1918301 (Refugee)

1918301 (Refugee) [2024] AATA 4383 (11 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1918301
COUNTRY OF REFERENCE:                   China
MEMBER:Siran Nyabally
DATE:11 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 September 2024 at 9:33am
CATCHWORDS
REFUGEE – protection visa – China – fear of harm from business lenders and loan sharks –harassed, threatened and assaulted – inconsistent and contradictory claims and evidence – continuing work during time claimed to be in hiding – passage of time – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 32(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
APPLICATION FOR REVIEW
The applicant applied for the protection visa on 19 February 2019. The delegate refused to grant the protection visa on 10 June 2019.
The applicant applied for review of the delegate’s decision on 8 July 2019.
The applicant appeared before the Tribunal on 28 March 2024 and 25 July 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
CLAIMS AND EVIDENCE
Before the Department
Protection visa application
The applicant claims to be a [Age]-year-old citizen of the People’s Republic of China (China), who was born in Heilongjiang province. In his protection visa application, the applicant claimed that he left China because he owed debts to the ‘wrong people’. After having some conflicts, these people were after his life and were pursuing him in order to make an ‘example’ of him. The applicant claimed to have been hunted down, beaten and threatened by people working for loan sharks. He attempted to seek help from the police but they did not assist him because they were being paid off by the loan sharks. The applicant was unable to relocate within China because the household registration (hukou) system prevented him from doing so. He feared that if he returned to China, he would be threatened or harmed by his creditors as he had been in the past.
Supporting documents
In addition to his protection visa application, the applicant provided the Department with copies of the identity page of his Chinese passport and national identity card.[1]
Protection visa application interview
[1] The applicant’s written claims refer to an accompanying statement, but at the 28 March 2024 hearing the applicant confirmed that no statement had been submitted.
The Department did not invite the applicant to attend an interview.
Delegate’s decision
The delegate refused to grant the visa on the basis that the applicant’s claimed fear was not for any of the reasons provided in s 5J(1)(a) of the Act, and because the applicant could obtain protection from the Chinese authorities such that there would not be a real risk that he would suffer significant harm: s 36(2B)(b).
Before the Tribunal
On 8 July 2019, the applicant applied for review of the delegate’s decision and provided the Tribunal with the delegate’s notification letter and decision record.
Submissions and evidence
The applicant did not provide the Tribunal with any written submissions or evidence.
The hearing
The applicant appeared before the (differently constituted) Tribunal on 28 March 2024 (the first hearing). The application was re-constituted to me following the conclusion of the first hearing. The applicant appeared before me at a second hearing listed on 25 July 2024 (the second hearing).
Where relevant, the applicant’s oral evidence given at the first and second hearings is discussed in my findings and reasons below.
Post-hearing submissions and evidence
The applicant did not provide the Tribunal with any post-hearing submissions or 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). 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, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes,[2] to the extent that they are relevant to the decision under consideration.
[2] The relevant report being the DFAT Country Information Report: People’s Republic of China (22 December 2021).
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 under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.
For the following reasons, I have concluded that the decision under review should be affirmed.
Country of nationality
The applicant has provided a copy of his Chinese passport. He has consistently claimed to be from China. I am satisfied that the applicant is a citizen of China.
There is nothing before me to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before me, I am satisfied s 36(3) of the Act does not apply. I am satisfied that China is his receiving country and have assessed his claims against that country.
The applicant’s personal background
The applicant has given consistent evidence that he was born and raised in Hailin, a town in Heilongjiang province in China. The applicant is married and has 2 daughters, aged [Age] and [Age]. The applicant’s parents, [brother], wife and younger daughter all still live in Hailin. The applicant’s elder daughter lives in Qiqihar, Heilongjiang, where she attends university. She returns home to Hailin during the school holidays. The applicant has a good relationship with his family and is in regular contact with them via WeChat.
After completing [grade] in the 1990s, the applicant worked in Hailin in [work sector] (from about 1998–1999), as [an occupation 1] (from about 2000–2002), as a self-employed owner of a [shop] (from about 2003–2006) and a [workplace] (from about 2006–2007) and as [an occupations 2 and 3] (from about 2008–2011).
The applicant and his wife married in 2002, and their children were born in [Year] and [Year].
The applicant and his wife travelled to [Country] for work in 2011, leaving their children to live with the applicant’s mother, but returned to Hailin about 4 months later. The applicant subsequently obtained a job driving trucks in Inner Mongolia, where he worked until 2018. Over this period the applicant lived in Xilinhot, Inner Mongolia, but would regularly return to Hailin to visit his family. The applicant returned to Hailin in late 2018, where he lived for 1 month before his departure for Australia.
I accept the above matters to be true.
The applicant’s claims for protection
At the first hearing, the Tribunal discussed with the applicant his written claims to fear harm because of his debts. The applicant gave evidence that he had borrowed money from loan sharks for his business, but was unable to repay the loans and interest and was threatened by the lender. At the second hearing the applicant raised an additional claim based on his work in [Country] in 2011, for which he was never paid.
Loans
The applicant gave evidence that he obtained 3 loans in order to support his various business endeavours.
The first loan was obtained in about 2003 and used to finance the [shop] he opened in about 2004. The applicant could not recall the precise amount of the first loan, but remembered that it was for ‘tens of thousands’ of Yuan. He obtained the loan in the form of a mortgage, using his shopfront as collateral. He was told to repay between 5,000–6,000 Yuan per month over 1 year, but could not recall how much of these repayments were interest. The applicant’s business initially went ‘ok’, but after 6 months he was unable to keep up with the interest payments. His creditors engaged loan sharks who came to harass him at his shop, which affected his business further. He closed his shop after about 1 year.
The applicant obtained a second loan in about 2005 to finance his [workplace]. He obtained a loan from a different creditor, this time for about 200,000 Yuan to be repaid over 15–16 months. The applicant again obtained the loan in the form of a mortgage, using a piece of land he owned as collateral. Like the [shop], the applicant’s [workplace] was initially profitable but he began to lose money after 6 months. The applicant again found himself unable to cover the interest on the loan, which was almost 10,000 Yuan per month. The applicant gave away his interest in the land but was still unable to repay the loan. He initially managed to placate his creditors by taking them to dinner, but eventually they also engaged loan sharks to harass him. The applicant felt that he had no choice but to hide.
The applicant obtained the third loan in about 2015 or 2016, in order to purchase a truck to drive [in] Inner Mongolia. He borrowed money from 4 people who all knew that he was in great financial difficulty. The applicant obtained 30,000 Yuan from an uncle, 20,000 Yuan from a friend, 20,000 Yuan from a second friend and 30,000 Yuan from a former classmate. The applicant has since repaid the loan in full and does not fear harm in association with it. Accordingly, I find that there is no real chance or risk of harm to the applicant arising from the third loan, now or in the reasonably foreseeable future.
Outstanding debts/loan sharks
At the second hearing I asked the applicant if his creditors had ever harassed or physically assaulted him. The applicant confirmed that they had. The loan sharks engaged by his creditors would come to his front gate, splash paint and try to ‘catch’ him. He was also physically assaulted 3 or 4 times. He recalled that on one occasion, he was attacked by 4 or 5 people who threatened him with a knife, bashed and kicked him. He sustained an injury [which] resulted in a permanent scar. The applicant claimed that despite having taken out 2 loans from 2 different providers, he was harassed and assaulted by the same group of loan sharks. He believed that the lenders may have been related somehow, given that they engaged the same loan sharks to enforce the debt.
I asked the applicant when he stopped making repayments towards his 2 outstanding loans. The applicant replied that the last payment he had made was 6 months after he opened the car wash. I observed that the applicant had remained in his hometown for a considerable time after he ceased making repayments – about 4 years prior to his travel to [Country], then a further 2 years before his travel to Inner Mongolia. I asked the applicant why he did not go to live in another city to avoid being harmed by the loan sharks. The applicant replied that he had no money, and he had to return to Hailin because his family lived there. I asked the applicant how he managed to avoid the loan sharks over those periods. He replied that he would regularly move houses within Hailin. Things would go quiet for a period of time before the loan sharks found him. I observed that the applicant had given evidence that between 2011 and 2013 he was doing casual jobs around Hailin, doing ‘a bit of everything’, and that I had difficulty understanding how he managed to hide from the loan sharks at the same time as he sought work around Hailin. The applicant replied that he managed to avoid attention by finding [work] through referrals from friends and would put on a mask and cap when he went to work on‑site.
At the second hearing, I asked the applicant about several inconsistencies in his evidence about the conduct of the loan sharks.
First, I noted that at the first hearing the applicant had the following exchange with the Tribunal:
MEMBER: Were you ever threatened or hurt by anybody when you were in China?
INTERPRETER: Here or China?
MEMBER: No, no, in China.
INTERPRETER: Yes.
MEMBER: Okay. Can you tell me about it?
INTERPRETER: So the lender that come to my home, they found – they first found out where I live, they come to my home and say that, ‘You better repay the loan. If you don’t repay my money, I’ll kill you’.
MEMBER: When did they do that?
INTERPRETER: Quite a few times become I came to here.
MEMBER: Yes. Do you know when?
INTERPRETER: I don’t remember the details.
MEMBER: Okay.
INTERPRETER: Then I took my wife and children into hiding. They moved to a different place.
MEMBER: Okay. But did you get hurt? Anyone ever hurt you?
INTERPRETER: I got bashed.
MEMBER: When did that happen?
INTERPRETER: Put it this way, whenever they come, they will push you and try to threaten you in a less vigorous way – very light push. The last incident was back in either 2014 or 2015. There were four or five of them. They got hold of me and started bashing me. And some – one of the bystanders just saw them, so they just run away. And I have to move to a different place again, and they can’t find me afterwards. So since then up until I come over to Australia this year, they’ve never managed to find me.
MEMBER: Okay.
INTERPRETER: So I left my hometown, I went to the, you know, autonomous regions of Inner Mongolia with my [truck]. They can’t find me there.
In contrast, at the second hearing the applicant:
·initially told me that the loan sharks used to harass him and his family at home by splashing red paint on the front gate, but when I asked him how his family members managed to avoid harm despite continuing to live in Hailin, changed his evidence to claim that the loan sharks only saw him with his family once, but did not pursue them as the applicant told them that he was single and they were not his family; and
·claimed that the loan sharks beat him up 3 or 4 times before he went to Inner Mongolia to drive trucks, and that whenever the loan sharks caught him, he got bashed.
In response, the applicant told me that it was all a long time ago and he may not be able to remember what happened exactly or accurately.
I also informed the applicant that I had difficulty accepting that he was continuously pursued by the loan sharks for almost 15 years – from the time he defaulted on the first loan to the time he left China for Australia – given that he continued to live in Hailin until 2013 (save for the 4 months that he worked in [Country]), and regularly visited his family in Hailin between 2013 and 2018. In response, the applicant told me that his evidence was a true reflection of what happened, and he had nothing further to add.
Former employer
As noted above, the applicant raised an additional claim at the second hearing based on his work in [Country] in 2011. The applicant told me that in 2011, someone had visited his place looking to recruit staff for a [farm] in [Country]. He and his wife went to [Country] to work while their daughters stayed with the applicant’s mother. The applicant and his wife were never paid for their work as his boss ran away with the money. When I asked the applicant if he feared being harmed by this boss, the applicant replied ‘possibly’. He and his wife had lodged litigation against the boss, and he was concerned that the boss would seek revenge for damaging their reputation. I asked the applicant if he had any evidence of the litigation. The applicant replied that he did not, as it was from too long ago. I asked the applicant why he thought that the boss would seek to harm him now, given the litigation happened so long ago. The applicant replied that it was just a ‘gut feeling’.
FINDINGS
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicant. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
Is the applicant a refugee?
Debts/loan sharks

As noted above, I accept that the applicant’s biographical information is true, as this aspect of his oral evidence was largely consistent at the 2 hearings and in his protection visa application. However, I have identified several inconsistencies in the applicant’s evidence about the claimed debts and the actions of the loan sharks. These inconsistences, coupled with the issues identified at [‎40] above, lead me not to accept that there is a real chance the applicant will be harmed by his creditors, loan sharks, or anyone else in association with his past debts, now or in the reasonably foreseeable future.
First, the applicant gave contradictory evidence about the harassment he received from the loan sharks. At the first hearing the applicant claimed that the loan sharks had harassed his family at their home, after which he took his wife and children into hiding. The applicant initially maintained a similar story at the second hearing, but after I asked him how his family members managed to avoid harm despite continuing to live in Hailin, he changed his evidence to claim that the loan sharks did not pursue his family as the applicant told them that he was single.
Secondly, the applicant gave contradictory evidence about the harm he suffered from the loan sharks. At the first hearing he told the Tribunal that while the loan sharks had pushed him several times, they had only bashed him once. At the second hearing the applicant told me that the loan sharks had bashed him every time they caught him, which was 3 or 4 times.
I do not accept the applicant’s explanation for these discrepancies, namely that it happened a long time ago and his memory is not so good. While I accept that memories can fade with time, I do not accept that a lapse in memory would cause him to forget significant events such as the number of times he had been physically assaulted or whether his wife and children had been threatened or harmed.
My concerns about the above inconsistencies are compounded by the lack of corroborating evidence of the applicant’s debts, as well as his evidence about his conduct over the period he was being pursued by the loan sharks. I do not accept that the applicant would have continued to live and work in his hometown of Hailin despite being pursued by loan sharks seeking to recover 2 substantial debts, who had assaulted him to such an extent that he had suffered permanent scarring. Nor do I accept that the applicant would have regularly returned to Hailin over the 5‑year period between 2013 and 2018, and lived in Hailin for a month in 2018 before travelling to Australia, if he feared being harmed by loan sharks as claimed.
I accept on the basis of the applicant’s [scar] that he has sustained an [injury]. However, in light of my above concerns and in the absence of any corroborating evidence, I do not accept that the applicant’s injury was sustained from an attack on him by loan sharks.
The above issues lead me not to accept that the applicant has outstanding debts in China. As I do not accept that the applicant has debts in China, I also do not accept that the applicant has been or will be pursued by his creditors, loan sharks or anyone seeking to recover a debt. Accordingly, I do not accept that there is a real chance that the applicant will be harmed by loan sharks or any creditors, now or in the reasonably foreseeable future.
Former employer
I have considered the applicant’s evidence about his work on a [farm] in [Country], and his claim to fear harm from his former boss against whom he commenced legal proceedings for failing to pay wages. I am prepared to accept on the basis of the applicant’s consistent evidence that he and his wife were employed in [Country] for 4 months in 2011, and that they returned to China after their boss absconded without paying them wages. However, in the absence of any corroborating evidence, and given my concerns about the credibility of the applicant’s claims, I do not accept that the applicant commenced legal proceedings against his boss for recovery of lost wages. As I do not accept that the applicant commenced litigation against his former boss, I also do not accept that there is a real chance or risk that his boss would seek to harm him for causing him to lose face. Nor do I accept that there is a real chance that the applicant would be harmed by his former boss for any other reason, given that his boss has no incentive to pursue the applicant.
Conclusion on the refugee criterion
Having considered the evidence as a whole, I do not accept that there is a real chance that the applicant will face serious harm from loan sharks and/or any other creditors, or on the bases of the applicant’s debts and/or his 2011 employment in [Country], now or in the reasonably foreseeable future.
Considering the applicant’s circumstances individually and cumulatively, I am not satisfied that the applicant has a well-founded fear of persecution as required for the purposes of the definition of a ‘refugee’ contained in s 5H(1) of the Act.
Is the applicant owed complementary protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered whether he is a person in respect of whom Australia has protection obligations under the complementary protection grounds set out in s 36(2)(aa) of the Act.
I have found that the applicant does not face a real chance of harm from loan sharks and/or any other creditors, or on the bases of his debts and/or his 2011 employment in [Country]. It is noted that in MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) (SZQRB), the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well‑founded fear’ in relation to the ‘refugee’ criterion (SZQRB per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]). Accordingly, for the same reasons, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to China, there is a real risk he will suffer significant harm on these bases.
Considering the applicant’s claims individually and cumulatively, I do not accept that there is a real risk that the applicant will face significant harm as defined in s 36(2A) of the Act, now or in the reasonably foreseeable future.
CONCLUSION
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Siran Nyabally
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 4383

11 September 2024

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Immigration

Statutory Interpretation

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Natural Justice

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