2013506 (Refugee)

2013506 (Refugee) [2024] AATA 1045 (8 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2013506

COUNTRY OF REFERENCE: China
MEMBER:Rosa Gagliardi
DATE:8 February 2024
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 February 2024 at 2:27pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – opposition to government policies – threats of detention – closure of applicant’s employer – closure of farm – environment protection standards – animals buried – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 43
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 24 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 (a matter the Tribunal accepts) applied for the visa on 20 September 2017.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant’s engagement with the Tribunal
On 17 January 2024 the Tribunal wrote to the applicant at an email address provided by him for the purposes of the review to invite him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The Tribunal explained that it had considered the material before it but was unable to make a favourable decision on this information alone.
Accordingly, the Tribunal set out that a hearing was scheduled for 8 February 2024, at 10.00am EST. The hearing invitation also asked the applicant to provide all documents he intended to rely on to support his case by 1 February 2024. The invitation advised the applicant he should have regard to the Departmental decision which should set out the reasons for the decision and that he should consider communicating any changes to his circumstances in providing documents and preparing for the hearing.
The applicant did not respond to the hearing invitation. It had not been returned to sender. On the day and time of the scheduled hearing the applicant did not appear. Nor did he provide any additional information. The applicant did not contact the Tribunal to postpone the hearing.
The Tribunal’s records demonstrate that an SMS reminder was sent to him to a phone number provided to the Tribunal for the purposes of the review on 1 February 2024, and again on 7 February 2024. There is no indication that these messages did not reach the applicant.
The Tribunal had also engaged in an outreach process with the applicant writing to him on

5 October 2023, advising that his file was being prepared to be given to a member and asked him to fill in a pre-hearing information form to assist the Tribunal member conduct the review. The form gave the applicant the opportunity to provide any further information about his claims for protection and to set out whether there were any other reasons why he was afraid to return to China. The applicant did not respond to or return the pre-hearing form to the Tribunal, and no additional information was provided.
In passing, the Tribunal notes that the Departmental decision states that on 14 November 2017, the applicant was sent an acknowledgement of valid visa application via his then migration agent. The letter advised he could provide additional information relating to his claims and the ways for him to provide it, such as through his IMMiAccount.
In addition, on 15 May 2020, the applicant was sent a letter by email (again via his then migration agent) inviting him under s.56 of the Act to provide additional information about some of the claims in his application and to provide clarification on particular points. The s.56 invitation also advised the applicant that his statement of claims lacked substantiating details such as dates and locations and supporting documentation and that no further details or documentary evidence to support his claims had been provided. The letter stated that to assist the delegate in deciding whether to accept that his claims were genuine, he was invited to provide more information about what happened to him in China, including dates and locations of events and supporting documents relating to his claims.
In response to the s.56 invitation to provide further information, the applicant sent an email reply via his then migration agent to the Department on 5 June 2020. In his reply, the applicant stated that he had “nothing to provide” to the Department. There were no attachments or any other information pertaining to his claims in the applicant’s response.
The Tribunal acknowledges that the ability to proceed to a decision on the papers is discretionary and that such a decision should not be taken lightly. Having considered the attempts by the Tribunal to engage with the applicant to no avail and given the applicant has provided a copy of his decision for the purposes of the review, the Tribunal considers in the circumstances it reasonable to make a decision on the material before it.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and whether there is a real chance that if the applicant was returned to China now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
The applicant provided a statement reflecting his substantial claims together with his application form. The statement reads:
I come from xxx, Sichuan Province, China…I was born on xxx
Because of national wide closure of no-so good business policies, I was unemployed in 2003 as the [business 1] I worked was closed down. Not long after that, my wife divorced me. I thought all these were not fair to me.
In order to regain my dignity, I returned to my home town to establish a [farm 1], I invested about RMB [amount] and bought about RMB [amount] worthy [animals 1]. However, at the end of 2015, when my [animals 1] were ready to be sold at the market, the new policy came again and in the name of environment protection this time. I was told that my [farm 1] did not meet the environment protection standards and polluted the surrounding area and needed to be close down.
One day, at the end of December 2015, the local authority came with some public security officers tried to demolish my [farm 1], I did not agree, the public security department officer held me tightly while others took my [animals 1] away to bury them alive.
This had a very heavy impact on me, I lost all I had. I went to government office to argue the case, the government officer told me it was all my fault, and I did not have any ground to say a thing on the matter. If I keep arguing with them, they will send me to jail, I was no way to turn to.
It was a long time when I found out that Australia is a country protects human rights. With friend’s help, I got an Australian visa, now I am here to looking for protection from Australia government. (As written).
In his actual application form the applicant indicated at question 79 that he had not sought assistance in his country because there was “No point”. He also advanced that he could not move to another part of his country because there was “Nowhere to go”. Asked if he thought the authorities of his country could protect him the applicant wrote, “No”, as there was no way for authorities to protect a small person like him.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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, 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. 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.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal invited the applicant to a hearing as the Tribunal had concerns about his claims. The applicant did not avail himself of the opportunity to appear before the Tribunal to provide further information about his claims, even after being made aware that on consideration of all the material before it relating to the application, it was unable to make a favourable decision on that information alone.
Overall, the Tribunal found that the applicant’s claims were general and vague and did not set key events in any context to include locations and some dates, for example. The Tribunal finds the applicant has provided little specificity concerning his claims and why he fears returning to China now or in the reasonably foreseeable future. As such, the Tribunal has serious concerns regarding the applicant’s claims that he became unemployed in 2003 after the [business 1] he worked at was closed, and he returned to his hometown to establish a [farm 1] investing RMB[amount] as well as RMB[amount] in the purchase of [animals 1].
Additionally, the Tribunal has concerns with the applicant’s claims that at the end of 2015, when his [animals 1] were ready to be sold, a governmental policy was introduced in respect of ‘environment protection’ and the applicant was told that his [farm 1] did not meet the environmental protection standards and therefore needed to be closed. The Tribunal also has questions and doubts about the applicant’s claims that at the end of December 2015, the local authorities and public security officers came to demolish the applicant’s [farm 1], but the applicant disagreed with their actions and the applicant was held by a public security officer while the others buried the [animals 1] alive. The Tribunal also has concerns and questions regarding the applicant’s claims that he lost everything and that when he went to the government office to argue his case, was told that he was at fault and had no grounds to complain and was warned that he would be gaoled if he continued to argue with them.
The Tribunal acknowledges that an applicant is not required to corroborate their claims, however, when it could be reasonably expected that an applicant would have information to support their claims that they would provide such information, particularly given several invitations to do so. For example, the applicant might have had access to old pay slips demonstrating he had worked at the claimed [business 1] and has also had ample time to provide any documentation demonstrating he was forcibly retrenched due to the closure of the factory as claimed. The Tribunal would have liked to be able to ask the applicant how the [business 1] might have failed precisely under the new policy to shut down businesses that were not going well and to point to any evidence of such a policy.
Had the applicant attended the hearing the Tribunal would having queried the applicant as to whether he could provide evidence and related documents of the purchase of a [farm 1], for example, as well as the purchase of [animals 1] and whether he might have photographs to assist the Tribunal gain an understanding of the size of the venture. Other documentation such as a title deed would have provided the Tribunal with information about when precisely the purchase of the farm had occurred. The Tribunal would have also liked to query the applicant about where the farm was located specifically and would have encouraged him at a hearing to discuss whether he had previous experience in farming and why he specifically chose [a farm 1].
Other unanswered questions that could have been discussed at hearing include which policy precisely did the government find the applicant’s farm was in breach of in respect of environmental protection standards and who precisely advised him of the breach. The Tribunal would have encouraged the applicant at a hearing to speak about the identities of the public security officers and government officials involved in demolishing his farm and would have liked to gauge how many such officers were involved in burying his [animals 1] alive. The Tribunal also would have had questions about whether the applicant was compensated in any way for the claimed destruction of his business.
The details about the applicant going to complain to the government office because he lost everything are also opaque. For example, when and where did the applicant go to raise the matter of the claimed demolition of his farm and who precisely had warned him he would go to gaol if he kept arguing with them?
The Tribunal has considered the material provided by the applicant and the information in the delegate’s decision and finds the information provided is general and lacking in specificity in relation to his claims that he became unemployed when working at a [business 1] due to government policies which shut the enterprise down, and that he owned a [farm 1] and that it was destroyed by public security officers who held him back while they buried his [animals 1] alive. The Tribunal finds that the applicant has failed to establish his claims and that it has many unanswered questions. On the very limited evidence he has provided and taking account of his decision to decline to attend a hearing to provide more information, the Tribunal does not accept that the applicant:
·the applicant became unemployed in 2003 after the [business 1] he worked in shut down due to a nationwide policy of closing no-so-good businesses.
·the applicant returned to his hometown and established a [farm 1] and invested RMB[amount] as well as an additional RMB[amount] for purchase of [animals 1].
·at the end of 2015 as his [animals 1] were ready to be sold, another governmental policy came into effect in pursuance of ‘environment protection’.
·the applicant was told his [farm 1] did not meet the environment protection standards and had to be shut down.
·at the end of December 2015, the local authorities and public security officers came to demolish the applicant’s [farm 1], but the applicant disagreed with their actions.
·the public security officer held the applicant while the others buried his [animals 1] alive.
·having lost everything the applicant went to a government office to argue but was told he was at fault and that he had no grounds to complain.
·The applicant was warned that he would be gaoled if he kept arguing with them.

The Tribunal rejects that the Chinese government or any other of its instruments or other non-state actors would target the applicant for his imputed or actual political opinion or for membership of a particular social group (“small” people without status in society) for any reason under s.5J(1), or that the State or other non-state actors would target him to prevent him from earning a living of any kind or that they would seek to cause serious harm to the applicant as set out, but not limited to, under s.5J(5).
The Tribunal does not accept that the applicant has made out his claims and finds that there is not a real chance that the applicant will face persecution were he to return to China now or in the reasonably foreseeable future.
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).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. The Tribunal has had regards to the applicant’s claims as above regarding complementary protection but has the same concerns which it wished to explore with him at hearing. The Tribunal is not satisfied that the applicant has established that he will suffer significant harm for his actual or imputed political opinion or for membership of a particular social group (“small” people without status in society) or for any other reason.
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from the Chinese authorities or any other agency or persons for any reason if he returns to China, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standards as the ‘real chance’ test. As the Tribunal has found that the applicant has not made out his claims that his fear of returning to China is well-founded because on return to China he would be targeted by government authorities or any other person, for any reason, it follows that 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 China, there is a real risk the applicant will suffer significant harm. That is, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or the applicant will be subjected to torture; or he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.
The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
Member

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

[2024] AATA 1045

8 February 2024

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