2013322 (Refugee)

2013322 (Refugee) [2024] AATA 3536 (17 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2013322

COUNTRY OF REFERENCE: China
MEMBER:Christine Cody
DATE:17 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 July 2024 at 6:13pm

CATCHWORDS
REFUGEE – protection visa – China – land resumption without compensation – corruption – protests – petitions – detention – physical assault – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 27 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 claims to be a citizen of China, applied for the visa on 7 January 2018. Relevant law is set out in Annexure A.
Claims made to the Department
The applicant provided his protection visa application form, a statement and a copy of his passport issued [in] 2015 (valid until [2025]).
According to the protection visa application form, the applicant was born in [County 1], Fujian Province, and is [age] years of age. He lived at a single address all of his life in [Village 1], [Town 1] Fujian. His ethnicity is Han and he is an atheist. He speaks, reads and writes in Mandarin. After he finished school, he was a farmer who worked the land all of his life until November 2017.
His wife, his [children] – [ages specified] – and his mother remain living in China in [Village 1], [Town 1], Fujian. He is sometimes in contact with his family.
The applicant had no difficulties in obtaining his passport. He departed China legally [in] November 2017 and arrived in Australia as a visitor [later in] November 2017.
His claims are summarised as follows:
·     In February 2017 notice was received that the villagers’ houses were to be demolished in accordance with the government’s policy of developing [County 1]. As there was no suggestion of an amount of compensation or resettlement, the villagers did not agree.
·     The applicant was involved in protests and petitions and was arrested, beaten up and threatened. The house was demolished.
·     Villagers who fight for their rights are suppressed by the government.
·     He fears future harm and cannot relocate or seek protection.
The delegate’s decision record
The delegate refused to grant the visa, noting that the applicant’s claims were lacking in detail and despite a number of opportunities to provide more information to support his claims, he had not done so. The delegate referred to country information and considered that if the applicant did have an adverse profile it is unlikely that he would have been able to depart the country, however he had been able to depart lawfully. The delegate was not satisfied that the applicant participated in the activities or suffered the kinds of adverse treatment or harassment in China as claimed, nor that he had an adverse profile.
The Tribunal
The applicant provided to the Tribunal an application for review form on 27 August 2020 and a copy of the delegate’s decision record and notification of refusal letter.
On 31 August 2020, the Tribunal sent the applicant an acknowledgement letter, stating that if he wanted to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. The Tribunal did not receive a response.
On 7 May 2024, the Tribunal wrote to the applicant informing him that his file was being prepared to be given to a Tribunal Member. The applicant was requested to provide any additional information/evidence about his claims for protection and any other reasons as to why he is afraid to return to his home country. The applicant was asked to complete the pre‑hearing information form and return it to the Tribunal within 7 days of receiving that email. The Tribunal did not receive a response.
On 24 June 2024 the applicant was invited under s 425 of the Act to appear before the Tribunal on 11 July 2024 at 1:00 pm. The applicant was advised that: having considered the available material, the Tribunal was not able to make a favourable decision on this information alone; he may provide additional information or any new information which he wishes the Tribunal to consider; and he should provide all documents upon which he intended to rely by 4 July 2024.
He responded to say that he would attend the hearing, but did not provide any other information or documents.
The applicant appeared before the Tribunal on 11 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Some of the evidence given at hearing is set out below:
·     The contents of his protection visa application form are true and correct; nothing is missing. He was assisted by his friend and he checked afterwards that everything was correct.
·     Prior to his arrival in Australia he worked on [projects] for 20 years. He lived onsite in Guizhou, Yunnan and Sichuan; his work was far away from his home. He would only come back home during the spring festival, which he specified was in December. The rest of the time he lived elsewhere. He only ever came back in December, not at any other time.
·     He started work one year after he arrived in Australia. His friends supported him and he did casual jobs. He then started work in [locations] in August 2018. He sends money back home from his work.
·     [One child] does [the same] work and [lives] at home (or lives near the [workplace]). [Detail deleted.] The [remaining children] are in private school. They live at home with his wife. The wife and children reside in a rural area in a house in [County 1].
·     His father passed away in 2014 and his mother passed away in 2018.
·     When asked about the contents of his protection visa application he said he doesn’t really recall it. When asked what he had claimed in his application, he said it was “because of a demolition and relocation and dispute with government”.
Further relevant evidence is set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant produced his passport to the Department, who accepted that he was a citizen and national of China and assessed his claims against China. The Tribunal was also provided with his passport and accepts that he is a national of China and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is China.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal put to the applicant its concerns about the inconsistencies and changes in his evidence, which undermined his credibility and claims about his circumstances in China.
Firstly, the Tribunal had concerns with the applicant’s changing evidence about his claimed fear of harm. In this regard, when the Tribunal asked him what he feared or was concerned about if he returned to China, he said that he wants his children to still attend private school and to be able to afford living expenses. While the Tribunal is prepared to accept that he may have developed this concern more recently and thus did not include it in his protection visa application form, it does not explain why he did not mention any other concerns or fears when asked by the Tribunal.
His evidence was, when asked what his concerns were if he returns to China, that he is not concerned about much, but he is concerned about the children. There are [number] children and the house is a small house and their livelihood is not good. When asked what he thinks will happen if he returns, what is his concern, he responded nothing will happen; he is just concerned about finances and he pays for his children’s schooling. He then confirmed that he wants to stay here because he wants to afford his children’s school and living expenses. When the Tribunal asked if there anything else he wanted to say, he said no.
The Tribunal then asked whether he had had any problems in China and he responded that there are no problems, just financial problems.
The Tribunal considers that if the applicant had suffered as a result of demolition and corruption, he would have mentioned this when given numerous opportunities to do so.
Noting that he had earlier told the Tribunal that his protection visa application content related to a demolition, the Tribunal then asked him about his earlier reference to a demolition. In response he said that his father’s old house was going to be demolished and relocated and they promised compensation, but they didn’t fulfil that promise and then it was gone, and so they borrowed from relatives to build a small house to live in. The Tribunal asked if there was anything else that happened and he said no. Given the applicant had claimed in his statement to have been arrested and beaten, his evidence appeared to undermine this claimed past harm. Only later, when prompted by further questions, did the applicant claim that he had been beaten up. However, even when prompted by further questions, he still did not claim that he had been arrested/detained.
The Tribunal put to the applicant its concerns with his omissions and changing evidence. It noted that when he had been asked whether he had any problems in the past in China, he referred to being poor and incurring debt and then said that there were no other problems, and that it was only when the Tribunal mentioned the demolition that he said this had occurred, and only later did he say he was beaten up. The Tribunal put to him that if these incidents had occurred, it is difficult to understand why he would have told the Tribunal that there were no problems in China other than financial. He responded that he didn’t think it was related to this. The Tribunal did not understand his response and asked him whether he would consider these incidents were problems and he said yes. The Tribunal considers that he was unable to explain why he failed to mention, when asked about past problems in China, the demolition and that he was beaten up, and the Tribunal considers that this undermines his credibility.
Further, as noted above, when the Tribunal then asked him if anything else happened that he had not already told the Tribunal, he said no. The Tribunal then put to him that in his statement he had claimed that:
I received a threatening phone call from the town government officials, who threatened me to lay low. In September, while discussing about the further petition with other villagers, I was arrested again into the police station in [Town 1] Town. It turned to be the government had people monitoring us.
The Tribunal said it did not understand how he could claim that nothing else had happened if this was true. He responded that he forgot he was arrested. The Tribunal does not consider this to be a credible explanation. The Tribunal noted that he had failed to mention that he was also detained in May:
My home was also demolished. I was arrested into [Town 1] police station and was detained for three days for stopping the demolitions.
The applicant just responded “yes”. The Tribunal put to him that it would expect that he would have mentioned this when asked what adverse incidents had occurred in China. In response he said, “it has been a long time, how can I remember”. The Tribunal does not consider this to be a persuasive explanation. While the Tribunal accepts that the claimed events occurred some 7 years ago, it is not persuaded on the evidence before it that there is a reason for the applicant to have forgotten that he was twice arrested and detained for 3 days.
The Tribunal considers that the above undermines his credibility and his claims that he was involved in any demolition event, protests, or was arrested or detained or beaten up.
Secondly, the applicant then changed his evidence as to whether those past events had led to him having any fear of harm on return. The Tribunal noted that he had not claimed to fear harm as a result of the demolition and related events, and so it sought his clarification. He confirmed that there was no fear of harm arising from these matters. The Tribunal then sought his confirmation that there was nothing else that caused him fear or worries if he returns to China; he said, “like I stated my worries will be on the financial side – there will be tuition and living expenses”.
The Tribunal then put to him that it did not appear that he faced a real chance of serious harm or a real risk of significant harm. He then changed his evidence and said that “the demolition could be counted as serious harm and if I go back the government will definitely investigate me because of the demolition”. The Tribunal put to him that as soon as it was put to him that it appeared he did not face a real chance of serious harm or a real risk of significant harm, he then changed his evidence and said that he would face harm because of the demolition events.
In response he said that this had just occurred to him. The Tribunal put to the applicant that the whole basis of his written protection visa application claims was that he would face harm because of the matters related to the demolition, so it is difficult to see how this had only just occurred to him now. The applicant did not engage with this; he just said that he would like to stay in Australia for as long as possible. The Tribunal does not consider this to be a persuasive explanation for his changing evidence. The Tribunal considers that if the demolition and related events had occurred, and given this was the basis of his protection visa application, he would not have told the Tribunal earlier that there would be no harm arising from this if he returned to China. The Tribunal considers that his changing evidence undermines his credibility and his claims.
Finally, the Tribunal was concerned because the applicant gave inconsistent evidence about the details of his claims, including in relation to when he was beaten up. The Tribunal asked him when he was beaten up and he said it was in May 2015/2016. He later changed his evidence and said it was in the first half of 2017. Several concerns arose with this evidence. The Tribunal put to him that he had been changing his evidence, claiming he was beaten up in May 2015/2016, and later saying that this occurred in the first half of 2017. His explanation was to say that the events occurred twice: in 2015/2016 when he tried to stop the demolition and then it stopped, and then eventually in 2017 they went ahead with the demolition.
The Tribunal put to the applicant that his explanation for his changing evidence was inconsistent with his statement which stated that the first time he became aware of the demolition was in February 2017: “In February 2017, the villagers received a notice from the town government saying that in response to the government's policy of developing [County 1], the town government decided to demolish the villagers’ old houses and make the villagers move into the unified and planned new houses”. Thus, he could not have been beaten up in relation to the demolition in 2015/2016. Further, while telling the Tribunal that he was beaten up in the first half of 2017, in his statement he claimed that he had been beaten up in July 2017.
The applicant did not offer a credible explanation for these additional concerns other than to say that that in 2017 they went ahead with the demolition. The Tribunal did not find this explanation persuasive.
He also changed his evidence in response to a further concern of the Tribunal. He initially told the Tribunal that 70 villagers stopped the demolition from happening. The Tribunal put to him that it did not understand how 70 villagers had managed to stop 200 government people who had come to attend to the demolition. He then changed his evidence and said that the 200 people did demolish the houses. The Tribunal put to him that he had just changed his evidence from saying that the demolition did not go ahead; he did not explain his change in evidence, but rather just said that they demolished it by force.
A further concern arose because, as the Tribunal put to the applicant, his changed claim that he was beaten up in the first half of 2017 was inconsistent with his earlier evidence to the Tribunal that he only ever came back to his hometown in December and that he had never come back home at any other time. In response he said that he had earlier given his evidence incorrectly. The Tribunal did not find this explanation persuasive.
Further, when the Tribunal asked the applicant whether he had taken any action about the proposed/actual demolition, he said that there was nothing to do. The Tribunal put to him that this was inconsistent with his statement, where he claimed:
Other villagers whose houses were demolished by force and I went to [County 1] government for petition … The county government officials said it took time to investigate and let us go home and so on. However, we did not receive any reply from the government after more than a month. [In July], 3 villagers and I went to [County 1] government again to inquire about the result of the investigation.
In response he initially said he went with 3 people; then he changed his evidence and said he did not petition. The Tribunal asked that if he did not petition, why did he claim to petition in his statement? In response he said, “I can’t recall, I forgot”. The Tribunal does not find this to be a persuasive explanation, and it considers that his evidence undermines the claim that he had petitioned and protested to the government and his credibility.

The Tribunal considers that the above undermines his credibility and claims.
Summary
Having regard to the above, the Tribunal is not satisfied that the applicant is a credible witness in relation to his claims for protection.
Other matters
The Tribunal has considered whether the applicant may have been nervous while giving his evidence; however, it does not consider that this can explain the difficulties with his evidence.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that he is not a witness of truth when making claims for protection and discussing his circumstances in China. The Tribunal considers that the applicant is prepared to make up claims and change his evidence in order to be granted a protection visa.
Findings on the applicant’s claims
The Tribunal does not accept that the applicant is a witness of truth about his claims or circumstances back in China.
On the basis of its adverse credibility finding, the Tribunal does not accept that the applicant’s house or his parent’s house was subject to a demolition notice, nor does it accept any claims flowing from these claims, including that that he petitioned, protested, argued or received the adverse attention of the authorities, that he was threatened, arrested, detained, beaten up, monitored by the government or their people or that he was affected by corrupt officials/ actions.
The Tribunal has considered the applicant’s claimed concerns about finances. It is not satisfied, on the basis of his credibility and his own evidence, that he has a genuine concern that he and his family will face a real chance of serious harm or a real risk of significant harm. The Tribunal put to him that he was concerned about paying school fees but his children are almost [age] years old. Further, he managed to pay school fees for [all his] children previously when he was in China. He responded that they are in junior high and they will have to go to senior high. The Tribunal noted that he was making a choice to send them to private school, which he admitted was more expensive, and it put to him that he did not have to do so. He responded by saying that the public schools are in mountainous areas and it is difficult to travel to, as it will take more than 2 hours. The Tribunal is not satisfied that the applicant is being truthful when claiming he will not be able to send his children to school. The Tribunal also put to the applicant that his wife and eldest [child] are working and contributing to the household, and he will also be working (noting his significant work experience in China and Australia). The Tribunal is not satisfied that the applicant, whom the Tribunal has found is not a witness of truth, has genuine concerns in this regard, but rather considers that he has exaggerated this concern in order to try to remain in Australia. He asked the Tribunal on a number of occasions throughout the hearing if he could just stay here longer to earn more money. The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm because of living standards or sending his children to school or for any other financial/economic reasons.
The Tribunal put to the applicant that it had not made up its mind, but if it did not accept his claims, then, when considering country conditions as set out in the Department of Foreign Affairs and Trade (DFAT) report, it did not appear that he faces a real chance of serious harm or a real risk of significant harm in China for any reason.
The applicant asserted late in the hearing that he would receive adverse attention from the authorities if he went back, and the government would ask where he had been. He said that this was in connection with the demolition claim. The Tribunal has not however accepted that claim or any claims flowing from that claim. The Tribunal asked the applicant what he would say if he was asked by the authorities what he had been doing in Australia and he said he will tell them that he has been working.
The Tribunal put to the applicant that the DFAT report does not suggest that he faces a real chance of serious harm or a real risk of significant harm for having been to Australia and claiming asylum:
TREATMENT OF RETURNEES
5.28 DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum.
The Tribunal asked whether there is anything he would like to say in response and he said, “not much”. The Tribunal asked if he wanted to say anything at all and he said that “I just want to stay for a longer period”.
On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance or risk of adverse attention or harm for any reason, from anyone or any authorities, in China.
The Tribunal does not accept that the applicant faced any serious harm or any significant harm in China for any of the reasons claimed. It also does not accept that he has any genuine fear of serious or significant harm in China for any reason, nor does it accept that there is a credible reason to believe that he faces a real chance of serious harm or a real risk of significant harm in China.
Refugee claims
The Tribunal does not accept that the applicant has any genuine fears of harm for any reason including race, religion, nationality, political opinion or membership of a particular social group if he returns to China.
The Tribunal does not accept that he faces a real chance of serious harm for any reason in China.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis and, in the context of its finding that the applicant is not a credible witness concerning past events or future harm feared as well as the relevant country information, and apart from those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well‑founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Attachment A, which provides a summary of the relevant terms). The Tribunal is not satisfied that he left China due to any fear of harm. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that he faces a real risk of experiencing significant harm for any reason, including in relation to adverse official attention or for economic/financial reasons.
On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case China, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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) 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.
Christine Cody
Member

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

[2024] AATA 3536

17 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Appeal