1834595 (Refugee)

1834595 (Refugee) [2024] AATA 1925 (28 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1834595
COUNTRY OF REFERENCE:                   China
MEMBER:Xanthe Emery
DATE:28 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 February 2024 at 12:26pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – fabricated claim – inability to repay debt owed – vague and inconsistent evidence – late claim not raised earlier – inability to financially support family – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 November 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 2 May 2018. 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 applied for review of the delegate’s decision on 25 November 2018 and provided a copy of the delegate’s decision record with his review application.
The applicant appeared before the Tribunal on 19 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant appointed a representative in relation to the review in February 2019. On 31 October 2023 that representative wrote to the Tribunal advising that he was no longer the applicant’s representative but that he continued to be the applicant’s authorised recipient. He also provided a ‘Change of contact details’ form signed by the applicant.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department of Home Affairs
The applicant was born in [year] in Fuqing, Fujian, China. In his protection visa application form he declared that he had a wife, three [children], and his parents in China. He stated his religion as Christian. He declared primary school education only. He declared he had lived in Fuqing from birth until he came to Australia but gave no residential address in China. He declared he had been employed between January 1994 and March 2018 but gave no details of this employment or what work he undertook. He declared no travel to any countries (other than Australia) in the last 30 years.
According to the delegate’s decision record, the applicant was granted a Visitor (Class FA) (Subclass 600) visa on 17 January 2018, and arrived in Australia [in] April 2018.
The applicant applied for the Protection (Class XA) (Subclass 866) visa on 2 May 2018. Together with his visa application form, the applicant provided a copy of the biodata page of his passport, and a Form 956A appointing an authorised recipient for the visa application process.
In his visa application, the applicant claimed, in summary, that he was persecuted by the Chinese government because he was an underground Christian. His parents believed in underground Christianity when he was a child. His body’s condition was not good but after he believed in underground Christianity and attended underground Christian activities, his body’s condition became better. The Chinese government started to crackdown on underground Christianity. They smashed all the goods in their home and threatened them. The applicant and his parents were beaten because they refused to give up their belief. After that they wrote a public letter to hope to get public attention and help. However, the officials knew their behaviour and sent the police to catch them. The applicant escaped China and fled to Australia. If he returns to China he will be persecuted by the police and once he goes to prison, he will die, and will be mentally and physically persecuted. The authorities in China cannot protect him because the Chinese government is corrupt and collude with the police. They only care about their own benefits.
The applicant was invited to attend an interview with the delegate scheduled for 8 November 2018, but did not attend. He did not provide any further evidence, information or submissions to the Department.
On 9 November 2018 the delegate made a decision to refuse to grant the applicant a Protection visa. The delegate accepted the applicant was a member of a Christian church in China but found that he had a low profile and was able to exit China legally without drawing the attention of the authorities. The delegate found the applicant faced less than a real chance of being persecuted for his religion, and that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the being removed to China, there is a real risk the applicant would suffer significant harm.
Evidence before the Tribunal
As stated above, on 25 November 2018 the applicant applied to the Tribunal for review of the delegate’s decision and provided a copy of the delegate’s decision record with his application for review.
At the hearing on 19 December 2024 I discussed with the applicant his family, education, employment history, migration history, his protection visa application, and his claims for protection.
The applicant gave evidence about his family composition. He said he had been married twice. He has three [children], one born in [year] and twins born in [year], with his first wife. His two younger [children] reside with her in [Town 1] town in the Fuqing city area. His eldest [child] is in Australia, having come here as an overseas student, but the applicant thought he may have lodged a refugee visa application now. He divorced his first wife in 2016 or 2017 and had custody of their children. His second wife is from Hong Kong. He said his plan was to marry her and obtain Hong Kong residency and that she would look after his three [children]. However, he realised she worked in the adult entertainment industry, was not reliable, and would not take good care of his [children], and so they divorced also. After this he spoke with his first wife and suggested she look after their children and he would transfer her 5,000RMB each month. He told the Tribunal he was continuing to transfer that amount of money each month. He said his first wife did not work because she was looking after their [children] and attending church activities. He said they continued to be in contact and would discuss their children and transferring money. He speaks with his [children] in China every two or three days.
His parents reside in his hometown of [Town 1]. They are in their [age range]. He has one sister who also resides in [Town 1], two brothers in [Country 1], and one brother in Hainan province, China. His three brothers all work but his sister is financially supported by her husband.
I discussed with the applicant how he made the protection visa application. He explained that he was represented by an agency which had closed because the lawyer was arrested. He said he had not had contact with them since about a year after applying for the visa. The applicant said he did not know and had forgotten what the claims for protection were in his application, that he did not have a copy of his application, nor had he read the contents. He said he did not attend the interview with the delegate because he was not notified about it by his former agent.
At the hearing, the applicant made new claims for protection. He claimed that in 2013 he invested in a coal mine in Gansu province. He had previously worked in a coal mine in Shanxi province, and this was where he heard about the investment opportunity in the Gansu mine. The applicant also worked at the Gansu mine and was in charge of monitoring a yard where coal was stored, and then sold and transported from.
The applicant said that when Xi Jinping became President, he introduced a new policy that required all coal mines to have a licence. The coal mine he had invested in did not have a licence and closed down in 2014. He said that the boss of the coal mine was arrested and sentenced to nine years in prison for offences relating to illegal fund raising or illegal financing. This person has promised high returns to investors and the applicant was one of the victims of his conduct.
The applicant had borrowed two to three million RMB to invest in the coal mine. He said that people he had borrowed money from were chasing the debt and fighting or arguing at his home. He couldn’t pay back the debts. He thought he would come to Australia and see what the situation was like and if it was good for him. He said he found the environment in Australia suited him well and so he decided to stay.
The applicant said that after the mine had closed in 2014, he had not had another job in China. He said he owed two to three million RMB and that with another job he would only make about 2,000RMB per month, which was not enough to survive or to pay the debt. Instead, he looked for different business opportunities and to escape the people chasing him for money. Noting that the applicant travelled to Australia in April 2018, I asked how he supported his first wife and [children] during this approximate four-year period. The applicant claimed that he had to borrow money because he couldn’t watch them starve. The applicant gave evidence that he had previously worked in various different jobs as an employee and that as he didn’t have a debt at that time, that was enough for him.
He said people were always coming to his home, arguing and making a scene to chase their money. Because he was the one who had signed the IOUs, he felt sorry for his first wife, and so he divorced her to give her a stable and peaceful life. But his second marriage didn’t work out either, and when he heard that his first wife had not remarried, he contacted her and suggested that for the sake of their children, they take care of them together. He claimed that as they were divorced, she was no longer responsible for the debts.
When asked why he feared returning to China the applicant said that if he returns now, he still doesn’t have enough money to pay back all the debts and so the people he owes money can bring a lawsuit against him. If he can’t pay back the debt, he could get arrested and will face gaol time.
The applicant also claimed he would not be able to make enough money in China, at his age and with his skills, to support his family and parents. He said he would only be able to make 2,000 to 3,000RMB per month, which was not enough to support a family or survive in China. He claimed that as his parents get older, when they are sick and hospitalised and have surgery it will cost several thousand RMB, and that he had a lot of stress with two children in school and elderly parents.
At hearing, I discussed with the applicant that in his visa application he had claimed to fear harm in China as an underground Christian, but that he had not raised that as a reason he currently feared harm, despite multiple opportunities to do so during the hearing. The applicant said that previously China was not that open and that if you joined an underground church and people reported you, you could get arrested. He said his whole family was Christian and that his first wife had been a firm believer since before they were married. He said he is a Christian, but that he is not as devoted as his wife. He gave evidence that in China he mostly worked in other cities and was rarely at home, and that he didn’t go to the underground church in his home area. He said his wife attended a government approved church. He confirmed he was not concerned about returning to China anymore because China had ‘opened up’ in that regard, that there are a lot of big churches and that there was freedom to go to church now. When asked if he would attend church with his wife if he returns to China, the applicant said it would depend if he had time and that as the man, he needed to make money and go to different places.
The applicant also gave evidence that he had only attended church in Australia on two or three occasions, and because he had been working in rural areas, he had not attended for the last four or five years.
No other documentary evidence, information, or submissions were provided to the Tribunal in support of the applicant’s claims for protection.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because he is a refugee or owed complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and receiving country
The applicant claims to be a citizen of China and provided the Department with a copy of the biodata page of his Chinese passport. The delegate was satisfied of the applicant’s identity and the authenticity of his passport. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China and that China is his receiving country for the purposes of assessing his claims for protection. 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.
Consideration
Does the applicant face a real chance of persecution or a real risk of significant harm as a Christian?
I’m prepared to accept the applicant holds Christian beliefs. However, on his own evidence he did not attend the underground church in his home area in China and was often away working. He also gave evidence he had only attended church in Australia on two or three occasions. When asked whether he would attend church if he returned to China, he said it would depend if he had time. Despite several opportunities to tell me why he feared returning to China, the applicant did not claim it was because he was a Christian, and instead gave evidence that he was not scared of returning to China for that reason and that there was freedom to go to church in China now.
When asked whether the applicant had experienced problems in China because of his religion in the past, he gave a vague answer that when they were afraid of getting in trouble they would run away or act discreetly, and that sometimes people would be arrested and would have to escape from the police. He made no mention of any of the events set out in his visa application, including being beaten, threatened, or having property destroyed by the authorities.
Given the applicant’s evidence about the circumstances in which he made the protection visa application and that he did not know what the claims for protection were, I am satisfied those claims set out in the visa application form were fabricated and do not reflect the applicant’s true circumstances. Accordingly, I am not satisfied the applicant was persecuted by the Chinese government because he was an underground Christian, that he and his parents were threatened and beaten, and their belongings in their home smashed by the government. I do not accept that they wrote a public letter to get attention and help and that the police were sent to catch them. I do not accept the applicant experienced any harm at all in China in the past because of his religious beliefs.
I do not accept the applicant would attend church at all on return to China, including an underground or unregistered church. His own evidence was that his first wife attended a government approved church, that there were a lot of big churches and people donated money to build bigger, fancier churches, and that all religions in his area had official churches. He has only attended church in Australia on two or three occasions. He also said that whether he went to church at all in China would depend on his work and whether he had time. He said he was not concerned about returning to China because of his religious beliefs. He did not claim that his first wife or any of his family had experienced any problems in attending the official church.
For these reasons, I am not satisfied the applicant faces a real chance of persecution, or a real risk of significant harm, because of his religion if he returns to China now or in the reasonably foreseeable future. I am therefore not satisfied the applicant is a refugee in accordance with s 5H(1) or that he is owed complementary protection criterion in accordance with s 36(2)(aa).
Does the applicant face a real chance of persecution or a real risk of significant harm because he owes money in China?

It is the responsibility of the applicant to specify all particulars of his claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2).
I am prepared to accept that the applicant may have worked in a coal mine in China, on the basis he was able to give somewhat detailed and spontaneous evidence about his role in the mine, its location, why it had closed down and about the boss of the mine being imprisoned. However, for the following reasons, I do not accept the applicant borrowed money to invest in a coal mine in China or that he owes people money in China.
Firstly, his oral evidence about the money he claims to have borrowed, the circumstances in which the money was borrowed, and the remaining debt was vague, unclear, inconsistent, contradictory, and frequently changed, as set out in the examples below.
He initially said he borrowed the money from relatives, friends, or neighbours to invest in a coal mine. When I asked when he borrowed the money, the applicant then said that he had been borrowing money ever since he got married until he made the investment in the coal mine. He claimed that in Chinese culture it is the parents’ responsibility to save money in order for their children to marry. But because he had many siblings, he had to borrow money himself to marry his first wife. Then this person asked for their money back and so he borrowed money from someone else to pay back the first person. He said he borrowed money for different reasons including for marriage, for investment, or when he ran into difficulties.
The applicant was also unable to say how much debt remained outstanding. He said he had invested 2.7 million RMB into the coal mine and that he had borrowed about 2.8 million RMB which included money he borrowed to fund his trip to Australia. He named six people and gave specific amounts he had borrowed from those six people, but then said there were also other people he owed smaller amounts to, but he couldn’t remember off the top of his head, and that over the years his first wife had paid back small amounts of money. He said he sends money to his first wife and his parents and that if they have any left, they will make the arrangements to pay people back smaller amounts. The applicant said he wasn’t sure how much he owed because he had been living in Australia for over five years, and as a labourer he was very tired, and didn’t have the energy or a clear mind to think about that. When asked whether his first wife knew how much he owed, he then said she didn’t have a clear idea because they were divorced, and a lot has happened since their divorce. He said the copies of the IOUs were not still in their home and they didn’t have access to them.
When asked whether he had any evidence of the IOUs or of written agreements pertaining to the debts he claimed they didn’t sign debt arrangements, just a note as an IOU and that it was always the person lending the money who keeps the IOU, and he didn’t keep them. When it was put to the applicant that he had no way of knowing how much debt he had remaining, the applicant said he didn’t know for sure because only small amounts had been repaid and those arrangements had been made by his first wife and parents with left over money. When I asked the applicant how the lenders would be able to file a lawsuit against him in China if there was no evidence, he claimed that in China you just need a piece of paper with your name, your debt and your signature in order to sue someone. When asked whether anyone had filed a lawsuit against him now, the applicant provided a convoluted response. He said if he could pay back the money then it would be fine but if he can’t then they will lodge a claim against him. He said while he is in Australia, his wife can tell people not to worry because he is in Australia trying to make money and that they will have enough money to pay them back, but once he returns to China he will have no source of income and no way to stall them, so they may lodge a claim immediately. It was put to the applicant that he had said he had divorced his wife so that she wouldn’t have to deal with the issue, but he was now saying that she is able to promise or tell people that he would pay them back because he’s in Australia. In response the applicant simply reiterated that his intention was to divorce his first wife to give her peace but that things didn’t work out with the Hong Kong girl, and that while he was in Australia there was no point to sue him.
The applicant’s evidence about who was coming to chase up the debt was also vague. When asked who had been coming to his home to chase up the debt, he said some people came, and some did not. He then said that it happened five or six years ago. When again pressed for details on who was coming to his home the applicant named a single person, but said that that person had been paid back because he was pretty assertive. He also said that when people go to her now, his first wife can tell them that she is divorced from the applicant, doesn’t have contact with him, and that she didn’t owe them any money. I put to the applicant that he had earlier said she was paying people back small amounts of money and that it was difficult to understand why she would do that if she also told people that they were divorced. The applicant’s response was that his first wife had two options. She could tell people they are divorced and that she didn’t owe them anything, or she could tell them that he is in Australia now and trying to make money and that he will pay them back. He said she was also making small arrangements to pay people back discreetly. He claimed that after he pays back the debt they will remarry.
The cumulative effect of all of the above problems with the applicant’s evidence lead me to conclude that the applicant did not borrow money as claimed and does not owe money to people in China as claimed.
Secondly, the applicant has provided no corroborative evidence in support of his claims, particularly in relation to his claimed investment in the coal mine, or the money he claims to have borrowed, or any of the debts he claims to still owe. In light of the problems in the applicant’s oral evidence, set out above, the lack of corroborating evidence further undermines the credibility of his claims.
Thirdly, the applicant did not raise the claim that he had borrowed money to invest in a coal mine in China or that he owes people money in China, until the hearing.
I discussed with the applicant my concerns that: it had not been mentioned in his protection visa application; that he had not attended the interview with the delegate which would have been an opportunity to discuss the claim; that he had not put forward the claim in the five years or so that he had been in Australia despite saying it was the reason he left China; and that s 423A of the Act required me to draw an unfavourable inference as to the credibility of the claim if he didn’t have a reasonable explanation for why it had not been raised before the delegate’s decision.
The applicant’s evidence was that the ‘agent’ who lodged his application asked him if he was a Christian and he told them he was but that he didn’t attend as much as his wife because he was busy with work. The ‘agent’ told him that it was pretty easy to get a protection visa as a Christian and that he should pursue that route. He also gave evidence that he didn’t mention the debt issue to the ‘agent’ because he didn’t know that it could be helpful or a reason to apply for protection. He did not attend the interview with the delegate because he had no notice of it. He heard that the firm had closed and that the ‘agent’ was arrested. All her clients were transferred to another firm whom they paid about $500 for a very basic service, such as receiving their notifications and applying for Medicare. He said he just followed his friends who were transferred to the other firm.
I accept the applicant may not have received comprehensive or accurate advice at the time he applied for his protection visa. I also accept he would not have understood the protection visa application process well and may not have attended the interview with the delegate because his authorised recipient did not tell him about it. That unscrupulous ‘agents’ operate in the community is well known. However, I do not accept that this explains why the applicant did not seek to make this claim at any time in the intervening years since applying for protection.
His evidence was that he knew the ‘agent’ had been arrested, and that the agency’s usual practise was to fabricate a story about religion. In light of this, and given he claims the debts were the reason he left China and that he fears he will be imprisoned in connection with those debts, it is reasonable to assume that the applicant would have made some attempt, at least after his visa application was refused by the Department, to put forward the claims for Australia’s protection that accurately reflected his circumstances and his actual fears of returning to China, prior to the hearing. That he did not do so, undermines the credibility of those claims.
As I do not accept the applicant borrowed money to invest in a coal mine, or that he owes people money in China, I do not accept he will be harassed or harmed by the people that he claims he owes money, or that they will file a lawsuit to reclaim that money, or that he will face imprisonment in China if he is unable to replay those debts. Accordingly, I do not accept he faces a real chance of persecution in connection with his claimed debts, if he returned to China now or in the reasonably foreseeable future. I am therefore not satisfied the applicant has a well-founded fear of persecution in China, and he is not a refugee in accordance with s 5H(1).
In light of the above findings, I am also not satisfied that there is a real risk the applicant will suffer significant harm in China in connection with his claimed debts. As such, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm, and he does not satisfy the complementary protection criterion in s 36(2)(aa).
Remaining claim: inability to financially support family
The applicant claimed that at his age and with his skills he would only be able to earn 2,000 to 3,000RMB per month and that this was not enough to support his family or to survive in China. He said wages for labourers are very low in China. The applicant provided no corroborative evidence on wages or cost of living expenses in China. He provided no evidence of his own family’s living expenses or any information or evidence about his parents’ health. There is no evidence before me about the wages the applicant would earn in China, beyond his bare assertions. The applicant’s oral evidence was that he was employed in various jobs and industries in China, and that he has been employed in Australia since shortly after his arrival. He said he works about 40 to 50 hours a week in Australia. I note he also has a sister, two brothers in [Country 1] and another brother in Hainan province in China. When asked whether they also support his parents, he claimed his brother in Hainan couldn’t spare money to support his parents and that his siblings abroad don’t treat his parents so well.
I accept the applicant may earn higher wages in Australia and on that basis has a preference to remain here. However, on the limited evidence before me, I’m not satisfied that the applicant would be unable to find employment, that he would be denied employment for any reason, or that he would be unable to support his parents, children, and first wife financially because he wouldn’t be able to make enough money if he returns to China. On the evidence before me, I’m also unable to be satisfied that his siblings are unable or unwilling to contribute to the financial support of their parents.
I am not satisfied the applicant faces a real chance of persecution for this reason on return to China now or in the reasonably foreseeable future. I am therefore not satisfied the applicant has a well-founded fear of persecution in China and is not a refugee in accordance with s 5H(1).
In light of the above findings, I am also not satisfied that there is a real risk the applicant will suffer significant harm in China. As such, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm, and he does not satisfy the complementary protection criterion in s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The applicant told the Tribunal that he thought his [child] in Australia had applied for a refugee visa, but provided no evidence of any such application, or of his [child] having been granted a protection visa. In the absence of any evidence that the applicant’s [child] has applied for and been granted a protection visa, I am not satisfied that the applicant meets 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.
Xanthe Emery
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 1925

28 February 2024

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