1928737 (Refugee)

1928737 (Refugee) [2024] AATA 2246 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Billie Wei Shi (MARN: 9792783)
CASE NUMBER: 1928737

COUNTRY OF REFERENCE: China
MEMBER:Sue Zelinka
DATE:12 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 March 2024 at 9:44am
CATCHWORDS
REFUGEE – protection visa – China – political opinion – opposition to the government – social media postings – criticisms about the COVID pandemic response – divorce – fear of detention – delay in presenting protection claims – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 8 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 5 September 2017. The delegate refused to grant the visa on the basis that the applicant was a member of a family unit of a person who was not entitled to a protection visa.
The applicant appeared before the Tribunal on 26 February 2024 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.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [an age] year-old Chinese national from Jiangsu. He first appeared on his wife’s protection visa application (PVA) lodged in September 2017 as a member of her family unit. He did not advance any claims of his own: hers concerned land appropriation. That application failed and was appealed to the Tribunal. However, the wife withdrew her appeal in August 2019 and returned to China. There is a son of the marriage (now [age] years old) who has remained in China throughout his parents’ absence The applicant stayed in Australia after his wife’s departure and continued with the appeal in his own right.
He was invited to a hearing on 5 February 2024 but replied in writing to the Tribunal saying he was afraid of authorities and did not want to appear in person but was happy to answer any questions in writing. He attached a written submission and a copy of his divorce from his wife which he had obtained from the Federal Circuit and Family Court in Australia (in her absence) in April 2023. The Tribunal wrote again to the applicant noting the non-authoritarian nature of the proceedings and offering another hearing on 26 February 2024. The applicant appeared at this hearing.
Claims to the Tribunal
The submission sent by the applicant in response to the hearing offer referred to a lack of democracy in China and the political shortcomings he now perceived in his country of origin after spending a number of years in Australia. He claimed that his WeChat account was cancelled a week after he had uploaded, in early 2020, articles critical of the Chinese Government’s response to the COVID pandemic. He opened a new WeChat account and continued uploading critical articles until his account was cancelled again. He indicated that he has opened a new WeChat account “after a very long time” and he assumes this has been noted by the Chinese authorities. He would face danger if he returned and assumes that his wife’s request for a divorce is also somehow related to this official disapproval of himself. He wrote in his submission that after returning to China, his wife requested that he apply for a divorce in Australia: “she couldn’t say it over WeChat or write or leave any record explaining why … I understood she must have been given some pressure from the local government”.
The applicant appeared before the Tribunal and did not exhibit any anxiety. The Tribunal asked the applicant what he feared about returning to China and he said that he may be imprisoned or his life may be threatened as he had posted internet articles about the beginnings of COVID in Wuhan.
The applicant said that the first lockdown for the COVID pandemic was instituted in Wuhan on 23 January 2020 and on the following day, a Chinese journalist named Qui Shi Chen filmed grim scenes in hospital, apartments and crematoria in Wuhan and posted this on his own WeChat account. The applicant also said that on 6 February 2020 Chen was arrested and to this date no-one knows where he is. All the pictures he had posted were totally suppressed by the Chinese Government by 1 March 2020.
The applicant claimed that he re-posted Chen’s uploads on his (the applicant’s) WeChat account. The Tribunal asked him why he did this because, at the time, the journalist’s material was still available (not completely removed until 1 March 2020). The Tribunal put it to him that he was not achieving much in the way of disseminating the journalist’s material. The applicant said that he re-posted the material as a way of showing support for the journalist. However, his own WeChat account was closed down [in] February 2020. He opened another one in a different name and with a different mobile phone number. He said he was trying to warn his family and friends of the dangers of COVID to help keep them safe. A week after he posted articles about COVID from some Australian and [international] news sources, his WeChat account (the second one) was closed down [in] May 2020.
The applicant was in touch with his wife who had returned to China. Her family lived in a small village in Jiangsu Province. After 1 March 2020 the Government locked down entry into and exit from all villages. There was a shortage of testing kits and hospital facilities. The applicant’s [specified relative], aged [age], died [in] March 2020, cause not determined, but certainly related to the lack of available and accessible medical facilities.
The Tribunal asked the applicant how he stayed in touch with his wife after his WeChat was closed down. He said he phoned her. Then the applicant said that he had always had an original WeChat account, separate from the ones he used to upload the media articles. This original one has never been closed down. He agreed that this original WeChat was opened in his own name and with his own identification. He also stated that the other two he opened, the two successive accounts he used between January and May 2020 to upload media articles about COVID, and both of which were closed down, were also in his own name.
The Tribunal asked why he would open these two accounts in his own name when he was using them specifically to criticise the Chinese Government’s handling of the COVID crisis. He said that when he opened these two accounts he was already living in Australia so he did not think there would be trouble with the Chinese Government. The Tribunal said that after the first such account was shut down, it was inexplicable that he would open a second account (for identical purposes) in his own name. He said he was not thinking – he just wanted to warn his family about COVID and tell them to stay safe. The Tribunal asked why he would start another WeChat account in January 2020 if he already had an account in his own name. He said he had to protect his friends and family to whom he was connected on his original account.
The Tribunal said it was still puzzled as to why he would start this WeChat account in January 2020 in his own name. He said that he had to use his own name because he had to identify himself to start an account and he had only his Chinese national identity card. He did not want to get someone else into trouble by using their identity. However, he really wanted to let people in China know the truth about COVID and to tell them not to get sick; and that if they did get sick, there would be no room on the hospital wards for them.
The Tribunal asked about his original WeChat account which has never been closed down. The applicant said that after the other two WeChat accounts were closed in February and May 2020, he had concerns about the fact that his original account was in his real name – the same name as the two closed accounts. So he changed the name and identifiers on the original account. He said that he put his original account into someone else’s name. He used a colleague’s identification. In answer to the Tribunal’s question, he said he did not feel this endangered his colleague because he was only using this re-named original account to talk to his family about non-contentious issues. He said he would not post anything critical of the Chinese Government on it.
The applicant then said that this WeChat account (his original one, now in a different name) was currently frozen. It was frozen [in] February 2024 – just the week before the hearing – and it would be unfrozen [in] March 2024. The WeChat provider had let him know that he had breached a regulation and would be frozen for a period of [weeks]. He said it happened once before for a [shorter] period. He said that WeChat has a list of regulations accessible to customers who know that if regulations are breached, a certain period of exclusion from the carrier will follow. Regulations include the proscription of gambling and making criticisms of the Chinese Communist Party. The Tribunal asked if he knew why he was currently frozen: he said he had been talking to his parents about how free a country Australia was. He thought it might relate to that.
The Tribunal asked if the applicant had any screen shots or evidence of any of the material he posted in China on either of his two newly-opened accounts in 2020. He said that he had no actual evidence that he reposted any of the journalist’s material, nor from other media. He had never reposted any material on his original (and ongoing) account. Even the original articles posted by the Chinese journalists on other accounts have entirely disappeared. The Tribunal asked if he was saying that he had not posted any material critical of the Chinese Government on any WeChat account since the closure of the account in May 2020. The applicant confirmed this. He later added that there was a National Security Department in China that can restore TenCent accounts (the company that owns WeChat) even the deleted accounts.
The Tribunal put it to the applicant that his whole story could be fabricated. It could be devised by him as a claim for a protection visa, given that he had made no claims whatsoever when he first arrived in Australia in 2017. These current claims under discussion were not presented until 2 February 2024. The applicant replied that he understood why the Tribunal put this question as the contention was possible. However, he said, he posted the articles in 2020 and was not doing so merely to ground a claim that would not be advanced until later.
The Tribunal put it to him that a summary of his claims was that the Chinese authorities may be aware that he had posted critical material about its handling of the COVID crisis and that it may take action against him if he returned to China. The applicant said that it was not a case of “may be aware” but that the government would definitely be aware. He knew of this through his wife in China.
He said that his wife, who had returned to China in 2019, had mentioned divorce in 2020, saying that he – the applicant – could get it in Australia. He felt she was under some surveillance. The Tribunal put it to him that maybe his wife simply wanted a divorce as she had resettled in China and the applicant did not want to return and live there. He said that after her return to China they stayed in frequent contact using his original WeChat account. His wife sometimes got odd messages on her phone asking where her husband was. Village officials also asked the same question. The Tribunal put it to him that village officials would consider it part of their duty to know where its residents were. He said that his hukou (household registration card) was not registered in her village but in his parents’. The Tribunal put it to him that his wife’s hukou states that she is married, hence the officials would want to know where her husband was. He replied that they asked her every few months.
The applicant said his wife did not tell him specifically why she wanted a divorce. He said she only subtly mentioned divorce: perhaps she was being harassed by people saying to her either tell him to come back to China, or get a divorce. In any case, he initiated a divorce in Australia and it was finalised in April 2023.
The Tribunal asked again what harm he feared in the future in China, whether divorced or not. He said that the Chinese Government can put any random charge against a person, a vague charge such as “Disturbing public order”. The applicant said his wife did get warned by random people. If he went back, there was a good chance of his being arrested. There was not much respect for human rights or freedom in China. The Tribunal referred to independent evidence about China compiled by the Department of Foreign Affairs and Trade (DFAT Country Information Report: China, December 2021) and said it would have regard to the information therein, especially regarding what happens to people with an imputed political opinion such as the applicant claims he has.
The Tribunal referred to its original summary of his claims – that the authorities would regard him adversely because he had posted critical material to his WeChat accounts between January and May 2020 before the two accounts were closed down – and furthermore, he feels that his ex-wife was subjected to some attention by the authorities because she was married to him. The applicant said this was so.
Analysis, findings and reasons
The applicant made no claims of his own when he first applied for protection in 2017: he was merely a member of his wife’s family unit and the claim related to her problem. The applicant stayed in Australia and continued with the appeal after his wife had withdrawn her appeal and returned to China in 2019. The Tribunal acknowledged the applicant’s ongoing appeal process in a letter dated 15 October 2019 and asked him to make relevant submissions. He did not. The first statement of claims received by the Tribunal was on 2 February 2024 when it invited him to a hearing. He made a sur place claim about imputed political opinion relating to events beginning in 2020. It is open to the Tribunal to conclude that he had no claims at the time he opted to continue the protection visa appeal process in October 2019. The Tribunal put it to the applicant that he may have fabricated the entire story about his WeChat accounts in order to ground a claim for protection. The applicant was unable to refute this suggestion and admitted that it was indeed possible. On the evidence set out above and analysed below, the Tribunal is persuaded that this is the case: that the applicant’s testimony is fabricated.
The Tribunal accepts that material posted by Chinese journalists about the then-new COVID pandemic in Wuhan in January 2020 caused a negative reaction from the Chinese government. This is common knowledge and is also reported in DFAT Country Information Report: China at para. 3.91. The applicant said that in late January 2020 he saw the first report about Wuhan on social media where it was widely available. There was no reason for him to re-post it to publicise it. He said at hearing that he reposted it as a sign of support for the journalist. To do this, he created a new account, so he assumed there was some inherent danger about using his existing WeChat account. However, he used his own name for this new account. This is implausible.
The applicant claimed that this new account was shut down by the Chinese authorities [in] February 2020. He then opened another account specifically to go talking about COVID with his family. This account was also, inexplicably, in his own name. When asked by the Tribunal why he kept using his own name, he said that he didn’t think it would be a problem as he was in Australia not China. This is an implausible explanation given that he had already been closed down once. This second account was also closed down [in] May 2020.

Throughout this time – late January to early May when he had the two successive accounts in his own name – he also had his original WeChat opened many years earlier in his own name. Having had two accounts in his own name closed down, he then thought it prudent to drop his own name from his original account. He did this not by closing the account but by changing the details attached to the account: the detail being the name of the account holder. He changed the name to that of a colleague who allowed him to use his (the colleague’s) identification. The Tribunal rejects this explanation as implausible.
The Tribunal notes that the applicant had difficulties maintaining the story about multiple WeChat accounts. In his written submission (see paragraph 14 above), he said his WeChat account was closed after he reported a Chinese journalist’s story about the outbreak of COVIS in Wuhan. There is no indication that this WeChat account was anything but his one and only existing account. He said he then opened another account which was also closed soon afterwards. He then said he has opened a new WeChat account “after a very long time”, giving the impression that it is fairly recent account and the only one since the last one was closed down.
At hearing, the applicant initially said that after the closure of his own WeChat account [in] February 2020, he opened another one “with a different name and a different mobile number” (see paragraph 17) specifically to be able to warn his friends and family about COVID. This testimony indicates that he had one existing account and when it was shut he opened another in a different name, which would be a sensible course if the previous one had attracted adverse attention from the authorities.
However, later in the hearing when the matter of communicating with his wife was under discussion, the applicant stated that he had an existing, original account which was still going to this day. This had been opened years ago (before his wife had retuned to China in 2019) and was in his own name and identification details. It was this that prompted the Tribunal to ask why he had opened the new account in January 2020 in his own name. The applicant asserted that both accounts opened in early 2020 were in his own name, and that both had been shut down. He said he had to use his own name for the successive accounts because he only had his Chinese identification. This is belied by the fact that he soon afterwards changed the name on his original account, indicating that there are ways around this problem. It is also belied by the fact that he had earlier stated he had opened the second account – the one closed [in] May 2020 – with a different name and different mobile, indicating that he knows that this is possible.
In short, the applicant’s story about his WeChat accounts has varied from submission to hearing, and even during the hearing. In the applicant’s written submission, he stated that his WeChat account was closed down after he reposted a journalist’s videos of the COVID outbreak in Wuhan. He said he opened a new account which was also quickly closed down; he then opened a new account “after a very long time” (see para. 14 above). Initially at hearing he stated that his WeChat account was closed after posting the Wuhan material and that he then opened a new account in a different name and with a different mobile number (see paragraph 17 above). Both these accounts give the impression that the applicant had a long-standing WeChat account and it was this – his own account in his own name – that he used for the first Wuhan posts. In both accounts he mentions starting a new WeChat account after the first was closed, but initially at hearing he specified that this was in a different name. However, later in the hearing he stated firmly that both these accounts were in his own name (see para. 19 above), and when questioned about this, explained to the Tribunal that he wasn’t thinking in his eagerness to get information to his family and friends; and also that he thought it didn’t matter as he was in Australia. Also later in the hearing, when asked how he kept in touch with his wife, he initially said he used the phone after his WeChat account was closed and then said he had continually accessed his original WeChat account, which was also in his own name (see para. 19 above). These variations on the story about his WeChat account incline the Tribunal to the belief that the applicant was making it up as he went along: that there were no extra WeChat accounts, merely the original and ongoing one. There is no evidence to support his story about his WeChat accounts, such as screen shots: it is all simply assertion.
The Tribunal does not accept the applicant’s testimony about his various WeChat accounts. It does not accept that he opened two successive WeChat accounts in his own name between January and May 2020 for the purpose of posting information about COVID to his family and friends whilst at the same time he had a long-standing existing WeChat account in his own name for communication with his family and friends. The Tribunal is of the view that the applicant has fabricated the story about the accounts and posting information about COVID for the purposes of grounding a claim. As mentioned above, a DFAT report notes that “When COVID-19 first appeared in Wuhan, references to its emergence in the media were censored” (ibid). This censorship was widely reported in western media and later in the various reports about China such as those by DFAT or Amnesty International. The general outline was common knowledge, and details were easily accessed by interested parties outside China. The Tribunal is of the view that the applicant has fabricated his testimony about his posting stories about COVID in order that he can claim a profile of a person imputed with anti-government views and one who will attract adverse attention from the Chinese government.
The applicant attempted to strengthen this imputed political opinion profile by reference to problems his wife may have experienced because of her relationship to him. He indicated that she had “subtly” suggested to him that he initiate a divorce from his end (that is, in Australia) but without saying any more. The divorce certificate submitted by the applicant indicates that the divorce was done lawfully in the Federal Circuit and Family Court of Australia and with the full knowledge and co-operation of the applicant’s wife in China. The Tribunal relies on a statement in the divorce certificate which says that “the Court was satisfied that the only child of the marriage who has not attained the age of 18 years is the child specified in the order and that proper arrangements in all the circumstances have been made for the care, welfare and development of the child.” It follows that the Tribunal is satisfied that the applicant’s wife supplied all the relevant information about her son to the Australian court so that such a statement could be made. The Tribunal is not persuaded by the applicant’s claim that his wife has only obliquely mentioned divorce because there may have been some sort of adverse consequences. Nor is the Tribunal persuaded that any questions about the whereabouts of the applicant by village officials – if such questions were actually asked – indicate anything more than the village officials’ duty of accounting for residents: in this case, the husband and importantly the father of a resident. The Tribunal is not satisfied that the vague testimony the applicant gave about his ex-wife and questions that may have been put to her has any basis of truth; it does not support his claim that adverse attention has been paid to him by the authorities in China.
The applicant mentioned very late in the hearing, and in a very unconcerned manner, that his current WeChat account (the one that is in the name of his colleague) has temporarily been suspended for a period of two weeks. He had no qualms about its not coming back on line on the specified day. He did not regard it seriously. He says it happen with WeChat: it happened to him once before but for only a period of 24 hours. He said there was a list of offences which could cause WeChat to shut down the subscriber for a specified period of time. As the applicant was unconcerned about this matter the Tribunal will not give weight to it. In any case, this account is not in the applicant’s name and therefore, if adverse attention was drawn to the user, it would not be to the applicant.
In taking all the evidence individually and cumulatively, the Tribunal does not find that the applicant created two successive WeChat accounts in early 2020 in his own name for the purpose of disseminating information about COVID. It follows that the Tribunal does not find that the applicant attracted adverse attention from the Chinese authorities for posting COVID and related material (seen by the Chinese Government as offensive) on WeChat accounts in his own name between January and May 2020. The Tribunal is not satisfied that there has been any other adverse attention from the Chinese Government manifested in questions to his ex-wife. The Tribunal is not satisfied that there is a real risk that serious harm will befall the applicant if he returns to China for reason of an imputed political opinion or for any other reason.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). As the ‘real risk’ test under the complementary protection criterion imposes the same standards as the ‘real chance’ test under the refugee criterion, the Tribunal finds the applicant does not face a real risk of significant harm. Therefore, the Tribunal is not satisfied that there are 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. The Tribunal is 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.
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 2246

12 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction