1921338 (Refugee)

1921338 (Refugee) [2019] AATA 4991 (30 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1921338
COUNTRY OF REFERENCE:                  China
MEMBER:Mila Foster
DATE:30 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 October 2019 at 4:31pm
CATCHWORDS
REFUGEE – protection visa – China – religion – membership and activity in unregistered Christian church – credibility – inconsistent evidence lacking in detail – delay in joining a church in Australia – periods as unlawful non-citizen and in immigration detention – delay in applying for protection – fear of persecution not well founded – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1), 36, 65
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 1 August 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 9 July 2019 on the basis that he would be harmed by the Chinese authorities for worshiping in an unregistered Christian church if he returned to China. The delegate refused to grant the visa on the basis that the applicant was not a practising Christian and was neither a refugee nor owed complementary protection.
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 (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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT issued such a report in relation to China on 3 October 2019.
CLAIMS AND EVIDENCE
The applicant presented his claims and evidence in his protection visa application, during a telephone interview with the delegate on 25 July 2019, and at a Tribunal hearing on 18 October 2019. I also have before me an electronic copy of the Department of Home Affairs file relating to the applicant’s protection visa application[1] which contains an audio recording of the delegate’s interview as well as other information.
[1] Department file BCC2019/3452346.
The applicant was assisted during the protection visa application process and the review by [his representative], a lawyer and registered migration agent. The migration agent did not attend the interview or the hearing.
Protection visa application
According to information provided in the protection visa application:
a.The applicant is a [age] year old Chinese national from Fujian province.
b.The applicant is a Christian.
c.The applicant completed high school in China.
d.The applicant arrived in Australia in April 2009 as a student.
e.In Australia, the applicant lived in [Suburb 1], [Suburb 2] and [Suburb 3] in New South Wales.
f.The applicant is currently in immigration detention.
g.The applicant worked as [an Occupation] in Australia.
h.The applicant began a de facto relationship in Australia. He has two children, [aged], who were born in Australia. His partner and children are Chinese citizens; they are in Australia.
i.The applicant’s parents and sister are Chinese citizens; they are in Australia.
In relation to why he left China the applicant stated:
I came to Australia as a student. As in China, there is no freedom practising Christianity. Since I came to Australia, I have a family in Australia. My family is the adherent of Christianity and we have attended the church on the regular basis.
In relation to what he thought would happen to him if he returned to China the applicant stated:
The authority in China prohibits unregistered church in China and such attendance of worshipping our religious belief. When we do so in China, we will be prosecuted.
The applicant stated that he had been harmed in China; he said he had ‘witnessed the authorities suppressing the unregistered church and its followers’. The applicant said he did not seek help from the harm because it was difficult to seek help ‘against the authority’ and he did not move or try to move to another part of China because ‘it is systematic persecution against the unregistered Christianity in China’.
The applicant stated that he thought he would be harmed or mistreated if he returned to China:
The authorities will do significant harm against my family and deny our right to worship our religion freely. It will have significantly negative impact on my children in the aspect of their education, health care and future.
The Department file contains a photocopy of a Chinese passport issued to the applicant in Fujian [in] 2005.
Interview with delegate
The interview was conducted with the assistance of a Mandarin speaking interpreter.
During the interview the applicant was asked about his religion, his religious practice in China and Australia, what he feared would happen if he returned to China and the reasons for his delay in applying for the protection visa.
The applicant indicated he had been a Christian since he was 7 or 8 years old and that his whole family were Christians. He said he followed his parents into Christianity in China and they did not believe in the government churches. The applicant said he attended sermons and prayed in Australia. He said many of his relatives and friends including an aunt had been arrested and detained in China. He said his freedom to practise his faith would be limited if he returned to China and his personal security threatened because the government prosecuted all illegal gatherings.
The applicant said he had not applied for the protection visa sooner because he was young, did not understand what to do and did not consider it important. When the delegate questioned the veracity of his claims given his 11 year delay in seeking protection, the applicant indicated that what he had told the delegate was fact.
A number of times during the interview the applicant responded to the delegate’s questions by stating that his memory was not good and so he could not remember. Asked whether he had an illness, the applicant replied that he did not.
Financial information on Department file
There are emails on the Department file[2] relating to a very significant amount of cash withdrawals and a large sum of money remitted overseas which the applicant was said to have made.
[2] Sent by the delegate and an officer of the Department on 16 July 2019.
During the interview the delegate invited the applicant to comment on the information about the cash withdrawals and overseas remittance. The applicant asked that the information be put to his migration agent.
After the interview the delegate wrote to the applicant via his migration agent inviting him to comment on the information. The applicant requested further particulars via his migration agent, specifically how the Department obtained the information. The delegate informed the applicant’s migration agent that only relevant information could be provided, that had been provided in the written invitation and he could request further information under the Freedom of Information Act 1982. There seems to have been no further response to the information from the applicant or his migration agent.
Applicant’s immigration history
According to the delegate’s decision record,[3] the applicant’s immigration history up to the lodgement of his protection visa application is as follows:
[3] A copy of which was provided by the applicant on review.

Date Event details

[March] 2008 Arrived in Australia on a student visa

[March] 2009 Departed Australia on a student visa

[April] 2009 Arrived in Australia on a student visa

[March] 2010 Student visa ceased

[March] 2010 –
[March] 2011 Became unlawful non-citizen

[February] 2011
Granted bridging visa for one day

[March] 2011 Applied for student visa; associated bridging visa granted

[May] 2011 Student visa refused

[June] 2011 Bridging visa ceased

[June] 2011 Became unlawful non-citizen

[July] 2019 Located and transferred to immigration detention

[July] 2019 Applied for protection visa

Tribunal hearing

The hearing was conducted with the assistance of a NAATI Level 3 Mandarin speaking interpreter. The applicant claimed he had engaged in illegal religious activity in China, had witnessed his aunt and school friends being persecuted in China because of their religion, and had practised Christianity in Australia. I refer to his evidence further in my consideration of the claims and evidence below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are the applicant’s credibility and whether he would engage in illegal religious activity if he returned to China and hence be harmed. For the following reasons, I have concluded that the decision under review should be affirmed.
Credibility
The following matters raise concerns about the credibility of the applicant and his claims.
The evidence the applicant gave at the hearing about his religious practice in China and Australia was very brief and general and took considerable questioning to elicit.
After the applicant told me that he participated in unregistered religious gatherings in China, I asked him to tell me about his involvement in those gatherings. He merely replied that he participated in illegal religious activity with his parents and relatives. Given that broad response, I questioned the applicant further. Asked when he became involved in those activities, he replied that he was about 7 or 8 years old. Asked how often he engaged in illegal religious activity he replied about once a week. Asked where those activities occurred, what happened at those activities and what he did, the applicant’s response contained little detail. He said vaguely that they took place in the village, that he went with his parents and he was a ‘member’. That response did not indicate the nature of the activities or what the applicant actually did to participate in the activities. Asked again what the actual activities were that he was involved in, the applicant said that it was the same as the activities of churches in Australia, such as praying and reading the Bible. In response to being asked how many people were involved in the activities the applicant mentioned family gatherings. On further questioning about the family gatherings the applicant stated that they were gatherings of relatives and friends, there was singing and praying; they were held in private and were illegal. Asked about his participation in those illegal family gatherings, the applicant said he sang hymns, prayed, prayed with his parents, and read the Bible. Not only was the applicant’s evidence general and unforthcoming he subsequently contradicted himself about how often he engaged in religious activity in China. Despite initially stating that he participated in illegal religious activity about once a week he subsequently told me that he did not attend illegal religious gatherings often he after he was about 13 years of age because he was scared. When I noted that he had told me earlier that he attended about once a week which seemed often, he merely repeated that he did not attend often after he was 13 because he was scared. Overall, the general, unforthcoming and contradictory evidence the applicant gave left the impression that he was not recounting actual personal experiences.
Similarly, when asked how he had practised his religion over the 10 year period he had been in Australia the applicant merely replied that he went with his wife and children. He did not specify where he went or how often or what he did where he went. Asked where he went he replied with the name of a suburb, [Suburb 3]. I noted that [Suburb 3] was a suburb and asked where he went that was in [Suburb] to which the applicant replied it was somewhere near [shop] and the [bank]. Asked what the place was, he replied ‘Christian’. Asked if it was a church the applicant said it was. If the applicant practised his religion in Australia by attending a church in [Suburb 3] with his wife and children I expect that he would have been able to provide that information and more details about that such as the name of the church, when he started attending the church and how often he attended in a more direct manner. Even when I questioned him further his evidence was vague. He stated that he began attending the church in 2012 and went almost every week when his parents were here but didn’t go often in the past year or two because his work was very busy. The applicant did not specify when his parents were here (by which I assume he meant in Australia) and hence did not indicate over what period of time he had attended the church almost every week or how often he did attend the church in the last year or two. The applicant seemed to intentionally resist giving precise details about his claimed religious practice in Australia.
Further, the applicant seemed to embellish his evidence about his religious practice in Australia later in the hearing when I noted that it seemed he had not attended the [Suburb 3] church very regularly from 2012. He responded that he went often in 2012 but sometimes he went to [Suburb 4] with friends; he said he went to different churches and later went to [Suburb 3] because it was close to where he lived. If the applicant had attended different churches in Australia with friends in addition to going to the [Suburb 3] church with his wife and children then I expect he would have mentioned that when I first asked how he practised his religion in Australia over the course of the 10 years he has been here. Questioned further about his church attendance from 2012 whether in [Suburb 3], [Suburb 4] or elsewhere, the applicant indicated that until last year he went almost every week when he didn’t work. The applicant did not indicate how often he worked thus it remained unclear how regularly he attended church from 2012. Again the applicant seemed to intentionally avoid being precise about his church attendance in Australia. I expect that if the applicant was a Christian who had attended church in Australia with his wife, children and friends that he would have been able to give more direct and precise evidence about that church attendance.
In addition, if the applicant was a Christian who was willing to attend illegal gatherings in China even though he was scared then I expect he would have begun attending church in Australia sooner than 2012. When I questioned the applicant about that he said that when he arrived he was younger, did not speak English and did not know anything. The applicant was 18 years old when he arrived. Thus he was young but not a child when he arrived. In any event, while his response might explain why he did begin attend church soon after his arrival it does not explain why he did not attend church until 4 years after he arrived. Further, when I questioned why the applicant could not have made inquiries about a church sooner given he had come to Australia on a student visa and hence it seemed he would had the English language ability to do so, the applicant said he had an older sister here when he arrived but did not know much about it here and did not get used to life here. He also said that while his sister is a Christian she could not help him find a church because she did not go to church, she had children and a family. I accept that initially it may have taken some time for the applicant to adjust to living and studying in Australia. However, I do not find it believable that the applicant would not have had the ability to make inquiries to find a church sooner. Further, even if the applicant’s sister was not attending church as a Christian it seems to me that as a Christian already living here she would have been able to offer the applicant some assistance to find a church well before 2012 if he had wanted to and asked her.
For a person who claimed to be from a Christian family, a Christian since the age of 7 or 8, who attended religious gatherings where the Bible was read and who had attended church in Australia since 2012, the evidence the applicant gave at the hearing about his religion was extremely vague and unforthcoming. Noting that he claimed to be a Christian, I asked the applicant what it meant to be a Christian. His reply was one word, ‘belief’. Asked what that belief was the applicant said, ‘in Jesus Christ’. Asked what it meant to believe in Jesus Christ, the applicant said by believing in Jesus Christ (one) can receive protection and blessing from him. Asked the basic beliefs or teachings of his Christian religion, the applicant said he could not remember. Noting that he had mentioned the Bible, I asked the applicant what he could tell me about the Bible. He replied that he did not have a good memory and could not recall. I noted that he claimed he had attended gatherings where the Bible was read and that it seemed the Bible would be mentioned at the [Suburb 3] church. The applicant responded that he had a poor memory and would forget things from one day to the next but he had a strong faith in his religion.

Asked what else he could tell me about Jesus, who Jesus was and his significance to Christianity, the applicant said that the Lord is Jesus Christ. Asked to tell me about the last Christian celebration or occasion he had participated in in Australia that he could recall, the applicant said he could not recall. Asked to tell me about any religious activity or occasion that he had been involved in that he could recall that was memorable to him. The applicant did not refer to an activity or occasion and instead merely responded with one word, ‘Christianity’. I do not find it believable that the applicant could not recall the basic beliefs and teachings of his religion, tell me anything about the Bible or recount a memorable religious activity or occasion that he had participated in in Australia if he was a Christian who had practised his religion as he claimed.
The above issues with the evidence the applicant gave at the hearing lead me to find that he was not a credible witness. I note that he indicated, as he did during his interview with the delegate, that he had a poor memory and so could not recall things. He has presented no medical evidence to indicate that he has a memory problem nor did it appear to me that the issues with his evidence at the hearing arose due to problems with his memory. I thus do not accept that the applicant has a memory problem.
I also note that early in the hearing the interpreter informed me that a response the applicant had given to a question was in ‘broken’ Mandarin and he would interpret the response to the best of his ability. By that point in the hearing the applicant had already confirmed to me that he understood the interpreter and he had told me that he had no objections to using the particular interpreter. The applicant had requested a Mandarin speaking interpreter for the hearing. I had also informed the applicant before he began giving his evidence that he should inform me if he had any issues that he believed might be related to the interpreting. I noted what the interpreter had said to the applicant. The applicant responded that it may be because he was nervous. The applicant may have been nervous but it did not appear that nervousness explained the above issues with his oral evidence. On further questioning the applicant told me he was most fluent in the Fuqing dialect but his schooling in China had been in Mandarin and he could speak Mandarin all right. He also told me that the evidence he had been giving at the hearing up to that point was in Mandarin. The applicant said he wished to continue with the Mandarin speaking interpreter rather that adjourn the hearing to obtain a Fuqing speaking interpreter. I decided to proceed with the Mandarin speaking interpreter and informed the applicant and interpreter to immediately advise me of any interpreting issues that may seem to have arisen. Neither the applicant nor the interpreter subsequently raised any interpreting issues or concerns and none seemed apparent to me during the remainder of the hearing. I am thus satisfied in all the circumstances that an acceptable standard of interpreting was provided at the hearing and that the applicant was given a proper opportunity to give his evidence at the hearing. I am therefore satisfied that the issues with the applicant’s evidence which have led to my credibility finding are not the result of the standard of interpreting at the hearing.
Delay in seeking protection
The applicant told me at the hearing that even though he himself had not been harmed in China due to his religious beliefs or activities he had been scared he would be harmed even after he attended illegal religious activities less often from 13 years of age. Despite claiming he was afraid he would be harmed and that there was no freedom to practise his religion in China, the applicant did not apply for a protection visa until 11 years after he arrived here. He was asked by the delegate why he did not apply sooner and I also questioned him about his delay in applying for protection especially during the time it he had spent in Australia without a visa which seemed to total about 8 years. The applicant told me that he did not know about the refugee or protection visa; he found out about it when his wife applied for it but he could not recall when that was.
According to the applicant’s immigration history in the delegate’s decision record, he had been in Australia as an unlawful non-citizen without a valid visa for about 8 years before he applied for the protection visa. He was [years] of age and older during that time, was mature enough to have a de facto relationship and two children. I thus do not regard his age as being too young to make inquiries about seeking protection. Further, if the applicant’s claims were true I do not find it believable that he would not consider it important to seek protection or that he would not have done so much, much sooner. The applicant’s failure to apply for protection sooner particularly during the very lengthy period of time he was an unlawful non-citizen without a valid visa seriously undermines the credibility of his claims.
Financial information
In reaching my conclusion about the applicant’s credibility and his claims I have not had regard to the information in the emails on the Department file relating to the cash withdrawals and overseas remittance the applicant is said to have made. I regard those to be unproven allegations which are not prima facie relevant to the applicant’s credibility or his claims for protection. I note that in the written invitation to comment on the information the delegate stated that the information indicated that the applicant had not provided accurate information about his ‘activities’ including his employment and that he may have been involved in criminal activities. However, what the applicant said in his protection visa application and during his interview with the delegate about his employment in Australia was consistent. In his protection visa application he stated that he worked as [Occupation] in Australia and he told the delegate that he had his own [Occupation] company which employed 3 to 4 other people. Further, the information on the Department file does not indicate that the applicant is currently under investigation or facing criminal charges in relation cash withdrawals and overseas remittance. I have therefore given no weight to the information in making my decision.
Country of reference finding
The applicant has consistently claimed to be a citizen of China. The Department file contains a photocopy of a Chinese passport issued to him. I thus find that the applicant is a national of China and that China is the country of reference for the purposes of assessing his claims for protection.
Findings on religion claims
Given the applicant’s lack of credibility and his delay in applying for protection, I do not accept his claims. Specifically, I do not accept that the applicant is a Christian, I do not accept that the applicant or his parents attended or were involved in any unregistered or illegal gatherings or religious activity in China, I do not accept that the applicant witnessed any Christian relatives or friends being harmed in China for reasons related to their religion or religious practice, and I do not accept that the applicant has attend church or practised Christianity in Australia.
As I do not accept that the applicant is a Christian, I find that he will not nor would want to practise Christianity or engage in any Christian religious practice or activity in the reasonable foreseeable future if he returned to China
Findings on protection visa criteria
Having rejected the applicant’s claims and found that he neither will nor would want to practise or engage in any Christian religious practice or activity if he returned to China, I find there is not a real chance that the applicant (and hence his family or children) will be harmed in any way by the Chinese authorities for reasons of religion as he has claimed. I therefore find that the applicant does not have a well-founded fear of persecution within the meaning of s. 5J and is not a refugee as defined in s.5H. Hence, 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 must consider the alternative criterion in s.36(2)(aa). As I have rejected the applicant’s claims and found that he neither will nor would want to practise or engage in any Christian religious practice or activity if he returned to China, I find that there is not a real risk that the applicant (and hence his family or his children) will be harmed by the Chinese authorities if he returned to China for reasons of religion as he has claimed. I thus find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that he will suffer significant harm. Hence, 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 the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mila Foster
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.
…

[2019] AATA 4991

30 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Date	Event details
[March] 2008	Arrived in Australia on a student visa
[March] 2009	Departed Australia on a student visa
[April] 2009	Arrived in Australia on a student visa
[March] 2010	Student visa ceased
[March] 2010 – [March] 2011	Became unlawful non-citizen
[February] 2011	Granted bridging visa for one day
[March] 2011	Applied for student visa; associated bridging visa granted
[May] 2011	Student visa refused
[June] 2011	Bridging visa ceased
[June] 2011	Became unlawful non-citizen
[July] 2019	Located and transferred to immigration detention
[July] 2019	Applied for protection visa