1935144 (Refugee)

[2024] AATA 2495

1935144 (Refugee) [2024] AATA 2495 (5 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1935144

COUNTRY OF REFERENCE:                   China

MEMBER:Hee-Jung Kim

DATE:5 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 05 June 2024 at 6:09pm

CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – father an official in home village – sale of land for development with collusion by other officials – father threatened, arrested after complaining to municipal government, and released after payment of bribes – religion – Christianity – member of underground church – arrested and detained, released after payment of bribes, and blacklisted – lawful departure on own passports – vague claims, no additional information and consent to decision without hearing – unclear how father’s claimed experiences relate to applicants’ fear of harm – applicants living elsewhere at the time – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), (4), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASE
MIAC v SZQRB (2013) 210 FCR 505

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 November 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of China, applied for the visas on 6 June 2019. The primary applicant provided a statement in support of his claims for protection and the secondary applicant stated that she was not making her own claims for protection. On 16 August 2019, the primary applicant was invited to an interview with a delegate scheduled for 13 September 2019, but he did not attend or contact the Department to explain his non-attendance. On 22 October 2019, the delegate wrote to the applicants requesting for more information in support of their application for protection, but they did not respond or provide any further information. The delegate refused to grant the visas on the basis that they are not persons in respect of whom Australia has protection obligations and are not members of the same family unit as a non-citizen who holds a protection visa.

3. On 12 December 2019, the applicants applied for review of the delegate’s decision to the Tribunal and provided a copy of the decision with their application for review.

4. On 28 May 2024, the Tribunal invited the applicants to appear before it on 17 June 2024 to give evidence and present arguments in relation to the issues under review because it considered that it could not decide the review in the applicants’ favour on the basis of the material before it. On 3 June 2024, the Tribunal received the applicants’ response to the hearing invitation, signed by the primary applicant on behalf of and with the consent of all applicants, clearly stating that the applicants will not participate in the hearing and that they consent to the Tribunal making a decision on the papers without taking further steps to allow them to appear. 

5. Accordingly, the Tribunal finds that the applicants have consented to the Tribunal deciding the review without them appearing before it, and the Tribunal has proceeded to determine this matter on the evidence before it.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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-5LA, which are extracted in the attachment to this decision.

10. 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

11. 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 (the Department), 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicants meet the criteria for the grant of a protection visa under s 36(2) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

13. The applicants claim to be citizens of China and provided copies of the biopage of their Chinese passports to the Department. The delegate was satisfied of the applicants’ identity and that they are citizens of China. In the absence of evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of China and that China is their receiving country for the purposes of assessing their claims for protection.

    Evidence before the Department

14. In their protection visa application lodged online, the applicants provided the following background information:

    ·The primary applicant was born in [Year] in Meihekou, Jilin province, is Chinese and does not have citizenship or a right to enter or reside in any other countries than China. He has been in a de facto relationship with the secondary applicant since 1 May 2017. He has a daughter born in [Year] in Meihekou, who lives at an address in Tiexi district, Shenyang city in Liaoning province. He also provided the birth details of his parents who reside in China. He claimed he is in contact with his family in China by phone calls. From 1 June 1999 to 30 April 2017, he lived at an address in Meihekou, Jilin province and from 1 May 2017 to 23 April 2019 he lived at the Tiexi address. He completed up to high school in [Year] in Meihekou. From 1 August 2004 to 19 February 2013, he worked as [an occupation 1] at a private [service 1] store in Meihekou, Jilin province, and from 20 February 2013 to 23 April 2019, he was a manager at a [service 2] company in Shenyang, Liaoning province.

    ·The secondary applicant was born in [Year] in Shenyang, Liaoning province, is Chinese and does not have citizenship or a right to enter or reside in any other countries than China. She has been in a de facto relationship with the primary applicant since 1 May 2017. She provided the birth details of her parents who currently reside in China. She claimed that she lived at the Tiexi address from 1 June 1999 to 23 April 2019. She completed up to high school in [Year] in Fushun, Liaoning province. From 1 August 2007 to 30 January 2013, she worked as [an occupation 2] at a private [company] in Dalian, Liaoning province, and from 1 February 2013 to 24 April 2019, she was a general manager at the same [service 2] company the primary applicant worked at, in Shenyang, Liaoning province.

    ·The applicants departed together from Shanghai on [Day 1] April 2019 and arrived in Brisbane, Australia on [Day 2] April 2019 on visitor visas.

15. The applicants claimed that they are Christians but only the primary applicant provided a statement in support, which in summary includes the following:

    ·The primary applicant’s father was [an official position] in his home village of [Village], [County], Meihekou City, Jilin Province. In May 2018, the party secretary and the president of the village colluded with corrupt officials and sold about 220 mu of farmland to a real estate development company at a price much less than market price. They received a total commission of 20% but each family who lost their land only received compensation below market price. The corrupt officials tried to bring the applicant’s father to their side but when he refused, they threatened him to keep his mouth shut. In September 2018, his father wrote to the Letters and Visiting Bureau of Meihekou Municipal Government, revealing the corruption of the party secretary, the president and the corrupt officials, and requested the authorities to investigate the sale of farmland to the real estate company. He could not get any support from the Municipal Government Bureau because the corrupt officials there had been bribed. He was instead arrested in November 2018 by the Meihekou Public Security Bureau (PSB) for framing the party secretary, the president and other officials, and detained at Meihekou Detention Centre for 3 months.

    ·The applicant’s family spent a lot of money to bribe the police and government officials to save his father. His father was persuaded to withdraw the letter, to confess to having stirred up the anti-government and anti-communist activities and to promise not to be involved in any activity against them again. The police warned his father that he would be subject to severe punishment if he disclosed anything in relation to the land transaction outside. His father was released but the police and the corrupt officials continuously gave him trouble by openly telling everyone in the village that he had anti-government and anti-communist ideologies. They asked the village people to keep an eye on his father and never to listen to him.

    ·The primary applicant himself suffered persecution from the government authority in relation to his Christian religion. He was baptised on 25 December 2014 and he attended weekly worship almost every week at an underground church in China. Devout genuine Christians will not attend the official Patriotic church recognised by the Chinese authorities and under the control of the Communist dictatorship. There is no genuine freedom of religious beliefs or religious practices in the official church. Underground churches refusing to be under the control of the Communist dictatorship had already become the government’s target and they had to take care of their activities to avoid attention of the authorities.

    ·In December 2018, the primary applicant and 10 other Christians were arrested by the PSB in Shenyang City when the police raided a secret gathering place at a private apartment. He was detained for one month until January 2019 and was released after his family spent a lot of money to bribe the police. He was forced to promise not to get involved in any unofficial religious organisation or activities again. The person in charge of the gathering was sentenced to 3-year reform and was sent to a labour camp in the countryside of Liaoning Province. After this, the applicant’s family decided to arrange for his travel to Australia because he would be in trouble with the authorities again. Their church friends organised for the applicants to leave China in April 2019.

    ·After the applicants came to Australia, the primary applicant learnt that he has been regarded as a keyperson in the family church and a key religious dissident who escaped overseas. The police visited his company in Shenyang and his home in Meihekou 3 times enquiring about his whereabouts in Australia. Although he is overseas, he has been put on the PSB blacklist, which means he must be arrested immediately upon return to China.

16. As noted above, the primary applicant did not attend the Departmental interview. The delegate also requested the applicants to provide evidence of their claims to be Christians, attendance at an underground church, the primary applicant’s detention and that he is blacklisted. However, the applicants did not provide any information in response or further material in support of their application.

    Delegate’s decision

17. The delegate accepted for the purposes of their assessment that the primary applicant is a Christian but based on the scant information before them, they did not accept he was detained in China or is currently on a PSB blacklist. On the basis of the applicant’s own admission in the application that he was able to exit China legally on his own passport, there being no information to indicate that he had any difficulty leaving China or any claims to be a church leader or to have proselytised, and the country information indicating that exit procedures for citizens leaving China are heavily controlled and church leaders and members who proselytise come under greater scrutiny, the delegate found the applicant’s profile is such that he is not of interest to the authorities. While accepting that the applicant has a low profile in China as a Christian, the delegate found that there was no information to indicate that the applicant would not be able to continue practising his religious belief should he wish to do so by attending one of the state-sanctioned churches in China. Therefore, having considered the applicant’s claims and the country information, the delegate was not satisfied that the applicant will face a real chance of serious harm or a real risk of significant harm for his claimed reasons if he returns to China.

18. The delegate accepted that the secondary applicant is a member of the family unit of the primary applicant. As the delegate found the primary applicant did not satisfy s 36(2)(a) or (aa) of the Act, they found that the secondary applicant does not satisfy s 36(2)(b) or (c) of the Act.

    Evidence before the Tribunal

19. Since lodging their application for review, the applicants have not provided any further details or any additional evidence to the Tribunal in support of their claims for protection.

    Reasons and findings

20. It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).

21. The Tribunal has reviewed all of the material before it. It is prepared to accept the applicants’ background information as summarised at [14], including their residential and employment histories and that they are in a de facto relationship since May 2017. The Tribunal’s understanding of the applicants’ claims for protection on the available information is that the primary applicant’s father was persecuted for revealing government corruption and that both applicants are underground Christians in China.

    Claims in relation to the primary applicant’s father

22. It is unclear from the available information how the claimed experiences of his father as outlined in the primary applicant’s statement relates to the applicants’ fear of harm in China. The applicants did not claim that they have any political opinion nor that they participated in any political activities including petitions to the government.

23. The information provided by the applicants indicate that they were not present in Meihekou between May 2018 and January 2019 or were participating in any way in the father’s petition to the Meihekou Municipal Government in relation to the land sale. The applicants have not explained how the father’s petition and subsequent detention and harassment impacted their lives nor have they claimed that they were harmed by any one in relation to the father’s petition. The primary applicant claimed that the family had to bribe the police and government officials to save his father but there is very little specific information about this bribe and the applicants’ own involvement in the claimed bribery.

24. The written claims lack important specific information including the identities/names of the people involved, the land market price, the sale price, the families who suffered the loss, the compensation received by the villagers and the commission appropriated by the officials. Apart from the general assertion that the officials are corrupt and the compensation for the land sale was below market price, the applicants have not explained how or why the land transaction was corrupt and what specific corruption was revealed by the primary applicant’s father. The circumstances of the claimed bribery to save the father is vague, with no details about the amount of bribe paid by the family and the persons to whom it was paid. There is no corroborating evidence to support these events such as a copy of the letter the father wrote to the government or any documents in relation to the claimed land sale, nor is there any explanation why such evidence are not available or cannot be provided.

25. There is also no information before the Tribunal about current circumstances in relation to this claim. For example, the visa application did not specify the residential address/location of the primary applicant’s parents and the applicants have not provided any information to date about whether the primary applicant’s father and family are currently residing in Meihekou. The written claims generally stated that the police and the corrupt officials continuously troubled the father after his release from detention, but there is no information on whether they have since harassed the applicants’ family in China or that the family continues to be troubled by the authorities and the villagers.

26. The applicants did not attend the Departmental interview and did not respond to the delegate’s request for more information. They also elected not to attend a hearing before the Tribunal to provide more detailed evidence about this claim and how it relates to their fear of harm in China. Their lack of engagement with the Tribunal to provide additional information in support of their claims and the limited information currently before the Tribunal do not satisfy the Tribunal that the claimed events occurred to the primary applicant’s father, or that the applicants fear harm in China in relation to this claim.

1. Accordingly, the Tribunal does not accept that the applicant’s father revealed corruption in relation to the village government’s land transaction by writing a petition to the Meihekou Municipal Government, was consequently detained for 3 months at Meihekou Detention Centre, was released after the family bribed the authorities and the father confessed to anti-government activities, and that he was continuously troubled by the officials after release. As the Tribunal does not accept any of these claimed past events occurred, it does not accept the applicants fear harm in China in relation to this claim.

2. The applicants did not expressly claim that they have any political opinion or fear returning to China on this basis. Having regard to the available information and having rejected the claimed past events in relation to the primary applicant’s father, the Tribunal does not accept that the applicants have any actual or imputed anti-government and anti-communist political opinion nor that they are perceived to hold any such opinion by association to their family members. The Tribunal does not accept that the Chinese authorities have or will have any interest in the applicants in relation to this claim.

   Claims in relation to the applicants’ Christian religion

3. The applicants claimed to be Christians but there is very limited information about their acceptance of the religion and faith practice in China and in Australia for the Tribunal to be satisfied of the claim. They did not specify their denomination of Christianity (whether they are Protestant or Catholic) or describe the underground church they attended with any meaningful details to convince that they in fact attended weekly worship in China.

4. The primary applicant claimed he was baptised on Christmas Day in 2014. His residential history suggests he was still living in Meihekou at this time but the written claims do not provide any additional personal details including the church in which he was baptised and a description of his baptism experience. Neither applicant has explained how they were introduced to and came to accept Christianity as their religion. The secondary applicant has not provided any information specific to her claim to be a Christian such as a timeline of when and how she became a Christian, which church she attended in China and whether she participated in the same underground church gathering with the primary applicant.

5. The applicants have not explained what they had to do to take care of their church activities in China to avoid the authorities’ attention. The primary applicant claimed that he was arrested with 10 other Christians and detained for a month but he has not provided any meaningful details such as the detention centre where they were detained, what happened while he was detained and what happened to the other church members. His claim about his family bribing the authorities or the police for his release is vague, without any specific details about who bribed whom, how much bribe and whether he was in fact charged with any offences. He claimed that the leader of their underground gathering was sentenced to 3 years in a labour camp but this also lacks meaningful details such as the identity of the leader and when they were sentenced.

6. Despite the claim that the family was concerned the primary applicant will be in trouble with the authorities sooner or later, there is no information or claim that he and his family were harassed by the authorities after his release in January 2019 until he and his partner departed China in late April 2019. On the contrary, the employment history provided by the applicants indicate that they continued to work in the [service 2] company right up until their departure from China. There is no information to suggest that the applicants experienced difficulties or harassment in their workplace until they departed China [in] April 2019 nor that they had any difficulties departing China from the airport.

7. The primary applicant has not described with any specific detail the underground church activities he engaged in China, for example, whether he proselytised, organised the meetings, distributed religious material or actively spoke against the official church, and there is no information to indicate he participated in any church activities other than his vague claim to have attended worship almost every week. He hasn’t even described with any meaningful detail what he means by ‘weekly worship’ and what occurs there. In the absence of these details, it is unclear why he has been regarded as a keyperson in the church and a key religious dissident after he came to Australia and he has been put on the PSB blacklist. It is also unclear what he means by the police visiting his Meihekou home as his residential history in the visa application states his home from May 2017 until departing China as his Tiexi address in Shenyang, where his [Age] year old daughter continues to live.

8. The applicants have not provided any updated information about their current circumstances including their Christian faith practice and church attendance in Australia and whether the authorities continue to visit their Shenyang or Meihekou home to ask about them.

9. Because the applicants expressly elected not to attend a hearing before the Tribunal to avail themselves of the opportunity to provide more detailed oral evidence about their claims, the Tribunal has been unable to explore its concerns arising from the written material. In this regard, the hearing invitation clearly stated that the Tribunal could not decide the review in the applicants’ favour on the material before it, but the applicants still chose not to attend the hearing and also have not provided any further evidence.

10. Although the delegate accepted that the primary applicant is a Christian with a low profile, the Tribunal is not satisfied from its assessment of the available material, which in its view lacks important personal details, that the applicant are Christians as claimed or that they belonged to any church in China to have a low profile as a Christian. As set out above, the applicants have not provided any meaningful details about the underground church they claimed to have belonged to in China including the denomination, nor have they explained with convincing personal details about their acceptance of Christianity and their faith practice in China. The applicants did not attend the Departmental interview or respond to the request for more information. They also declined to attend the Tribunal hearing to explain the deficiencies in the written evidence and provide more details in support of their claims.

11. There is insufficient information for the Tribunal to be satisfied of the applicants’ claim to be Christians and that they fear returning to China on this basis. Having regard to the available information and the concerns set out above, the Tribunal does not accept that the applicants were or are Christians or belonged to an underground Christian church in China. The Tribunal does not accept that the primary applicant was arrested during a PSB raid at his underground church gathering with 10 other church members, he was detained for a month and was released after his family bribed the police and he was forced to promise not to engage in unofficial church activities. The Tribunal also does not accept the primary applicant has been regarded as a keyperson in the underground/family church or a key religious dissident, or that he has been put on the PSB blacklist as there is no evidence to support these claims. It does not accept that the police visited their company in Shenyang and their home in Meihekou or Shenyang to enquire about them. As the Tribunal rejects that applicants’ claims to be Christians and the claimed past events relating to underground church activities in China, it does not accept that they were or are of interest to the police or the Chinese government for their religion or that they will attend church on return to China.

12. There is no evidence before the Tribunal to indicate that the applicants have engaged in Christian practices or activities in Australia and therefore the Tribunal does not accept that the applicant have practised Christianity in Australia. This is a further reason for the finding that the applicants will not attend any church on return to China.

    Assessment under the refugee criterion

13. As the Tribunal rejects the applicants’ claims about the events in China and their claims to be Christians, it does not accept that they left China to escape from troubles with the Chinese authorities or to seek safety in relation to these claimed past events, any actual or imputed political opinion and/or their religion. It does not accept that the Chinese authorities have any interest in the applicants nor that they will come to the authorities’ attention for the claimed reasons considered singularly and cumulatively. Accordingly, the Tribunal does not accept that the applicants will be harmed in any way including being arrested, detained or harmed by the police or any other Chinese authorities, for their claimed reasons considered singularly and cumulatively, if they return to China now or in the foreseeable future.

14. For the reasons set out above and having considered all of the material before the Tribunal and the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that the applicants face a real chance of serious harm on return to China for their claimed reasons or for any other reason in s 5J(1)(a), now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied the applicants have a well-founded fear of persecution in China, and the applicants do not meet the definition of refugee in s 5H(1). The Tribunal is not satisfied the applicants are persons in respect of whom Australia has protection obligation under s 36(2)(a).

    Assessment under the complementary protection criterion

15. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

16. The Tribunal has found above that the applicants will not be harmed for any reasons upon return to China. As the ‘real risk’ test for the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons set out above, the Tribunal is not satisfied that there is a real risk that the applicants will be harmed upon return to China. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

    [1] MIAC v SZQRB (2013) 210 FCR 505.

17. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants protection visas.

    Hee-Jung Kim
    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.

    …