2007039 (Refugee)

2007039 (Refugee) [2022] AATA 2510 (28 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jia Wang (MARN: 1680191)
CASE NUMBER:  2007039
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Katsambanis
DATE:28 June 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2022 at 10:37am
CATCHWORDS
REFUGEE – Protection visa – China – loan shark – applicant does not have a well-founded fear of persecution – applicant is not a witness of truth – applicant was never a stock market investor as claimed – applicant has never borrowed money from the loan shark as claimed – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 April 2020 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 1 September 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant was represented by a registered migration agent 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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
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.
ISSUES
The issues in this case are whether there is a real chance that if the applicant returns to China he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
CLAIMS AND EVIDENCE
Protection Visa Application
In his protection visa application form lodged with the Department on 1 September 2017, the applicant stated that he was born in [Shandong], China on [date]. He was married on [date] March 2005. His parents and wife were still resident in China, and he was in contact with his wife on a daily basis. He stated that he had resided at the same residential address in [Address 1] from January 1997 to July 2017. The applicant stated that he was of Han Chinese ethnicity and in response to a question about his religion he stated ‘other – religion not listed’.
In his application form the applicant stated that he departed China legally using his own passport on [date] July 2017 and arrived in Sydney, Australia on [date] July 2017 on a valid Australian visitor visa. He also stated that he had travelled to [Country 1] for a holiday [from] April 2017 [to] May 2017 on a valid visa.
The applicant stated that he had completed primary school and middle school in China. He had been employed doing construction and installation for a company in [Shandong] from January 1995 to December 2009 and had then been employed as a [occupation] by a company in [Shandong] from January 2010 to July 2017. He had not been employed since his arrival in Australia.
The applicant stated in his application form that he had left China because he had been investing in the stock market since 1995 and had gained a considerable amount of money over the past 10 years. However, since 2015, China’s stock market had experienced a great decline and at the beginning of 2017 the applicant had accumulated a loss of RMB300,000.
The applicant claimed that the money he invested into the stock market all came from a bank loan and he had sought a usury loan to pay back the bank loan quickly and to continue playing the stock market until he made a profit. He stated that although he paid back the bank loan, the money he owed to the loan shark began to accumulate.
The applicant further stated that on 2 May 2017, the loan shark colluded with the local gang who came to his house, smashed his windows and threatened him to pay back the usuary loan immediately. He claimed that he reported the incident to police but they refused to offer any assistance. Afterwards, he heard that the reason the police didn’t care about his case was because they colluded with the local gang and the loan shark.
The applicant claimed that on 10 June, the local gang came to his house once again and demanded repayment. They threatened to kill him if he did not pay back the loan and with no other options, he applied for a visa and fled to Australia.
The applicant stated that the harm he had suffered in China was that, as his usury loan began to accumulate, the loan shark contacted the local gang and started using all kinds of means including violence and insults to demand repayment. The applicant claimed that he sought help by reporting the incident to police but they refused to offer any assistance. Afterwards, he heard that the police ignored his request was because they collude with the local gang and the loan shark. The applicant claimed that he could not move to another part of China to seek safety because he was kept under close watch by the local gang so he could not move anywhere.
The applicant stated that if he returned to China he will be taken away by the gang and he would receive brutal treatment. His family may also be harmed. He stated that the Chinese authorities could not protect him from the harm that he fears because the police collude with the local gang and the loan shark. He asked if the police would not help him, who would? He also stated that he could not relocate to another part of the country to escape the harm he feared because everywhere in China was the same.
Together with his application form, the applicant submitted a certified copy of his passport biodata page and a certified copy of the passport pages containing a single-entry visa issued to him by the [Country 1] on 20 April 2017 and Chinese entry and exit stamps corresponding with his claimed travel dates in 2017 to the [Country 1] and to Australia.
The delegate refused to grant the applicant a protection visa on 6 April 2020.
Application for Review
The applicant lodged an application for review with the Tribunal on 14 April 2020. Together with his application, the applicant also provided the Tribunal with a copy of the delegate’s decision record and a copy of the accompanying notification letter.
On 8 June 2022 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 28 June 2022. The applicant was also invited to provide a written submission to the Tribunal in relation to his claims by 21 June 2022.
On 9 June 2022 the applicant’s representative forwarded a response to this invitation signed by the applicant on the same date, which advised the Tribunal that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the basis of the evidence provided by the applicant to the Tribunal in support of his claims for protection.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
There is no issue as to identity. The Tribunal accepts that the applicant is a national of China and has assessed his claims accordingly.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The applicant has claimed that he was a long-term stock market investor who suffered losses resulting from the decline in the Chinese stock market from 2015 onwards. He has claimed that he took out a usury loan from a loan shark to repay a loan he had received from a bank to finance his stock market activity and losses. He has further claimed that his debt to the loan shark began to accumulate and on 2 May 2007 the loan shark colluded with a local gang who came to the applicant’s house, smashed his windows and threatened him to pay back the usuary loan immediately. The applicant claimed that he reported this incident to police but they did not assist him, and he later found out that the reason the police did not assist him was that they were colluding with the loan shark and the local gang. The applicant stated that the gang returned to his house on 10 June 2017 and demanded repayment, threatening to kill him if he did not pay back the loan. The applicant has stated that he had no other options, so he applied for a visa and came to Australia.
The applicant’s claims about his stock market investing, his loans from the bank and from the loan shark, and the subsequent issues he claims to have had with the local shark, the local gang and the police are vague and lacking in detail. Although the applicant has claimed that his stock market losses amounted to RMB300,000 by the beginning of 2017, he has not provided any details about the amount of money he had invested in the stock market over time, the frequency of his stock market activity, the types of stocks he had invested in, the value of his stock market portfolio at various intervals since 1995, or specific details of the individual losses that amounted to RMB300,000.
In relation to the loan the applicant claims to have obtained from a bank to finance his stock market activities, he has not provided basic details about this loan, including which bank he obtained the loan from, the date or approximate date he first obtained the loan, the initial value of the loan or the final amount that he repaid to the bank to pay off this loan.
In relation to the loan the applicant claims to have obtained from a loan shark, the applicant has not provided basic details about this loan, including the name of the loan shark he allegedly obtained this loan from, the date on which he obtained this loan, the amount that he borrowed, the interest rate attaching to the loan, the agreed terms of repayment including details of any penalty interest for late payment, or the total amount that the loan had accumulated to when the loan shark allegedly sought repayment.
In relation to the local gang that on two occasions allegedly harassed him at his property, the applicant has provided dates on which these two events apparently occurred. However, he has not provided any further details including the number of gang members who attended his property on each occasion, the time when these gang members attended his property, who else was at the property at the time and how he knew that these people were gang members colluding with the loan shark.
In relation to the applicant’s claim to have reported the first alleged incident with the local gang to the police, the applicant has not provided details about which date he reported the incident to police, which police station he reported it to or which officer he spoke to. The applicant has also not provided any details about how he came to know that the police were allegedly acting in collusion with the loan shark or the local gang.
The Tribunal’s letter of 8 June 2022 inviting the applicant to a Tribunal hearing put the applicant on notice that the Tribunal had considered all of the material before it in relation to his application but was unable to make a favourable decision on that information alone. However, the applicant elected not to attend the Tribunal hearing and did not submit any further information or evidence to the Tribunal.
As noted above, s 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section of the Act, the Tribunal does not have the responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[1]
[1] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
On the basis that the Tribunal’s letter of 8 June 2022 clearly informed the applicant that after considering the material before it the Tribunal was unable to make a favourable decision on that information alone, and on the basis that the applicant declined the invitation in that letter to appear before the Tribunal to give evidence and make submissions or to provide further information or evidence supporting his claims in response to that invitation, the Tribunal considers that the applicant has been afforded a reasonable opportunity to provide further information and evidence to the Tribunal about his claims but has chosen not to do so. Accordingly, as the applicant has had a reasonable opportunity to provide further information and evidence, the Tribunal has proceeded to make a decision on the evidence before it without seeking any further information from the applicant.
Based on the vague and undetailed evidence before it, the Tribunal does not accept that the applicant was a stock market investor as claimed and the Tribunal does not accept that he ever borrowed funds from a bank or from a loan shark in connection with his claimed stock market activities. Further, on the basis of the vague and undetailed evidence before it, the Tribunal does not accept that the applicant was ever threatened, harassed or otherwise confronted by a local gang seeking repayment of the alleged loan to the loan shark or that the applicant ever had his windows broken or was threatened with death by the local gang as claimed. The Tribunal also does not accept that the applicant ever reported any of these alleged altercation with gang members to the police as claimed or that the police were in any way in collusion with the loan shark or the local gang.

Accordingly, on the evidence before it, the Tribunal finds that the applicant was never a stock market investor as claimed, that he never borrowed money from a bank or a loan shark in connection with his claimed stock market activities, that he was never threatened, harassed or otherwise confronted by a local gang on behalf of the loan shark seeking repayment of the alleged loan as claimed, and that he never sought and was never denied assistance by the police in relation the alleged altercations with the local gang.
The applicant has claimed that if he was forced to return to China now or in the reasonably foreseeable future, he fears that he would be taken away by the local gang acting in collusion with the loan shark and that he would be subjected to brutal treatment. He has also claimed that his family may also be harmed by these people. He has claimed that he would not be protected by the authorities because the local police are in collusion with the loan shark and the local gang.
However, on the evidence before it, the Tribunal has found that the applicant has never borrowed money from the loan shark as claimed and that he was never threatened, harassed or otherwise confronted by a local gang on behalf of the loan shark as claimed. The Tribunal has also found, on the evidence before it, that he has never sought or been denied assistance in the past by the police in relation to any alleged altercations with a local gang. Accordingly, on the evidence before it, the Tribunal is not satisfied that if the applicant was to return to China now or in the reasonably foreseeable future that there is a real chance that he would suffer serious harm amounting to persecution for reasons of the claimed debt he owes to the loan shark, including through being taken away or otherwise being harmed in any way by a local gang acting in collusion with the loan shark. Also, on the evidence before it, the Tribunal is not satisfied that there is a real chance that applicant’s family would be harmed in any way in China now or in the reasonably foreseeable future for the reasons claimed. On the evidence before it, the Tribunal is also not satisfied that there is a real chance that the applicant will suffer serious harm amounting to persecution for any other reason.
Therefore, having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
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). The Tribunal has considered whether 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 the applicant will suffer significant harm as defined in s 36(2A) of the Act.
As outlined above, based on the applicant’s vague and undetailed claims that were lacking in detail, the Tribunal has already found that the applicant was never a stock market investor and that he never borrowed money from a bank or a loan shark in China and that he never suffered the claimed harm in the past in China as a result of this alleged loan. Apart from claims relating to his alleged loan from a loan shark and an associated local gang acting in collusion with the loan shark, the applicant has not made any claims that he fears harm for any other reason in China, and no other claims arise from the facts before the Tribunal. Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if he were to return to China.
Accordingly, 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.
Peter Katsambanis
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.
…

[2022] AATA 2510

28 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction