1936057 (Refugee)

1936057 (Refugee) [2024] AATA 950 (30 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1936057
COUNTRY OF REFERENCE:                   China
MEMBER:Patricia Tyson
DATE:30 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 January 2024 at 3:30pm
CATCHWORDS
REFUGEE – protection visa – China – business owner approached by gangs to pay protection money – property damaged and applicant beaten – business acquired by developer with inadequate compensation offered – complaint to provincial government and visit by police when not home – collusion between gangs, developers, police and government – living in hiding until departing – later threats to wife – inconsistent claims and evidence – elapse of time and difficulties in remembering – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A
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 dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND TO THE REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 December 2019 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 25 May 2017. The delegate refused to grant the visa on the basis that she did not accept that the applicant’s claims about his experiences in China were credible.
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.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade, to the extent they are relevant to this decision.
CLAIMS AND EVIDENCE
Evidence to the Department
In his protection visa application, the applicant claimed he was persecuted by the Chinese government because he revealed government officials’ corruption. He fears that if he returns he will go to prison, will be persecuted mentally and physically, and will die. In summary, he claimed that:
·He is originally from Fujian Province, but opened a [business] in Nanjing city, Jiangsu Province.
·The government gave notice that the [business] would be collected by a developer collecting all [businesses] in the area. The developer only offered compensation at one third of the market price, and the applicant and other merchants disagreed.
·One day when the applicant was working, the developer sent people to smash goods at his [business]. He was beaten and threatened. He called the police but they ignored his case.
·The applicant was told by other merchants that the developer was in collusion with police and officials. He and other merchants made a petition. They wrote a complaint letter to Jiangsu Province Government but did not get any result.
·The government then sent police to catch them. The applicant was not at home, so survived. He was so scared he escaped China and fled to Australia.
·The Chinese government is corrupt, they collude with police, protect each other and only care about their own benefits.
The applicant attended a protection visa interview with the delegate on 23 September 2019. At the interview, the applicant raised different claims, which can be summarised as follows:
·When he was running his [business], from around late 2014 or early 2015 groups would come to ask for money for a ‘protection service fee’. They would come three or four times a month. At the beginning he was able to pay but after a while sometimes he did not pay. When he did not pay they would cause trouble.
·One of the group leaders was the son of the supervisor of a police station and a lot of people in his family worked in the police system. The applicant would call the police but the police could not solve the problem.
·In July or August 2016, a group of 30 or 40 people came to the applicant’s [business] and caused trouble. They had knives and sticks and were smashing everything. They beat the applicant and he fought back. Some people called the police and they arrived after an hour. They told the applicant to go to hospital. The applicant knew the police would not be able to solve the problem and was afraid the gangsters would come again. After going to the hospital, he went back to Fuqing with his family that night.
·He heard from friends in Jiangsu that the gangsters were looking for him. They also contacted him and his family after he returned to Fujian. He eventually got a new contact number and he also lived in a different home owned by his family to get away from them. The last contact was around September 2016. However, his wife received further threats, most recently in May 2019.
·The gangsters still want to harm him because he fought back and called the police. They want revenge. They have threatened to kill him and his family.
The delegate raised a number of concerns with the applicant’s evidence at the interview and allowed him seven days after the interview to provide any further response. The applicant indicated that he would provide a written response, but ultimately did not do so prior to the delegate’s decision.
Evidence to the Tribunal
The applicant appeared before the Tribunal on 11 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. At the hearing, the applicant presented a narrative of events which had similarities, but also significant differences, to those in the application and the protection visa interview. In summary, he said that:
·In around April or May 2016 he received a notice from the local authority (‘Demolishing and Relocation Office’) that his [business] would be demolished and that he would receive a certain amount of compensation. In late May or early June the demolition team came. He requested the amount of compensation on the notice but the amount they offered was different. He disagreed with the amount. In around July 2016 the applicant went for a petition to the government about this issue but did not receive any news.
·There were thugs or gangsters that would come to his [business] to collect a protection fee. They were also taking orders from the demolition team. The demolition and relocation team plotted with the authorities and had people working for them in the police force. The gangsters had been increasing the payment demands to try to force the applicant to leave Jiangsu.
·After he refused the compensation, the demolition team sent these thugs to his [business]. A group of around ten came. The applicant refused to pay them the amount they demanded and they smashed the shop and beat him. His wife called the police but they did not come for an hour. He believes this was to allow the thugs to leave. He did not hear from the police afterwards.
·Several days later the thugs came again. They told the applicant the police work for them and there would be no use him contacting them. They smashed the [business] and said they would find and kill the applicant. A neighbour called the police. Police again took some time to come. The applicant went to hospital.
·The thugs came to harass the applicant often and he had no option but to go in to hiding in Jiangsu for 10-20 days before returning to Fujian. He received telephone threats but changed his number. His friend and uncle also received threats. The people looking for him found his new number and threatened him so he changed it again. They sent someone to his hometown to find him. The last approach was in November or December 2016.
At the hearing, I raised a number of concerns with the credibility of the applicant’s claims, as discussed below. On 12 January 2024, the Tribunal sent the applicant an invitation to respond to adverse information. The applicant provided a brief written response on 28 January 2024.
FINDINGS AND REASONS
The issue in this case is whether the applicant’s claims are credible and whether there is a real chance or risk of him being harmed if he were to return to China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant claims to have been born and lived for much of his life in Fuqing city, Fujian province, but to have also lived and worked in Jiangsu province. He has a partner and two children who remain in Fujian, living with his parents. The applicant travelled to Australia in April 2017 on a visitor visa.
Nationality and third country protection
The applicant has presented a copy of his Chinese passport. In giving oral evidence, he spoke knowledgably of various places in China that he claims to have lived. I am satisfied that the applicant is a national of China as he claims. There is no evidence before me to suggest he has a right to enter and reside in any other country, and I find he does not. Section 36(3) does not apply.
Reason for gangster’s interest in the applicant
There is also a significant inconsistency in the applicant’s evidence about the context of the events he experienced in China.
·In his visa application, the applicant referred to being notified by the government that his [business] would be taken by developers. He disagreed with the amount of compensation, and the developer sent people to smash his [business] and beat the applicant. He and other merchants submitted a petition to government. The police came to catch him. He feared being imprisoned.
·In the interview with the delegate, the applicant claimed to have been harmed by local gangsters connected to local government. He said that they extorted a ‘protection services fee’ from him, that the amount of money would increase and when he did not pay they would come to the [business] and cause trouble. He claimed that the gang was connected to local government as the leader’s father was the supervisor of a local police station. The gangsters were after him and wanted revenge because they did not like that he had fought back and called the police. He did not mention developers, his [business] being acquired, any sort of dispute over compensation, writing a complaint letter, or the police coming to catch him. He specifically stated the Chinese authorities did not cause him any trouble, that it was the gangsters who were looking for him.
·At the hearing, the applicant presented a version of events that overlapped with, but was different from, the claims in both in the application and at interview. He said that the local authority wanted to demolish his shop, but the compensation offered by the company doing the demolition was less than that indicated by the authority, so he did not agree. He went for a petition. The authority was connected to local thugs who used to collect a protection fee from him, and they twice sent gangsters to smash his shop and beat him. He also said the gangsters had been increasing the fee to force him to leave Jiangsu. The applicant said the gangsters also had people in the police force, which he clarified to mean there were people working for them among the police officers.
As discussed with the applicant at the hearing, although there was some similarity between the claims, the applicant did not mention at the hearing the claims he made in his visa application that the government sent the police to catch him or that he feared being imprisoned. Nor did he mention his claim at the interview that the gangster was the son of the director of a police station. At the protection visa interview, he did not mention the issue of his [business] being demolished, compensation, or that he was making a petition. I also put to him his evidence at the interview that the Chinese authorities did not cause him any trouble.
In response to my concerns, the applicant claimed that he had not mentioned the demolition at the interview because he was not asked the question and was not feeling very well and so had just talked in general about what happened. He reiterated that the claim about the thug being the son of a police director was correct. He explained that his safety was at risk because he had harmed their interests and they were worried he would expose it to a higher level. None of this overcomes my concerns. While the applicant did refer at one point of the interview to being afraid of the Chinese government, he completely omitted any mention of demolition, the issue of compensation, or writing a petition. I further do not accept the applicant did not mention these things because he was unwell or was not asked. As I reminded him, he had confirmed at the start of the interview that he felt well. He was asked many open questions about events in China to which he gave lengthy and uninterrupted answers. He had ample opportunity to raise these issues but did not do so. It was only at the very end of the interview, when the omission of any mention of developers was put to him, that he claimed there were developers linked to the gangsters. As set out in the delegate’s decision, the applicant was given the opportunity to provide further information after the interview, but did not do so.
The applicant’s responses from the interview were also put to him in a letter under s.424A. In response he reasserted that he was concerned for his safety because of the demolishment dispute. This does not overcome my concerns about the two different narratives presented by the applicant about the reasons for the harm he claims to have experienced. These differences significantly undermine the credibility of his claims and the reliability of his evidence as a whole.
Claims to be in hiding
There were also differences in the applicant’s evidence about when he left Jiangsu and whether or not he went into hiding there.
·At the interview with the delegate, he described the last instance of the gangsters coming to his [business]. He specifically stated that that night, he had taken his wife and children and they went back to their hometown. He described the incident, saying a large group came with sticks and knives, that they smashed everything and beat him. Some people called the police for him and they arrived after an hour. The police asked him to go to hospital. He was asked to stay there overnight but he refused and went home. The delegate referred to his earlier evidence that he had left that night and travelled back to his hometown, and asked how soon after he had left, and the applicant said it was six or seven hours later after the incident. The applicant did not make any reference to hiding in Jiangsu for any period before returning to Fujian.
·At the hearing, the applicant described two similar incidents several days apart in which he had been beaten by a group of gangsters and the police had been called but had taken an hour or more to come. He referred to going to the hospital or the doctor. However, he said that after the second of these incidents, the thugs came to harass him very often so he went in to hiding. He said he was still in Jiangsu, and had not returned to Fuqing. He went in to hiding for 10-20 days, then returned to Fujian.
When I put the differences in this evidence to the applicant at the hearing, specifically between his claim at the interview to have immediately returned to Fujian and his claim at the hearing to have gone into hiding in Jiangsu, he claimed that he had been nervous and did not explain himself clearly at the interview, and said that when a person had been beaten and hospitalised it was not possible to return to Fujian the same night. I do not accept this explanation. The applicant’s evidence at the interview was clear and he did not make any attempt to change or clarify it when it was repeated back to him by the delegate. The applicant’s evidence from the interview was also put to him in a letter under s.424A. In response the applicant claimed that he had left Nanjing shortly after the incident, but it took days to travel back to Fujian and they had to hide during the travelling in Jiangsu. This is a third version of events which is different to what he said at the hearing. The clear contradiction and shifts in the applicant’s evidence about his actions after the claimed incident in his shop, when he returned to Fujian, and whether he was in hiding in Jiangsu significantly undermines the credibility of his claims and general reliability of his evidence.
I also have concerns about the applicant’s claims to have been in hiding after returning to Fujian. The passport submitted by the applicant to the Department and sighted at the Tribunal hearing indicates it was issued in Jiangsu [in] 2017. I have a further concern over a claim made by the applicant at the hearing that he had used an agent to apply for his passport and visa because his safety was at risk and he did not dare to go to the exit and entry administration bureau to get it himself, because he had been followed, was in hiding and there was someone who wanted to get him. In contrast to this, at the protection visa interview the applicant was asked about the process of applying for a passport and referred to making enquiries at the entry and exit administration office. He made no reference to an agent. He also referred to having gone to the consulate in relation to his visa, described what had occurred there, and said that he did not have any help applying for it.

When I put the inconsistency to the applicant at the hearing, he claimed that he was not feeling well the day of the interview and just put it simply that he had done it himself but in reality it was an agent. I explained to the applicant that he had said he was well at the interview. He then said he had been overwhelmed and just answered without knowing what he answered. The applicant gave clear and specific evidence at the interview and I do not accept these explanations. When the information was put to him in a letter under s.424A, he claimed that he had understood that he was being asked about the standard process for applying for a passport, so did not mention the agent. While I accept that the delegate’s question was framed in terms of asking him to explain the process for applying for a passport and could have been understood in the way the applicant claims, the applicant’s response was to describe what had occurred when he went to the office, rather than simply explaining the process of making a passport application in China. I do not accept this explanation for not mentioning the agent. The applicant’s evidence at the interview undermines his claims that he used an agent because he was in hiding and feared harm and casts doubt on the general credibility of his evidence.
Threats after the applicant left China
The applicant’s evidence at the hearing also casts doubt over a claim made at the interview that the gangsters had continued to threaten his wife after he left China, and had made threats to her in May 2019. At the hearing I asked the applicant about contact from or threats from the gangsters after he returned to Fujian. He referred to staying at a different place from his family and changing his phone number, and to telephone calls to his friend and an uncle. He said this was in 2016. He claimed there was someone looking for him. All of this was broadly consistent with evidence at the interview. I specifically asked him when he or any family last had contact with the people looking for him, and he said it was when he was in Fujian. He said they went to his family home and asked about his whereabouts, and the last time was between November and December 2016. I also asked questions about what made him think they would still want to find or harm him. At no point did he mention these people making threats or having contact with his wife or any other person after his departure from China.
When I raised the omission, he said he had not mentioned it because he had just answered the questions that he was asked and could not remember every detail because it had been a long time. The applicant’s evidence from the interview was also put to him in a letter under s.424A and in response he claimed that the last contact or threats from the gangsters to him was in November or December 2016 but they continued to make threats to his family. I do not accept the applicant’s explanations or that he would omit to mention something as significant as ongoing threats to his wife for a period of two years after he had left China had that occurred. This is yet a further inconsistency that suggests that the applicant’s evidence is not reliable.
Applicant living and working in Jiangsu
As raised with the applicant at the hearing, the delegate put information to him at the interview from his visitor visa application. It was said that the visitor visa application had indicated a different employment history to what he now claims. However, that application is not before me to verify its content or assess the context of the employment history, and from what the delegate said there also appear to have been other anomalies in the information given in that application. I do not place any reliance on the information from the visitor visa application described by the delegate.
However, I note that the applicant has given inconsistent information throughout the protection visa process about when he actually worked and lived in Jiangsu.
·In his visa application, he said that he lived in Nanjing between January 2016 and April 2017 and that he had a business there between February 2016 and February 2017.
·He gave different evidence at the interview with the delegate, where he said he had a [business] in Nanjing for five to six years, that he had established in around 2008. He said he had left Nanjing and returned to his hometown in Fujian for around five to six months before leaving China (in April 2017). He thought he had returned there around September 2016.
·At the hearing, he gave a third version, saying that he moved to Jiangsu between 2011 and 2013. When asked how long he had the [business] for, he said initially around two years, then said it was maybe three, four or five years. He said he had the restaurant until 2016. He thought he had returned to Fujian around the end of August or beginning of September.
The timeframe in the visa application is significantly different from both the interview and hearing. When this was raised with the applicant at the hearing, he said that maybe because it was such a long time ago his memory was not very vivid about the timelines. While this could explain the differences in timeframes given at the interview and hearing, it is these versions that he asserts are correct. I do not accept that memory problems account for the very different timeline in the visa application, given that it was completed in May 2017, relatively soon after the events in question. The inconsistency was also put to the applicant in a letter sent under s.424A. In response, he said that he travelled between Fujian and Jiangsu, there was no specific time. This does not address my concern, noting that he had previously referred to living and working in Jiangsu during specific periods. I take into account that the applicant claimed at the hearing that he did not know what the agent who prepared his visa application had put in there. However, he also said that it was prepared on his instruction and that he had told the agent his true story. When taken with the many other concerns above, the inconsistencies in the evidence about when the applicant lived in Jiangsu and ran his [business] raise doubts over his claims about the events that occurred because of that [business].
Conclusions
I am mindful that a considerable period of time has now elapsed since the applicant’s departure from China and the events in question. However, the inconsistences and differences identified in his evidence are significant and relate to matters central to his claims. Some of the differences arise from the protection visa application which was made only shortly after the events in question. I do not accept that these problems with his evidence can be explained by difficulties in recollection due to the passage of time. I do not accept that his evidence at the interview was impacted by him being unwell or not being asked questions that would enable him to give full and detailed evidence about his claims. I take into account that there were other elements of the applicant’s evidence that have been consistent between the interview and the hearing, however overall this does not outweigh the numerous and significant concerns above.
Considering the evidence as a whole, I am not satisfied that the applicant’s accounts of his experiences in China are credible. I do not accept that he had a [business] that was acquired by government or developers or was to be demolished. I do not accept that he faced problems from gangsters, police or government officials, that he was beaten and his [business] smashed, that police failed to investigate this or protect him, or that people were looking for him and making threats after he left Jiangsu. I do not accept that he was of any adverse interest to any persons in China for the reasons he claims. I am not satisfied there is a real chance of the applicant being harmed in relation to any of these claimed events.
At the hearing, the applicant stated he wanted to stay in Australia. He said he liked his life here, referred to freedom and human rights, and said that in Australia people can discuss a matter openly and get it resolved. I asked what sort of matters he meant, and he said that if you have a problem with somebody in Australia you can sit down and have a discussion and resolve it, whereas in China people may try to ‘stab you behind your back’. As I explained to him, the Tribunal can only consider whether he meets the criteria for a protection visa, which requires a real chance or a real risk of him being harmed in China. I am not satisfied that any of the matters the applicant raised indicate a real chance or risk of harm in the reasonably foreseeable future.
Considering the applicant’s’ claims as a whole, I am not satisfied that there is a real chance of the applicant suffering any harm in China in the reasonably foreseeable future. The applicant does not have a well-founded fear of persecution within the meaning of s.5J(1) and is not a refugee as defined in s.5H.
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).
Alternative criteria for the visa
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative complementary protection criterion in s 36(2)(aa). To satisfy the complementary protection criterion, there must be 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 the applicant will suffer significant harm.
I have found above that there is no real chance of the applicant being harmed in China in the reasonably foreseeable future. The Federal Court has held that ‘real risk’ imposes the same standard as the ‘real chance’ test in the refugee criterion.[1] On the evidence and reasoning set out above, I similarly find there is no real risk of him suffering significant harm.
[1] MIAC v SZQRB (2013) 210 FCR 505.
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.
Patricia Tyson
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 950

30 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction