. On some occasions when she would receive calls, the person at the end of the phone would not speak. The applicant conceded that she cannot know for certain that all of those calls were related to her attendance at the protest, however, she suspects they were as they commenced within a couple of weeks of her participation in the protest.

    d.The applicant believes that her phone calls were being monitored as she claimed that a conversation she had with a friend about the protest was recorded, and that recording was later sent back to her. The recording again came with a warning not to participate in political activities. Similarly, the applicant claimed that the letters she received came with a warning to cease her activities at threat to her personal safety.

    e.The applicant’s father was also harassed for his attendance at the protest. Her father was a [vehicle 1] driver and his [vehicle 1] was attacked, including having had the tyres slashed and graffiti written on the [vehicle 1].  The applicant claimed that the graffiti identified her father as being anti-government and served as a threat. The applicant gave evidence that after the harassment her father received, he did not attend any further protest rallies due to his fear of harm.

    f.The applicant’s father had not been politically active prior to the 2010 protest, however, he had taken an interest in politics, and he would listen to politics on the radio when driving his [vehicle 1]. The applicant claimed that on occasions, this would cause him to have disputes with his passengers and his employer told him to stop any displays of political opinion at work.

    g.The applicant’s father was eventually terminated from his employment in about 2017 and the applicant believes this was related to the harassment he had received and because he would openly discuss politics.

    h.The applicant also claimed that her father’s [social media] account was hacked, and money was demanded to release the account. However, the applicant was unclear as to whether this was a continuation of the pattern of harassment or an unrelated scam.

    i.The applicant’s father passed away from cancer during 2019. The applicant claimed her father continued to be harassed prior to his death, however, the level of harassment decreased over time, particularly as he became more unwell.

25. Given the time that has elapsed, the applicant no longer has copies of the letters or photographic evidence of her attendance at the protest. However, she did note at the first hearing that she may still have a photo of some of the letters that she received; but other than the notification of registered post referred to above, no further evidence was provided to the Tribunal.

26. When questioned about her motivations for attending the protests, the applicant said that she wanted to have a voice, and she was concerned that the Chinese government control everything and there is no democracy in Hong Kong. She claimed that prior to the Chinese takeover, there was democracy, free speech and freedom of religion, but the Chinese government had increasingly controlled everything. The applicant expressed a concern for the next generation if the same pattern continued. When asked whose idea it was to attend the protest, the applicant confirmed that both she and her father decided to attend together.

27. The Tribunal also questioned the applicant as to whether any of her other family members attended. The applicant gave evidence that her [Relative A] is married to a police officer, so the issue of politics is a sensitive one in their family as he has sided with the Chinese government. The applicant’s [Relative B] also did not attend in 2010, however, he subsequently became politically active and participated in the Umbrella Movement and more recent protests.

28. When questioned as to whether she attended other protests in Hong Kong, the applicant gave evidence that after the initial harassment, her father did not want her involved and he told her not to attend further protests. The applicant claimed that, as a way of protecting the applicant and disavowing of her of any responsibility for having attended the protest, the applicant’s father publicly announced that he had disowned the applicant.

29. When questioned as to what she meant by ‘public announcement’, the applicant explained that people went to her father’s workplace to harass him for his attendance at the protest. He told those people that he was responsible for the applicant having attended the rally and they no longer have a relationship. The applicant then confirmed that she was living with her parents at the time, and the Tribunal then put to her that such an announcement would be known to be incorrect given she was living with her father. The applicant explained that the timing coincided with her obtaining a visa to Australia and then travelling to Australia. She had planned to leave Hong Kong due to the harassment she continued to receive, and had applied for a [temporary] visa as a way to leave.  

30. The Tribunal put to the applicant that there was a considerable delay of about 20 months in her departure from Hong Kong following her attendance at the protest. The applicant claimed that throughout that period, she continued to be harassed and received letters on an intermittent basis. It was the continuation of the harassment that ultimately prompted her to leave.

31. The applicant claimed that she recently received a letter in December 2023, but prior to that it had been a long time since she last received a threatening letter. After the hearing, the applicant provided a photograph of a notification of registered item from Hong Kong Post dated [in] December 2023. Whilst the applicant did not know what the letter contained given she could not collect it, she feared it was further threats as it was sent to her in her former name.

32. The applicant returned to Hong Kong in October 2012. She claimed that as she was only there relatively briefly (about a month) she did not have any issues. She again returned to Hong Kong in 2013 for a relatively brief period. The applicant claimed that whilst she was able to return to Hong Kong on two occasions without incident, she continued to be concerned that if she remained long term, the harassment might resume.

33. On her return to Hong Kong in 2013, the applicant employed the services of a lawyer to assist her with changing her name. At the hearings with the Tribunal, the applicant provided two reasons for changing her name:

    a.First, that it would allow her to apply for a new visa to return to Australia. At the first hearing, the applicant expressed some remorse for this as she considered it misleading.

    b.Second, at both hearings, the applicant explained that by changing her name, she hoped to be able to erase her past, so that she would not be harassed in the future in Hong Kong. However, she gave evidence that she now realises that is not possible as on return to Hong Kong she would still need to obtain other forms of ID and would need to provide her birth certificate, which is in her original name.

34. When questioned about any further political activities that she had engaged in, the applicant gave evidence that she previously shared political views and political posts on social media. However, following the crackdown on protesters involved in the Umbrella Movement, she decided to delete the content. The applicant claimed that she was afraid to voice her opinion. When questioned about this further at the second hearing, the applicant explained that had it not been for the harassment her family had received, and the prospect that they might be targeted in the future, she would have continued posting political content online. The applicant confirmed that this decision was done to protect her family in Hong Kong but her personal views of Hong Kong will never change, and she will always stand with Hong Kong.

35. Furthermore, the applicant directly raised concerns regarding the ability of the authorities in Hong Kong to monitor people’s activities, particularly as a result of Hong Kong’s National Security Laws (further information about these laws are provided below). The applicant claimed that through technology, the authorities can access information about people and the technology cannot be trusted.

36. The applicant then gave evidence that political and civil freedoms in Hong Kong have been eroded and there is now no free speech or freedom of the media. She also gave evidence that even songs that honour Hong Kong have been banned and textbooks have been edited to remove references to the June 4 incident (i.e. the 1989 Tiananmen Square protests and massacre).

37. Following this, the Tribunal asked the applicant why the authorities in Hong Kong would still be interested in her given it has now been more than 14 years since she attended a protest, and she has not been overtly politically active since then. The applicant conceded that she did not know, but she also did not know why she was targeted in the first place and speculated it was because she had been photographed at the protest.

1. At the second hearing, the second applicant confirmed that her partner was born in [Country 1] but was now a citizen of Taiwan. When questioned as to whether her partner could reside in Hong Kong, she was unsure.

2. Following this, the Tribunal discussed with the applicant the situation for her partner and children. The applicant’s answers seemed somewhat confused, and it became apparent that she was concerned that the Tribunal was suggesting that her children should return to Taiwan with her partner. Upon clarifying that this was not the Tribunal’s intention, the applicant confirmed that if her partner were to reside in Hong Kong, it would be obvious to others that he was not a local as he cannot speak Cantonese.

3. The Tribunal then discussed with the applicant whether her children were citizens of the People’s Republic of China (PRC) or Taiwan. The Tribunal put to the applicant that under Taiwan’s nationality laws, her children likely acquired Taiwanese citizenship at birth as they have one parent who is a Taiwanese citizen.[1] The applicant was unaware of this and had not considered whether they were Taiwanese nationals. The Tribunal also notes that the PRC does not recognise dual citizenship. As such, the citizenship of the applicant’s children remains somewhat unclear, but the Tribunal has not investigated this issue further as it was ultimately not determinative.

   [1] Nationality Act (Republic of China) art 2.

4. Upon further questioning, the applicant acknowledged that she was aware of tensions between China and Taiwan. She explained that she had not thought to raise this at her previous hearing because she was only focused on her own claims, and not of the situation for her partner or children. The Tribunal accepts this explanation.

5. Following this, the Tribunal put to the applicant that Taiwan had recently issued a travel warning for all Taiwanese citizens that strongly advised not traveling to Hong Kong due to the risk of criminal penalties for people who are perceived to be supporters of Taiwanese independence. [2] In response, the applicant expressed concern about the conflict between Taiwan and China, and stated that it would cause issues for her if she were to return to Hong Kong with a Taiwanese partner.

   [2] ‘MAC Raises Travel Alert to “Orange” for Mainland China, Hong Kong, and Macao Starting June 27; Citizens Advised to Avoid Unnecessary Travel’, MAC Press Release No. 036, 27 June 2024.

   Right to enter and reside in a third country

6. The applicant holds a British National (Overseas) (BNO) passport issued by the United Kingdom, a copy of which was provided by the applicant with her Protection Visa application lodged with the Department. A valid BNO passport could potentially engage the exclusion criterion in s 36(3) of the Act.

7. The relevance of the BNO passport was discussed with the applicant at her first hearing. It was explained to the applicant that the Tribunal must consider whether the applicant had a right to enter and reside in a third country – whether permanently or temporarily.[3] Following this, the applicant confirmed that she had not renewed the BNO passport since arriving in Australia and that it had expired [in] 2023.

   [3] Migration Act 1958 (Cth) s 36(3).

8. The Tribunal then discussed with the applicant the process for applying for a new BNO passport. The applicant was somewhat unsure of the exact process given the time that had elapsed since she initially applied for it in 2013, however, she recalled that she had a British passport prior to 1997 and was later told that she could apply for the BNO passport online. Additionally, given the passport has expired and she is residing in Australia, she expressed uncertainty as to whether she could renew the BNO passport.

9. When questioned as to what rights she would have to reside in the United Kingdom as the holder of a BNO passport, the applicant was again unsure but said she was aware they have a humanitarian plan for people who had fled Hong Kong.

10. According to information provided by the United Kingdom Government, a person is a BNO if they are:

    Someone who was a British overseas territories citizen by connection with Hong Kong was able to register as a British national (overseas) before 1 July 1997.

    British overseas territories citizens from Hong Kong who did not register as British nationals (overseas) and had no other nationality or citizenship on 30 June 1997 became British overseas citizens on 1 July 1997.[4]

    [4] ‘Types of British nationality: British national (overseas)’, UK Government, (Web Page) <

11. A BNO is entitled to hold a BNO passport, however, they are subject to immigration controls and do not have an automatic right to live or work in the United Kingdom.[5] A BNO may apply for a BNO visa to enter and reside in the United Kingdom. In order to do so, the BNO’s permanent home must be in Hong Kong if they are applying for the visa outside of the United Kingdom.[6]

    [5] ‘British National (Overseas) visa’, UK Government, (Web Page) < Ibid.

When questioned as to whether she had ever travelled to the UK, the applicant confirmed she had not. When asked whether she had considered her options with regard to relocating to the UK, the applicant responded that if she were to travel there now, she would have no support, no one to look after her children and she does not have the financial means to establish herself there. 

The Tribunal is somewhat concerned that the applicant never considered whether she had a legal right to enter and reside in the United Kingdom, particularly given her claimed fear of returning to Hong Kong. The Tribunal has given this some adverse weight when assessing the applicant’s claims.

However, given the applicant’s BNO passport has expired, the Tribunal is not satisfied that the applicant currently has an enforceable right to enter and reside in the United Kingdom. Moreover, the Tribunal is not satisfied on the information before it that even with a current BNO passport, the applicant would necessarily have an enforceable right to enter and reside in the UK. In this regard, the country information referred to above indicates that holders of a BNO passport are subject to immigration controls in the UK and to apply for a BNO visa, the applicant’s permanent home must be in Hong Kong. In this regard, the Tribunal notes that the applicant has not resided permanently in Hong Kong for more than 10 years and it is not clear to the Tribunal that she would satisfy this requirement.

Given the above, the Tribunal is not satisfied that the applicant has an enforceable right to enter and reside in the United Kingdom and, as such, the Tribunal finds that s 36(3) does not apply in the circumstances of this case.

Relevant country information

In relation to the applicant’s claim to have been subjected to harassment following her attendance at the 2010 protest, the Tribunal has not been able to find contemporaneous country information confirming that such harassment occurred. However, various sources, including Human Rights Watch have subsequently reported on the practice of the authorities harassing protestors and their families.[7] Relevantly, a report published in 2015 details harassment against protestors which is similar to that described by the applicant. In this regard, the person profiled in the report claimed to have received dozens of hate letters and death threats following his role in a 2014 protest. At the time of the report, the harassment had continued for a year and a half.[8] The report goes on to outline methods of harassment which include harassing phone calls and hate letters, the recording of phone conversations and other communications, and family members being harassed.[9]  

[7] ‘China: Release Supporters of Hong Kong Protests’, Human Rights Watch, 3 October 2019.

[8] ‘Hong Kong's 'Occupy' leaders now face quiet but persistent harassment’, Christian Science Monitor, 18 February, 2015.

[9] Ibid.

Hong Kong has continued to experience significant civil unrest since the applicant’s departure, with the authorities clamping down on protesters. In recent years, thousands of arrests have been made in relation to the civil unrest and judicial proceedings are ongoing. According to official figures as of October 2022, 10,279 individuals had been arrested over involvement in anti-government protests since June 2019 with 765 individuals charged with rioting.[10] Charges continue to be laid in relation to protest activity from 2019.[11] In April 2022, the authorities confirmed ‘it took 300 to 400 days for some 90 court cases related to the 2019 protests to reach a conclusion.’[12] Hong Kong authorities reported to the Legislative Council in October 2022 that, as of 31 August 2022, 2,893 individuals had been prosecuted for protest-related offences including 517 minors,[13] and that ‘2,044 defendants had completed their judicial proceedings, with 80 per cent of them – or 1,631 individuals – “bearing legal consequences,” including prison sentences, community service orders, probation and binding-over orders.’[14] More than 6,000 protesters arrested during the 2019 protests still had not been charged,[15] and there is currently no timeframe in which the cases are expected to be finalised.[16]

[10] 'Data analysis: How Hong Kong convicted 200 people for rioting during the 2019 protests and unrest', Peter Lee, Hong Kong Free Press, 7 April 2023, 20230420075946;; see also, 'Almost 3,000 people, including 517 minors, prosecuted so far over 2019 Hong Kong protests', Kelly Ho, Hong Kong Free Press, 26 October 2022, 20221028125150; ‘Hong Kong protests: more than 10,200 arrested in connection with unrest since 2019, government tells lawmakers', Ng Kang-chung, South China Morning Post, 9 April 2021, 20220309140444

[11] 'Hong Kong charges man with rioting almost 4 years after 2019 protest', Peter Lee, Hong Kong Free Press, 17 May 2023, 20230518123955

[12] '90 court cases related to 2019 Hong Kong protests took 300 to 400 days to conclude', Peter Lee, Hong Kong Free Press, 27 April 2022, 20220428101529, see 'LCQ14: Statistics on criminal cases', Hong Kong: Government of, 27 April 2022, 20220629095653. The Georgetown Center for Asian Law echoes this estimate with their data indicating an average of 343 days from arrest to sentencing, The Hong Kong 2019 Protest Movement: A Data Analysis of Arrests and Prosecutions', Georgetown Center for Asian Law, 26 October 2023, p. 63, 20231101134456

[13] See also, 'Alarm by sentencing under national security law', Office of the High Commissioner for Human Rights (OHCHR), 10 October 2022, 20221012172014; 'First minors sentenced under Hong Kong’s national security law', Almond Li, Hong Kong Free Press, 8 October 2022, 20221010134032

[14] 'Almost 3,000 people, including 517 minors, prosecuted so far over 2019 Hong Kong protests', Kelly Ho, Hong Kong Free Press, 26 October 2022, 20221028125150; See also, 'More than half of Hong Kong protesters convicted over roles in anti-government demonstrations have ‘deep remorse’, security chief says', William Yiu, South China Morning Post, 11 September 2022, 20220913102852; 'Explained in data: What happened to Hong Kong’s protesters?', Lea Mok, Hong Kong Free Press, 18 July 2022, 20221108115900

[15] '2023 Country Reports on Human Rights Practices - Hong Kong', US Department of State, 22 April 2024, p. 10, 20240424110332

[16] 'Data analysis: How Hong Kong convicted 200 people for rioting during the 2019 protests and unrest', Peter Lee, Hong Kong Free Press, 7 April 2023, 20230420075946; 'THE SIX-MONTHLY REPORT ON HONG KONG 1 JULY TO 31 DECEMBER 2023', UK Home Office, 15 April 2024, p.28, 20240416122650

Available country information also indicates that protestors and other pro-democracy individuals have faced trial over a range of charges. These include rioting, public nuisance and other ‘offences such as unlawful assembly, arson, desecrating the national flag, possession of an offensive weapon, assaulting a police officer, and stopping a vehicle on an expressway.’[17] Many have been convicted of offences and handed prison sentences in accordance with the law.[18] A number of defendants have been acquitted for various reasons including lack of evidence and police procedural issues[19] although the government has lodged appeals in some cases with success.[20] Individuals convicted of politically related offences, including those involved in the protest movement, are reportedly subject to a program of ‘de-radicalisation’ in prison.[21] Participants reportedly learn to “disengage from radical thoughts and violent behaviours progressively,”[22] as well as about the national security law, traditional values and Chinese history.[23]

[17] ‘The Hong Kong 2019 Protest Movement: A Data Analysis of Arrests and Prosecutions', Georgetown Center for Asian Law, 26 October 2023, p. 54, 20231101134456; ‘Hong Kong protests: more than 10,200 arrested in connection with unrest since 2019, government tells lawmakers', Ng Kang-chung, South China Morning Post, 9 April 2021, 20220309140444

[18] 'Data analysis: How Hong Kong convicted 200 people for rioting during the 2019 protests and unrest', Peter Lee, Hong Kong Free Press, 7 April 2023, 20230420075946; 'Explained in data: What happened to Hong Kong’s protesters?', Lea Mok, Hong Kong Free Press, 18 July 2022, 20221108115900; 'Hong Kong Timeline 2019-2022: Anti-Extradition Protests & National Security Law', Human Rights in China (HRIC), 16 May 2022, 20230413114011; The following is not an exhaustive list of recent convictions, see ‘6 found guilty of rioting near PolyU during Hong Kong protests in 2019, as judge casts doubt on alibis', Hong Kong Free Press, 20 October 2023, 20231023102251; ‘Hong Kong protester shot by police sentenced to nearly four years jail', Jessie Pang, Reuters, 23 October 2023, 20231023103419; ‘5 jailed for up to 3 years and 1 month over false imprisonment of plainclothes police officer during 2019 protest', Hans Tse, Hong Kong Free Press, 11 October 2023, 20231012094125; ‘Hongkonger jailed for 2.5 years for rioting during 2019 protest when she was 16', Hillary Leung, Hong Kong Free Press, 19 September 2023, 20230920135710; ‘Hong Kong activist Wong Ji-yuet jailed for 37 months for rioting in 2019', James Lee, Hong Kong Free Press, 13 July 2023, 20230714105817; ‘Hong Kong protester who hid from authorities jailed for 4 years over rioting and perversion of justice', Hillary Leung, Hong Kong Free Press, 11 September 2023, 20230913093159; ‘8 jailed for up to 45 months for rioting near PolyU during Hong Kong protests in 2019', Hillary Leung, Hong Kong Free Press, 29 June 2023, 20230630092213; ‘4 Hong Kong men jailed for up to 4 years and 9 months for rioting linked to 2019 PolyU siege', Kelly Ho, Hong Kong Free Press, 9 June 2023, 20230621090625; ‘13 Hongkongers convicted of rioting over 2019 protests, including one who said he was a photojournalist', Peter Lee, Hong Kong Free Press, 23 May 2023, 20230523094337; ‘10 Hong Kong protesters jailed for up to 4 years and 10 months over riot linked to 2019 PolyU siege', Peter Lee, Hong Kong Free Press, 16 May 2023, 20230517132102; ‘8 Hong Kong protesters jailed for up to 34 months over rioting in 2019 protest', Peter Lee, Hong Kong Free Press, 17 April 2023, 20230420082758

[19] In particular, see ‘The Hong Kong 2019 Protest Movement: A Data Analysis of Arrests and Prosecutions', Georgetown Center for Asian Law, 26 October 2023, pp. 52 – 54, 20231101134456

[20] ‘Hong Kong appeal court orders retrial of 4 cleared of rioting, calling the original judge ‘plainly wrong’', Irene Chan, Hong Kong Free Press, 14 July 2023, 20230717094909; ‘Data analysis: How Hong Kong convicted 200 people for rioting during the 2019 protests and unrest', Peter Lee, Hong Kong Free Press, 7 April 2023, 20230420075946; ‘Hong Kong Democratic Party chair barred from leaving city as justice dept. appeals acquittal in 2019 protest case', Kelly Ho, Hong Kong Free Press, 7 December 2022, 20221212142513; ‘Hong Kong Democratic Party chair Lo Kin-hei cleared of unlawful assembly charge linked to 2019 PolyU siege', Peter Lee, Hong Kong Free Press, 30 November 2022, 20221212144417; 'Hong Kong Timeline 2019-2022: Anti-Extradition Protests & National Security Law', Human Rights in China (HRIC), 16 May 2022, 20230413114011 ; '4 Hong Kong protesters convicted over 2019 illegal assembly, but court questions police handling of evidence', Candice Chau, Hong Kong Free Press, 14 January 2022, 20220117094814; 'Hong Kong protests: justice department lodges appeal over court’s decision to acquit trio of rioting, arguing it could set far-reaching precedent', South China Morning Post, 21 September 2020, 20200922125133; 'Hong Kong protests: justice department lodges appeal over court’s decision to acquit trio of rioting, arguing it could set far-reaching precedent', South China Morning Post, 21 September 2020, 20200922125133. According to the Georgetown Center for Asian Law, the government has been successful in all appeals over sentencing, ‘The Hong Kong 2019 Protest Movement: A Data Analysis of Arrests and Prosecutions', Georgetown Center for Asian Law, 26 October 2023, p. 65, 20231101134456

[21] ‘Hong Kong prisons work to compel loyalty to China among young activists', Shibani Mahtani, The Washington Post, 8 June 2023, 20230620155316; ‘Corrections chief rejects ‘brainwashing’ claims as average daily remands in Hong Kong prisons reaches decade-high', Kelly Ho, Hong Kong Free Press, 23 February 2023, 20230307153555

[22] ‘Corrections chief rejects ‘brainwashing’ claims as average daily remands in Hong Kong prisons reaches decade-high', Kelly Ho, Hong Kong Free Press, 23 February 2023, 20230307153555

[23] ‘Former Hong Kong protesters reflect on life behind bars – and a changed city', Thomas Chan, Hong Kong Free Press, 11 September 2022, 20220912123122

The most recent DFAT Report for China reports that high-profile political activists are regularly targeted, but the possibility of a low-level activists coming to the attention of the authorities cannot be discounted:

3.85     High-profile activists and critics are particularly targeted but DFAT is also aware of examples of low-profile but outspoken activists being targeted. Profiles of those who may be affected are difficult to predict accurately. DFAT assesses that high-profile activists are at high risk of official discrimination in the form of detention and imprisonment. The hidden nature of low-profile activists and reluctance to speak out make it difficult to assess the risk to day-to-day critics, but those who criticise the government on sensitive issues can come to the attention of authorities. Any discussion on social media is visible to authorities. A person that has been active in protests outside of mainland China (including Hong Kong) against the Chinese Government is likely to attract the attention of government, especially if they are high-profile, but interest in a lower-level protester is not impossible.[24]

[24] Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China, 22 December 2021 (2021 DFAT Report), at [3.85].

The National Security Law (NSL) was implemented on 1 July 2020. It outlaws, in vague terms, ‘secession’, ‘subversion’, ‘terrorist activities’ and collusion with foreign entities.[25] All of the offences are broadly defined. Both ‘secession’ and ‘subversion’ can include ‘overthrowing’, ‘undermining’ or ‘interfering’ with the Hong Kong or PRC government.[26]  There is no need for force, or the threat of force, to be involved in the crime and those who provide financial support to people guilty of offences are also guilty of an offence.[27] The offence of ‘terrorism’ can include acts, plans or even threats to harm the government or a public facility.[28] Depending on the ‘seriousness’ of the offence, which is also not defined, penalties for any of these offences can range from three years in prison to life in prison.[29] The NSL has attracted international condemnation from human rights organisations,[30] foreign governments,[31] and United Nations bodies.[32]

[25] ‘The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region', Government of Hong Kong, accessed 13 April 2023, 20230413124559; See an earlier version published by Hong Kong Free Press: 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, arts. 20-30, 20200713124208 and Chinese state media website Xinhua: 'The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region', Government of China, 1 July 2020, 20200701094622;  'How China Dealt a ‘Knockout Blow’ to Its Opponents in Hong Kong', Tiffany May, The New York Times, 5 February 2023, 20230208093210

[26] ‘The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region', Government of Hong Kong, accessed 13 April 2023, art. 23, 20230413124559

[27] ‘The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region', Government of Hong Kong, accessed 13 April 2023, art. 14, 20230413124559

[28] ‘The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region', Government of Hong Kong, accessed 13 April 2023, arts. 24ff, 20230413124559

[29] ‘The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region', Government of Hong Kong, accessed 13 April 2023, chap III, 20230413124559

[30] 'Freedom in the World 2024 - Hong Kong', Freedom House, 29 February 2024, Overview, 20240301091733; ‘Hong Kong: Submission to the UN Committee on Economic, Social and Cultural Rights (2023)', Amnesty International, 17 January 2023, 20230118112538; ‘Hong Kong: Submission to the UN Human Rights Committee 135th Session, 27 June 2022 - 29 July 2022', Amnesty International, 31 May 2022, 20220601092851; 'Hong Kong: In the name of national security', Amnesty International, 29 June 2021, 20220309142136; 'Submission by Human Rights Watch to the United Nations Human Rights Committee in Advance of its review of China (Hong Kong)', Human Rights Watch (HRW), 29 June 2022, 20220630082619

[31] 'THE SIX-MONTHLY REPORT ON HONG KONG 1 JULY TO 31 DECEMBER 2023', UK Home Office, 15 April 2024, 20240416122650 ; 'EU Annual Report on Human Rights and Democracy in the World; 2023 Country Updates', European Commission, 24 May 2024, p. 186, 20240614084948; ‘JOINT REPORT TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Hong Kong Special Administrative Region Annual Report for 2022', European Commission, 18 August 2023, 20230824153319; ‘2023 Hong Kong Policy Act Report', United States Department of State, 31 March 2023, 20230405130323; '2023 Country Reports on Human Rights Practices - Hong Kong', US Department of State, 22 April 2024, pp. 4-13, 17-18, 22-23, 20240424110332

[32] Concluding observations on the third periodic report of China, including Hong Kong SAR, China, and Macao SAR, China*', United Nations Committee on Economic, Social and Cultural Rights (CESCR), 6 March 2023, pp. 14 – 18, 20230307164140; ‘Concluding observations on the fourth periodic report of Hong Kong, China', UN Human Rights Committee, 27 July 2022, 20220728153244

1. The NSL operates separately from Hong Kong Basic Law and may not contain the same legal safeguards. The NSL was implemented in Annex III of the Hong Kong Basic Law that provides where PRC national laws shall have local effect.[33] The NSL takes precedence over local laws where there is inconsistency.[34] The law applies extra-territorially, including against actions committed in Australia.[35] Trials for NSL cases may be undertaken without a jury.[36]

   [33] 'The Constitution of the People's Republic of China - The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China ', Government of Hong Kong, 1 May 2021, Instrument 5, p. 126, 20220303123135

   [34] 'In full: Official English translation of the Hong Kong national security law', Hong Kong Free Press, 1 July 2020, arts. 21ff, 20200713124208 cf. 'Criminal Law of the People's Republic of China', 14 March 1997, art, 62, CX168961; see also for full text: 'The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region', Government of China, 1 July 2020, 20200701094622

   [35]  ‘The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region', Government of Hong Kong, accessed 13 April 2023, arts. 37, 38, 20230413124559

   [36] 'There's no need for jury in security trial, judge rules', The Standard, 21 May 2021, 20210521145007; 'First trial under Hong Kong’s national security law under way', Aljazeera, 23 June 2021, 20210701144602; See: 'No jury for Hong Kong's first national security trial: source', France 24, 8 February 2021, 20210302143335; 'First trial of a defendant charged under Hong Kong’s national security law ‘to proceed without a jury’', South China Morning Post, 9 February 2021, 20210302142005; ‘National security trial for Hong Kong media mogul Jimmy Lai to proceed without jury – reports', Hillary Leung, Hong Kong Free Press, 18 August 2022, 20220818140923; A non-jury trial is planned for the trial(s) ‘47 Democrats,’ ‘the city’s largest national security case to date in which dozens of pro-democracy politicians face up to life in prison:’ 'Non-jury trial ordered for Hong Kong’s 47 democrats national security case', AFP, Hong Kong Free Press, 17 August 2022, 20220817153806

2. Official statistics reported by the media in June 2024 indicate 299 people have been arrested ‘over suspected acts and activities that endangered national security,’ and 175 individuals and five companies charged. A further 156 individuals have been convicted or are awaiting sentencing including 76 people charged under the NSL.[37] Individuals charged with national security offences have faced difficulty securing bail, and some may be granted bail with strict conditions.[38]

   [37] ‘Explainer: Hong Kong’s national security crackdown – month 48', Hong Kong Free Press, 30 June 2024, 20240701122247;  See China File for more detailed data breakdown, until 9 April 2024: 'Tracking the Impact of Hong Kong’s National Security Law - April 2024', China File, 9 April 2024, 20240624151216 

   [38] 'Tracking the Impact of Hong Kong’s National Security Law - April 2024', China File, 9 April 2024, 20240624151216  and ‘Three Years in, Hong Kong’s National Security Law Has Entrenched a New Status Quo', Thomas Kellogg and Charlotte Yeung, China File, 6 September 2023, 20231006141028; ‘'Explainer: How 3 years of the national security law transformed Hong Kong – Part I', Hong Kong Free Press, 30 June 2023, 20230704101050; '2023 Country Reports on Human Rights Practices - Hong Kong', US Department of State, 22 April 2024, p. 6, 20240424110332; ‘2 years of Hong Kong’s national security law – explained in data', Lea Mok, Hong Kong Free Press, 30 June 2022, 20220701100548; 'Explainer: Hong Kong’s national security crackdown – month 20', Hong Kong Free Press, 3 March 2022, 20220304152454; '‘Assumed as criminals’: Hong Kong defendants find bail elusive', Suzanne Sataline, Al Jazeera, 26 January 2022, 20220128105915

3. Country information also indicates that overseas pro-democracy activists have been targeted by the authorities. Hong Kongers living abroad report surveillance and harassment for their political activities.[39] In July 2023, the Hong Kong government issued arrest warrants for eight pro-democracy activists[40] living overseas wanted for offences under the NSL including ‘collusion with foreign forces,’ ‘incitement to secession,’ incitement to subversion,’ and ‘subversion.’ A reward of one million Hong Kong dollars[41] is offered for information leading to their arrests.[42] The offences pertain to actions taken by the activists after they had departed Hong Kong between late 2020 and 2023.[43]

   [39] '“ON MY CAMPUS, I AM AFRAID” CHINA’S TARGETING OF OVERSEAS STUDENTS STIFLES RIGHTS', Amnesty International, 12 May 2024, 20240514150154; 'China: Overseas students face harassment and surveillance in campaign of transnational repression', Amnesty International, 13 May 2024, 20240514150744; 'Hong Kong uses new national security law against exiled activists', Reuters, 12 June 2024, 20240613094247; 'Hong Kong invokes a new law to cancel passports of 6 overseas-based activists, including Nathan Law', AP News, 12 June 2024, 20240613111446; 'Hong Kong overseas pro-democracy activist Agnes Chow wanted by police', Hong Kong Free Press, 7 February 2024, 20240207120519; ‘‘We don’t feel safe here’: Hongkongers in UK fear long reach of Chinese government', Tom Levitt and May James, The Guardian, 17 October 2023, 20231023105123; Hong Kongers step up calls for UK sanctions despite climate of fear', Cheryl Tung , Radio Free Asia (RFA), 5 September 2023, 20230908115006; ‘Hongkongers who moved to UK after national security law was implemented say they are ‘living in fear’ of Beijing', Caroline Taix (AFP), Hong Kong Free Press, 1 July 2023, 20230703090544; Pursued for Life - Hong Kong's global hunt for fugitives, the National Security Law, and the risk of INTERPOL misuse', Safeguard Defenders, 13 January 2022, 20220119105216. A high profile incident in Manchester, United Kingdom iwn hcih a cprotest was held outside the Chinses consulate and resulted in a protestor being ‘dragged into the consulate ‘ and beaten: I was dragged into China consulate, protester Bob Chan says', George Bowden & Tessa Wong, BBC News, 20 October 2022, 20221020171735; 'Hong Kong protester dragged into Manchester Chinese consulate grounds and beaten up', Lok Lee, BBC News, 18 October 2022, 20221018151830; 'Protester Is Dragged Into a Chinese Consulate in England and Beaten', Tiffany May, The New York Times, 17 October 2022, 20221018153417

   [40] ‘The eight activists are former pro-democracy lawmakers Nathan Law, Ted Hui and Dennis Kwok, lawyer Kevin Yam, unionist Mung Siu-tat and activists Finn Lau, Anna Kwok and Elmer Yuen,’ ‘Hong Kong police offer rewards for arrests of 8 overseas pro-democracy activists', Zen Soo, AP News, 3 July 2023, 20230704100221

   [41] Approximately equivalent to AUD$202,113 as at 20 October 2023

   [42] ‘TNR Watch: Beijing Expands Hunt for Exiled Dissident with Cash Bounties', Freedom House, 9 August 2023, 20230814162119; ‘They will ‘live in fear’: Hong Kong’s John Lee invites ‘anyone’ to help police arrest wanted overseas democrats', Candice Chau, Hong Kong Free Press, 4 July 2023, 20230705094834; Hong Kong puts a price on the heads of democracy activists', The Economist, 4 July 2023, 20230705094738; ‘Hong Kong national security police issue HK$1 million bounty each for 8 self-exiled activists', Kelly Ho , Hong Kong Free Press, 3 July 2023, 20230704100331

   [43] 'Hong Kong police offer hefty reward for intel on political exiles', Theodora Yu and Christian Shepherd, The Washington Post, 3 July 2023, 20230704095737

4. Colonial-era ‘sedition laws’ have also been applied in recent years. The crime of sedition is contained in section 9 and 10 of the Crimes Ordinance as a criminal offence that prohibits ‘any act with a seditious intention, to utter any seditious words, or to print, publish, or display any seditious publications.’[44] While sedition laws are separate from the NSL, in practice, Hong Kong courts have ruled in favour of their linked, or ‘tandem’ consideration with national security offences[45]  which has had implications for further legal procedures such as bail applications.[46]  Last official figures indicated around 35 individuals had been arrested under sedition laws as of June 2022[47] and approximately 11 individuals sentenced to terms of imprisonment for sedition offences in 2022.[48] Estimates from July 2023 indicate approximately a further 28 arrests for sedition offences.[49] In the period July 2023 – December 2023 at least seven people were convicted for sedition.[50]

   [44] 'After Hong Kong activist Tam Tak-chi’s conviction, we still don’t know what is or is not seditious', Angeline Chan, Hong Kong Free Press, 5 March 2022, 20220307102613

   [45] ‘Hong Kong court denies bail to woman charged under sedition law over social media posts', Hillary Leung, Hong Kong Free Press, 29 March 2023, 20230405132846; ''Colonial wine from new, authoritarian bottles': Hong Kong re-tools sedition law', Greg Torode and James Pomfret, Reuters, 11 January 2022, 20220629095427; 'Stringent national security bail threshold applicable to other offences, Hong Kong’s top court rules', Hong Kong Free Press, 14 December 2021, 20211215093058

   [46] ‘Explainer: How 3 years of the national security law transformed Hong Kong – Part I', Hong Kong Free Press, 30 June 2023, 20230704101050; 'Hong Kong court denies bail again to preacher facing sedition charges', Hong Kong Free Press, 5 July 2022, 20220706090727; 'Hong Kong court denies bail to man charged over seditious online messages and possession of weapons', Peter Lee, Hong Kong Free Press, 1 July 2022, 20220701101001; 'Hong Kong court denies bail for man accused of publishing seditious posts on Instagram', Peter Lee, Hong Kong Free Press, 30 June 2022, 20220701101105; 'Hong Kong court adjourns sedition case against martial arts coach to July, assistant denied bail', Hong Kong Free Press, 19 May 2022, 20220523105855; 'Stringent national security bail threshold applicable to other offences, Hong Kong’s top court rules', Hong Kong Free Press, 14 December 2021, 20211215093058; 'Ex-editors of Stand News officially charged under Hong Kong’s anti-sedition law, denied bail', Kelly Ho, Hong Kong Free Press, 29 December 2021, 20211231104654;

   [47] 'Explainer: Hong Kong’s national security crackdown – month 23', Hong Kong Free Press, 1 June 2022, 20220602131328; Hong Kong Free Press has noted in subsequent monthly updates that the Security Bureau had ceased providing separate figures for sedition offences, see 'Explainer: Hong Kong’s national security crackdown – month 27', Hong Kong Free Press, 2 October 2022, 20221004170306

   [48] ‘Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, p. 127, 20230328142801

   [49] According to China File for data until 1 July 2023, ‘Three Years in, Hong Kong’s National Security Law Has Entrenched a New Status Quo', Thomas Kellogg and Charlotte Yeung, China File, 6 September 2023, 20231006141028

   [50] 'THE SIX-MONTHLY REPORT ON HONG KONG 1 JULY TO 31 DECEMBER 2023', UK Home Office, 15 April 2024, p. 24, 20240416122650

5. Hong Kong Basic Law provides for rights such as the presumption of innocence, right to a fair trial and judicial independence.[51] However, the judicial procedures for sedition offences have been conducted similarly to NSL trials. The first conviction[52] was made in relation to Kim Chiang Chung-sang who pled guilty to the offences after displaying posters in connection with the 2019 protests.[53] Further convictions followed in the same month for two individuals for conspiring to distribute leaflets advocating Hong Kong independence, and for putting up posters insulting judges involved in NSL trials respectively.[54] In March 2022, the first sedition case was heard in which the defendant, activist Tam Tak-chi, pled not guilty;[55] he was convicted in April 2022 and sentenced to 40 months imprisonment.[56] The conviction attracted criticism over Tam’s use of protest slogans[57] which, according to the judgment, was not protected by the right to freedom of expression contained in Hong Kong Basic Law.[58] Tam lodged an appeal in July 2023[59] which he lost in March 2024.[60]

   [51] 'The Constitution of the People's Republic of China - The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China ', Government of Hong Kong, 1 May 2021, articles 85 and 87, 20220303123135

   [52] Noting that a previous conviction was recorded in relation to Hui Pui-yee for ‘conspiracy to commit a seditious act’ (among other offences) in April 2021, 'China Media Bulletin - Issue No. 153: April 2021', Freedom House, 31 March 2021, 20210428093029; 'Hong Kong man, woman jailed on sedition charges for insulting judges, advocating independence', Brian Wong, South China Morning Post, 30 January 2022, 20220201101135

   [53] 'Hongkonger who displayed posters insulting judges overseeing first national security law trial pleads guilty to sedition', Brian Wong, South China Morning Post, 25 January 2022, 20220629102515; 'Hong Kong man jailed for 8 months in first sedition sentencing since 1967 leftist riots', Selina Cheng, Hong Kong Free Press, 31 January 2022, 20220629102817; 'Hong Kong sees first 'seditious publication' jailings since handover', France 24, 30 January 2022, 20220629102931; 'China Media Bulletin - February 2022', Freedom House, 22 February 2022, p. 10, 20220224095749

   [54] 'Hong Kong man, woman jailed on sedition charges for insulting judges, advocating independence', Brian Wong, South China Morning Post, 30 January 2022, 20220201101135

   [55]  'Hong Kong DJ Convicted of Sedition in Watershed Trial', Voice of America (VOA), 1 March 2022, 20220307101441; 'Hong Kong pro-democracy activist found guilty under colonial-era sedition law over speech, slogans', Candice Chau, Hong Kong Free Press, 1 March 2022, 20220303091457

   [56] 'Tam Tak-Chi's sedition sentencing " points to a growing trend towards criminalising all forms of dissent in Hong Kong"', Hong Kong Watch, 20 April 2022, 20220513103732; 'Hong Kong activist jailed for sedition in first case since 1997 handover', Reuters, 20 April 2022, 20220629103336

   [57] The sedition charges related to remarks made in January, March and July 2020 including the protest slogan, ‘liberate Hong Kong, revolution of our times, 'Hong Kong opposition activist Tam Tak-chi denied bail by the High Court in sedition case', South China Morning Post, 17 September 2020, 20200917152918; The NSL case of Tong Ying-kit which ruled the slogan was secessionist was ruled non-binding but was ‘“instructional, convincing and applicable, 'High Court ruling involving Hong Kong protest slogan not binding in sedition case, judge says', Natalie Wong, South China Morning Post, 29 July 2021, 20220629103110

   [58] 'Tam Tak-Chi's sedition sentencing " points to a growing trend towards criminalising all forms of dissent in Hong Kong"', Hong Kong Watch, 20 April 2022, 20220513103732; 'After Hong Kong activist Tam Tak-chi’s conviction, we still don’t know what is or is not seditious', Angeline Chan, Hong Kong Free Press, 5 March 2022, 20220307102613; 'Hong Kong’s Sedition Law Is Back', Eric Lai, The Diplomat, 3 September 2021, 20220629103516

   [59] ‘Hong Kong activist Tam Tak-chi launches appeal bid against conviction and sentence under sedition law', Mandy Cheng, Hong Kong Free Press, 4 July 2023, 20230705094922

   [60] 'Pro-democracy DJ Tam Tak-chi loses bid to appeal ‘seditious’ speech conviction and jail term', James Lee, Hong Kong Free Press, 07 March 2024, 20240315134538

6. In September 2022, five members of the General Union of Hong Kong Speech Therapists were convicted of ‘conspiring to print, publish, distribute or display seditious publications’[61] and sentenced to nineteen months imprisonment.[62] The seditious publication was in the form of children’s books that ‘depicted Hong Kong political events using sheep and wolves[63] which were found to ‘spread separatism and incite hatred against the authorities.’[64] Sedition cases are reportedly increasingly aimed at ‘ordinary’ people rather than higher profile individuals such as activists or politicians.[65] Convictions for actual or attempted ‘seditious acts’ have included expressing views critical of the Hong Kong government and/or the CCP, or support for Hong Kong independence on social media,[66] sharing such social media posts,[67] and insulting the national anthem and flag.[68]

   [61] '5 Hong Kong speech therapists found guilty of sedition over children’s books', Kelly Ho, Hong Kong Free Press, 7 September 2022, 20220908160146; 'Hong Kong: Children’s Book Authors Convicted', Human Rights Watch (HRW), 7 September 2022, 20220909152442; 'Hong Kong: Conviction of children’s book publishers an absurd example of unrelenting repression', Amnesty International, 7 September 2022, 20220908160335

   [62] 'Hong Kong speech therapists sentenced to 19 months for books', AP News, 10 September 2022, 20220912124207; '5 Hong Kong speech therapists jailed for 19 months each for sedition over children’s books', Kelly Ho, Hong Kong Free Press, 10 September 2022, 20220912124036

   [63] 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p.153, 20240112083455: 'THE SIX-MONTHLY REPORT ON HONG KONG - 1 JULY TO 31 DECEMBER 2021', Foreign and Commonwealth Office (UK), 30 March 2022, p. 21, 20220404091420; 'Hong Kongers arrested for sedition over children's books', UCA News (UCAN), 22 July 2021, 20210723091323

   [64] '5 Hong Kong speech therapists found guilty of sedition over children’s books', Kelly Ho, Hong Kong Free Press, 7 September 2022, 20220908160146. In October 2023, a man was oncvicted to four months imprisonment for importing the books, see ‘A Hong Kong man gets 4 months in prison for importing children’s books deemed to be seditious', AP News, 6 October 2023, 20231009162109

   [65] ‘57-year-old Hong Kong man denied bail over alleged ‘seditious’ online content', Hong Kong Free Press, 18 October 2023, 20231023102701; ‘Three Years in, Hong Kong’s National Security Law Has Entrenched a New Status Quo', Thomas Kellogg and Charlotte Yeung, China File, 6 September 2023, 20231006141028; ‘How the sedition clampdown hit ‘ordinary’ Hongkongers', AFP, Xinqi Su, Hong Kong Free Press, 29 July 2023, 20230731155506

   [66] ‘Hong Kong Media Bulletin 2023: Issue No. 9: September 2023', Freedom House, 3 October 2023, 20231003171305; ‘Hong Kong Media Bulletin 2023: Library censorship, new social media prosecutions, Photon Media launches', Freedom House, 26 May 2023, 20230620154425

   [67] ‘How the sedition clampdown hit ‘ordinary’ Hongkongers', AFP, Xinqi Su, Hong Kong Free Press, 29 July 2023, 20230731155506

   [68] ‘Hong Kong teen granted bail pending appeal against sedition, insulting national anthem and flag charges', Candice Chau, Hong Kong Free Press, 20 July 2023, 20230720145446

7. In March 2024, Hong Kong’s legislature unanimously passed legislation using the provisions of Article 23 of the Basic Law[69], the city’s local national security law.[70] The law works ‘in tandem’ with the 2020 National Security Law.[71] The legislation under Article 23[72] includes national security offences in relation to treason, insurrection, incitement (mutiny and disaffection), seditious intention, state secrets, espionage, sabotage, external interference and in connection with prohibited organisations.[73]  Some offences apply extra-territorially.[74] There are a number of grounds for establishing seditious intent including an intention to bring hatred, contempt or disaffection against the fundamental system of the state established by the Constitution of the People’s Republic of China and the Hong Kong executive, judicial or legislative authorities.[75]  A person found guilty of seditious intent is liable to imprisonment for 7 years[76] or ten years if they do so in collusion with an external force.[77]

   [69] 'Article 23: What is Hong Kong's tough new security law?', Kelly Ng, BBC News, 25 March 2024, 20240328160329

   [70] See the following for the wording of Article 23; 'The Constitution of the People's Republic of China - The Basic Law of the Hong Kong Special Adminstrative Region of the People's Republic of China ', Government of Hong Kong, 1 May 2021, p. 65, 20220303123135

   [71] ‘Hong Kong’s new national security law ‘unduly limits’ human rights and freedom, UN experts say', Hans Tse, Hong Kong Free Press, 28 March 2024, 20240402120616

   [72] The legislation passed under Article 23 of the Basic Law is the following; 'Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, 20240327131450. Please note the page numbers provided in the footnotes indicate the PDF page number.

   [73] 'Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, 20240327131450

   [74] ‘Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, pp. 38-39, 41, 53, 72-73, 84-85, 88, 93-94, 20240327131450;  'What is Hong Kong’s Article 23 law? 10 things you need to know', Amnesty International, 22 March 2024, 20240402153954

   [75] ‘Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, pp. 46-49, 20240327131450

   [76] ‘Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, p. 49, 20240327131450

   [77] ‘Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, p. 50, 20240327131450

1. The legislation has been criticised by United Nations experts for unduly limiting the exercise of human rights and fundamental freedoms, including freedom of expression and of peaceful assembly.[78] The experts criticised the legislation for using broadly defined concepts and vague and contestable terms[79], and also new police powers curtailing detainee rights.[80] Enforcement powers allow for extension of the detention period for investigation of offences up to 16 days[81], restrictions in relation to consultation with legal representatives.[82] Matters to be heard in closed court[83] and, like the NSL, may only be heard by designated national security judges.[84]

   [78] 'Hong Kong’s new national security law ‘unduly limits’ human rights and freedom, UN experts say', Hans Tse, Hong Kong Free Press, 28 March 2024, 20240402120616

   [79] 'Hong Kong’s new national security law ‘unduly limits’ human rights and freedom, UN experts say', Hans Tse, Hong Kong Free Press, 28 March 2024, 20240402120616

   [80] 'Hong Kong’s new national security law ‘unduly limits’ human rights and freedom, UN experts say', Hans Tse, Hong Kong Free Press, 28 March 2024, 20240402120616; See ‘Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, pp. 115-119, 20240327131450

   [81] ‘Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, pp. 110-115, 20240327131450

   [82] ‘Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, pp. 115-119, 20240327131450

   [83] ‘Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, p. 124, 20240327131450

   [84] ‘Instrument A305 Consolidated version for the Whole Chapter (23-03-2024) (English)', Hong Kong: Government of, 23 March 2024, pp. 136-137, 148-149, 20240327131450

2. The new law has been used to arrest and charge individuals for a range of offences. A number of individuals have been arrested and charged using the provisions of Article 23. In May 2024, the first arrests under Article 23 occurred with seven people apprehended.[85] The arrests were for ‘seditious’ social media posts.[86] Article 23 has been used several times to charge people in relation offences such as funding an overseas activist[87] and wearing a t-shirt with a banned protest slogan[88]. The provisions of Article 23 have also been used to cancel the passports of overseas activists.[89]

   [85] 'Explainer: Hong Kong’s national security crackdown – month 47', Hong Kong Free Press, 2 June 2024, 20240603130508; 'Hong Kong police arrest 6 people accused of violating the city’s new national security law', AP News, 29 May 2024, 20240530111305; 'Hong Kong national security police make 7th arrest under new security law', Hong Kong Free Press, 29 May 2024, 20240530103114; 'Hong Kong arrests six for sedition under new law', BBC News, 29 May 2024, 20240530102151

   [86] 'Hong Kong police arrest six people for 'seditious' Facebook posts', Radio Free Asia (RFA), 28 May 2024, 20240530101032; 'Hong Kong national security police make 7th arrest under new security law', Hong Kong Free Press, 29 May 2024, 20240530103114

   [87] 'Hong Kong woman accused of funding overseas activist Nathan Law following arrest under new security law', Hong Kong Free Press, 31 May 2024, 20240603144857

   [88] 'New security law: Man denied bail under Article 23 over ‘seditious’ slogans on t-shirt and mask', Hong Kong Free Press, 14 June 2024, 20240617142633

   [89] 'Hong Kong cancels passports of 6 ‘fugitive’ activists in UK, inc. Nathan Law, under new security law provision', Hong Kong Free Press, 12 June 2024, 20240613110605; 'Hong Kong revokes exiled activists' passports over UK spying charge', Radio Free Asia (RFA), 12 June 2024, 20240613101615; 'Hong Kong uses new national security law against exiled activists', Reuters, 12 June 2024, 20240613094247

3. The NSL has had wide ranging effects in relation to the exercise of civil and political rights in Hong Kong. The NSL has been used to monitor individuals including online[90] with intermittent reports of government censorship or blocking of certain websites,[91] and wide self-censorship on social media.[92] The authorities have prohibited certain films,[93] removed ‘sensitive’ books from public libraries and restricted from sale or display.[94] Public gatherings common prior to the NSL imposition have largely ceased including the vigil commemorating the Tiananmen Square massacre,[95] and anniversary of the handover of Hong Kong to the PRC by the British.[96] Independent civil society groups have disbanded or relocated since the imposition of the NSL[97] including pro-democracy groups,[98] trade unions,[99] student unions,[100] and international organisations.[101] The government has also sought to ban the ‘broadcasting, performing, printing, publishing, selling, offering for sale, distributing, disseminating, displaying or reproducing’ of the unofficial protest anthem ‘Glory to Hong Kong’ with ‘seditious or secessionist intent.’[102] The High Court rejected the government’s injunction however, citing the impact to freedom of expression, and the matter is ongoing.[103]

   [90] '2023 Country Reports on Human Rights Practices - Hong Kong', US Department of State, 22 April 2024, p. 25, 20240424110332 ; 'Freedom in the World 2024 - Hong Kong', Freedom House, 29 February 2024, section D4, 20240301091733  'The Impact of the National Security Law on Media and Internet Freedom in Hong Kong', Freedom House, 18 October 2021, 20220629093844;

   [91] '2023 Country Reports on Human Rights Practices - Hong Kong', US Department of State, 22 April 2024, p. 25, 20240424110332; 'Explainer: Hong Kong’s national security crackdown – month 23', Hong Kong Free Press, 1 June 2022, 20220602131328; 'Hong Kong rights group says website not accessible through some networks', Reuters, 14 February 2022, 20220216102159; 'How China's national security law threatens Hong Kong's internet freedom', Deutsche Welle, 17 February 2021, 20210302114755; 'HONG KONG POLICE USE NATIONAL SECURITY LAW TO BLOCK SITE CHRONICLING 2019 PROTESTS', China Digital Times (CDT), 10 January 2021, 20210112132247; 'Hong Kong Watch and ARTICLE 19 Joint Submission to the UN Human Rights Committee in advance of its fourth review of Hong Kong, China', Hong Kong Watch, 1 May 2022, p. 16, 20220629094813

   [92] 'Hong Kongers Are Purging the Evidence of Their Lost Freedom', Maya Wang, Human Rights Watch, 26 March 2024, 20240328142604; ‘Hong Kongers are bracing for an even wider clampdown on dissent', The Economist, 7 August 2023, 20230808123214; 'Freedom in the World 2024 - Hong Kong', Freedom House, 29 February 2024, section D4, 20240301091733;  'The Impact of the National Security Law on Media and Internet Freedom in Hong Kong', Freedom House, 18 October 2021, 20220629093844

   [93] 'Hong Kong director Kiwi Chow ‘disappointed’ over sudden cancellation of film screenings', Hong Kong Free Press, 30 May 2024, 20240530105128; ‘Hong Kong film-makers say censorship law spooks investors, actors', Reuters, 28 June 2023, 20230630091721; ‘Film censorship law does not apply to gov’t, Hong Kong censor says after police publicity movie shown without vetting', Candice Chau, Hong Kong Free Press, 26 June 2023, 20230627142711; '2023 Country Reports on Human Rights Practices - Hong Kong', US Department of State, 22 April 2024, pp. 21-22, 20240424110332 ; ‘Hong Kong: Submission to the UN Committee on Economic, Social and Cultural Rights (2023)', Amnesty International, 17 January 2023, p. 10, 20230118112538; 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p.154, 20240112083455

   [94] 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p. 153, 20240112083455; ‘Children’s book depicting protest removed from Hong Kong libraries', Radio Free Asia (RFA), 16 October 2023, 20231023104620; ‘Hong Kongers are bracing for an even wider clampdown on dissent', The Economist, 7 August 2023, 20230808123214; ‘Hongkongers ‘welcome’ to report library books that may endanger national security', Mandy Cheng, Hong Kong Free Press, 6 July 2023, 20230707092847; ‘‘Indie’ book show hosts publishers excluded from Hong Kong Book Fair, but organiser is pessimistic about future', Mandy Cheng, Hong Kong Free Press, 26 July 2023, 20230728102849; Hong Kong Book Fair does not have a ‘list of banned titles’ for vendors, organiser says', Lea Mok, Hong Kong Free Press, 3 July 2023, 20230704100705; ‘Hong Kong has a duty to identify books with ‘bad ideologies’, leader John Lee says as political titles purged from libraries', Hong Kong Free Press, 19 May 2023, 20230519145527; ‘Books by satirical cartoonist Zunzi disappear from Hong Kong public libraries after paper axes comic', Mandy Cheng, Hong Kong Free Press, 12 May 2023, 20230515100855; '2023 Country Reports on Human Rights Practices - Hong Kong', US Department of State, 22 April 2024, p. 21, 20240424110332 ; ‘Hong Kong: Submission to the UN Committee on Economic, Social and Cultural Rights (2023)', Amnesty International, 17 January 2023, p. 101 20230118112538; ‘Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, p. 153, 20240112083455

   [95] 'Security tight in Hong Kong and China on Tiananmen crackdown anniversary', Reuters, 5 June 2024, 20240606104627; 'Hong Kong smothers dissent ahead of the Tiananmen anniversary', The Economist, 3 June 2024, 20240607130234; 'Escalating repression in Hong Kong, anniversary of Tiananmen Massacre approaches, journalist released (May 2024)', Freedom House, 3 June 2024, 20240607134112;  ‘Hong Kong: Tiananmen anniversary arrests highlight deepening repression', Amnesty International, 4 June 2023, 20230620153116; ‘Explainer: Redacted police reports reveal official views on Tiananmen crackdown and organiser of Hong Kong’s vigils', Hong Kong Free Press, 3 June 2023, 20230621090811; ‘HONG KONG MEDIA BULLETIN: June 4 restrictions, journalist wins in court, EU resolution', Freedom House, 29 June 2023, 20230630092443; ‘Hong Kong security chief evades question over legality of Tiananmen crackdown mourning', Candice Chau, Hong Kong Free Press, 17 May 2023, 20230517132645; 'Police patrol Hong Kong park to enforce Tiananmen vigil ban', Zen Soo, AP News, 5 June 2022, 20220606101050; 'In Pictures: High security, arrests and mini acts of defiance as Hong Kong seeks to thwart Tiananmen crackdown commemorations', Hong Kong Free Press, 4 June 2022, 20220606100122; 'Int’l groups to mark anniversary of Tiananmen crackdown as public vigils in Hong Kong expected to be muted', Almond Li, Hong Kong Free Press, 27 May 2022, 20220629095234; 'Hongkongers warned not to ‘test police’ during Tiananmen crackdown anniversary, as force reports calls to join unauthorised assembly', Almond Li, Hong Kong Free Press, 2 June 2022, 20220603085328; 'Hong Kong’s Lam invokes security law when asked about legality of remembering Tiananmen dead', Hong Kong Free Press, 31 May 2022, 20220531150459; THE SIX-MONTHLY REPORT ON HONG KONG - 1 JULY TO 31 DECEMBER 2021', Foreign and Commonwealth Office (UK), 30 March 2022, p. 25, 20220404091420; 'China: Tiananmen vigil events across globe in solidarity with Hong Kong', Amnesty International, 26 May 2022, 20220527083654; 'Hong Kong activist detained amid Tiananmen vigil clampdown', Deutsche Welle, 4 June 2021, 20210608100314; 'Hong Kong police ban city’s annual Tiananmen Square vigil for first time in 30 years, citing Covid-19 threat', South China Morning Post, 1 June 2020, 20200602114002

   [96] ‘‘Hong Kong police step up surveillance to 'tame' activists', AFP, The Standard, 29 September 2023, 20231018113740; 'HKFP Lens: Pomp, ceremony and patriotism for Handover anniversary, as police deploy across Hong Kong', Kyle Lam, Hong Kong Free Press, 2 July 2023, 20230703091836; 'Hong Kong 25th anniversary set to be protest-free, after nat. security police call in activist group volunteers', Hong Kong Free Press, 28 June 2022, 20220629090011

   [97] ‘Freedom in the World 2024 - Hong Kong', Freedom House, 29 February 2024, section E2, 20240301091733; ‘Hong Kong: Submission to the UN Human Rights Committee 135th Session, 27 June 2022 - 29 July 2022', Amnesty International, 31 May 2022, p. 11, 20220601092851; 'CCP crushing Hong Kong civil society', Kong Tsung-gan, Safeguard Defenders, 23 January 2022, 20220629111732; Timeline: 58 Hong Kong civil society groups disband following the onset of the security law', Hong Kong Free Press, 30 June 2022, 20220701093855; 2021 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau, and Tibet) - Hong Kong', United States Department of State, 12 April 2022, p. 25, 20220513112017

   [98] 'Hong Kong: Closure of prominent rights group signals worrying domino effect', Amnesty International, 15 August 2021, 20210906104521; ‘THE SIX-MONTHLY REPORT ON HONG KONG - 1 JULY TO 31 DECEMBER 2021', Foreign and Commonwealth Office (UK), 30 March 2022, p. 27, 20220404091420; 'CHRF: Hong Kong group behind huge democracy rallies disbands', Al Jazeera, 15 August 2021, 20210823170536;; 'China Says Hong Kong Crackdown 'Must Continue' After Vigil Organizer Disbands', Radio Free Asia (RFA), 27 September 2021, 20210928100304

   [99] ‘Freedom in the World 2024 - Hong Kong', Freedom House, 29 February 2024, section E3, 20240301091733; ‘Hong Kong: Submission to the UN Committee on Economic, Social and Cultural Rights (2023)', Amnesty International, 17 January 2023, p. 7, 20230118112538; 'Trade unions must now declare they will not ‘endanger national security’ to register in Hong Kong', Hillary Leung, Hong Kong Free Press, 17 September 2022, 20220919160209; 'Disbanded Hong Kong teachers’ union faces further state media attacks; Confederation of Trade Unions in crosshairs', Hong Kong Free Press, 11 August 2021, 20210812123614; 'Hong Kong’s Professional Teachers’ Union saw no choice but to ‘disband after Beijing emissaries warned it could no longer exist’', South China Morning Post, 12 August 2021, 20210813112522; ; 'China Is Dismantling Hong Kong’s Unions', Human Rights Watch, 22 September 2021, 20211013134544

   [100] 'PolyU becomes fifth Hong Kong university to fully cut ties with students’ union', Lea Mok, Hong Kong Free Press, 20 April 2022, 20220420102119; see also 'THE SIX-MONTHLY REPORT ON HONG KONG 1 JANUARY TO 30 JUNE 2021', United Kingdom Foreign, Commonwealth and Development Office, 13 December 2021, p. 28, 20211217133628; 'In Hong Kong, a Once Liberal University Feels Beijing’s Weight', Karen Cheung, Foreign Policy, 22 May 2022, 20220602123222;

   [101] 'Amnesty to close Hong Kong offices over National Security Law', BBC News, 24 October 2021, 20211026094419; 'Amnesty shutters Hong Kong office, ceases social media updates', The Standard, 31 October 2021, 20211102094418; 'Hong Kong’s National Security Law Made Amnesty International’s Departure All But Inevitable', ChinaFile, 5 December 2021, 20211207115921; Hong Kong Watch have received legal notification of their activities and have refused to disband, 'Security Bureau threatens UK-based Hong Kong Watch founder with life imprisonment; NGO says it won’t disband', Hong Kong Free Press, 13 March 2022, 20220315090347

   [102] 'Explainer: How, and why, the gov’t banned protest song ‘Glory to Hong Kong’', Hong Kong Free Press, 17 May 2024, 20240520145455; 'Glory to Hong Kong: Distributor removes Hong Kong protest song from Spotify, Apple Music after court order', Hong Kong Free Press, 25 May 2024, 20240528103939;  'Protest song ‘Glory to Hong Kong’ removed from streaming platforms again', Hong Kong Free Press, 7 June 2024, 20240611110651

   [103] ‘‘Hong Kongers are bracing for an even wider clampdown on dissent', The Economist, 7 August 2023, 20230808123214; ‘Hong Kong Media Bulletin 2023: Issue No. 9: September 2023', Freedom House, 3 October 2023, 20231003171305

4. Relevantly given the applicant is in a relationship with a citizen of Taiwan, on 27 June 2024, Taiwan’s Mainland Affairs Council (MAC) issued a travel warning that all Taiwanese citizens who travel to mainland China, Hong Kong or Macao. The warning was issued as a consequence of changes to national security laws and the issuing of Guidelines on Imposing Criminal Punishment on Diehard Taiwan Independence Separatists for Conducting or Inciting Secession, by the Chinese Communist Party.[104] The MAC reported that in recent years, there had been ‘numerous incidents where Taiwanese citizens have been illegally detained, held in custody, and interrogated’. The MAC warns that if travel to China, Hong Kong or Macao is strictly necessary, then citizens should ‘avoid mentioning or discussing any sensitive topics or issues; photographing ports, airports, or military exercise sites; or carrying books on political, historical, or religious subjects’.[105]

   [104] ‘MAC Raises Travel Alert to “Orange” for Mainland China, Hong Kong, and Macao Starting June 27; Citizens Advised to Avoid Unnecessary Travel’, MAC Press Release No. 036, 27 June 2024.

   [105] Ibid.

5. Available country information indicates that China’s separatist guidelines and Taiwan’s travel warning are symptomatic of rising tensions between the PRC and Taiwan.[106] A spate of arrests, detentions and interrogations in recent years indicates that China is increasingly vigilant of, and taking hard-line against, Taiwanese nationals.[107] 

   [106] ‘Why China-Taiwan Relations Are So Tense’, Council on Foreign Relations’, 8 February 2024.

   [107] See for example, ‘Taiwanese tourist detained in China, government cautions against visiting’, Taiwan News, 7 June 2024; and ‘Detention of two Taiwanese in China sparks concern about personal safety’, Voice of America News, 11 June 2024.

   Consideration of the applicant’s claims and oral evidence

6. In assessing the applicant’s claims and credibility, the Tribunal is mindful of the difficulties that asylum seekers often face, and the benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant.[108] Moreover, the Tribunal has several concerns regarding the applicant’s evidence as it relates to her delay in applying for protection, name change, and her return trips to Hong Kong.

   [108] See MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.

7. These concerns are addressed below.

   Delay in applying for protection and name change

8. At hearing, the Tribunal discussed with the applicant her migration history. In particular, the Tribunal notes the following:

   a.The applicant was granted a [temporary] visa in the identity of [Alias A], and arrived in Australia [in] October 2011 as the holder of that visa.

   b.The applicant departed Australia [in] October 2012 and returned to Australia again [in] November 2012.

   c.The applicant again departed Australia [in] August 2013.

   d.On 29 September 2013, the applicant was granted a second [temporary] visa in the identity of [the applicant’s name]. She then arrived in Australia again [in] October 2013.

   e.On 19 October 2015, the applicant lodged an application for a Protection visa.

9. The applicant confirmed that on her departures from Australia in 2012 and 2013, she returned to Hong Kong. When questioned as to whether she experienced any issues upon her return, the applicant confirmed that she did not. She claimed that she refrained from contacting friends whilst she was at home and only returned for a relatively short period of time. The applicant also gave evidence that as she no longer had her previous phone number, she did not receive the harassing calls that she had previously received.

10. Following the hearing the Tribunal wrote to the applicant pursuant to s 424A of the Act. In summary, the Tribunal put to the applicant that her delay of some 4 years in applying for protection and her return trips to Hong Kong appear to be significant and may cause it to have concerns in relation to the immediacy and gravity of the applicant’s claimed fears of returning to Hong Kong, and the overall credibility of her claims, given she has claimed that:

    a.She was harassed in Hong Kong due to her attendance at a political protest and this is why she left Hong Kong and travelled to Australia; and

    b.She is concerned that if she returns to Hong Kong, she will be harassed or threatened.

1. On 27 May 2024, the applicant provided a response to the Tribunal. In summary, the applicant outlined the following:

   a.Her initial intention when coming to Australia was to escape persecution in Hong Kong. Applying for a [temporary] visa was the quickest way to do this.

   b.At the expiration of the [temporary] visa, she could not obtain another visa and was forced to return to Hong Kong. However, Hong Kong remained in a state of political upheaval. She continued to fear that she would be harassed again if she remained in Hong Kong.

   c.Upon return to Australia, she was advised by a friend that she could apply for a Protection visa, which she did prior to the expiration of her second [temporary] Visa.

   d.Over the years, many people from Hong Kong have fled due to the situation there.

2. The Tribunal has had regard to the applicant’s explanation, and remains concerned as it would expect that a person who claims to have fled to Australia because they were subjected to harassment in their home country, and fears further harm upon return, would seek to understand their protection options at an earlier date. Instead, the applicant has delayed applying for protection for more than four years and, in the meantime, returned to Hong Kong on two occasions.

3. Furthermore, the Tribunal has concerns regarding the applicant’s explanation for the reasons why she changed her name. In short, the applicant outlined two reasons – that she wanted to erase her past, and she required it to travel to Australia again. The Tribunal accepts that the two explanations are not mutually exclusive, and the applicant may have been attempting to achieve both objectives. However, the Tribunal finds that in all likelihood, the applicant’s primary objective in changing her name was to allow her to apply for a second visa in order to return to Australia.

4. Given the circumstances outlined above, the Tribunal places some adverse weight on the applicant’s delay in lodging a protection visa application and the circumstances that led to her applying for a second [temporary] visa.

   Consideration pursuant to s 423A

5. As outlined above, the applicant’s claims at hearing were markedly different to those included in her protection visa application. Whilst the general gist of the claim remained unchanged, the applicant claimed at hearing that she attended the protest in 2010 herself, rather than it just being her parents in attendance.

6. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

7. The Tribunal raised this concern with the applicant at the first hearing. In response, the applicant asserted that she obtained migration assistance to prepare the protection visa application. The applicant gave evidence that she was asked about her protection claims by her representative, but she did not have an explanation as to why the claims were not recorded correctly in the application. However, the applicant did note that an independent interpreter was not used, nor was she given the application documents to read. She also described the appointment with her representative to record the claims as not being ‘formal’. The applicant also stated that she was advised by the representative to include the Falun Gong claim, and that if she had further information to provide, it could be included after lodging the application.

8. The Tribunal notes that details of a representative were included in the Protection visa application, together with a Form 956 appointing a representative. The application was completed by hand and lacking in significant detail. Of note, details of the applicant’s family members were not included in the application form at Question 43 despite that information being required, and it being particularly relevant to the protection claims included in the application. Furthermore, the protection claims provided in the form are vague and lacking in substantiating detail. At the very least, it indicates a lack of appropriate care and attention to detail in the preparation of the application by the representative.

9. In relation to the claim that the applicant is a Falun Gong practitioner, the applicant advised the Tribunal at the earliest possible opportunity during the hearing that this was not a genuine claim and that she did not rely on it.

10. Given the above, the Tribunal accepts that the application was not necessarily completed in accordance with the applicant’s instructions and did not reflect the true extent of her claims.

11. Furthermore, the Tribunal notes that the applicant was not offered an interview with the Department to discuss her claims. Had she been given this opportunity; she may well have raised the claims at an earlier stage.

12. In these circumstances the Tribunal draws no adverse inference about the credibility of those claims merely because they were not presented to the delegate.

    Overall assessment of credibility

13. Whilst the Tribunal holds concerns regarding several elements of the applicant’s evidence as outlined above, overall the Tribunal found the applicant to be generally credible. The Tribunal found the applicant’s evidence to be frank, broadly consistent with available country information and, in some regards, the applicant’s own assessment of risk to her and her family was somewhat understated.

14. The applicant did not seek to exaggerate her claims of past political activities, nor did she overstate her political views. In this regard, the applicant expressed her political views in relatively simple terms, but in a manner that rang true to her actual political involvement. It reflected her deep concern for her home country and her family and friends who are still in Hong Kong.   

15. The Tribunal notes that whilst the applicant’s description of the harassment she was subjected to in the past broadly accords with available country information referred to herein,[109] that country information indicates that harassment is typically levelled at leaders of political movements. The applicant does not claim to have been a political leader and the applicant did not seek to exaggerate her political activities in this regard. However, in assessing the credibility of the applicant’s claim, and weighing up the possible chance or risk of future harm, the Tribunal has given significant weight to DFAT’s assessment that people who have been active 'in protests outside of mainland China (including Hong Kong) against the Chinese Government' are likely to attract the attention of government,[110] and people who ‘organise or participate in protests’ relating to any matter critical of the state are ‘subject to a high risk of official discrimination’ [emphasis added].[111]

    [109] ‘Hong Kong's 'Occupy' leaders now face quiet but persistent harassment’, Christian Science Monitor, 18 February, 2015.

    [110] 2021 DFAT Report, at [3.85].

    [111] 2021 DFAT Report, at [3.89].

16. The applicant did not seek to hide or obfuscate her lack of recent political activity. Rather, she presented a straightforward, and in the Tribunal’s view, reasonable explanation for her lack of recent activity – namely, her concern for her family if she were to engage in further activities.

17. On the face of it, the applicant provided an honest and somewhat understated assessment of the chance or risk of possible harm to herself and her family if she were to return to Hong Kong. For instance, the Tribunal asked the applicant several times what she believed might happen to her if she were to return. Whilst she was clear about her fear of returning to Hong Kong, the applicant conceded that she simply does not know what will happen if she returns. In her evidence it was clear that she was aware of others who had been targeted on account of their political activities, but she acknowledged that she had now been out of Hong Kong for a long time.

18. Whilst the Tribunal holds some concerns as to the applicant’s delay in applying for protection and her motivation for changing her name and obtaining a further [temporary] Visa to return to Australia, given the applicant’s overall credibility, the Tribunal finds that these concerns are not determinative. 

    Assessment of claims and findings

19. The Tribunal is satisfied that as Hong Kong is a Special Administrative Region of the PRC, the applicant is a citizen of the PRC, and the receiving country is the PRC.

20. Whilst the Tribunal holds some concerns regarding the applicants evidence, as outlined above, those concerns do not outweigh the Tribunal’s finding that the applicant is a credible witness and that she has provided a frank account of her involvement in the political rally, the subsequent harassment she experienced, and her support for Hong Kong democracy. As such, on the applicant’s evidence, the Tribunal accepts that:

    a.The applicant and her father attended the 2010 [specified] Protest in Hong Kong;

    b.Following their attendance at the protest, the applicant and her father were harassed by unknown persons;

    c.The applicant’s father was harassed for several years following his attendance at the protest;

    d.The applicant holds a political opinion that is pro-Hong Kong democracy and anti-PRC;

    e.The applicant removed content of a political nature from her social media accounts and has not engaged in further political activity due to her concerns for the well-being of her family; and

    f.The applicant is now in a relationship with a citizen of Taiwan, and they have two children together.

21. The Tribunal accepts that the applicant was known to the authorities in Hong Kong due to her previous political activities. The Tribunal also accepts that the harassment directed at the applicant and her father was either undertaken by the authorities in Hong Kong or alternatively, by non-state actors whose actions were either condoned or encouraged by the authorities in Hong Kong, or undertaken with impunity from the authorities.

22. Notwithstanding this, the Tribunal does not accept that the applicant’s engagement in a political protest in 2010 is, on its own, sufficient to cause the applicant to be of an adverse interest to the authorities in Hong Kong, particularly given the time that has elapsed. Additionally, the Tribunal does not accept that the letter sent to the applicant in December 2023 was necessarily a continuation of the harassment that she had received in the past. It had been several years since the applicant had last received a harassing letter and given the letter has not been collected, any claim as to its contents is mere speculation.

23. However, the Tribunal accepts that the applicant would now be returning to Hong Kong in substantially different circumstances, with a Taiwanese partner and as the mother to two children who are potentially Taiwanese citizens. Whilst there is no suggestion that the applicant or her partner are involved in pro-Taiwan separatist activities, the prospect of the applicant being questioned by the authorities about this, particularly given her previous political activities, cannot be discounted. Furthermore, the applicant has now lived outside of Hong Kong and the PRC for about 13 years. Moreover, since she last permanently resided in Hong Kong, the applicant has adopted a new name. The Tribunal finds that each of these factors may cause the authorities in Hong Kong to question the applicant about her activities since her departure from Hong Kong, particularly given her previous engagement in political protests.

24. The Tribunal finds that given her past political activities, the combination of the above factors would likely cause the applicant to be of interest to the authorities upon return to Hong Kong. Moreover, these factors would likely require the applicant to have regular contact with the authorities in Hong Kong in order to update her identity documents and register her children for access to services and schooling.

25. Whilst the Tribunal accepts that the applicant would likely come to the attention of the authorities upon return to Hong Kong, and may be questioned or subjected to monitoring, the Tribunal must consider whether she would be subjected to serious harm.

100.   When assessing the likelihood that the applicant would be seriously harmed by the authorities in Hong Kong, s 5J of the Act requires that there must be a ‘real chance’ of such harm occurring. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:

… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[112]

[112] Chan v MIEA (1989) 169 CLR 379 at 389.

101.   In the same case Dawson J stated:

... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.[113]

[113] Chan v MIEA (1989) 169 CLR 379 at 397–398.

102.   and Toohey J stated:

A “real chance” ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.[114] 

[114] Chan v MIEA (1989) 169 CLR 379 at 407.

103.   Similarly, according to McHugh J:

[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.[115]

[115]Chan v MIEA (1989) 169 CLR 379 at 429.

104.   Thus, as the High Court confirmed in MIEA v Guo, Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[116] Furthermore, a fear may be well-founded for the purpose of the Convention even though persecution is unlikely to occur.[117] However a fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:

[116] MIEA v Guo (1997) 191 CLR 559 at 572. It is important, however, that this should not be viewed as an alternative test that there must be a risk of persecution shown on the probabilities, as that would involve an incorrect and more onerous test: see PW87/2001 v MIMA [2001] FCA 1083 at [7].

[117] Chan v MIEA (1989) 169 CLR 379 at 429; see also MIEA v Guo (1997) 191 CLR 559 at 573; and MILGEA v Che Guang Xiang (Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994) where the Court stated at 17: ‘The delegate may have thought it was unlikely that [the applicant’s] fears would be realised but the question to be answered was whether the prospect of persecution was so remote as to demonstrate the fear to be groundless.’

Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[118]

[118]MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

105.   Additionally, the High Court in Guo’s case observed that ‘[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability ‑ high or low ‑ of their recurrence.[119] In this regard, the Tribunal again notes that it has accepted that the applicant was subjected to harassment in the past.

[119] MIEA v Guo (1997) 191 CLR 559 at 574.

106.   While the chance that the applicant will be seriously or significantly harmed upon return to Hong Kong could not be described as high, the Tribunal is satisfied that it is more than remote or fanciful.

107.   In making this finding, the Tribunal has considered the fact that the applicant has previously returned to Hong Kong on two occasions after her attendance at the protest in 2010, and she was not harassed on either return trip. However, the Tribunal finds that whilst this is relevant, it should only be given limited weight as if she were to return to Hong Kong now, it would be a permanent return compared to the two previous relatively short stays. Additionally, as outlined above, the applicant would now be returning with a Taiwanese partner and two children, having been outside of the country for more than a decade, and having adopted an assumed name that she was not known by when she last permanently resided in Hong Kong. As discussed above, these factors would likely draw the attention of the authorities in Hong Kong and, additionally, would likely require the applicant to have significant contact with the authorities in order to resettle and register her children, and apply for a possible partner visa for her partner. These are factors that would not have been a consideration when the applicant previously returned to Hong Kong.

108.   As such, the Tribunal finds that there would be a real chance of harassment, intimidation and mistreatment amounting to serious harm for the purposes of s 5J(4)(b) of the Act, if the applicant returned to Hong Kong. The Tribunal considers that the essential and significant reason for the harm would be the applicant’s political opinion in support of democracy in Hong Kong and her past attendance at a political protest. On the country information above, the Tribunal also finds that the persecution faced by the applicant involves systematic and discriminatory conduct. As such, the Tribunal finds that the applicant has a well-founded fear of persecution for the purposes of s 5J(4) of the Act.

109.   The Tribunal is also satisfied that effective protection measures would not be available to the applicant as the persecution feared by the applicant involves state actors and authorities acting throughout the country. The Tribunal also finds that where the applicant experiences discrimination or harassment from non-state actors, the applicant would be unable to obtain protection from the authorities because such conduct is condoned by the State.

110.   The Tribunal is satisfied that the persecution feared by the applicant applies to all areas of Hong Kong and mainland China as the relevant laws and related state actors operate throughout the country. Consequently, the Tribunal is satisfied that the applicant would not be able to relocate, nor would she be able to access state protection as the persecution feared by the applicant involves state actors and authorities acting throughout the country.

111.   The Tribunal finds that if the applicant were to modify her behaviour and hide the fact that she previously engaged in a political protest or holds a pro-Hong Kong democracy and anti-PRC view, she would be doing so to avoid the threat of serious harm. Moreover, the Tribunal finds that, were it not for being subjected to harassment in the past and her fear that she or her family in Hong Kong may be subjected to harassment or harm in the future, the applicant would have continued her low-level political activity in support of the Hong Kong pro-democracy movement. The continued modification of the applicant’s behaviour to avoid a real chance of persecution upon return to Hong Kong would conflict with characteristics that are fundamental to her identity or conscience, and would be undertaken only to avoid the threat of serious harm that would follow from expressing any pro-democratic political view or anti-PRC view.

CONCLUSION

112. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

113. Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. As addressed above, there is no evidence to suggest that the applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.

DECISION

114. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Ben Goulding
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.

…