1826790 (Refugee)

1826790 (Refugee) [2024] AATA 1228 (15 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826790
COUNTRY OF REFERENCE:                   China
MEMBER:Damien Power
DATE:15 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 January 2024 at 11:24am
CATCHWORDS
REFUGEE – Protection Visa – China – local church membership – religion – practising Christian – difficulty supplying meaningful detail about what occurred at his church meetings – lack of knowledge of the bible – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 18 April 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 1 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CLAIMS AND EVIDENCE
Background
The applicant is a male aged [age] years of age from Fujian province in China. He is of Han ethnicity. He comes from a family of farmers and has a younger brother and sister. He is unmarried.
The applicant maintains contact with his family by phone.
The applicant speaks, reads and writes Mandarin. He undertook all of his schooling in Fujian province, graduating from senior high school in June 2013.
Evidence before the Department
Migration History
On 18 January 2017, the applicant was granted a visitor visa. The applicant arrived in Australia on that visa on [date] January 2017 and was immigration cleared.
On 18 April 2017, the applicant lodged a valid application for a (subclass XA-866) protection visa.
On 31 August 2018, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The applicant’s protection visa application provides the following information. The applicant was born in [a] village, in Fuqing City, Fujian province.
His parents were farmers. The applicant studied hard at school. However, his mother suffered a severe illness and the applicant had to work to support the family and the cost of his mother’s medical treatment. In March 2013, the applicant obtained a part-time job at a [workplace] in Fujian City.
In June 2013, he graduated from [a] School. The applicant undertook the National Higher Education Entrance Examination. However, as a result of the pressure of working, the applicant’s studies had suffered, and he was unable to attain the academic results required to enter university.
The applicant’s family arranged for him to get a job at a [workplace] in Huanghua city in Heibei province. The applicant arrived in Huanghua city in January 2014. The [workplace] was located near a university.
The applicant was depressed due to his failure to get into university. [Ms A], A colleague at the [workplace] where he worked was understanding of his problems and offered him advice. The applicant later learned that this colleague was a Christian from the Local Church (a.k.a “Shouters”).
From June 2014, the applicant began accompanying [Ms A] to Local Church meetings. He became an adherent of the church and was baptised in October 2014.
The Local Church was deemed an “evil cult” by the authorities, particularly in Huanghua City. The church had to keep its meetings, training and other church activities secret from the Public Security Bureau (PSB). They were careful in organising their activities and frequently changed their meeting places.
The applicant shared a rented unit with [Ms A] and [Ms B], another colleague from the [workplace]. [Ms A]’s boyfriend, [Mr C], was also involved with the Local Church and secretly evangelised to university students. The applicant’s residence soon became a secret meeting point for the church.
The Local Church membership continued and by 2016 membership numbered around 70 – 80 people. However, this also brought the attention of the PSB.
In December 2016, [Mr C] and some other church members were suddenly arrested by the PSB. The authorities learned from those arrested about the applicant and [Ms A]. Shortly after [Mr C]’s arrest, the police raided the [workplace] and the unit where the applicant lived. [Ms A] and [Ms B] were arrested, but the applicant was on a delivery and was lucky to escape.
The applicant hid with a friend for a few days before being assisted to go to Hefei City, where his cousin lived. Fearful of arrest, the applicant’s older cousin in Anhui province and friends arranged for him to depart China. The applicant learned that his home back in Fujian had been searched and his parents and siblings questioned.
The applicant’s older cousin and friends had to bribe an officer at the airport to facilitate the applicant’s departure. However, the applicant was able to depart China on 24 January 2017.
Interview with the delegate
The applicant provided further information on his issues in China that was broadly consonant with the claims in his statutory declaration.
The applicant stated that he did not encounter any problems at the airport when departing China.
The applicant talked about his faith and its meaning for him. The applicant also provided the delegate with details of his religious practice in Australia. He stated that he regularly attended a chapter of the Local Church in [a suburb].
The applicant said that his parents had themselves joined the Local Church in 2016.
The applicant said that if he returned to China, he would still attend the Local Church. He stated that he would be arrested and detained. Other church members had been arrested and told the police of his involvement in the Local Church. He also stated that after he had come to Australia, the government had sent people to his home and asked about his whereabouts.
Delegate’s decision
The delegate accepted that the applicant had had some exposure to Christianity and that he attends the Local Church in Sydney. However, the delegate did not accept that the applicant was of adverse interest to the authorities at the time of his departure or that he would face arrest, detention or persecution on return.
Evidence before the Tribunal
Application for review
On 13 September 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. They provided the Tribunal with a copy of the delegate’s decision.
Additional submissions or evidence
The applicant did not make any additional submissions to the Tribunal prior to the hearing.
The hearing
The applicant attended a hearing on 1 December 2023.
The applicant gave evidence about his background, work history, his family in China, and other matters, He also gave evidence regarding his claims to have been an underground Christian, his experiences in China and his departure from the country, and on the practice of his religion here in Australia.
The applicant’s evidence at hearing, where relevant to the consideration of his claims, is discussed in detail under Consideration of Claims and Evidence.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Nationality
The applicant provided a copy of the bio-data pages of his People’s Republic of China (PRC) passport and the delegate noted that the applicant had been immigration cleared on that passport. The delegate was satisfied as to the applicant’s identity and nationality. The applicant has provided a consistent account of their claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicant’s identity and that their receiving country for the purposes of assessing their claims for protection is the People’s Republic of China. There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than China.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Analysis, reasons and findings
As noted above, the applicant claimed to have been a member of an underground church in China. He also stated at hearing that he continued to be a practising Christian.
The applicant was generally able to recall and repeat most of the detail in the statutory declaration of claims accompanying his protection visa application. His evidence was broadly consistent with the claims outlined in that statutory declaration.
However, the applicant had difficulty explaining the elements of his faith or giving a meaningful account of why his faith was important to him. Aspects of the applicant’s account, particularly regarding his exit from China, were also implausible or lacking in detail.
The applicant was not able to describe in much detail what went on the in the church meetings he had attended. The applicant noted that they had read the bible. I asked if there was a particular part of the bible that he particularly liked or that had resonated with him. The applicant said he had not memorised it. I said that I understood that but wanted to know if there was a specific part of the bible that had particularly touched him. He nominated the part of the bible where Lord Jesus had been crucified on the cross in order to rescue us.
I asked if they had done anything else at his church beside read the bible and pray. The applicant said that they also sang songs. I asked if he knew the names of any of the songs. The applicant said he could not remember any of the names and just sang along with the video. I asked him how long the church had been operating before he attended. He said he did not know.
I asked the applicant if anybody would give sermons or speak on a particular religious topic. He said that there was no one person who would do this and that they all took turns. I asked if he had ever spoke. He said he had done that several times. I asked if he could remember what he said when it was his turn. He said he had no particular impressions, by which I took him to mean he had no specific recollection of what he had said.
The applicant claimed that he would spread the word about the church by including religious pamphlets with the meals he delivered. I asked the applicant if he had concerns about giving such information to complete strangers given the underground nature of his church and their concerns to keep its operations confidential. The applicant said that including printed material and pamphlets with deliveries was commonplace. I asked if him if he was concerned that people might report him when they kept getting deliveries of food from him with these pamphlets inside. The applicant said that he had not thought about it. Later, he said that he had been careful never to give a pamphlet to the same person twice.
I asked the applicant how often he delivered these pamphlets and the applicant replied that he did so whenever the pamphlets were available. I said that he must have delivered quite a number of the pamphlets and asked him if he could recall what was on them. The applicant was unable to recall or meaningfully describe what was on the pamphlets, saying only that there were words praising the lord. I asked if he could describe the pamphlets in a little more detail. He said that he could not recall.
I asked the applicant how he was able to exit the country, noting that he left via a major airport on a passport in his own name. The applicant said his cousin had arranged things. I asked the applicant how his cousin was able to do this, and the applicant said that he did not know and that he had not asked about it. Noting the applicant feared being arrested, I asked him if he was not curious about the arrangements his cousin was making to get him out of the country. The applicant said that he was not. I find it difficult to accept that if the applicant were about to depart China under the scrutiny of authorities that he would not have taken at least a passing interest in the arrangements being made on his behalf.
I put to the applicant that country information suggested it was very difficult for an individual to leave China via a major port if they were of interest to the authorities. The applicant said that he had left China as soon as possible and that perhaps the investigation into him was not underway yet. I put it to him that the authorities had raided his place of work and arrested both the people with whom he shared an apartment. I put to him that there had been more than a month between the raid of his workplace in December and the applicant’s eventual departure in late January. The applicant again speculated that perhaps the authorities had not yet begun to investigate him.
I noted that the applicant claimed to have fled to Anhui province to hide out with his cousin and asked him why he decided to risk going back to Fuzhou and flying out from there. The applicant said that he wanted to have one last look at his hometown. He claimed he was there for just a few hours before catching the plane.
I asked the applicant about his religious practice here in Australia. The applicant said that he attended his church here in Sydney once a week, or sometimes once a month if he was busy. I asked the applicant if he could remember what was discussed the last time that he attended church. The applicant was unable to provide any level of detail in response.
I asked the applicant if he could name some of the significant figures in his faith. The applicant referred to Jesus Christ. I asked him if he could think of someone other than Jesus Christ and the applicant said he would have to think. He was not able name anyone other than Jesus Christ.
I asked the applicant if he had a bible of his own. He said that he did but that he had not brought it with him. I asked him if he had a favourite part of the bible and he replied that all of it was good. I asked him if he had any favourite passages of the bible or stories that particularly resonated with him. The applicant again noted in general terms that Jesus had become man, saved us on the cross and that he had been resurrected. I asked him if there were any other passages of the bible he liked. The applicant said that it was mainly that paragraph. Despite repeated prompting, the applicant was unable to refer to any other parts of the bible or articulate why these stories were important to him.
I remarked to the applicant that he had talked a number of times about Jesus dying for our sins. I asked him if there were any other major figures in his faith that he identified with or considered important. He said that there were some but that he could not remember them, stating that his memory was not good.
I put it to the applicant that I might find that his knowledge of the bible was not consistent with a person who claimed to have read the bible frequently and discussed it with others over a number of years, both in China and then at his Local Church in Sydney. The applicant said it was difficult to remember.
Some of the issues noted above are relatively minor. Other issues are more significant, such as the applicant’s apparent inability throughout the interview to describe in any real detail what went on in the church, what was discussed there, what he had learned or found meaningful in his reading of the bible and his inability to articulate why his faith was important to him. In response to a number of questions about the bible and his religious practice, the applicant repeated that Jesus had died on the cross for our sins or words to that effect. This appeared to be a rote response.
Similarly, he was not able to talk in a meaningful way about the practice of his faith in Australia. He stated that he that he attended church once a week, although sometimes only once a month if he was busy. He could not describe what was said at the last church gathering he attended. Despite owning a bible in Mandarin and claiming to read it regularly, he could not name any major religious figures he identified with besides Jesus or identify any passages that had particular meaning for him beyond brief statements regarding Jesus’ resurrection. Beyond the initial statements that he had met a colleague at the [workplace] where he worked who had helped him when he was depressed, he could not articulate why he continued to be drawn to the religion thereafter or why it had ongoing importance in his life.

The applicant did not provide any evidence by way of photos, personal testimonies from other church members or other material attesting to his involvement with the Local Church here in Australia. This was raised with the applicant at interview. He said that he could get some further information if required.
The applicant asked for and was granted additional time to submit further information in support of his case. To date, the applicant has not submitted any further information in support of his claims for protection, including anything by way of personal attestations from anybody in his congregation.
The applicant did not put forward any other reasons he feared harm on return to China.
Considering the applicant’s responses as a whole, I have significant concerns about the credibility of the applicant’s claim to be a committed member of the Local Church. Outside what was already written in his statement of claims, the applicant had difficulty supplying meaningful detail about what occurred at his church meetings in China, what he had learned from the bible or why his faith was important to him. He did not display a knowledge of the bible or of his faith more generally that was consistent with someone who claimed to have regularly attended church meetings and discussed the bible.
The applicant also provided very little detail as to how he was able to obtain a passport and exit China, despite allegedly being wanted by the Chinese authorities, claiming all the arrangements had been made by his cousin. However, he did state that his cousin had paid a bribe to officials to allow him to exit through the airport.
Information from the Department of Foreign Affairs and Trade confirms that it is all but impossible to exit China without the knowledge of the authorities[1]. Police and other authorities can feed data into the databases used to create exit control lists[2]. It is not necessary to have been charged or arrested, even those who are suspected of a crime can be refused a passport or end up on an exit control list if they already have a passport[3]. In a report specifically regarding Fujian issued around the time the applicant departed China, DFAT noted that the Fujian Public Security Department monitored entries and exits via both airports and other means of public transport and required citizens to show their national identity card[4]. DFAT also notes that algorithmic based technologies, rather than humans, may make decisions on who passes through checkpoints[5]. Officials are difficult to bribe in any in case, given sensitivities to corruption, and the status and relatively high remuneration of public security officials[6].
[1] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
[2] Ibid
[3] 'Trapped - China’s Expanding Use of Exit Bans', Safeguard Defenders, 01 May 2023, 20230503091706
[4] 'DFAT Thematic Report Fujian Province', Department of Foreign Affairs and Trade (DFAT), 16 December 2016, CIS38A80123116
[5] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
[6] Ibid
Given that the applicant claimed that his workplace had been raided and many members of his church had been arrested, including both the persons with whom he shared an apartment, I do not accept as plausible the applicant’s explanation that the authorities may not have begun investigating him at the time of his departure. It is also difficult to reconcile the applicant’s speculation that the authorities may not have begun investigating him with his later statement that his cousin had told him that he had needed to pay a bribe to someone at the airport to facilitate the applicant’s departure. I also do not accept as plausible the applicant’s claim that he would be able to travel from Anhui on public transport back to Fuzhou and then exit Fuzhou via a major airport without being intercepted by the authorities if he were of interest to them.
I consider instead that the applicant was able to exit China without incident because the applicant was not a member of an underground church and the related events described by him, such as the raid of his workplace and arrest of church members, did not take place. I base my finding that he was not a member of an underground church not simply on the implausibility of his claim to have departed China while being actively sought by the authorities, but also on the applicant’s consistent inability to describe the bible or meaningfully articulate the precepts of his faith or its importance to him.
The evidence that the applicant regularly attends or has any meaningful involvement with his church in Australia is also scant. Based on his evidence, the applicant’s participation with the church did not extend beyond simply attending once a week or a month as time allowed. He did not provide evidence that he was involved in any other church activities. The applicant has not supplied any documentation from the church, letters of support from the church leaders or members, or other evidence such as photos that demonstrate any meaningful involvement with his church here in Australia. Further, the applicant has not supplied any additional evidence despite seeking and being granted an extension of time to do so.
Given the applicant’s lack of knowledge of the bible and other basic precepts of his faith, the concerns noted above regarding his departure from China, and the lack of evidence that he regularly attends or is meaningfully engaged with his church here in Australia, I am not satisfied as to the credibility of the applicant’s claim to have been involved with an underground church in China and to be a practising and committed Christian here in Australia.
For the reasons set out above, I do not accept that the applicant was involved in an underground Church in China. I do not accept that he is a genuine, committed practitioner of his religion here in Australia or that he would seek to practise his religion on return to China. It follows that I am not satisfied that he faces any sort of harm in China on account of his religion or for any other reason.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
I have considered the applicant’s claims under the complementary protection provisions. As noted above, I am not satisfied that the applicant’s claims to have been an underground Christian in China or a practising Christian here in Australia are credible or that he would suffer any harm on account of his religion. I am similarly not satisfied that there is a real risk he would suffer significant harm on that account if returned to China. The applicant has not put forward any other claims that would engage the complementary protection criteria.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Damien Power
Member

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

[2024] AATA 1228

15 January 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction