2013806 (Refugee)

2013806 (Refugee) [2024] AATA 4452 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013806
COUNTRY OF REFERENCE:                   China
MEMBER:Dr Greg Weeks
DATE:10 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2024 at 4:52pm
CATCHWORDS
REFUGEE – Protection Visa – China – land acquisition– land was confiscated unlawfully – fears harm only from the “local government” – petitioned to obtain compensation for the confiscation of her land – evidence vague and unconvincing – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, 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 dependant.
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 (delegate) on 10 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [age]-year-old woman and is a citizen of China. She was born in a village in Shijiazhuang City, [County 1], Hebei Province. After she married her husband in December 2001, she resided nearby in [Village 1] Village, [a] Township until her arrival in Australia. The applicant lived there with her husband, their two sons and her husband’s parents.
The applicant obtained a visitor visa to enter Australia on [date] June 2017 and arrived in Sydney on [date] November 2017. The Tribunal has been provided with a copy of the applicant’s application for a protection visa dated 18 April 2018 (PV application).
Procedural history
The applicant did not attend an interview with the delegate. The applicant was sent a letter dated 7 August 2020 under s 56 of the Act in which she was invited to provide additional information about her claims for protection. The applicant did not reply to that letter.
The delegate refused to grant the visa on the basis that the applicant is not owed protection obligations by Australia. The delegate gave her reasons for that decision in a document dated 10 September 2020 (decision record).
The applicant appeared before the Tribunal on 17 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was not represented in relation to the review.
Claims for protection
In a document attached to the PV application, the applicant claimed that she was persecuted by the government in China and fled China because she “realised how terrible the Communist Party was”. The applicant claimed that, in March 2017, the [Village 1] Village director (village director) privately sold 100 mu of arable land[1] belonging to more than 30 households for 2.2 million RMB to a company which wished to build a textile factory. The applicant claimed that the villagers opposed this development. She claimed that “they also wounded the villagers who tried to stop them”. The applicant claimed that the villagers did not get any compensation, so they went to argue with the village director and demanded to see the land sale agreement. The applicant claimed that the village director refused to talk to the villagers and said that they could report him wherever they wanted.
[1] This equates to about 6.67 hectares.
The applicant claimed that she and eight other villagers went to the township government to report that the village director had corruptly sold the arable land in the village and had embezzled the land sale money, with the result that more than 30 households lost their land without receiving any compensation. The applicant claimed that, when the township government did not reply, the villagers went to report to [County 1] Bureau of Letters and Calls, who also did not reply. The applicant claimed that they then went to report the corruption of the village officials to Shijiazhuang City Bureau of Letters and Calls, who also did not reply.
The applicant claimed that, in June 2017, she and five other villagers went to the National Bureau of Letters and Calls to report the corruption of the village officials who had stolen the villagers’ land and embezzled the proceeds from the sale of that land. The applicant claimed that the staff of the National Bureau of Letters and Calls informed them that their report would be transferred to Hebei Province and told them to go to the local petition office to check the investigation results in a few days. The applicant claimed that she later went to [County 1] Bureau of Letters and Calls to enquire about the investigation results and that the staff told her that they had not received the report.
The applicant claimed that at about 10 am on 18 July, she and three other villagers “raised a slogan” on the east side of Tiananmen Square. The applicant claimed that they were arrested and taken to Tiananmen police station where they were interrogated, after which they were transferred to [a] “rescue station”. The applicant claimed that, at about 5 pm, police of [County 1] Public Security Bureau took them to the detention centre where they were detained for ten days for “disturbing social orders”.
The applicant claimed that she was beaten in the detention centre by other prisoners in her cell. The applicant claimed that, on one occasion, a guard warned her not to make trouble for the government again and when she replied that, as a citizen, she had a right to expose corruption, he hit her with a stick. The applicant claimed that she tried to block his stick with her hand and that her right arm was wounded and bled a lot.
The applicant claimed that her husband visited her during her detention and begged the guard to release her. The applicant claimed that the guard said he would set her free if her husband paid 5,000 RMB and the applicant made a statement promising not to petition any longer. The applicant claimed that she refused to write the statement and was detained for ten days. The applicant claimed that, at the time of writing the PV application, no one had looked into their report and that the village director is “still at large”.
The applicant claimed that, after she was released, the village leaders strengthened their monitoring of the villagers who had raised the petition and that the village retained “our allowances from the government”. The applicant claimed that the village director said that whether they would be given the allowance or not “depended on our performance”. The applicant claimed that she was “completely disappointed” with the Chinese government so she “secretly entrusted the intermediary to apply for the visa to Australia” for her. The applicant claimed that she is scared of being persecuted in China.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 (the refugee criterion).
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
For the following reasons, I have concluded that the decision under review should be affirmed.
Land acquisition
The applicant gave evidence that the land that was “confiscated” and sold has had a spinning mill built on it. There is no chance that the land will be returned to its former owners. The applicant gave evidence at the hearing that the owners were supposed to have been compensated at a rate of 18,000 RMB per mu, meaning that the total payment to villagers who had owned the confiscated land would have been about 1.8 million RMB. That would amount to a very large proportion of the 2.2 million RMB for which the applicant claimed that the village director sold the land.
The applicant claimed that her share of the land was 13 mu;[2] she therefore expected a compensation payment of 234,000 RMB.[3] The applicant claimed that no money was paid and that the village director told the villagers that he had not received the money from “those above”. The applicant claimed that she approached the [a] Township government and was told that they had paid the money to the village director.
[2] This equates to about 0.87 hectares.
[3] In 2017, this amount would have been over $45,000 AUD.
The applicant gave evidence that the land confiscated from her was farming land but that she had been employed since the age of [age] at a spinning mill and did not work on the land. Her husband worked as a [occupation] and also did not work on the land. During the hearing, the applicant clarified that the land was not in fact hers but belonged to her mother-in-law. The applicant claimed that the land should be considered as her “family’s common asset” and that it belonged to her sons. The applicant’s evidence did not make clear what her interest was in the confiscated land belonging to her mother-in-law but I conclude from that evidence that she was effectively fighting for land that her sons might have expected to inherit from their father after the applicant’s husband one day inherits it from his mother.
The applicant gave evidence that the land was confiscated unlawfully. She then clarified that the land had been lawfully taken but that the failure to pay compensation was unlawful. The applicant gave evidence that she did not see or sign documents relating to the confiscation of the land or the compensation offered. I find that the land was confiscated lawfully. I suggested to the applicant that, in effect, she was claiming that 234,000 RMB had been stolen from her and asked whether she had reported that theft to the police. She replied that she had not.
The process of raising a petition with a Letters and Calls office in China is relatively common, with millions of disputes arising under this system every year. Incentives are in place for local authorities to encourage petitioners to have their disputes handled locally but they can subsequently be taken to provincial petitioning offices and, after that, to the national level in Beijing.[4] I put country information to the applicant that, for over a decade, President Xi has personally been at the head of a campaign opposing corruption at all levels of government. There have been many arrests for official corruption in that time and the penalties can be severe, including death in the most extreme cases.
[4] DFAT, Country Information Report: People’s Republic of China (22 December 2021), [3.87].
The applicant gave evidence that she approached [a] Township government and the Letters and Calls offices in [County 1] and Shijiazhuang City before going to the national Letters and Calls Bureau in Beijing. The applicant gave evidence that she had not obtained relief at any of these levels or, in most cases, even acknowledgement of her complaint. I put to the applicant that I might conclude from this fact that her complaint lacked merit. I also put to the applicant that I might have trouble believing that the local government would continue to threaten her if, in doing so, its officers including the village director risked exposing their corrupt behaviour in failing to pay a very significant amount of money to the villagers whose land had been confiscated. The applicant replied that China is very corrupt and that power and money enable people to accomplish anything. She did not directly address my concern.
While I accept that corruption remains an issue in China, I am not convinced that a local official could withhold payments totalling 1.8 million RMB without the significant risk of that corrupt behaviour being exposed and leading to sanctions, potentially of a very serious nature. I do not accept on the basis of the applicant’s evidence that compensation payments for the confiscation of the land in [Village 1] Village were corruptly withheld by the village director or another party.
The applicant gave evidence that neither her mother-in-law (the land’s owner), nor the applicant’s husband, nor their sons took any steps to pursue payment of the compensation that the applicant claims was unpaid following the confiscation of the land. I put to the applicant that neither she nor her family has done anything to seek compensation for the loss of the land since the applicant has been in Australia and she replied that she will fight for “what belongs to [her]”. I find that the applicant’s family have taken no steps to seek compensation for the loss of the confiscated land since the applicant has been in Australia.
The applicant stated repeatedly during the hearing that “nothing will happen” to her if she returns to China and neither attempts to “get [her] land back”[5] nor seeks compensation for the confiscation of that land. The applicant gave evidence that she fears harm only from the “local government” and that she was persecuted only because she petitioned to obtain compensation for the confiscation of her land. I put to the applicant that I might have trouble believing that the police or local government would still pose a threat to her after almost eight years since the confiscation of the land. The applicant replied that she will only suffer harm if she seeks compensation and that she “definitely” will.
[5] Notwithstanding the applicant’s reference to “get[ting her] land back”, she accepted at the hearing that there is no chance that that will happen now that a factory has been built there.
The applicant’s claim that she will again seek compensation for the confiscation of her land if she returns to China is difficult to reconcile to other parts of her evidence. Specifically, the evidence that the land did not belong to the applicant, that neither its owner nor her son have attempted to secure compensation and that the applicant has taken no further steps to secure the compensation she believes is owed since leaving China make it hard to accept that the applicant would again start to petition for compensation after so many years upon her return. A further consideration is that extensive efforts by multiple villagers to petition for compensation in 2017 were entirely unsuccessful and the applicant gave no evidence that anything has happened in the intervening years which would improve her chances of success in the future.
I do not accept that the applicant will again petition for compensation to be paid for the confiscation of the land if she returns to China.
Even if I were to accept that claim, which I do not, it does not follow that the applicant would suffer persecution or harm as a result. The applicant did not claim that she had ever been harmed by the village director or local government. When I asked the applicant whether she had suffered harm after she returned to her village after having been detained, she replied that she was told by the village director that, if she kept causing trouble, her sons would not be given the opportunity to sit for university entrance exams. The applicant gave evidence that her elder son is now [age] years old and studies at a university and that her younger son is [age] years old and is studying for a vocational qualification at a technical school. I do not accept that the village director would now be able to give effect to a threat to deny the applicant’s sons a chance to enter university.
The applicant also gave evidence that the village director also threatened that grain subsidies attached to her land would be withheld if she continued to petition the government. I put to the applicant that I might have trouble believing that farming subsidies were payable to her in respect of land on which a factory had been built. She replied that those subsidies were not paid after 2017. It follows that there is no chance that any threat to withhold those subsidies would be repeated in the future. In any case, given that the land in question did not belong to the applicant, she would only ever have been affected indirectly had that threat been carried out.
The applicant gave no evidence at the hearing of any ongoing threat to her by or on behalf of the village director or local government. Her claim in the PV application that “they wounded the villagers who tried to stop them” (emphasis added) was vague and did not specify to whom the applicant was referring. That claim was not repeated in the hearing. I do not accept that claim. The applicant also did not repeat at the hearing the claim in the PV application that “the village leaders strengthened their monitoring of the villagers who had raised the petition”. That claim was vague and no evidence was given to support it. I do not accept that claim. The applicant gave evidence that she had been “suppressed” but, when I put to her that her evidence in that regard was vague and lacked detail, she replied that she had been detained. The applicant said nothing to support a claim that she will be harmed by the local government.

I do not accept that the applicant was persecuted, harmed physically or threatened with physical harm by or on behalf of the village director or local government. I do not accept that compensation was corruptly withheld from the applicant by the village director.
I have not accepted that the applicant will again petition for compensation to be paid for the confiscation of the land if she returns to China. She did not claim that she will be persecuted if she returns to China for any other reason. I do not accept that the applicant will be persecuted, harmed or threatened with harm if she returns to China.
Credibility of claims about the applicant’s detention
I asked the applicant during the hearing what harm she had suffered in China. She replied that she had been detained due to her political opinion after she asked for compensation for the confiscation of the land and reported the failure to pay that compensation. That evidence is not wholly consistent with the statement in the PV application that the applicant was one of four villagers arrested for “rais[ing] a slogan” in Tiananmen Square.
I asked the applicant what had happened to her during her detention and she replied that she was warned not to be a “leader in causing trouble” in the future. I asked whether anything else happened and she replied “no”. The applicant gave evidence that she was released after ten days and that she would not have been detained at all if her husband had paid 5,000 RMB.
The applicant claimed that she was detained in the second half of July 2017. I put to her that her visitor visa to enter Australia had been granted over a month before she claimed that she was detained and that that fact indicates that she intended to leave China before she was detained. The applicant gave evidence that she had been planning to leave since the land was first confiscated and did not learn that she had obtained an Australian visa until October 2017. Nonetheless, the applicant’s visa was granted in June 2017 and she gave evidence that she had obtained that visa through an agent. I find that the applicant engaged the agent to obtain a visa for her to enter Australia prior to the time at which she claimed to have been detained.
I asked the applicant whether she wished to tell me anything else about harm that she had suffered in China and she replied “no”. I later put to the applicant that she had not mentioned during the hearing the claim made in the PV application that she was beaten in detention and that I might therefore make adverse findings about the credibility of the applicant’s evidence. The applicant claimed that I had not asked about what harm she had suffered. I gave the applicant examples of the questions I had asked her on the issue of harm that she had suffered in China. She claimed that she had written the relevant information in her PV application, which she assumed that I had read.
I am not convinced by the applicant’s explanation of why she did not repeat her claims to have been beaten in detention during the hearing. This was a significant claim and the only example of physical harm caused to the applicant by an official. I do not accept that, when asked about harm that she had suffered and what had happened during her detention, the applicant would fail to mention being hit with a stick and bleeding from the wound it caused to her arm if she had indeed suffered that harm. I do not accept that the applicant was assaulted in detention, either by other inmates or by a guard. The applicant’s failure to raise the claim that she was assaulted in detention at the hearing causes me to draw an adverse inference about the credibility of her evidence.
The applicant’s evidence at the hearing about why she had been detained was vague. She did not repeat the claims set out in paragraph [10] above. She did not give evidence about why she was detained for ten days and then released or for what specific offence she had been arrested. She did not give evidence about the terms of her release or that it was conditional, for example, on reporting regularly to police. Although the applicant claimed that she had a “criminal record” at the time she left China, she gave no evidence about that record, its basis or consequences. I did not find the applicant’s evidence on the issue of her detention convincing or supportive of the claims in her PV application.
On the evidence before the Tribunal, I do not accept that the applicant was arrested or detained before leaving China. I do not accept that the applicant beaten by Chinese officials.
Departure from China
The applicant left China in November 2017 using a passport issued in her own name. She gave evidence that the Chinese authorities at the airport checked her luggage and inspected her passport but asked her no questions. The applicant gave evidence that she had engaged an agent to obtain her visitor’s visa to enter Australia and had paid that person a total of 180,000 RMB. That amount included a bribe paid by the agent to the Director of Foreign Affairs.
I put country information to the applicant which indicates that it is almost impossible to leave China without the knowledge and approval of the authorities. It is very difficult to bribe border officials. There are also significant restrictions on obtaining passports. Exit bans are used against persons of adverse interest and also against family members of individuals under investigation.[6] I put to the applicant that the fact that she left China legally on a passport under her own name might cause me to think that she was not of adverse interest to Chinese authorities at that time. The applicant replied that she had needed to pay money to obtain the criminal clearance certificate which was necessary for her to leave the country and that there is nothing that you cannot accomplish in China if you are willing to pay.
[6] DFAT, Country Information Report: People’s Republic of China (22 December 2021), [5.31]-[5.42].
The applicant did not explain how or why a forged criminal clearance certificate was accepted without question at the airport when she left China. Furthermore, her evidence is hard to reconcile to country information that it “is difficult or impossible to forge identity documents that would be able to be used in practice” and that “technology and algorithms (rather than a human official who may be liable to bribery) may make decisions” about exit procedures at Chinese airports.[7]
[7] DFAT, Country Information Report: People’s Republic of China (22 December 2021), [5.35].
For reasons set out above, I have already rejected the applicant’s claim that she was detained in China. While it is possible that the applicant could have been of adverse interest to Chinese government authorities for reasons not directly connected to her claim to have been detained, the applicant did not otherwise give evidence that she had acquired a criminal record. The applicant’s evidence that part of the sum that she paid to the agent who obtained her Australian visa was to bribe a senior official was unconvincing. That evidence was given in relation to obtaining her visa to enter Australia and did not explain how she would have been able to leave China if she was of adverse interest to authorities at any level of government. I find that the country information put to the applicant was accurate. I do not accept that she would have been able to depart China as she did if she had been of adverse interest to the authorities.
I do not accept that the applicant was of adverse interest to Chinese authorities at any level of government at the time that she left China. The applicant did not claim, and I do not accept, that anything has occurred since she left China to create adverse official interest in the applicant.
Conclusions
For the reasons given above, I do not accept that there is a real chance that the applicant would be persecuted for reasons of her race, religion, nationality, membership of a particular social group or political opinion if she is returned to China. I am 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), I have considered the alternative criterion in s 36(2)(aa). The ‘real risk’ element of the complementary protection criterion has been held by a Full Court of the Federal Court of Australia to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[8] That reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[9]
[8] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, 551 [246] (Lander and Gordon JJ).
[9] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp170-1 at [1169], [1180].
For the reasons given above, I do not accept that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China. I am 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.
Dr Greg Weeks
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 4452

10 October 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction