2013283 (Refugee)

2013283 (Refugee) [2024] AATA 4197 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013283
COUNTRY OF REFERENCE:                   China
MEMBER:Gabrielle Cullen
DATE:4 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 September 2024 at 11:57am
CATCHWORDS
REFUGEE – protection visa – China – forced to sell land for development at very low price – part of group which engaged lawyers and complained to local authorities – house demolished, applicant threatened and group leader detained – vague and inconsistent claims and evidence and no supporting documentation – lived in or returned to local area until departing – claim that application prepared by agent, but applicant’s signature and email address – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 August 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of China, claims to fear return as he complained to higher authorities and engaged lawyers as he was forced to sell his land at a very low price.
He arrived in Australia on a visitor visa [in] May 2017. He applied for a protection visa, to which this decision relates, on 14 September 2018.
The applicant was not offered an interview by the Department. However, on 15 May 2020 the Department requested further information and documents to support his claims. The applicant did not respond.[1]
[1] As raised with the applicant at hearing via s 424AA.
The delegate refused to grant the visa on 26 August 2020 on the basis that the applicant had provided insufficient detail and supporting documentation as to his claims.
The applicant applied for review of the Department’s decision on 27 August 2020.
On 7 May 2024 he was advised by the Tribunal that his matter was being prepared to be given to a member and was requested to complete the pre-hearing information form. He was asked in that form whether he wanted to give any more information about his claims for protection and whether there are any other reasons why he is afraid to return to China. He did not respond.[2]
[2] As raised with the applicant at hearing via s 424AA.
The applicant appeared before the Tribunal on 19 August 2024 to give evidence and present arguments and, where relevant, the evidence from that hearing appears in this decision. The applicant was assisted by an interpreter in the Mandarin and English languages.
He was given until 22 August 2024 to respond to the s 424AA matters raised and to provide documents to support his claims for protection. He did not respond.
The issues to be considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act?
·Does he meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision (Attachment A).
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s protection visa application dated 14 September 2018, identity documents and his claims for protection outlined in his application.
·Oral evidence of the applicant provided at the Tribunal hearing held on 19 August 2024.
·Department of Foreign Affairs and Trade (DFAT) Country Report China, 22 December 2021.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
The applicant answered questions in his protection visa application dated 14 September 2018 as follows:
89. Why did you leave that country?
The peoples government of Haicang District wanted to sell my land to the developers to make more money. But I refused as they would not give me a replacement house. I still clearly remember the officers broke into my home at 3am [in] 06/2016 while I was sleeping. I was resisting but they still forcedly knocked down my house and they threatened me to put me into the jail if I kept resisting, as it was anti-government.
After that I went to police station to implead, but i was told what Haicang government did was legal. Then I was planning to go to Puyang City Court to implead, but I was arrested by the police as I did something anti-government. I was forced to agree not to implead more, otherwise they will put me into the jail.
I lost everything and was not able to implead, so i had to leave China to find a way to survive.
90. What do you think will happen if you return to that country
I still cannot have place to live and make money, and I am afraid I will be put into jail as I did something anti-government.
91. Did you experience harm in that country
I lost everything and I was threatened to be put into jail by police.
92. Did you seek help within the country after the harm?
All Government departments cover each other, no one can help.
93. Did you move or try to move to another part of that country to seek safety?
My friend suggested me to go overseas to seek protection.
94. Do you think you will be harmed or mistreated if you return to that country?
The police will not allow me to appeal and I have no place to live.
95. Do you think the authorities of that country will protect you if you go back?
The human rights in China is very poor, and government is in charge of everything, All departments cover each other.
96. Do you think you would be able to relocate within the country?
No, I don’t have any relatives or friends in other places in China.
At the Tribunal hearing held on 19 August 2024 the applicant indicated he engaged an agent to prepare the application. He said the agent, a female, did not read it back to him. He confirmed he signed it. The Tribunal noted that no agent was recorded on the application, he signed it and the email for correspondence contains his name and questioned whether there was an agent. He said he provided the claims, she managed the application and he paid her the money.
As to his claims, he said in 2015 his land was taken forcibly by the local government. He said he lived at [Address], [County], Fuqing City, Fujian province. He said he lived there in the same house for about 10 years before he departed for Australia. He confirmed he travelled from that house to the airport when he departed for Australia. He confirmed this was the only property he owned in China. He then said he used to own farming land about 1 km from his home, which grew rice and was roughly 1 Mou in size. He said it, together with his neighbours’ lands, were taken away by the government in 2015/16 to develop real estate and they were only paid a low price, about 1/10^th of its true worth. He said now buildings have been erected on top of it.
As to his work in China, he said he worked in Shandong province making [products] and it was very far from his home, about 1,000 km in distance. He said he worked there until just before he departed, and he returned home every 2 to 3 months or sometimes once in ½ year. He said he had worked in [products] since 2010. He said and confirmed before he departed, he stopped work and travelled from Shandong province where he worked, to his home, spent several months living at his home at the above address and then travelled to the airport to come to Australia.
The Tribunal asked him numerous questions about what he fears will happen to him on return and why he fears return to China. He said in May 2016 he did not get the price he wanted for his land, and he had no choice as they were pursuing him, so he departed in May 2017. He said he fears they will find trouble with him because of his and his neighbours’ lands which was taken by the town government. He claims the town government will find trouble as they did before he left. When asked what they would do to him on return, he said he does not know what they would do but they may arrest him on a pretence.
The Tribunal asked again why he left China and he said because of the issue with the farming land. The Tribunal raised with him that his evidence seemed vague and requested more detail as to what happened. He said at that time a group of people including himself were preparing to engage lawyers to pursue legal action and before he departed for Australia, he heard one of the group was taken away and kept at a detention centre. The allegation was that the detained person gathered people to make trouble. The Tribunal asked for more detail. He said he is afraid they would find trouble and take him in for no reason. The Tribunal requested more detail as to what happened, and asked why they engaged lawyers and he answered that it refers to the matter where his family land was occupied. He confirmed that in May 2016 he was forced to sell his land at a low price. When asked what then happened, he said a group of them felt it was unfair and did not want to accept it and were trying to pull together a fund to engage lawyers to make a complaint about the town government. The Tribunal asked whether the applicant ever made a complaint or were they in the process of doing so; he responded that toward the end of 2016 the town government reported the one person from the same town and he was detained. The Tribunal asked whether they complained; he said they all complained but that the other person was detained because he was the leader, and they all gave money to the fund. He said the detained man was more educated.
The Tribunal noted that he had said that the man from their group was detained at the end of 2016 and asked what happened next; he said another time the police came to his home looking for him and his family were afraid he might suffer the same fate as the person from the village who was detained so he ran away to a different place and then he hid at his sister’s place for a few months. He said because of fear he ran away; he said he was afraid they might come and look for him to cause trouble, so he decided to go overseas.
The Tribunal asked whether anything else happened and he initially answered in the negative; he then said after he left for Australia, he heard from people from his village that the town government was telling them to withdraw the complaint. The applicant said he has not withdrawn the complaint, and later everyone went overseas, and later the town government said if they withdraw legal action, they will release the person. He confirmed they made a legal action.
He then answered in the negative as to whether he had anything further to add or additional claims.
The Tribunal then outlined as of concern the inconsistencies between the claims made in his application with his claims made at hearing. It referred to the claims made in the application for the visa. It raised with the applicant via s 424AA the Department’s acknowledgement and outreach email of 17 October 2019, an email to him dated 15 May 2020 which requested additional details of his claims, as well as clarification and supporting documents, and an email sent by the Tribunal to him on 7 May 2024 requesting further information as to his claims, but he had not responded. This was despite correspondence regarding Medicare requests. He said he wants to respond and wants to think about it further and asked for time to respond in writing. He said he wanted to discuss this with his agent and the Tribunal indicated there is no agent on record. He said that was because he had lost contact with the old one. He said because of his agent he had only been informed of the hearing recently. The Tribunal noted he had no agent on record, and it was corresponding directly with him via his email. He said because he wanted a working visa, he engaged an agent.
The Tribunal asked what had happened to the legal claim in China. He said their lawsuit did not amount to anything and the friend was detained for no reason. He said he was detained for a year and released around the time of the Spring Festival in 2017. He said he was released after he departed for Australia, around the end of 2017 and he thinks it was after he came to Australia.
When asked what had happened to this person, he said they did not give him any explanation as to why he was detained for a year. As to why he would face harm on return he said there were 5 or 6 people in the group, the police came to his home, and it is because the detained person gave their names. He said they came not long after that person was detained when he was in China. When asked why he did not mention it previously, he said he thought he did and that is why he went to his sister’s place to hide because that man was detained. As to who wanted to harm him, he said the town government because they wanted the group to provide in writing that they are happy to sell the land to the government at the low price. The Tribunal asked when they were asked to do that and he said not long after the person was detained; they went door to door and frequently came to their houses. He said the police accompanied the 2 government officials, trying to persuade them with threats to withdraw. When asked what they wanted them to withdraw he then said that they complained to the Land Management Office because they did not accept the price they were given. The Tribunal asked why he did not say this previously in the hearing and he said this approach to the Land Management Office happened before the person from their village was detained and the detained person was the one who previously went to complain. He said that was the reason he was detained and not all of them, because he was the leader. He confirmed they did not go to complain, only he did as they trusted him and they all gave him the money; he then engaged lawyers and that is why he was detained.
The Tribunal questioned why he would face harm on return, and he said before he came to Australia the local police had frequented the homes of several of them who had complained, and they wanted them to withdraw.
The Tribunal noted that was 7 years ago and questioned why he would now face harm on return; he said it is over, but they have not withdrawn their case. He said he is not familiar with the policy in China but said if a person has not withdrawn, does it mean the case is still there?
The Tribunal asked whether he has any documents to support his legal complaint; he said ‘no’ as they engaged lawyers and entrusted it all to one person. The Tribunal questioned this and raised with him if he engaged lawyers and made a complaint that he would be able to provide documents. It advised him it could give him time to obtain such evidence and he said he does not have anything.
The Tribunal raised concerns as to the credibility of his claims and referred to inconsistencies in his evidence, which, where relevant, are outlined below. He was given until close of business on 22 August 2024 to provide further information and documents with regard to the complaint and in reply to the s 424AA matters raised as he said he wanted to consult his agent who assisted him with obtaining work rights.
Assessment of claims
Is the applicant credible as to his claims?
On the basis of the applicant’s identity documents, including his passport and evidence provided at hearing the Tribunal accepts that the applicant is a national of China. Therefore, for the purposes of s 36(2)(a) of the Act the Tribunal accepts that China is the country of nationality and for the purposes of s 36(2)(aa) of the Act the Tribunal accepts that China is the receiving country.
As to the applicant fearing return, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness as to the difficulties he faced as he, as part of a group either hired lawyers and/or complained to the authorities about the low compensation they received for their land, when it was taken by local government officials. It follows it does not accept he or any member of the group was ever targeted by the town government or the police or anyone else prior to his departure. It finds the applicant’s testimony inconsistent and a fabrication for the reasons set out below. This leads the Tribunal to find that the applicant is not a witness of truth.
Central to the applicant’s claims as to why he departed was the attention and threats he received from the town government and police as a member of a group that hired lawyers and complained about the low price they received for their land. He referred to their leader being detained and said he believed he had told the authorities who was in the group. However, the applicant has provided internally inconsistent evidence at hearing as to whether he lived at home until his departure or was in hiding due to this attention from the police and town government officials. Specifically, initially at hearing he said he lived at his home until he departed and travelled from his home to the airport. He then said he worked in Shandong province, 1,000 km from his home, returned to his home to live for 2 to 3 months before he departed and then travelled from his home to the airport to come to Australia. In contrast he later said that after the man in their group was detained at the end of 2016, the police and town government officials came to his home looking for him and his family were afraid he might suffer the same fate as the detained man so he ran away to a different place and hid at his sister’s place for a few months from the time of the Spring Festival in early 2017. He said because of fear he ran away. He said he was afraid the police and town government officials might come and look for him to cause trouble, so he decided to go overseas. The Tribunal views this inconsistency as significant as the fear of the town government and police is central as to why he fears return. When the concern was raised with the applicant, he said he remembers staying at his sister’s place. The Tribunal does not accept this explains the inconsistency and is of the view if he went into hiding because of interest and visits from the police and /or town government officials after the person was detained he would indicate this consistently at the hearing. This undermines his claim he was ever visited or targeted by the police or town government officials and went into hiding in fear for the reasons he claims. It adds to the finding he is not a credible witness.
Further, of concern as raised with the applicant is why if the man in their group was detained at the end of 2016 by the police for making the complaint about the low price the group received for their land, the applicant would return from over 1,000 km away where he was working in Shandong province to live at home for 2 to 3 months before he departed in May 2017. The Tribunal has considered his response when the concern was raised. He said at that time they thought because they engaged lawyers there was nothing to be afraid of. He said it was only later that the person/leader was detained and then he became scared. However, as raised with the applicant, he said the person/leader of the group was detained at the end of 2016, yet his initial evidence at hearing was that he returned from Shandong province 2 to 3 months before he departed, being February/March 2017, which was after when the person/leader of their group was detained. The Tribunal therefore does not accept his response explains the concern and views his response as confusing and internally inconsistent. This concern undermines his claim that the leader of the group was detained as a result of hiring lawyers and making the complaint. It adds to the finding he is not a credible witness.

The Tribunal also views as of concern the lack of any documentation provided as to his claim the group he belonged to hired lawyers and made a complaint. At hearing when the concern was raised, he said he could not provide documents and said they trusted everything to the one person who was detained. The Tribunal does not accept this response and is of the view if he was part of a group of 5 or 6 people who hired lawyers to make a complaint, providing money, he would be able to provide documents or written evidence to support these claims or would attempt to provide such documents as evidence. The Tribunal notes he was put on notice of the need for documents when the Department wrote to him requesting further information on 15 May 2020, but he did not respond. He was also advised he could be given further time to respond to provide documents. The applicant has not responded or provided any documentation or written evidence to support his claims. This lack of supporting documentation and/or written evidence further undermines his claim they hired lawyers who made a complaint on their behalf. It adds to the finding he is not a credible witness.
The Tribunal also views as of concern the inconsistencies with his claims as outlined in his application for the visa and his lack of response to any outreach about his claims by the Department and Tribunal. In his application for the visa, he claims the local government of Haicang District wanted to sell his land to the developers to make more money, but he refused as they would not give him a replacement house. He claims the officers broke into his home at 3 am [in] June 2016 while he was sleeping, he resisted but they forcibly knocked down his home and they threatened to put him in jail if he kept resisting, as it was anti-government. He refers to going to the City Court to implead but was arrested by the police as he did something anti-government. He claims as he lost everything and was not able to challenge it, he left China to find a way to survive. At hearing, as outlined above, he gave a very different version of why he fears return. He did not refer to his house being demolished, rather land of his and his neighbours being sold at a low price. He did not refer to being beaten by the police, rather a member of the group and/or the leader being detained. He did not refer to personally making a complaint, rather the leader doing so. When the Tribunal raised the inconsistencies, he said, as he had done so at the beginning of the hearing, that he engaged an agent to prepare the application. He said the agent, a female, did not read it back to him. He confirmed he signed it and the Tribunal noted that no agent was recorded on the application and questioned whether there was an agent. He said he provided the claims, and she managed the application and he paid her the money. The Tribunal views as of concern that there is no agent listed in the application, he signed the application and the email for correspondence contains his name being [email address 1]. Further, as raised with him via s 424AA, if these were not his claims and he was genuine in applying for a protection visa as he fears return, it is of the view he would have responded to the letter sent to him by the Department, particularly to his personal email, as outlined above, on 15 May 2020, with specific questions as to his claims, including the address of the property in question, details of the compensation offered, details of the times he was arrested and requesting numerous documents. Similarly, it is of the view he would have responded to the Tribunal pre-hearing outreach letter dated 7 May 2024 where he was asked whether he wanted to give any more information about his claims for protection and whether there are any other reasons why he is afraid to return to China. He referred to having an agent, however, the Tribunal does not accept this as there is no agent recorded in the application for review or elsewhere before the Tribunal and he has personally on repeated occasions in an email from him, being [email address 1] and later changed to [email address 2] requested a Medicare letter. The Tribunal is of the view if he fears return for the reasons he now claims he would have clarified and updated the Department and Tribunal on his claims by responding. His lack of response adds to the finding the applicant is not credible as to his current and previous claims. It adds to the finding he is not a credible witness as to his claims.
Credibility summary
For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns, the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
As the Tribunal has found, on the basis of the cumulative evidence before it, that the applicant is not a witness of truth, it follows it does not accept that the government of Haicang District wanted to sell his land to the developers to make money, but as they would not give him a replacement house, the officers broke into his home, forcibly knocked down his house and threatened to place him in jail if he kept resisting. It follows it does not accept he went to the police station or the City Court to implead, but was told that what the Haicang government did was legal; he then planned to go to Puyang City Court to implead, but was arrested by the police and was forced to agree not to implead more, otherwise he will be placed in jail. It does not accept that he lost everything, had no home and could not complain so he fled from China.
As the Tribunal has found, on the basis of the cumulative evidence before it, that the applicant is not a witness of truth, it does not accept he was forced to sell his land at a very low price, he with a group hired lawyers and complained to the Land Management Office or anyone else and as a result a member of the group who was the leader was detained. It does not accept he was then visited by the police and town officials before he departed, or that they went to his home after he departed or that he was in any way threatened or harmed or threatened to withdraw the complaint. It follows it does not accept he fled into hiding at his sister’s house for any of the reasons he claims.
It follows it does not accept the applicant departed China as a result of any difficulties he claims he faced or harm he feared. The Tribunal rejects the applicant’s claims of fear of harm in their entirety and does not accept at the time he departed China in May 2017 he was of any interest to the police, town government, Haicang government or anyone else for any of the reasons he claims. It follows it does not accept he fears return for the difficulties he claims he faced in China for the reasons he claims.
Based on the applicant’s complete lack of credibility, it follows it does not accept he will continue to voice his dissent or seek to complain or continue with any legal action and say things against the town government or police or Haicang government or anyone else on return or will be prevented from doing so because of any fear of harm.
Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act or meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the credibility findings above that the applicant did not face any of the difficulties he claims for the reasons he claims, it follows the Tribunal does not accept that were the applicant to return to China now or in the reasonably foreseeable future, he would face any of the difficulties he claims as a result of any complaints made or lawyers hired for the reasons he claims. It follows that were he to return to China, he will not be arrested, detained, charged on a pretence, persecuted, harassed, beaten, threatened, bullied, be unable to earn a livelihood, be unable to work or have anywhere to live as his house was demolished, be pursued or face trouble or face any of the difficulties he claims.
It follows the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm were he to return to China in the reasonably foreseeable future at the hands of the town government, Haicang government, police or anyone else because he complained about the low price he received for the sale of his land or that he was part of a group that hired lawyers to complain or that he is viewed as anti-government or that he resisted as they took his land, destroyed his home and did not give him replacement land or that he threatened to complain to other government agencies or for any of the reasons he claims.
Similarly, based on my findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to China at the hands of the town government, Haicang government, police or anyone else because he complained about the low price he received for the sale of his land or that he was part of a group that hired lawyers to complain or that he is viewed as anti-government or that he resisted as they took his land, destroyed his home and did not give him replacement land or that he threatened to complain to other government agencies or for any of the reasons he claims.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Senior Member

ATTACHMENT A – Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in Attachment B.
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 Attachment B.
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.
ATTACHMENT B - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4197

4 September 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice