2007100 (Refugee)
[2022] AATA 4391
•16 September 2022
2007100 (Refugee) [2022] AATA 4391 (16 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Stanley Chan (MARN: 0430097)
CASE NUMBER: 2007100
COUNTRY OF REFERENCE: China
MEMBER:Jason Pennell
DATE:16 September 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 16 September 2022 at 12.50pm
CATCHWORDS
REFUGEE – protection visa – China – religion – particular social group – Falun Gong – distributing materials in Chinatown – picketing the Chinese Consulate – credibility assessment – delay in seeking protection – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Wang v MIMA (2000) 105 FCR 548Any 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
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant who claims to be a citizen of China applied for the visa on 8 July 2018. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
3.The applicant appeared before the Tribunal by MS Teams on 10 August 2022 and in person on 24 August 2022 to give evidence and present arguments. The Tribunal initially exercised its discretion to hold the hearing by MS Teams, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. In doing so the Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick, and in the interests of avoiding any delay in the matter. However, due to the number of witnesses ultimately called by the applicant a further in person hearing was conducted. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
4.The Tribunal received witness statements in support of the applicant from [Ms A], [Ms B], [Ms C], [Mr D], [Mr E] and [Ms F] (‘the witnesses”). The witnesses appeared before the Tribunal for the purposes of giving evidence and making submissions in support of the applicant.
5.The hearings conducted on 10 August 2022 and 24 August 2022 were conducted with the assistance of an interpreter in the Mandarin and English languages.
6.The applicant was represented in relation to the review.
Criteria for a protection visa
7.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.
8.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.
9.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).
10.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.
11.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
12.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.
APPLICANT’S CLAIMS AND EVIDENCE
Applicant’s identity
13.The applicant claimed in her application for a protection visa that she was born on [date] in [City 1] Jilin, China.[1]
[1] Protection visa application form at p 2, Dept File No: [number] Doc ID:7203200
14.The applicant provided a copy of the biodata page of her Chinese passport to the Department.[2] There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.
[2] Dept File No [number] Doc ID:7203199
15.There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that she is a citizen of China and as such her protection claim will be assessed against China as the country of reference and ‘receiving country’ respectively.
Applicant’s migration history
16.The applicant arrived in Australia [in] January 2018 on a visitor visa and has not departed since. The applicant made an application for a protection visa on 8 July 2018 and was granted a Bridging Visa C on 1 August 2018.[3]
Applicant’s claims for protection
[3] Protection visa application form at p 2, Dept File No: [number] Doc ID:7203200
17.The applicant first submitted a claim for protection in a personal statement attached to her application dated 8 July 2018.[4] The delegate summarised the applicant’s claims initial claims as follows (the initial claims):[5]
(a)The applicant’s mother, who was a businesswoman, took out a loan from an illegal money lender in order to scale up her business and attract, more customers.
(b)The applicant mother’s business made a heavy loss and was then unable to pay back the loan.
(c)The money lender threatened the applicant’s mother, caused damage to her business, and assaulted her employees. The money lender also threatened the applicant.
(d)The applicant reported the matter to the authorities; however, they did not assist her.
(e)The applicant feared for her life, as the money lender was powerful in her hometown.
(f)The authorities in China will not protect the applicant. The applicant seeks protection by the Australian Government to start a new life in Australia.
[4] ibid
[5] Dept File No [number], doc ID no. 7203210
18.At the hearing the applicant specifically rejected the claims made in her protection visa application. Her evidence to the Tribunal was that the initial claims had been made by her representative at the time without her knowledge. The applicant’s evidence was that an acquaintence known as, [Ms G]), gave her the WeChat ID of a lawyer in Sydney known to the applicant as [Ms H]. The applicant’s evidence was that [Ms G] has since returned to China, The applicant claims that she provided [Ms H] her personal details over the telephone via WeChat for the purposes of arranging a visa to allow her to remain in Australia. The applicant’s evidence was that she was not aware that [Ms H] had prepared and filed her application for protection with the Department on her behalf.[6]
[6] Applicant’s Statutory Declaration dated 7 January 2021.
19.In 2019, members of the Falun Gong community asked the applicant about her status in Australia. As a result, she attempted to contact [Ms H] to determine her visa status. The applicant’s evidence was that she left messages for [Ms H] on her telephone but did not receive any reply. In 2020 the applicant arranged for her current representative, Stanley Chan, to help with her visa status. Mr Chan advised the applicant that the Department had notified her to attend an interview to which she did not show up. As a result, her application was refused. The applicant’s evidence was that she did not receive any notification of the interview. The applicant’s evidence was that the contact details provided to the Department were [Ms H’s] and not her own.
20.The applicant’s evidence was that the initial claims provided to the Department by [Ms H] are incorrect. Accordingly, the applicant stated that she does not rely on the initial claims for the purposes of her protection visa application. The Tribunal accepts that applicant’s evidence that the initial claims are incorrect, and that she does not rely on them for the purposes of her protection application as claimed. As such the Tribunal finds that there is no real chance the applicant will suffer serious harm by reason of her initial claims if she is returned to China. In addition, the Tribunal finds that there is no real risk that the applicant will suffer significant harm by reason of the initial claims if she is returned to China.
21.As a result, the applicant’s claim[7] to the Tribunal was that she would be persecuted if she was returned to China due to her religious practice as a member of the Falun Gong. The applicant’s evidence was that she had been introduced to the Falun Gong by her mother in China. She claimed that since arriving in Australia she has become an open and active member of the Falun Gong community in Melbourne Australia. The applicant claims that she regularly practices Falun Gong and is an active member in the community by attending Falun Gong events and functions, including picketing the Chinese Consulate in Melbourne and handing out Falun Gong materials in Melbourne City.
[7] ibid
Applicant’s evidence
22.The applicant’s evidence was that she was born on [date] in [City 1] Jilin, China. She reads, writes and speaks Mandarin and claims to be ethnic Han Chinese.
23.The applicant’s evidence was that her parents divorced when she was about [age] years old. Her father continues to live in China. He has remarried and has a son with his second wife. The applicant’s evidence was that she has little contact with her father and his family. The applicant’s mother remarried when the applicant was approximately [age] years old. The applicant’s stepfather passed away in or about 2006.
24.The applicant’s evidence was that her mother continues to live in China. However, she claims that because of her involvement with her Falun Gong, her mother’s passport is with the police and her liberty has been severely restricted.
25.The applicant claims in her application for a protection visa that she was educated in, [Town 1], [City 1], Jilin Sheng, China where she attended [School 1] from 2000 to 2003 and [School 2] from 2003 to 2006. However, her evidence to the Tribunal was that she attended primary school in Jilin province but then attended school in Shandong Provence.
26.The applicant’s evidence to the Tribunal was that her mother had commenced practicing as a Falun Gong member in the late 1990’s. In 1999 the applicant travelled with her mother to Tiananmen Square in Beijing to demonstrate a ban on the teachings of Falun Gong. The applicant claims that she and her mother were both arrested and taken to a detention centre. The applicant’s mother was taken immediately to a forced labour centre. As a result of her stepfather having negotiated with the police the applicant and her mother were released.
27.The applicant’s evidence was that when her mother returned home, she was monitored and subjected to persecution by the authorities. As a result, the applicant and her mother moved to Shandong Province, the home Provence of her stepfather because her mother was not known to be a practicing Falun Going member in Shandong. The applicant’s evidence was that she returned to [City 1] to complete her schooling. The applicant initially lived with her aunty and later with her grandparents while she attended school. However, she did not complete high school because her family was not able to pay the tuition fees. As a result, she only attended school to the equivalent of year 11.
28.After leaving school the applicant continued to live with her grandparents. She claims that she initially worked odd jobs, including as a waitress in various restaurants. The applicant then worked for approximately 3 years (until 2011) as a [Occupation 1] at [Employer 1], [performing specified work duties]. The applicant’s evidence was that in 2012 she opened her own [business].
29.The applicant’s evidence was that she was married in 2011, but the marriage was not registered until November 2012. She has two girls, aged [age] years and [age] years. The applicant’s evidence was that she is still married and that her husband and two children continue to live in [City 1], Jilin Province, China. The applicant’s husband works as a [Occupation 2].
30.The applicant claimed that she first studied Falun Gong with her mother in or about 1998. She claims that she practiced Falun Gong while she was in high school and after leaving school. She claims that she sporadically participated in underground home study and distributing materials. Her evidence was that while she was teaching, she spoke to her students about Falun Gong. As a result, one of her students informed their parents that the applicant had spoken to them about Falun Gong. The parents made a complaint to the school and the applicant was forced to leave her employment. The applicant claims that she subsequently established her own [business].
31.The applicant’s evidence was that her aunty was also a Falun Gong practitioner and was active in helping members and their families who had been detained by petitioning the Justice Department in China. As a result, the applicant claims that in or about May 2011 the police and members of the 6-10 Office forced their way into her home and arrested her aunt together with two other members of the Falun Gong. The applicant’s evidence was that she went to the relevant department to ask for her aunt’s release, but she was detained for 6 months before being released. The applicant’s evidence was that her aunt was subsequently sentenced to 4 years imprisonment.
32.The applicant’s evidence was that she helped distribute material for the Falun Gong in China but upon becoming a mother she became scared for her children’s safety and as a result stopped. The applicant claims that she travelled to Australia because she was not free to practice her beliefs in China. She claims as a practicing Falun Gong member she was not able to practice her religion and follow her beliefs openly and freely. She wanted freedom to practice her own religion in peace.
33.The applicant’s evidence was that upon her arrival in Australia she became involved with the Falun Gong movement in Melbourne. At the time of her arrival in Australia members of the Falun Ging community have provided her accommodation and assisted her financially. The applicant’s evidence is that she practices Falun Gong every day and is a regular participant in Falun Gong activities including protests outside the Chinese Consulate in Melbourne and handing out materials in Chinatown, Melbourne.[8] The applicant gave evidence that she has been photographed by the Chinese authorities while protesting outside the consulate. In addition, [the applicant’s name is reported on the Falun Gong website].[9]
[8] [A; AAT File No 2007100 Doc ID: 9204996
[9] ibid
Witnesses Evidence
34.In addition to their witness statements [Ms A], [Ms B], [Ms C], [Mr D], [Mr E] and [Ms F] also appeared before the Tribunal for the purposes of giving evidence in support of the applicant. All witnesses gave evidence to the effect that they are active members of the Falun Gong community and that they practice Falun Gong on a regular basis. Each witness gave evidence to the Tribunal to the effect that that the applicant regularly practices Falun Gong and that she is an active member of the Falun community in Melbourne. Each witness gave evidence to the effect that the applicant regularly attended Falun Gong events and activities including handing out materials and other documentation in China town and picketing the Chinese Consulate in Melbourne.
35.[Ms F] gave evidence was that she travelled to Australia from China in 1986. She has been a member of the Falun Going since 1996 and is an active member in the Falun Gong Community. Her evidence was that in or about 1998 she returned to China to meet fellow Falun Gong practitioners. Her evidence was that she travelled from Kowloon to Beijing by train. Upon her arrival in Beijing, she and her fellow travellers were detained and questioned by the police about their involvement in Falun Gong. She was initially detained for a period of 9 hours. Her evidence was that as an Australian citizen she was not placed in detention but held at the police station. Her evidence was that she was released on the understanding that she would depart the country. Instead upon her release, she left her accommodation without informing the authorities and remained in China for a period of two weeks. Her evidence was that the authorities finally located her and her party upon which they were immediately detained and deported from the country. Her evidence was that if the applicant was to return to China, as a practicing Falun Going member, she would be detained and be subjected to serious harm by the authorities.
36.[Ms A]’s evidence was that she arrived in Australia in 1996 and has been a practicing member of the Falun Going since 1999. Her evidence was that she regularly contributes articles to the Falun Gong website. Her evidence was that she had written the article on the applicant’s [contribution to Falun Gong].[10]
[10] ibid
37.[Ms A] also gave evidence that her sister in China was a member of the Falun Gong. In 2001 she was detained by the authorities and sent to ‘re-education centre’ for a period of 3 years. Her evidence is that despite the passage of time, her sister is still monitored by the authorities. Her evidence was that if the applicant is returned to China she will be subjected to serious harm by being detained and sent to a re-education centre.
Applicant’s documents.
38.The applicant provided the following documentation to the Tribunal:
(a)Statutory Declaration by [the applicant] dated 7 January 2021[11]
[11] Applicant’s Statutory Declaration dated 7 January 2021
(b)Statutory declaration by [Ms A] dated 6 January 2022[12]
[12] AAT File No 2007100 Doc ID: 9204996
(c)Certified translation of Statement by [the applicant], undated[13]
[13] ibid
(d)Certified translation of Statement by [Ms B] undated.[14]
[14] ibid
(e)Certified translation of Statement by [Mr E] dated 7 December 2021.[15]
[15] ibid
(f)Certified translation of Statement by [Ms C] dated 10 December 2021.[16]
[16] ibid
(g)Certified translation of Statement by [Ms F] dated 11 December 2021[17]
[17] ibid
(h)Article[18] entitled ‘[named]’ dared August 2021 by a Falun Dafa practitioner in Australia.
[18] [Source redacted]; AAT File No 2007100 Doc ID: 9204996
(i)Article[19] entitled ‘The Barbaric Oppression by the No.1 Forced Labor Camp of Shandong Province Cannot Shake Dafa Practitioners' Righteous Faith’ dated 6 March 2002
[19] Falun Dafa Minghui.org The Barbaric Oppression by the No.1 Forced Labor Camp of Shandong Province Cannot Shake Dafa Practitioners' Righteous Faith’ dated 6 March 2002 AAT File No 2007100 Doc ID: 9204996
(j)Article[20] entitled ‘Labor Camp Officials Try to Bribe Son to Cover Up Father's Murder (Photos)’ dated 30 October 2013. by a Minghui correspondent in Jilin Province, China.
[20] Falun Dafa Minghui.org ‘Labor Camp Officials Try to Bribe Son to Cover Up Father's Murder (Photos)’ dated 30 October 2013 by a Minghui correspondent in Jilin Province, China; AAT File No 2007100 Doc ID: 9204996
(k)Article[21] entitled ‘Liu Xiaohua and Zheng Lijun of Tumen Arrested and Their Whereabouts Unknown’ dated 15 April 2011.
[21] Falun Dafa Minghui.org ‘Liu Xiaohua and Zheng Lijun of Tumen Arrested and Their Whereabouts Unknown’ dated 15 April 2011 by a Clearwisdom correspondent in Jilin Province, China; AAT File No 2007100 Doc ID: 9204996
(l)Article[22] entitled ‘Australian Entrepreneur: We Need More Falun Gong Information Booths’ dated 29 June 2021.
(m)Article[23] entitled ‘Falun Gong Practitioner Liu Xiaohua of Tumen City, Jilin Province is Illegally Tried’ dated 27 September 2011.
(n)Article[24] entitled ‘Belated News: Man Dies from Multiple Organ Failure Caused by Labor Camp Torture’ 12 May 2015.
(o)Article[25] entitled ‘Australia: Parade, Rally and Candlelight Vigil Mark Twentieth Anniversary of Protesting the Persecution’ dated 28 July 2019.
(p)Article[26] entitled ‘People in Melbourne, Australia Support Falun Gong’ 25 July 2020 | By Xia Chunqing, Minghui correspondent in Melbourne
(q)Article[27] entitled ‘Melbourne, Australia: Grateful to Have Found Falun Dafa, Practitioners Send New Year Greetings to Master Li 27 January 2020 | By Minghui correspondents in Melbourne.
(r)Article[28] entitled Melbourne: Young Practitioners Celebrate the 21st Anniversary of World Falun Dafa Day 14 May 2020 | By a Minghui correspondent in Melbourne, Australia
(s)Article[29] entitled Australia: Falun Dafa Practitioners of Many Nationalities I Melbourne Wish Master Li Happy New Year 2 Jan 2021
(t)Article[30] entitled Police Use Torture Device to Sexually Assault Teacher for Upholding Her Faith, Family in Australia Calls for Her Rescue 18 Aug 2022
(u)Article[31] entitled Former College Lecturer Sexually Assaulted by a Torture Expert 12 Aug 2022
[22] Falun Dafa Minghui.org Australian Entrepreneur: We Need More Falun Gong Information Booths 29 June 2021 | By Minghui correspondent Xia Chunqing AAT File No 2007100 Doc ID: 9204996
[23] Falun Dafa Minghui.org ‘Falun Gong Practitioner Liu Xiaohua of Tumen City, Jilin Province is Illegally Tried’ dated 27 September 2011 | By a Clearwisdom correspondent in Jilin Province, China. AAT File No 2007100 Doc ID: 9204996
[24] Falun Dafa Minghui.org ‘Belated News: Man Dies from Multiple Organ Failure Caused by Labor Camp Torture’ 12 May 2015 by a Minghui correspondent in Jilin Province, China AAT File No 2007100 Doc ID: 9204996
[25] Falun Dafa Minghui.org Australia: Parade, Rally and Candlelight Vigil Mark Twentieth Anniversary of Protesting the Persecution’ dated 28 July 2019 by Falun Gong practitioners in Australia AAT File No 2007100 Doc ID: 9204996
[26] Falun Dafa Minghui.org ‘People in Melbourne, Australia Support Falun Gong’ dated 25 July 2020 by Xia Chunqing, Minghui correspondent in Melbourne AAT File No 2007100 Doc ID: 9204996
[27] Falun Dafa Minghui.org ‘Melbourne, Australia: Grateful to Have Found Falun Dafa, Practitioners Send New Year Greetings to Master Li’ dated 27 January 2020 by Minghui correspondents in Melbourne AAT File No 2007100 Doc ID: 9204996
[28] Falun Dafa Minghui.org ‘Melbourne: Young Practitioners Celebrate the 21st Anniversary of World Falun Dafa Day’ dated 14 May 2020 by a Minghui correspondent in Melbourne, Australia AAT File No 2007100 Doc ID: 9204996
[29] Falun Dafa Minghui.org ‘Falun Dafa Practitioners of Many Nationalities in Melbourne Wish Master Li Happy New Year 2 January 2021 by Minghui correspondents in Melbourne AAT File No 2007100 Doc ID: 9204996
[30] Falun Dafa Minghui.org ‘Police Use Torture Device to Sexually Assault Teacher for Upholding Her Faith, Family in Australia Calls for Her Rescue’ 18 Aug 2022 by Minghui correspondence in Melbourne, AAT File No 2007100 Doc ID: 10148788
[31] Falun Dafa Minghui.org ‘Former College Lecturer Sexually Assaulted by a Torture Expert’ 12 Aug 2022 by Minghui correspondence in Melbourne, AAT File No 2007100 Doc ID: 10148788
COUNTRY INFORMATION
39.The Tribunal in accordance with Ministerial Direction No.84 made under s 499 of the Act also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the DFAT report on China dated 22 December 2021 (the DFAT Report) and in particular to those parts of the DFAT Report produced in Annexure ‘A’ of these reasons.
CONSIDERATION OF Claims and evidence
40.The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded to remit the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Credibility
41.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
42.The mere fact that a person claims fear of persecution for a 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 enough 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.[32] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[33]
[32] Section 5AAA, Migration Act 1958.
[33] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
43.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[34] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.
[34] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482
44.If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[35] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[35] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
Delay
45.Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[36] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be considered when assessing the genuineness or depth of an applicant’s fear of persecution.[37]
[36] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[37] Subramanium v MIMA (1998) VG310 of 1997.
46.In this case the applicant arrived in Australia [in] January 2018 on a visitor visa and has not departed the country since her arrival. The applicant made application for a protection visa on 8 July 2018 and was granted a Bridging Visa C on 1 August 2018.[38] However, the applicant did not make any claim in relation to her membership of the Falun Gong until her statutory declaration dated 7 January 2021.
[38] Protection visa application form at p 2, Dept File No: [number] Doc ID:7203200
47.In her statutory declaration the applicant states that her protection visa application was prepared by her former representative. The applicant’s evidence was that she was introduced to her lawyer [Ms H] by a friend via a WeChat ID. The applicant claims that she provided [Ms H] with her personal identification documents and personal details. Her protection visa application was completed by [Ms H] without the applicant’s knowledge. In 2019, at the insistence of her Falun Gong colleagues, the applicant attempted to contact [Ms H] but was not able to contact her. The applicant claims that she delayed dealing with her protection visa claims due to the cost of obtaining a visa and the delay caused by the pandemic. In December 2022 she instructed Mr Chan to assist her with her application. Mr Chan informed her that the Department had contacted her for an interview, but she did not respond. The applicant’s evidence was that she never received any communication from the Department and can only assume that the Department attempted to contact [Ms H]. The applicant claims that she was not aware of the claims made by [Ms H] on her behalf. She only became aware of their details once Mr Chan informed her of the contents of her application.
48.In circumstances where the applicant claims to have a well-founded fear of persecution because of threats and harm by Chinese officials due to her religion, it is reasonable for the Tribunal to expect the applicant to have claimed protection upon her arrival in Australia. The Tribunal accepts that she did attempt to make an application to remain in Australia soon after her arrival in Australia. Her evidence was that she relied on [Ms H] to make her protection visa application. While the Tribunal would have expected the applicant to have detailed her claims to [Ms H] at the time of her original application, the Tribunal does accept that she placed the care and conduct of her protection visa application in the hands of [Ms H]. In that sense the Tribunal accepts that she did so on the basis that she was not aware of the process of applying for a protection visa and that she had limited English at the time.
49.Therefore, based on the applicants’ delay in making her application for protection, the Tribunal, on an objective basis, would ordinarily hold some reservations about the genuineness and depth of the applicants’ fear of persecution as claimed. However, based on the evidence presented to the Tribunal including the evidence provided by the applicant’s witnesses the Tribunal accepts the reasons for the delay in making her claims.
Applicant’s refugee claim
Relevant grounds
50.The applicant did not make any specific submission as to how her claims fall within the scope of s 5J(1)(a) of the Act. Nevertheless, it was open to the applicant to claim that she falls within s 5J(1)(a) of the Act by reason of her religion, and/or her member of a particular social group (PSG). That is, as a person who will suffer serious harm upon her return to China as a practicing member of the Falun Gong.
51.As to the applicant’s religion in Wang v MIMA (2000) 105 FCR 548 Merkel J, when considering religion in the context of the Convention stated that:[39]
it is clear that there are two elements to the concept of religion for the purposes of Art 1A(2): the first is as a manifestation or practice of personal faith or doctrine, and the second is the manifestation or practice of that faith or doctrine in a like-minded community. I would add that that interpretation is consistent with the commonly understood meaning of religion as including its practice in or with a like-minded community.
[39] Wang v MIMA (2000) 105 FCR 548 at [81]
52.The country information[40] notes that Falun Gong is a spiritual movement that blends aspects of Daoism, Buddhism and the traditional breathing and meditation methods of Qigong. It’s reported[41] that practitioners of Falun Gong claim that the movement has ancient origins. Nevertheless, the country information[42] states that it first appeared in its modern form in 1992 when the founder Li Hongzhi began teaching exercises in Changchun, Jilin Provence. Falun Gong focuses on private exercises and meditation. Therefore, based on the country information, the Tribunal accepts that the applicant’s claim falls within the scope of s 5J(1)(a) of the Act by reason of her religion as a practicing member of the Falun Gong.
[40] DFAT Report at p.33
[41] ibid
[42] ibid
53.Finally, members of a PSG must be recognised (generally by the persecutor or persecutors) as sharing a connection or falling under some general classification.[43] When a person claims to fear being persecuted by reasons of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L of the Act. Section 5L[44] states:
[43] Applicant S v MIMA (2004) 217 CLR 387
[44] Section 5L Migration Act 1958
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.
54.It was open to the applicant to claim that she is a member of a PSG by reason of being a member of the Falun Gong. Based on the applicant’s evidence, the Tribunal accepts that her membership of the Falun Gong is a characteristic that is shared by the applicant and by each member of the group. In addition, it is a characteristic that is innate or immutable and is one that is fundamental to the applicant’s and other members identity and conscience. The Tribunal therefore accepts that the applicant’s claim falls within the scope of s 5J(1)(a) of the Act by reason that the applicant is a member of a PSG by reason of her being a practicing member of the Falun Gong.
Applicant’s well-founded fear
55.Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In addition, the real chance of persecution relates to all areas of the receiving country.
56.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.[45]
[45] Chan Yee Kin v MIEA (1989) 169 CLR 379
57.In this case the applicant claims that if she is returned to China there is a real chance she will be seriously harmed because of her religion as a practicing member of the Falun Gong. For the reasons expressed below, the Tribunal accepts that the applicant has a well-founded fear of persecution on a subjective and an objective basis if she is returned to China.
Accepted facts
58.Based on the applicant’s evidence and the documentary evidence provided to the Department and the Tribunal, the Tribunal finds that the applicant:
(a)was born on [date] in [City 1] Jilin, China.
(b)reads, writes and speaks Mandarin.
(c)is ethnic Han Chinese.
(d)mother and father were divorced when the applicant was about [age] years old. They have both remarried and continue to live in China.
(e)has a younger half-brother as a result of her father’s second marriage.
(f)stepfather passed away in or about 2006.
(g)was educated in, [Town 1], [City 1], Jilin Sheng, China. She attended [School 1] from 2000 to 2003 and [School 2] from 2003 to 2006.
The Applicant as a Falun Gong Member
59.That is, as a person who will suffer serious harm upon her return to China as a practicing member of the Falun Gong. Based on the applicant’s evidence and the evidence of the witnesses in relation the applicant’s involvement with the Falun Gong community and her practice as a Falun Gong member, the Tribunal accepts that she is a practicing member of the Falun Gong community as claimed. The Tribunal notes that the applicant has been referred to on the Falun Dafa website[46] as [specified]. In addition, the evidence of the witness before the Tribunal was the applicant regularly attended demonstrations about the treatment of the Falun Gong in China outside the Chinese consulate in Melbourne and worked handing out Falun Gong information in Chinatown in Melbourne. It was the applicant’s evidence and the evidence of the witnesses before the Tribunal that the applicant has been regularly photographed by consulate officials at the demonstrations. Based on the applicant’s evidence and the evidence of the witnesses before the Tribunal, the Tribunal accepts that the applicant is an active member of the Falun Gong community in Melbourne. The Tribunal also accepts that by reason of her exposure on the website and her demonstrations outside the Chinese consulate, there is a real chance that she has come to the attention of the Chinese authorities. The Tribunal accepts that the applicant is a committed practitioner of the Falun Gong and that she will continue to practice her religion if she is returned to China.
[46] [Source redacted]
60.The country information [47] reports that Falun Gong, which means “law wheel practice” in Chinese, is a set of meditation exercises and texts that preach the virtues of truth, benevolence, and forbearance. It was founded in north-east China in 1992 by Li Hongzhi, a former trumpet player, and draws on China’s long tradition of qigong, a regimen of controlled breathing and gentle physical movements. It’s reported that Falun Gong now avows a path to salvation for the faithful. By performing exercises and following the moral teachings of the religion and reading and re reading the sacred text Zhuan Falun, believers hope to ascend to a state of perfection or ‘cultivation’. The Chinese Government claims the religion encourages isolation from families or refusal of medical treatment. Falun Gong denies these claims.[48]
[47] The Economist ‘What is Falun Gong? 5 September 2018; ’ DFAT report at p.21
61.Falun Gong has been illegal since 1999. Consistent with the evidence of the applicant’s witnesses in the hearing, it is reported[49] that the Chinese government actively searches for and prosecutes practitioners. On 20 July 1999, the Chinese government initiated a nationwide crackdown and multifaceted propaganda campaign directed against the practice. It blocked Internet access to websites that mention Falun Gong, and in October 1999 it declared Falun Gong a "heretical organization" that threatened social stability. It’s reported that Falun Gong practitioners in China are reportedly subject to a wide range of human rights abuses: hundreds of thousands are estimated to have been imprisoned extrajudicially,[50] and practitioners in detention are subject to forced labour, psychiatric abuse, torture, and other coercive methods of thought reform at the hands of Chinese authorities.[51]. Adherents can be imprisoned for between three and seven years.[52] There are claims by Falun Gong practitioners that they have suffered psychiatric experimentation and organ harvesting.[53] In 2009 human rights groups estimated that at least 2,000 Falun Gong practitioners had died within China because of abuse in custody.[54]
[49] ibid
[50] Freedom House ‘The Politburo’s Predicament: Confronting the limitations of Communist Party Repression’ January 2015; Annual Report 2008, Congressional Executive Commission on China; DFAT report at p.21
[53] DFAT Report at p.22
[54] The New York Times, ‘China Still presses Crusade Against Falun Gong’ Andrew Jacobs 27 April 2009, reported by DFAT[55] that many adherents are still active in China. It’s estimated to be between 7 and 20 million Falun Gong practitioners in China, but this is hard to verify in circumstances where the practice is private and the group is illegal and stigmatised.[56] Nevertheless DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. As a result of the governments campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination.
[55] DFAT report at p.22
[56] ibid
63.The Tribunal has accepted that the applicant is an active member of the Falun Gong community. It has accepted that the applicant maintains a regular practice and is a teacher of Falun Gong. Finally, the Tribunal accepts based on her involvement with the Falun Gong that she will maintain her practice if she is returned to China. Finally, due to having been photographed in Melbourne at the Chinese consulate and her profile having been featured in the Falun Gong [website] the Tribunal finds that there is a real chance the authorities in China will identify her as a Falun Gong practitioner. As such based on the available country information, the Tribunal accepts that there is a real chance the applicant will be seriously harmed if she is returned to China by reason that she is a member of the Falun Gong as claimed.
64.At no stage did the applicant advance any other reason, such as her race or nationality, in her written or oral claims that she is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.
CONCLUSIONS
65.Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that, if she is removed from Australia to China, there is a real chance she will suffer serious harm by reason of her being a member of the Falun Gong as claimed. Accordingly, the Tribunal is satisfied that the applicant is a non-Australian citizen in respect of whom Australia has protection obligations as a refugee. The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s 36(2)(a) of the Act for a protection visa.
DECISION
66.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Jason Pennell
Senior Member
Annexure ‘A’
RELIGION[57]
[57] DFAT report at p.16
3.22 China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism. Daoism, Buddhism and Confucianism (which while not an official religion has had significant influence on Chinese culture) have an ancient presence that has long shaped Chinese culture. The 2020 US Department of State International Religious Freedom Report on China estimates that 52.2 per cent of the population are unaffiliated with any religion, 21.9 per cent practice traditional folk religion, 18.2 per cent are Buddhist, 5.1 per cent are Christian and 1.8 per cent are Muslim.
3.23 Religion in China is traditionally not as separate from everyday life as in the West. Chinese people, especially those of traditional Chinese faiths like Buddhism, Confucianism and Daoism integrate religious practice into their everyday life and lifestyles, including perhaps with home shrines and/or cultural festivities and events. Buddhist, Daoist and Confucian practices are not mutually exclusive; it is common to practice more than one these faiths. Some religious figures might be seen as better at answering prayers than others and some traditions might suit certain life events (for example, weddings and funerals) more than others. Adherents of non-Chinese religions like Christianity, Islam and new religious movements are more likely to separate their faith from their everyday lives and may label other beliefs as ‘superstition’. By extension, many Western religions and new religious movements require exclusivity and loyalty to that particular faith.
3.24 Under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power. The 2018 Regulations on Religious Affairs contain broadly worded prohibitions against the use of religion to ‘split the country’, ‘undermine ethnic unity’ or ‘engage in terrorist activities’. Although centrally organised, the situation for religions varies from place to place and is influenced by the actions and motivations of local authorities.
3.25 Professor Fenggang Yang of Purdue University describes religious groups as operating in a ‘red’, ‘grey’ or ‘black’ market. The red market groups are the officially sanctioned churches, such as the ‘patriotic associations’, the name used for officially sanctioned organisations that represent the five recognised religions. Grey markets include unofficial but tolerated (to a degree) religious gatherings. Black markets include underground movements and xie jiao. Some home congregations were originally in the black market but moved to the grey market with increased tolerance over decades. But the recent crackdown to ‘sinicise’ religions is reversing this trend. Those groups that are allowed to exist are subject to close monitoring. CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored.
3.26 Regulations prohibiting proselytising are generally enforced across China and religious education for those under 18 years is not permitted, but according to the 2020 US Department of State International Religious Freedom report on China enforcement of this rule varies from place to place. In recent years, the number of foreign religious workers and foreign NGOs working in areas with a rights and religious focus appears to have decreased significantly.
3.27 Overall, an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues. Adherents of Buddhism (except Tibetan Buddhism), Confucianism, Daoism, folk religions, and syncretic combinations of these that do not have influences from ‘foreign religions’ and that are not associated with other foreign influences, are unlikely to experience significant restrictions.
Falun Gong[58]
[58] DFAT report at 21
3.64 Falun Gong was established based on the practice of qigong, a generic term for a family of meditative breathing and stretching exercises with a long history in China. Qigong experienced a resurgence in popularity in the 1980s and 1990s, and Li Hongzhi (Master Li) founded Falun Gong in 1992 at the same time as other movements were founded. Falun Gong is the most well-known qigong group outside China, but many others exist and many of them are banned or monitored in China.
3.65 By performing exercises, following the moral teachings of the religion and reading and re reading the sacred text Zhuan Falun, believers hope to ascend to a state of perfection or ‘cultivation’. Practitioners may not see Falun Gong as a religion, seeing it as a method for ‘cultivation’ or science. Unlike other qigong practices, Falun Gong has moral teachings (for example teaching against gay sex and abortion) and supernatural aspects. DFAT understands from sources that these beliefs exist, but do not form a core part of Falun Gong belief or practice. The Chinese Government and some former members claim the religion encourages isolation from families or refusal of medical treatment. Falun Gong denies these claims.
3.66 Falun Gong has been illegal since 1999 and the government actively searches for and prosecutes practitioners. Adherents can be imprisoned for between three and seven years. For this reason, members do not openly proselytise and there is no initiation ceremony. Conversely, repression of the religion has become a key part of its teaching and practice abroad. Practitioners, including in diaspora communities, may be involved in anti-Chinese Government activism.
3.67 DFAT understands that many adherents are still active in China, but it is not clear whether they are the same adherents from before the ban or new converts. The 2020 US Department of State International Religious Freedom Report estimates there are between 7 and 20 million Falun Gong practitioners in China, but this is hard to verify given that practice is often private, and the group is illegal and stigmatised.
3.68 Unlike some other xie jiao, Falun Gong is not secretive about its beliefs. Most Falun Gong beliefs are published on the organisation’s websites. Unlike some other new religious movements there are no ‘gradations’ of knowledge where one has to be admitted or inducted into knowledge after perhaps being a believer for a certain time or paying a fee. Core to Falun Gong beliefs is the reading and re-reading of the Zhuan Falun, the sacred text of the organisation that comprises a series of lectures made by Master Li. A source told DFAT that a thorough knowledge and constant re-reading of the Zhuan Falun is central to Falun Gong beliefs; one cannot be Falun Gong without that practice.
3.69 Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. They may be unable to find jobs after release from detention. Unlike other xie jiao, the government regards Falun Gong practitioners as political opponents rather than victims and treats them accordingly (see Political Opinion (actual or imputed)). They are likely to be monitored after release from detention.
3.70 DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination. Falun Gong practitioners are generally able to practise privately in their homes. DFAT is aware of claims by Falun Gong practitioners and their lawyers that they have suffered psychiatric experimentation and organ harvesting. DFAT is not able to verify these claims. In May 2020, following the release of the China Tribunal’s report into organ harvesting, DFAT officials met with the Chair, Sir Geoffrey Nice QC, to further discuss the findings. DFAT continues to review the evidence and reports as they come to light.
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Remedies
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