2007190 (Refugee)
[2025] ARTA 798
•21 January 2025
2007190 (REFUGEE) [2025] ARTA 798 (21 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2007190
Tribunal:General Member C Dutkowski
Date:21 January 2025
Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.
Statement made on 21 January 2025 at 9:43am
CATCHWORDS
REFUGEE – protection visa – China – member of Falun Gong – application prepared by another person without applicant’s knowledge of contents, and claim incorrect – particular social group – family violence by father – physical, verbal, emotional and financial abuse and pressure into arranged marriage – relocation under refugee criteria possible – complementary protection – age, mental health, limited education and employment and lack of family support – relocation not reasonable – parents divorced but chance of incidental contact with father – country information – prevalence of domestic violence – state protection not always effective – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(c), (5), 36(2)(a), (aa), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB (2013) 210 FCR 505
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 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 the Tribunal accepts to be a national of China, applied for the visa on 26 April 2019. The delegate accepted that the applicant had been a victim of family violence by her father, but refused to grant the visa on the basis that the applicant would not face a real chance of serious harm or a real risk of significant harm.
The applicant appeared before the Tribunal on 10 January 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented by Ms Jean Kearney from the Refugee Advice and Casework Service.
BACKGROUND
The applicant is a [Age]-year-old woman from Fujian province.
The applicant’s father and mother are divorced and living in China. The applicant’s older sister, aged [Age], lives in [Country] and has done so since 2017. The applicant’s younger brother, aged [Age], lives with their mother, and attends school.
The applicant first travelled to Australia on a visitor visa [in] July 2018 as part of a student study tour. She departed Australia [in] August 2018, and returned again [in] January 2019 on a visitor visa.
The applicant made a protection visa application on 26 April 2019.
Evidence before the Department
The applicant’s protection visa application contained claims in relation to fearing persecution on the basis of adherence to Falun Gong.
However, at an interview with the delegate on 6 March 2020, the applicant stated that her Falun Gong claims were incorrect, and she was not aware of the contents of her written application. The Tribunal has listened to the delegate’s interview. During the interview, the applicant gave the following evidence:
a.She was working in a [workplace 1] in [Suburb 1] and usually earns more than $300 per week. It was hard for her to go to a school because her English was not very good. She found her job through her mum’s friend.
b.Her mum had to borrow money to support the applicant. Her father does not take care of her mother. Her mum was not able to work because her brother was still very young, and her mum was not in good health. Her father and mother don’t get along. Her father often works in other cities. He didn’t allow her mother to work, and he asked her to only take care of her younger brother. Her other sister went to [Country]. She is an adult now so she can work. In order to go overseas, you have to spend money and her father once supported her sister but every time when her mother asks him for money, he always replied that he didn’t have it, so her mum has to rely on her mother (the applicant’s grandmother) and the applicant’s uncle to support her. The applicant was not able to send money back home to her family because she was not an adult yet and couldn’t apply for the card, and on top of that her money was not enough to cover her own life. Her older sister sends money back sometimes but she needs to study and work. If she has some spare money she will send some money back but because that’s not much, her mum needs to rely on her grandmother and uncle.
c.She regularly contacts her mum, older sister and grandparents. She speaks to them with WeChat.
d.She left China because she did not work well at school. Her performance was not satisfactory. Her father doesn’t treat her very well, so her mum suggested she go overseas like her sister.
e.When she was asked whether it was true that she practiced Falun Gong as claimed in her visa application, the applicant asked what Falun Gong was. She said she did not practice it. She came here because her father did not treat her well and her performance at school was not satisfactory. When asked whether she also came to Australia to work to support her family and whether the expectation was that she would soon send money to her family in China, the applicant said yes.
f.In relation to her father, the applicant stated that he works in other cities and when he comes back, he could be grumpy and call her and her sister names and sometimes he just lives in his other brother’s and sister’s home but he won’t live there for a long time. After that, he will just go back to his workplace. He does [workplace 2] work. He hurt the applicant by hitting her and calling her names and he usually came home in mid-autumn and spring festival. He promised her mum that she doesn’t need to work and that he will work and send money back home but he never does this. The applicant said she was scared of her dad. She could not remember clearly how long her father treated her like this as she was too young but it may have been as soon as she turned 8 years old. He is not a person with too many abilities. He doesn’t let her mum go to work and does not send money back. Previously her mum had to work in a [workplace 3] but he doesn’t allow her to go to work. If they were to run out of money and her mum asked him to send money back he would just delete her contact on WeChat. He would only give them money in spring festival like 2000 RMB and that’s far from enough. He did not hurt the applicant in other ways. He likes to gamble but he doesn’t work actively on the [workplace 2] so he was fired. He pretty much relies on other sisters and brothers to help him. He always wanted to divorce her mum but doesn’t take action. Recently they had more frequent fights with each other. Every time he comes back home, he only calls her names. He doesn’t like her.
g.Her mum had to send her to her maternal grandparent’s home but he would follow. She was brought up by her grandparents. She lived in their house in summer and winter vacations and when her father comes back. She lived with them to avoid harm from her father. Whenever he contacts them, her mother would ask her to live with her grandparents. They live not far away from their village, about 10 minutes on a bus. She could not live with them permanently if she returned to China because she needs to go to school, and her mum wouldn’t allow her to live with them permanently.
h.If she returned to China, her mum wouldn’t let her stay with her grandparents forever. Right now, her father was unemployed so he might need to find work in local areas. If her parents divorce each other, she did not know who she should live with. She could live with her mum but doesn’t want to live with her father.
i.When asked what would happen if she returned to China, the applicant said her mum sent her here as she does not study well and because of her father and she wants to make money herself but cannot do that in China as she would need to go back to school.
j.In relation to her travel from China to Australia, her mum bought her a ticket on the same flight someone she knew was travelling on. This person and their father and son were on the flight. She hasn’t had contact with this family since she arrived in Australia. On arrival she met with her mum’s friend, whom she called [Mr A].
k.Since arriving in Australia, she lived with [Mr A] for about 5 months, but he disappeared as she thinks he was involved in some financial disputes, so she went to Melbourne to visit the son of her grandfather’s cousin. She stayed a month but they couldn’t find a school for her so they sent her back. She lived in [Suburb 2] for three months, but her mum ran out of money so her Aunty found a job for her and her boss in the [workplace 1] helped her find a place to live. She started working two weeks after arriving in Australia. One of the tenants of [Mr A] had a [workplace 4] and she worked there a while, then did some [job task 1] work, but it was tiring, and she was not strong enough, so she stopped that. She was then unemployed, so her mum sent her money but after that her mum ran out of money so that’s why she has to work in the [workplace 1]. She started working there at the end of November 2019.
The delegate refused to grant the visa on 16 April 2020. The delegate found the applicant credible. The delegate accepted that the applicant was a victim of family violence by her father and acknowledged that the laws in China in relation to family violence and protection against children were limited in their effectiveness. The delegate nonetheless considered that the applicant’s extended family, consisting of her maternal grandparents and uncle, as well as her mother’s social network, would seek to protect the applicant from future harm by her father and be willing and able to provide the applicant with the required accommodation, financial and welfare support upon return to China. The delegate also considered that the applicant and her family would have access to some limited domestic violence support services and police assistance. The delegate was not satisfied that there was a real chance of serious harm. The delegate was also not satisfied that the applicant would suffer abuse in the future, particularly as she becomes older and more financially independent, that would meet the definition of significant harm, and that there was not a real risk of significant harm.
Evidence before the Tribunal
The Tribunal has before it a written statement from the applicant, dated 11 December 2024. This statement provided, in summary:
a.The applicant feared that she would be seriously harmed by her father and/or forced to marry against her will by her parents.
b.She was born and raised in [District] in her parents’ home. She spent most of her school holidays and some weekends at her maternal grandparents’ house, which was also in [District].
c.She attended primary school then secondary school for year 7 only. She did not work in China because she was a child and went to school.
d.Her older sister lives in [Country] and her younger brother in China.
e.She was glad to leave China because her father was mistreating her and she was underperforming at school in China and did not want to continue at school and thought she would do better working. Sometimes her teachers mistreated her such as hitting her with a ruler.
f.After she came to Australia she was diagnosed with depression. She took medication but stopped as she did not feel it helped. She was seeing doctors but is not seeing anyone at the moment. She also used Chinese medicine to try to help with the depression.
g.She did not prepare her visa application and was not aware of its contents. She does not fear persecution on the basis of adherence to Falun Gong, but rather harm from her father as he has been physically, verbally and emotionally abuse towards her since she was about 8 years old.
h.Examples of her father’s abuse include him poking small sewing scissors into her thigh when he thought she was being too slow with her homework; her father using a mosquito coil to burn on the top of her left wrist; hitting her with a cane for no reason, scolding her a lot and calling her stupid; and insulting her in his dialect.
i.Originally, she thought her father did not like her because she was his second daughter and not a boy. Her older sister later told her that she was not her father's biological daughter. She does not know if this is true but it explains why he abused her. When she was present at home, her parents argued a lot. Her father worked in [workplace 2] and often worked in cities outside Fujian. When he returned home (usually during festival periods), he was abusive towards her. Often her mother would arrange for her to stay with her grandparents when her father returned home, in order for her to avoid the abuse. Other times her father did not stay with them when he returned to Fujian, but stayed with his siblings.
j.Since arriving in Australia she has worked as [an occupation 1] in [workplaces 1 and 2] and also earned some money doing [job task 2]. She had to stop working for a while because she was getting dizzy and had stomach pains. She then had to survive on SSI payments but these stopped after she turned 18 which was difficult financially. She has been working as [an occupation 2] in a [workplace 5] since about the beginning of the year. She has also done some study in Australia including starting an English course at TAFE, transferring to a [Subject 1] course, transferring to a Certificate III in [Subject 1 and 2] at [Provider]. At [Provider] they teach partly in English and partly in Mandarin which she found easier. She completed this course.
k.When she first arrived in Australia, her mother used to send money to help her survive. Her maternal grandparents gave her money which she would send to the applicant. Her mother no longer sends her money. She cannot remember exactly when she stopped but she thinks it was when she started working. She thinks that she stopped because she could not afford it anymore. Over the past six months, she has had minimal contact with her mother or other family in China to let them know that she was safe. This would occur once a month. It is hard for her to speak with them. At the moment she prefers to be by herself. She does not feel like speaking or going out with friends or interacting with others. She cannot recall speaking to her father since she arrived in Australia, even though he attempted to set her up with a man in Australia through her mother. She did not attend that meeting.
l.Her mother told her that her parents divorced a few years ago. They were still living together in [District] after the divorce, but she is not sure if they still are now. She assumes that they still live together because her father has custody over her younger brother and her mother takes care of her younger brother. Her father doesn’t always return home because he works in remote areas.
m.She fears that if returned to China she would be forced to marry by her father against her will. Her mother will do what her father wants. They have already tried to set her up with a man 12 years her senior in Australia, but she refused to meet him. She also fears serious harm from her father. It did not matter that she is an adult now. She would still have to live at home with him because she could not afford to live anywhere else and has nowhere to go.
n.It would be very challenging for her to go back to China. She did not finish school in China and does not have any Chinese qualifications and is not very good at interacting with other people. She is not sure if she would be able to get a job in China to be able to support herself to live away from her family. She is afraid that if she returns to China, she will have to rely on her parents and then will have to obey them. She is afraid if she can’t find a job or support herself then her family would push her into a marriage which she does not want. Even if she got a job with her Australian qualification, she could not afford to pay rent to live alone. She could not afford to relocate anywhere else in China and would not survive financially.
o.She could not live with her maternal grandparents because they have their grandsons (her uncle’s children) living with them. Her grandparents don’t want her mother there. That is why she still lives with her father. Her uncles (her mother’s brothers) are unhappy that her grandparents have ever helped her financially.
The applicant’s representative lodged pre-hearing submissions on 17 December 2024. Those submissions provided that the applicant feared returning to China on account her membership of a particular social group, being female victims of family violence, and her membership of a particular social group, being women who suffer from mental health conditions, namely depression. The submissions also provided, in summary:
a.Although the applicant is no longer a child, there remain financial, social and other factors which suggest that the applicant may be forced to reside with her parents if she were to return to China. In this scenario, there is a real chance that the applicant would face serious harm at the hands of her father. The applicant’s mother and family are not in a position to provide indefinite financial support to the applicant. Additionally, the Applicant’s capacity to live away from her family and support herself will be hampered by her mental health issues, her limited qualifications/skills, and her lack of familial support systems away from her home area.
b.It should not be presumed that the applicant’s family is able to offer support to the applicant should she return to China, in light of the applicant’s limited contact with her mother and family over the last six months; the applicant’s statement that she finds it difficult to speak with her family; the applicant’s mental health possibly making it difficult for the applicant to reach out and engage with her family; and the possibility that her connections with her family have weakened given the length of time she has resided in Australia. The submission further notes that the applicant stated she is no longer receiving money from her mother since the start of 2024 and thinks this is because her mother can no longer afford to support her, although the applicant has not been in recent contact with her mother so is not able to confirm this.
c.The fact that the applicant may have felt pressured by her family to work and send money to her family in China suggests that the applicant may have been subjected to economic coercion from her family, giving further weight to the argument that she may not be adequately protected by, or indeed from, her family.
d.The applicant suffers from depression and this means she may be more vulnerable to other types of harm, including further psychological harm.
e.Access to mental health treatment is limited, suggesting that the applicant would likely be unable to access the necessary treatment and support for her long-term mental health condition if she were forced to return to China. This is particularly significant given the likely re-traumatisation that would occur if the applicant were forced to encounter or reside with her father.
f.Country information also highlights that stigma and discrimination against individuals with mental health conditions remains a problem in China.
g.It would be unreasonable for the applicant to relocate. The lack of support networks would likely impact the ability of the applicant to financially support herself if she were living away from her family. As she has been absent from China since she was a child, has no Chinese qualifications or experience, and would have no contacts in other areas of China, it is unlikely that the applicant would be able to financially support herself as a young single woman with mental health vulnerabilities. Additionally, the applicant’s mental health conditions would likely be exacerbated by being forced to relocate within China. The lack of mental health support available to individuals, in combination with the social isolation and financial pressures, means that the applicant’s mental health will very likely deteriorate, which will in turn hinder her ability to subsist on her own in China.
h.Her ability to relocate would also be adversely affected by the hukou system limiting her ability to access social support services; economic factors such as the high cost of living forcing young people to return home; the compounding effect of gender discrimination in employment; and harassment, including sexual harassment, in the workplace, which the applicant would be particularly vulnerable to.
The representative’s submission also referenced country information from a range of sources. The Tribunal has reviewed the bundle of country information provided by the representative and extracted some particularly relevant excerpts below.
In addition, the Tribunal has before it a letter from a psychologist, dated 4 July 2023. The letter certifies that the applicant is her patient and suffers with anxiety and depression. It says her reported symptoms have worsened since the last report due to her studies and life issues. She reported having severe sleep disturbance which affected her mood a lot. Her current symptoms include depressed mood, excessive worries, insomnia, somatic symptoms (i.e., stomach pain), diminished ability to concentrate, etc. She has attended telehealth sessions on 29th March 2023, 24th April 2023, 6th June 2023 and today. Due to her psychological condition, her abilities to study and work are affected.
The Tribunal hearing took place on 10 January 2025. During the hearing, the applicant told the Tribunal that her parents had divorced a few years ago. She said in the last few years her father continued to work in other places, but he had recently told her mother that he is coming home soon because he is old and unable to continue working. The applicant explained that the house her mother lived in belonged to her father, and her father allowed her to keep living there as she looked after the applicant’s brother. The applicant said her mum was a very good mum, but she has her own health struggles (diabetes). Her father does not care for the family at all. He would call her mother to ask about the circumstances at home and scold her and her mother, and when he came home he would beat her over trivial things for no reason. The applicant said her father hurt her, her mother, and her sister, but her sister was smart, and would take the applicant places in order to avoid him. Her older sister spent lots of time at school, so it was the applicant who suffered the most.
The applicant gave evidence that she thinks she had depression in China already, but she was too young to understand. After she left China, her health continued to decline; she had stomach aches and her mum thought that was just her not eating properly. She went to a clinic, but they found nothing wrong with her stomach. She still experienced issues and the doctors thought it was perhaps because of her mental stress because of her father. Her mental health got worse, and she went to see a psychologist. The applicant said because of her mental state, she depended on her friends in Australia and needed to see them and talk to them to help her relax.
Her mother told her that her father wanted her to return to China to get married so he could be given the right price for the marriage, and he wanted the same of her sister but the applicant did not want to do that. Her father would put a lot of pressure on her in China. She is afraid of men. The applicant said that a year ago, her father added her contact in WeChat. Her mother asked her to approve his request as she should not make things ugly, given he is her father. The reason her father contacted her was to request her to get married as he wanted to introduce her to men in Australia. He urged her to go on blind dates, but she did not go.
The applicant explained that she is very scared to return to China. She was not sure where she could live. Her mother doesn’t really have a place to live as she is living at her father’s house to look after her brother, and her father agreed that she could do that. She would not be able to live in her grandparents’ house because they live in her uncle’s house, and they do not even want her mum living there. The applicant said she would fear for her life in China.
COUNTRY INFORMATION
Domestic violence
The DFAT ‘Country Information Report People’s Republic of China’, 27 December 2024, states the following:
3.193 International media reported in 2022 that domestic violence was common in China, although underreported in large part because of traditional values of family harmony and a view that family matters are private. Survivors who talked about domestic violence publicly, including on social media, had been censored and harassed by authorities. Although rape is illegal and carries a sentence ranging from three years in prison to death, marital rape was not criminalised at the time of publication.
3.194 Chief Justice Zhou Qiang, President of the Supreme People’s Court, announced in 2023 that courts had issued 13,000 personal safety protection orders for family and domestic violence survivors over the previous five years, however the overall number of applications was not released. The 2023 US Department of State China Human Rights Report stated protection against domestic violence was not always forthcoming. In some cases police reportedly ignored the issue, refused to take action, or acted unprofessionally, for example by failing to collect evidence properly and/or returning the woman to her husband to resolve the issue. In some instances, women were reluctant to testify against their abusers or contact police in the first place for cultural reasons. Mediation, rather than criminal charges against a violent partner, was an option commonly employed in domestic violence cases.
3.195 Family and domestic violence shelters were available in some communities in 2023. Some of these shelters were financially supported by local governments. A confidential source cited in the Netherlands Ministry of Foreign Affairs 2020 Country of Origin Information Report on China said there are over 1,500 shelters known as ‘relief stations’ across China. Relief stations were not specifically for family and domestic violence survivors, as they could also be used by homeless people or victims of human trafficking. CSOs that previously provided legal assistance or counselling to survivors of family and domestic violence have been shut down, along with other unregistered organisations operating outside of government control.
…
3.200 DFAT assesses women in China face a low risk of official discrimination. DFAT assesses that women who publicly advocate for gender equality, experience domestic violence and/or have been trafficked, face a high risk of official discrimination in the form of government policies that violate or fail to protect their rights. DFAT assesses women in China face a low risk of societal discrimination in the form of employment discrimination (particularly within government). DFAT assesses that women can relocate to escape from domestic violence, but in doing so they may lose some of their social and family support networks (see Internal relocation). State protection is available to women experiencing domestic violence, however DFAT assesses it may not always be effective.
The United States Department of State, ‘Country Reports on Human Rights practices for 2023’, notes as follows:
Domestic violence remained a significant problem. Some scholars said
victims were encouraged to attempt to resolve domestic violence through mediation. Societal sentiment that domestic violence was a personal, private matter contributed to underreporting and inaction by authorities when women faced violence at home. The law defined domestic violence as a civil, rather than a criminal, offense. The web publication Sixth Tone reported in 2019 that 25 percent of families had experienced domestic violence; more recent data were not available. The government did not effectively enforce laws against rape and domestic violence.The government supported shelters for survivors of domestic violence and some courts provided protections to survivors, including through protective orders prohibiting a perpetrator of domestic violence from coming near a survivor. Nonetheless, official assistance did not always reach survivors and public security forces often ignored domestic violence. Legal aid institutions working to provide counseling and defense to survivors of domestic violence were often pressured to suspend public activities and cease all forms of policy advocacy, an area that was reserved only for government-sponsored organizations.
According to women’s rights activists, a recurring problem in the prosecution of domestic violence cases was authorities’ failure to collect evidence, including photographs, hospital records, police records, or children’s testimony. Witnesses seldom testified in court.
Social media users widely discussed the alleged homicide of a woman, age 24, in Hui County, Henan, by her estranged husband. Protests reportedly erupted in the small town amidst allegations that authorities were slow to act due to the suspect’s family connections. Photographs and videos showed hundreds of protesters rocking a police vehicle, as well as police striking and pepper-spraying protesters. While the alleged homicide and arrest were reported in mainstream press and remained accessible online as of October, videos and images of the protests and some search terms were censored, and official accounts condemned “rumor mongering.”
On June 30, a video of a man in Shandong Province repeatedly driving over and killing his wife was widely shared online. The video caused a public outcry and sparked a debate on the lack of protection for domestic violence victims and the struggle to exit an abusive marriage.
The Research Directorate, Immigration and Refugee Board of Canada, ‘China: Domestic violence, including legislation; state protection; support services available to survivors, including mental health services (2020–September 2022)’ summaries a range of country information which the Tribunal has had regard to, such as the following:
According to an article in China Women's Daily by Wan Fei, police face difficulties in combatting domestic violence for reasons that include cultural notions that domestic violence is a [translation] "family matter," a lack of adequate training for police officers, and the absence of witnesses or evidence (China Women's Daily 11 Dec. 2019).
…The Yuanzhong Family and Community Development Service Center report states that since 2016 only 167 applications for personal safety protection orders have been filed in Beijing, which the report interprets to be [translation] "extremely low" relative to the female population and prevalence of domestic violence (Yuanzhong 1 Mar. 2021, 16).
…… anti-domestic violence organizations are largely concentrated in the eastern and central regions of the country, with 15 situated in Guangdong province and 14 in Beijing municipality; Zhejiang, Guizhou, Hunan, Jiangsu, Tianjin, Henan and Heilongjiang provinces each have between 3 and 5 organizations; 11 provinces, including Hebei, Shanxi, Shaanxi, Anhui, Guangxi, Jiangxi, Yunnan provinces and the Inner Mongolia Autonomous Region, have 1–2 organizations (Wo Qi Foundation 15 Apr. 2019). The report also states that 23.3 percent of organizations were capable of providing services to [translation] "remote and underdeveloped rural areas" (Wo Qi Foundation 15 Apr. 2019).
According to the Weiping report, in rural areas domestic violence is becoming more prevalent, there is less media attention covering incidents of domestic violence, and social support for survivors of domestic violence is more limited (Weiping Apr. 2020, 18).
Mental Health
The DFAT ‘Country Information Report People’s Republic of China, 27 December 2024, provides:
2.41 China’s Mental Health Law (2012) is aimed at protecting the human rights of people living with mental health conditions by requiring psychiatric treatment to be voluntary in the majority of circumstances, and noting seclusion and restraints should only be used if there were no alternatives. However, a 2022 study published in the International Journal of Mental Health Systems reported that involuntary admission to psychiatric hospitals continued to occur in 70 per cent of cases, while a 2016 study published in the Psychiatry Research journal stated that physical restraints were still used in 22 per cent of cases in psychiatric hospitals.
2.42 The WHO estimated that approximately 4 per cent of people in China are living with depression, and 3 per cent with an anxiety disorder. Although demand for mental health services is growing, many people remain reluctant to seek help due to stigma. According to a study exploring mental health stigma and mental health knowledge amongst China’s population published in BMC Psychology in 2020, approximately 45 per cent of participants thought most people would not accept a former patient of a mental health facility as a close friend, 70 per cent thought that most young women would not date a man who had been hospitalised with a serious mental health condition, and almost 55 per cent of participants would not employ a person who was a former patient of a mental health facility.
2.43 The Government of China has increased investment in mental health services in recent years and stated plans for at least 80 per cent of people living with depression to have access to treatment by 2030. While mental health services were typically covered under BHI, availability and quality varied depending on location. Required medications to treat most mental health conditions were generally available in 2023. The majority of mental health resources were found in provincial capitals in the more developed east coast of the country. Mental health services were generally concentrated in large specialty hospitals, rather than within the community and primary healthcare sector. The workforce was primarily made up of psychiatrists and nurses, with few counsellors or therapists generally available. Services were typically provided on an outpatient basis. International academics reported that the centralised system of mental healthcare was not adequate to meet China's mental healthcare needs in 2022.
Youth Unemployment
The DFAT Country Information Report People’s Republic of China, 27 December 2024, provides:
2.19 Youth unemployment is a major driver of migration overseas. With 11.8 million graduates from tertiary institutions having entered the job market in 2024, there continued to be an undersupply of high-skilled and high-paid jobs. In June 2023, the unemployment rate for 16-to 24-year-olds in China’s urban areas reached 21.3 per cent. In August 2023, China's National Bureau of Statistics announced that the release of the age-specific urban unemployment rate for young people would be suspended. China began distributing information on youth unemployment again in January 2024 using different measurement criteria, with the official rate jobless rate for December 2023 stated at 14.9 per cent. The unemployment rate for youths aged between 16 and 24, excluding students, was 14.2 percent in May 2024 according to China’s National Bureau of Statistics.
2.20 Alongside an increasing trend of university graduates having to settle for lower-skilled employment, the challenging labour market in 2023 spawned a popular discourse on tang ping (‘lying flat’). Tang ping refers to young people ‘opting out’ of the high-pressure work environment in China, scaling back their commitment to work or education, and settling for a lower income and lower consumption-based lifestyle.
2.21 In-country sources told DFAT in 2023 that despite China’s shift away from low-cost manufacturing, offshore operations and increases in youth unemployment, the labour market remained robust and could accommodate varying levels of skills and ambition.
Forced Marriage
The DFAT Country Information Report People’s Republic of China, 27 December 2024, advises the following:
3.201 Some single women may experience stigma linked to the pervasive societal expectation that they will be married by a certain age (around their late 20s). Those who are not married by that time are sometimes disparagingly referred to by some as ‘leftover women’. Unmarried women sometimes face pressure from family, including unwanted interventions into their personal lives, towards finding a husband. Government narratives and policy contribute to social pressure on women to marry and have children, which is primarily driven by declining birth rates and an aging population (see also Women).
…
3.205 DFAT assesses single women in China face no risk of official discrimination above that faced by women in China in general. DFAT assesses single women in China face a low risk of societal discrimination in the form of pressure from their families to marry, although this would not cause them significant disadvantage.
The United States Department of State, Country Reports on Human Rights practices for 2023, notes as follows:
The legal minimum age for marriage was 22 for men and 20 for women. There were reports of forced marriages, primarily in rural areas. On April 7, a court in Xuzhou, Jiangsu Province, sentenced the husband and five other human traffickers to between eight and 13 years in prison for the abuse and illegal detention of a woman found chained in an outhouse in January 2022. The six, one of whom was the woman’s husband, were also charged with trafficking in women, according to media reports. The woman reportedly had an intellectual disability, was the victim of bride trafficking, and had given birth to eight children.
Sixth Tone reported in February parents in Sichuan Province sold their daughter, age 16, into a forced marriage. The girl escaped the marriage and fled to Guangdong Province where she became a migrant worker. The groom’s relatives found her and forcibly brought her back to Sichuan, but she contacted staff at a rest stop in Guangxi Autonomous Region who alerted police. Police, however, sent her back to her family in Sichuan and took no action against her “husband” or family.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
For the following reasons, the Tribunal has concluded that the decision under review should be set aside and remitted for reconsideration.
The Tribunal found the applicant’s oral evidence to be genuine, sincere, and credible. The applicant spoke in an open, emotional and distressed manner about her experiences in China and her fears if she returned. The applicant’s evidence was consistent with the evidence given at the delegate’s interview and in her written statement. The Tribunal accepts that the applicant was a victim of family violence perpetrated by her father, and that she possesses extreme fear about returning and suffering harm at his hands again, as well as intense fear about being unable, in her circumstances, to live somewhere else in China.
Does the applicant satisfy the refugee criterion?
The Tribunal finds that the applicant was subjected to serious and long-term violence at the hands of her father in China, including physical and verbal abuse, since she was a young child. The Tribunal also finds her mother and sister were victims of his abuse. In relation to her mother, the Tribunal notes the applicant’s evidence about her father preventing her mother from working, ‘allowing’ her to live in the home so she could care for the applicant’s brother and denying financial support to the family. This evidence suggests her father engaged in a pattern of abusive behaviour involving control over her mother, increasingly referred to as coercive control,[1] over an extended period.
[1] Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book, July 2024, at ‘4. Dynamics of domestic and family violence’.
The Tribunal accepts the applicant’s evidence that her father returns home at random intervals and is abusive in these periods. The Tribunal also accepts her father is planning to return to the family home in the reasonably foreseeable future to live as he is getting old and can no longer work. The Tribunal finds that if the applicant had to return to China, she would live with her mother, and that it would not be an option for them to live with her grandparents given they are living in her uncle’s house and do not want her there. The Tribunal accepts there is a real chance the applicant would encounter her father. The Tribunal also finds there is a real chance this would be on a permanent basis when living at home. The house is owned by him and not her mother; her father has a poor employment history; he has a history of contacting her mother; is obliged to financially support the applicant’s brother (the applicant gave evidence her mother would contact him to try and obtain maintenance payments for her brother); has an interest in the applicant marrying; and is getting old and unable to continue working in his field of labour-intensive [workplace 2] work.
The Tribunal considers the applicant’s past experiences of abuse are indicative of the risk she faces upon return, given the long-term pattern of behaviour displayed by her father. The Tribunal does not consider the fact that the applicant is now [Age], and not at school, reduces her risk of harm. Her father often attacked her, and the other women in her family, for no reason at all, and there is nothing to suggest this pattern of violent and persistent abuse would change.
The Tribunal is satisfied that there is a real chance the applicant’s father would harm her upon return to China. The Tribunal also finds that the frequency and severity of harm experienced by the applicant would increase with the return of her father to live in the home.
The Tribunal also accepts that the applicant’s father contacted the applicant to pressure her to marry someone, as he was seeking financial reward, and that the applicant’s mother pressured her to allow this contact. The Tribunal finds that her father would continue to pressure her to marry someone if she returned to China, and that he would threaten and coerce her to do so, including using physical violence. The Tribunal accepts the applicant’s evidence that she does not want to do this as she is best living on her own and is afraid of men. Forced marriage includes when a person marries without freely and fully consenting as a result of being coerced, threatened or deceived, and it may be one aspect of a complex pattern of behaviours engaged in by perpetrators in order to control another person.[2] The Tribunal finds that the applicant’s mother, who is also a victim of her father, would not be able to protect the applicant from a forced marriage.
[2] Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book, July 2024, at 3.1.12.
The Tribunal finds the harm feared is ‘serious harm’ as defined in s 5J(5) as it involves significant physical harassment and ill-treatment and a threat to liberty.
However, the Tribunal is not satisfied the real chance of persecution relates to all areas of China, as required by s 5J(1)(c). When the Tribunal asked the applicant if her father would track her down if she moved elsewhere, and if so how he would do this, the applicant emphasised that she would not be able to live in another place in China given her poor education, work history, and health. The Tribunal is not satisfied, on the evidence, that the applicant’s father would be motivated to find the applicant in China if she were to return, given that the past pattern of harm was opportunistic, in that it took place when the father returned home and was in close proximity with the applicant, and nor is the Tribunal satisfied on the applicant’s evidence that her father would be able to find her if she lived elsewhere.
The Tribunal is satisfied that the applicant could safely relocate to another area and be safe from her father. The Tribunal is therefore not satisfied that the applicant satisfies the refugee criterion in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion?
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).
Real risk of significant harm
The Tribunal has found, above, that the applicant faces a real chance of serious harm. Given the ‘real risk’ test imposes the same standard as the ‘real chance’ test,[3] the Tribunal is satisfied there is a real risk.
[3] MIAC v SZQRB (2013) 210 FCR 505.
‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. The Tribunal finds that the applicant would be subject to persistent and severe physical and verbal abuse and would be coerced into marriage against her will. The Tribunal is satisfied that there is a real risk of cruel or inhuman treatment or punishment, or degrading treatment or punishment from her father if she were to be removed from Australia to China.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Reasonableness of relocation
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
The Tribunal finds that the applicant is a very vulnerable young woman who would find it extremely difficult, if not impossible, to live in a different area of China. The applicant did not complete schooling in China and has no working history there, and has only worked low-skilled jobs in Australia. The country information indicates that youth unemployment is a significant issue in China, even for highly educated persons. The applicant would also have limited, if any, financial support from her mother. Her mother is only able to do occasional work given her diabetes, has to support her brother, and has not been able to afford to send the applicant more money in Australia. The Tribunal finds the applicant would struggle immensely in trying to financially support herself if she relocated.
The applicant also has a documented and credible history of mental health struggles. The applicant spoke with palpable fear about her father and her inability to live somewhere else in China. She spoke about looking at the job market in China at the suggestion of the delegate, who encouraged her to think about how she could continue her life in China, and that many jobs required higher education. This caused her to spiral even further into depression and anxiety. She saw a psychologist in 2023 who tried to make her feel better. The applicant said she is able to cope in Australia because she feels safe, can communicate in simple English, and has a friend network.
The Tribunal notes that a child’s exposure to family violence may result in a range of poor psychological, behavioural and physical outcomes including depression, anxiety, trauma symptoms, increased aggression, antisocial behaviour, temperament and mood problems, impaired cognitive functioning, learning and schooling difficulties, low self-esteem, pervasive fear, peer conflict, loneliness, increased likelihood of alcohol or substance misuse, and vulnerability to unemployment and homelessness.[4] This is consistent with the applicant’s experience. The Tribunal finds that the applicant would lose her sense of safety and social supports if she returned to China, and that her mental health would be extremely fragile. The Tribunal also notes the advice from DFAT, exacted earlier in this decision, that mental health services in China remain inadequate.
[4] Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book, July 2024, at 4.4.3.
In considering whether relocation would be reasonable, the Tribunal has also taken into account that the applicant travelled to Australia at a young age and has been able to build a life here. However, the applicant had the assistance of people from her mother’s social network to initially establish herself, and the Tribunal accepts that she has suffered many struggles living in Australia. The applicant has struggled to study, only recently completing [a Subject 2] course after many years and in part because it was taught partly in Mandarin. The applicant has also not been able to work for significant periods because of her poor mental (and resulting physical) health.
The Tribunal further accepts the applicant’s evidence that she would want to visit her mother and that she would be exposed to the risk of being harmed by her father when that took place. Given the applicant’s age and vulnerabilities, the Tribunal considers it would not be reasonable to expect the applicant to confine herself to a safe location and not travel to see her mother.
The Tribunal is not satisfied, after considering all of the above, that it would be reasonable for the applicant to relocate.
State protection
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Having regard to the country information about domestic violence extracted earlier in this decision, the Tribunal is not satisfied that the applicant could obtain protection such that there would not be a real risk she will suffer significant harm at the hands of her father.
For instance, the 2023 US Department of State China Human Rights Report stated protection against domestic violence was not always forthcoming and in some cases police reportedly ignored the issue, refused to take action, or acted unprofessionally, for example by failing to collect evidence properly and/or returning the woman to her husband to resolve the issue. Further, while there are some shelters, relief stations were not specifically for family and domestic violence survivors, as they could also be used by homeless people or victims of human trafficking, and CSOs that previously provided legal assistance or counselling to survivors of family and domestic violence have been shut down, along with other unregistered organisations operating outside of government control. DFAT have assessed that victims of domestic violence face a high risk of official discrimination in the form of government policies that violate or fail to protect their rights, and that while state protection is available to women experiencing domestic violence, it may not always be effective.
Risk faced by first named applicant personally
The final qualification in s 36(2B) is that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’: s 36(2B)(c).
The Tribunal is satisfied that the risk faced by the applicant is one faced personally as she is the target of harm from her father.
The Tribunal is satisfied that the real risk is not faced by the country generally but is faced by the applicant personally.
Conclusion
The Tribunal has also considered whether s 36(3), concerning third country protection, applies in this matter. This provision states that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. There is no evidence to suggest, and the Tribunal finds, that the applicant does not have a right to enter and reside in another country apart from Australia, and therefore the preclusion in s 36(3) does not apply.
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm. The Tribunal finds that the applicant satisfies s 36(2)(aa).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date of Hearing: 10 January 2025
Representative: Ms Jean Kearney
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.
…
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