1836146 (Refugee)

1836146 (Refugee) [2024] AATA 935 (5 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Chang Hong Liu (MARN: 1281423)
CASE NUMBER: 1836146

COUNTRY OF REFERENCE: China
MEMBER:Sue Zelinka
DATE:5 January 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 January 2024 at 9:24am
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – protests – land resumption with unfair compensation – employment – detention – fear of torture – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 426, 441
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 21 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant whose passport shows he is a citizen of China applied for the visa on 12 July 2018. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations.
The applicant appeared before the Tribunal on 12 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 was represented in relation to the review.
CLAIMS AND EVIDENCE
Background
According to information on the passport and the protection visa application, the applicant is [an age]-year old man who has lived all his life in Fujian. His wife and [children] remain there, as do his parents. The applicant is literate in Mandarin. He completed all his schooling then entered [a named] University, graduating in [specified year]. From 2012 until his departure from China in April 2018, he worked as a manager in a [company] in Fuzhou, the provincial capital of Fujian.
Evidence before the Department
Protection visa application
In the protection visa application, the applicant stated that he had to leave China and come to Australia in order to make a living. The authorities had expropriated his estate offering unfair compensation below market value, insufficient for the applicant to buy a new residence. He went to a government office to negotiate but was subsequently dismissed from his job and therefore had no income.
Departmental interview
At the departmental interview held on 13 November 2018, the applicant explained that he had bought an apartment in 2012 at the cost of one million RMB. In October 2017, he received notice that the apartment block was to be demolished and was offered three choices: (1) payment of 1.8 million rmb although the current market price was closer to 3 million; (2) relocation in a government property elsewhere; or (3) an apartment of only half the previous size in the new block that was to be built on the same site as his existing apartment.
There were [number] apartments in the blocks encompassed by the demolition order and [number] of [these] households did not wish to comply with any of the offers. More than 50 people from the [number] households (including the applicant) gathered in front of the district office in February 2018 to protest and after an hour and a half of refusing to disband, the group was arrested by the police and detained at a police station for four days, without food or water, then released. Only [number] households were prepared to continue their protests and they wrote to both the Municipal and Provincial Governments but received no responses.
The applicant then left China in April 2018, on a work trip to Australia on behalf of his company. This had been planned since November 2017 and the company had made the appropriate arrangements (visa, ticketing etc). The company is involved in the import/export of [specified] products. Although the applicant travelled to Australia alone, he was joined after a couple of days by his boss.
The applicant claimed that after his departure, the other [households] who had not accepted the authorities’ offers were taken away in mid-May 2018 and detained: he heard this news from his family members. Eventually they agreed to sign for the demolition order and the applicant’s family also signed but none received compensation. The applicant said his family was questioned but not detained. He claims that the other [households] were still in detention at the time of the Departmental interview (November 2018).
There was some confusion as to when the applicant quit his job. He stated that he was sacked from his job by his company at the end of May 2018 due to government pressure on the company. He also said he quit his job on [a day in] May 2018 after informing his boss, whilst they were both in Australia, that he would not be returning to China as scheduled. The boss departed without the applicant [days later].
The applicant claims that if he were to return to China, he will be detained by the authorities and sentenced like the other [households]. He noted that his family had informed him that a police officer had been to his house. His name would be on a list held by the government and as it would include his national ID number, he could not evade it. In any case, he could not relocate elsewhere in China as his [children] would not be able to go to their current local school - a good one – and he would have to pay high fees if they were out of area.
The departmental interview also ascertained that the applicant had earned a good salary in China, allowing him to buy a car plus the apartment, and that he had travelled [abroad] on a previous passport – sometimes on business and sometimes on holidays. He showed a Chinese-issued [Travel Card] with his name and photo with an expiry date [in] March 2023.
The delegate’s decision
The delegate was satisfied that there was a complete lack of substance and authenticity to the applicant’s claims about his role in a protest against corruption by CCP officials and consequently did not accept any of his claims. The delegate was satisfied that the applicant’s fear of harm was not genuine and that there was no real chance that he would be harmed for a Convention reason if returned to China.
Evidence before the Tribunal
Application for review
On 10 December 2018 the applicant applied for a review of the departmental refusal of his protection visa application, a copy of which he enclosed. He made no further claims, referring only to those as stated on his protection visa application.
The Tribunal hearing
The applicant stated that he had purchased an apartment in a complex of [buildings] in 2012 in Fuzhou, the provincial capital. In January 2017 a notice was affixed to each apartment block saying that all [these] buildings plus a nearby [business] were to be demolished as the land was needed for redevelopment. The demolition was scheduled for three months hence.
The apartment owners – there were [number] in total – held a meeting to discuss the compensation package being offered; [number] households were unhappy with it and all together went to the office of the demolition section of the local government. They were told to send a smaller delegation and the householders chose [number] people, including the applicant, to represent them. The delegation had a meeting with the local officials a week later and were told the site redevelopment was an unchangeable decision and to take one of the two options being offered by way of compensation (that is, a fixed sum of money or resettlement elsewhere).
By February 2017 some households had already left the apartment blocks but [number] were continuing to protest, submitting a petition to the Fuzhou City Petitions Department. The Petitions Office replied and offered a meeting to which the applicant and [number] others went. They voiced their concerns about inadequate compensation and left peacefully. Some menacing private security guards employed by the demolition organisation came to the apartments and spoke to a number of the households, telling them that the redevelopment was going ahead.
The [people] (including the applicant) who had been to the Petitions Office decided to take the same petition to a higher authority: that is, to the Provincial Petitions Office. On the way there, their car was stopped by a black van in a one-way street. Six or seven men in black uniforms emerged from the van and told the applicant’s group not to proceed, but the applicant’s group threatened to call the police and the men got back into the van went away. The Petitions Office replied with an invitation to a meeting; the applicant and three others attended without incident [in] February 2017. The office said it would pass the petition to the relevant officials.
By this time a number of apartment householders had taken the compensation and moved out. The security personnel working for the demolisher were appearing frequently and threateningly until, on [a day in] March 2017, only the applicant and [number] other apartments – all coincidentally in his apartment block rather than in any of the other [buildings] – were still defiant. The nearby [business] had already been demolished as had some of the other apartment blocks. The applicant recalls the date [in] March 2017 as the one when the local government cut off all services – water, electricity and gas – to their apartment block, the only one still standing. The applicant and the other men in the affected apartments sent their wives and children away to stay with relatives (if they had not done so already) and remained to “camp” in their apartments with no services. They ensured that there were always a couple of men “on guard” whilst the others continued their usual employment.
This period of “camping” in their apartments with no utilities went on for a month. The apartment owners had hung a banner across their building and tried to phone journalists to interest them in the story but apparently without success.
After a month – hence sometime in April 2017 – the demolisher started cutting down the main entrance door to the apartment block and the security guards came and dragged the [remaining] men out. This was about midday. Police took them to the local police station where they were kept until midnight. On release, [the] men walked back to the site of their apartments and found the area circled with a wire fence and the whole site flattened. The [remaining] men decided that they would proceed with their protest aimed at securing a better compensation deal.
They collectively rented a small apartment together elsewhere in Fuzhou and continued to protest at the office of the demolisher, holding a banner, until May 2017 when the office closed down (as the demolisher was finished at that site). They then continued their protest at the Provincial Petitions Office. They paid a person to film them and their banner outside the office, hoping to upload these pictures to social media. However, in December 2017, the police arrested the person filming and smashed his mobile phone. The police then arrested the [protesters] (including the applicant) and took them to [a named] Police Station where they were detained separately. They were charged with disturbing public security and sent to court where they were fined and jailed for 14 days. The prison sentence was inclusive of the few initial days of detention in the police cells. Whilst in jail, the men had been intimidated into signing the forms relating to the relinquishing of the apartments and the compensation. They received the original offer of 1.3 million renminbi plus an extra 100,000 rmb. The applicant still felt aggrieved as he had an existing mortgage of 680,000rmb on his appropriated apartment; plus he had acquired a criminal record following his court appearance and sentence.
The applicant claimed that he was sacked by his company because of his criminal conviction, just after Chinese New Year (hence the latter part of February 2018). His fellow-protesters were also sacked from their various jobs, so they decided to continue their protest, not only for more compensation but also to have their criminal convictions overturned. They spent a month assembling all their documents and then [all] of them flew to Beijing. They found the Petitions Office and lodged their petition with no difficulty. The applicant then went to Tianjin where he had a relative whom he thought might help find him a job. [Most] of the men returned home to Fuzhou and were arrested there, also being asked where the other two (including the applicant) were.
The applicant was appraised of this news by his family and he went into hiding. A little later, when the family said that the police had come to their house asking for him, he decided to leave China. He realised that he had a passport and a visa for Australia: these had been obtained by his company for him when they were making arrangements for him to travel on a business trip to Australia. This had been before the company sacked him. He travelled from Tianjin to Guangzhou using night busses while he got a friend to bring his passport from Fuzhou to Guangzhou. He then left China in April 2018.
The Tribunal put it to the applicant that his story was completely different from that which he told the department in his interview, and which in turn contained a number of differences from his protection visa application. It further noted that the hearing invitation the applicant responded to had specifically asked for any new information to be put to the Tribunal before the scheduled hearing. The Tribunal told the applicant that it intended to explore the differences in his testimony and provide him with an opportunity to explain why his story had changed. The Tribunal put it to the applicant that, without any further explanation, it was open to the Tribunal to conclude that he was fabricating the story and that no weight could be given to his testimony.
Unfortunately, the scheduled hearing time was almost up and the interpreter had to go. The Tribunal told the applicant that another hearing would be scheduled as soon as possible and that the significant differences in his testimonies would be explored. The applicant agreed.
The hearing was scheduled to continue on 18 December 2023 and the applicant was duly advised on 13 December 2023 (the day after the adjourned hearing) by email to the address provided. This was the same address which had successfully reached him in respect of the first hearing. An SMS reminder of the hearing was sent on 15 December 2023. The applicant did not attend the hearing at the time scheduled and after 45 minutes, the interpreter was released and the hearing cancelled. The applicant did not send any communication (either on the day or later) about his failure to attend.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the protection visa application, the Departmental file, and an amount of evidence given by the applicant at a Tribunal hearing. The hearing was incomplete at the close of the first session and a continuing session was scheduled in which the applicant would have a chance to address a number of concerns about the inconsistency of his testimony presented at various stages. However, he failed to attend the scheduled second hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to the second hearing in accordance with s441A(5). In these circumstances, and pursuant to s426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal has grave concerns about the veracity of the testimony in this case where the evidence presented at the first Tribunal hearing was markedly different from the evidence put before the Department. The applicant was on notice that the Tribunal had these concerns and for this reason had arranged a second hearing in order to explore these concerns. The applicant may have had a plausible reason for changing his story and not alerting the Tribunal of this as requested in the application to hearing form. However, the applicant was clearly on notice that, without continuing the hearing and addressing these concerns, the Tribunal may conclude that he was fabricating his story and that no weight be given to his testimony. The applicant did not attend the continued hearing nor take the opportunity offered to address the Tribunal’s concerns.
The relevant law
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.
Analysis, reasons and findings

The issue in this case is whether the applicant (whose passport which shows he is a citizen of China) 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.
Fears about return to China
The applicant claimed on his protection visa application that he feared persecution from the local government which had appropriated his land with unfair compensation. This meant he had insufficient to buy a new place and when he tried to negotiate with the local government, he was injured and detained while protesting. He was sacked from his job and had to come to Australia to make a living. He feared he would be imprisoned and tortured if returned to China. At the departmental hearing, the applicant said that his agent had misunderstood his claims and he did not come to Australia for economic reasons. He said that after his work-related departure from China in April 2018, he learned that [number] apartment-owners with whom he had been protesting the demolition of their apartments with inadequate compensation had been detained and sentenced. The protests began after the notice of demolition first arrived in November 2017 and continued until the protesters petitioned the official Complaints Commission in March 2018. Although this last body had not responded, the [signatories] were arrested in May 2018. The applicant was in Australia on a business trip at the time and felt that he, too, would be detained and sentenced if he returned home. On informing his boss with whom he was travelling that he could not return to China, the company terminated his employment.
At the Tribunal hearing, the applicant again claimed that his apartment had been appropriated with inadequate compensation but he outlined a series of protests, to progressively higher authorities, that stretched from the first notice of demolition in January 2017 to the visit to Beijing by the applicant and [number] others shortly before his departure to Australia in April 2018. The applicant claimed that the group had delivered a signed petition to the Petition Office in Beijing, shortly after which [some in] the group who had returned to their hometown were arrested. The applicant who had not returned home heard of these arrests and made his way to another airport from which he departed China. He fears that he too will be arrested if he returns to China and treated badly as he already has a criminal record following his arrest, sentencing and jailing after an earlier protest in December 2017 at the provincial government level.
The Tribunal is at a loss to understand why the applicant provided an account of incidents within one time frame to the Department and another with different incidents and a much longer timeframe to the Tribunal. The applicant submitted his PVA in July 2018 and was interviewed by the Department in November 2018. The applicant was not far removed from the events which he said took place from November 2017 to March 2018, with the consequences of those events occurring in May 2018 by which time the applicant was already in Australia on a work-related trip. However, when the applicant appeared before the Tribunal at his hearing, more than 5½ years had elapsed since his arrival in Australia and very nearly 7 years since the date he gave for the demolition notice which spurred the sequence of events. Although it seems logical to assume that the applicant’s recollection of the timing of certain events would be more accurate the closer he was to them, the Tribunal has no way of verifying this. The applicant was on notice that he needed to explain the differences in his testimony but did not take the opportunity to do so. In these circumstances, the Tribunal gives no weight to the applicant’s testimony.
The agent of harm in China
In his protection via application, the applicant stated that he feared harm at the hands of the local government as he had heard that other people who had protested against unfair land acquisition had been detained. The claims were vague and lacked substance. At the departmental interview, the applicant claimed he would be detained and sentenced but did not specify who would do this. He claimed that the other [households] with whom he was protesting about inadequate compensation had been detained in May 2018 and were still detained at the time of the interview (November 2018). He offered no substantiation of this assertion; nor did he specify which particular authority or agency was detaining the people. The applicant stated that his own four-day detention in February 2018 was only administrative detention and therefore he had no criminal record (see paragraph 8). However, at hearing, the applicant claimed that he had a criminal record acquired after an arrest, court appearance, sentencing and jailing in December 2017 (see paragraph 23). It is this criminal record which caused him to be sacked and to continue his protest as far as Beijing. Following a meeting with the Petition Office in Beijing, [most] of his fellow delegates at the meeting were arrested and he and the other man only avoided arrest because they went elsewhere after Beijing. He fears being arrested like his fellow-protesters if he were to return as police have already been to his home asking his whereabout.
The Tribunal is not satisfied with the veracity of the claims about the agents of harm that the applicant fears if he returned to China. The claims are inconsistent and lacking in detail. In the PVA, the agent of harm is named as local government. This claim is not repeated subsequently, nor is an agent specifically identified, but the context (the applicant discussing provincial and national governments) indicates agencies more powerful than the local government level. Unfortunately, the Tribunal has not had an opportunity to clarify these matters given the applicant’s non-attendance at the continues hearing.
The Tribunal is not able to understand why various levels of government would continue to be concerned about people, including the applicant, who protested about a land acquisition some seven years ago, given that the apartments in question were bulldozed and the applicant received compensation before he came to Australia in April 2018. It would appear that the matter has been finished. Again, without the opportunity to clarify the stories and put the inconsistencies to the applicant for comment, the Tribunal is not satisfied with their veracity.
Conclusion
Due to the applicant’s non-continuation of the hearing, the Tribunal does not place any weight on the applicant’s claims that he put forward at different times. They have been inconsistent and a number of them are vague and lacking in substance. The Tribunal is not satisfied that the applicant has suffered harm in the past for reason of his protests about the appropriation of his apartment by the local government at what he considered inadequate compensation (or for any other reason). Nor is it satisfied that there is a real chance that serious harm amounting to persecution will befall the applicant in the reasonably foreseeable future for reason of his protests or for any of the reason set out in s5J(1)(a).
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). For the same reasons as set out above, the Tribunal is not satisfied that there is a real risk of significant harm to the applicant as a necessary and foreseeable consequence of being removed from Australia to China.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sue Zelinka
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 935

5 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies