2014650 (Refugee)

2014650 (Refugee) [2022] AATA 3773 (29 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr David HO (MARN: 9903257)
CASE NUMBER:  2014650
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Katsambanis
DATE:29 August 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 29 August 2022 at 9:42am
CATCHWORDS
REFUGEE – protection visa – China – political opinion – opposition to acquisition of family land for infrastructure development – complaints to town and higher officials – leadership of small community action group – detained, interrogated and assaulted – relocation without ID or household registration – credibility – inconsistent and contradictory claims and evidence – documentation of land ownership – injury, treatment and medical certificate – delay in applying for protection – applied after student visa cancelled – members of family unit, including Australian-born child – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
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 23 September 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China, applied for the visas on 28 June 2017. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The first named and second named applicants appeared before the Tribunal at a hearing on 20 June 2022 to give evidence and present arguments. The first named applicant also appeared before the Tribunal at a second hearing on 1 August 2022 to give evidence and present arguments. Both of these Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by a registered migration agent. The representative was in attendance at both of the Tribunal hearings.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
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 issues in this case are whether there is a real chance that if the applicants return to China they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Protection Visa Application
The applicants lodged their protection visa application with the Department on 28 June 2017.
In the application form, the first named applicant stated that she was born on [Date] in [Town], Guangshan County, Hunan Province, China. Her parents and sister were still living in China. She claimed that she would contact her relatives through the WeChat application on average 2 to 3 times a week.
The first named applicant stated that she had commenced her relationship with the second named applicant on 15 November 2009 and they had married in Perth, Australia [in] November 2015. She also indicated that she was due to give birth to a child in [Month, Year].
The first named applicant stated that she had departed China from Baiyun Airport, Guangzhou, China [in] May 2013 and had arrived in Perth [the next day in] May 2013 on a valid student visa but stated that her student visa was cancelled in February 2016 because she was not able to keep up her study attendance.
On the application form, the first named applicant stated that she had lived in [Town], Xinyang City, Henan Province from January 2007 to June 2010 and then lived in Huli District, Xiamen City, Fujian Province from June 2010 to May 2013. She also listed various addresses where she had resided since she arrived in Australia.
The first named applicant stated that she had been employed in [job task 1] for [Employer] at [Address], Xiamen City, Fujian Province from March 2010 to January 2013. She also listed several positions of employment since her arrival in Australia.
The first named applicant indicated that she had completed primary school, junior high school and high school in China, and had commenced a course at [University] in Australia from which she claimed to have withdrawn in June 2014.
In a typed statement attached to her application form, the first named applicant stated that she had left China to escape from persecution. She claimed that if she returned to China she was bound to be persecuted by the town government for reasons that she had articulated in a separate statement. She claimed that she had experienced harm in China and that she had reported her ordeal to the police to no avail because apparently officials in China tend to not interfere with each other and therefore even though she reported to the police, there was no effect at all. She stated that she did move to Shenzhen in the south, about an hour by plane, but due to the Chinese “Hu-Kou” system she could not survive with genuine IDs and later returned to her hometown reluctantly. She stated that she would be harmed or mistreated if she returned to China and that the authorities would not protect her as they had not protected her in the past. She claimed that she could not relocate within China due to the “Hu-Kou” system.
The second named applicant stated in the application form that he was born on [Date] in Fuqing City, Fujian Province, China. He stated that his parents and brother were still living in China. He stated that he had first commenced a relationship with the first named applicant on 15 November 2009 and that they had subsequently married in Australia. He arrived in Sydney, Australia [in] February 2008 on a valid Australian student visa but stated that this visa was cancelled around June 2009 because he was not able to keep up with his study attendance. He indicated that he had only lived at one address in Fujian Province prior to his departure from China. He stated that he had completed primary school and junior high school in China but had withdrawn from high school in January 2008. He also had withdrawn from high school studies in Australia in June 2009. He indicated that he had not worked in China prior to his departure for Australia.
In a statement attached to his application form, the second named applicant stated that he had left China to study in Australia. If he returned to China, he feared there was a likelihood that he may also be persecuted or mistreated by the town government of his partner and referred to the first named applicant’s further statement. He claimed that he had not experienced harm in China in the past and had not been involved in his partner’s ordeal at the time because he had not yet met her. However, he feared mistreatment if he now returned to China because of his partner’s circumstances and did not think the Chinese authorities would protect him and as a Chinese citizen he would have no protection from any foreign government.
The first named and second named applicants provided the Department with copies of their Chinese passports and their Western Australian marriage certificate.
The Department was also provided with a written statement dated 27 June 2017 and signed by the first named applicant which provided further details of her claims.
In this statement the first named applicant stated that in 2012 she was living with her parents in [Town], Guangshan County, Henan Province, China. She claimed that [Town] is a small remote country town where the town governor, [Mr A], was over-enthusiastic in infrastructure development around town in order to apply for more funding from the central government. A number of completed projects have proved to be white elephants without actual practical applications.
The first named applicant claimed that one day in September 2012 they were notified by the county government that for the sake of township development, the land on which her father’s rice fields were located together with all of their neighbours’ vegetable fields were to be acquired by the town government by February 2013 before the Chinese New Year festival. The family block was [number] mu in size and was the only asset her family had, and without it her family would be deprived of their only income. She claimed it was as serious as life and death.
Given that the compensation granted by the government was minimal and could only support their family for less than one year, the first named applicant kept making complaints to the village, town and county authorities appealing to them for financial assistance. But later she understood it was common practice in China that officials would rather not interfere with one another and therefore all her efforts were wasted.
In November 2012, the first named applicant stated that she went to the town government office and confronted the town officials headed by [Mr A] at the entrance of their office building. Even before she had finished her complaints, she claimed that [Mr A] came to her and snapped her heavily on her face. A security guard came forward and beat her up in front of passers-by and she hit the ground and lost consciousness.
The first named applicant claimed that when she woke up, she was lying on the ground of a nearby detention centre. Later the next day she was interrogated by three policemen who claimed she had committed a crime by disturbing social order. She replied that she had come to voice the injustice that the compensation for her family’s block of land was not reasonable and the town government was actually driving them to hunger and poverty. They did not accept her argument and she was beaten again by them in turn until she lost consciousness again and again.
The first named applicant claimed they would beat her by first putting a book on her chest and back before they hit her so it would leave no marking of the beating in the area concerned and yet she would still experience the pain. It lasted for 30 minutes from what she felt, and she was further detained for 15 days without any reason. On the day she was released in late November 2012, one policeman pointed out that she was no match for Governor [A] and she should rather keep her mouth shut and go home.
The first named applicant claimed that after she was released, she formed an action group among her neighbours who were equally affected. Most of them were elderly and non-educated. She started to write to different levels of government and lodged their complaint, aiming to get fair compensation. Police found out about these actions and started summoning her to the police station for interrogations. Through some unknown methods she realised they knew to whom she had sent her complaints and they beat her up again in a cell at the police station.
The first named applicant stated that she did not give up and kept complaining to even higher levels in the government hierarchy. As a result, she was again detained, beaten up and threatened time and again. Every time she was under such ill treatment, she went to another police station hoping to get help but most of the time they were not interested in her case. Or alternatively, once they realised she was up against the town governor, they just recorded the case but gave her no report or investigation result. She felt that she could not rely on the police, or in fact any party, to protect her.
In February 2013, the first named applicant claimed that the town governor sent in a group of policemen and a demolition team to acquire the fields. She organised the villagers and those who were affected to form a human barrier to stop them from levelling the rice and vegetable fields. They did their best to protect their only asset and at the end of the day, and also because of pressure from the media, the town government temporarily suspended the operation.
The first named applicant claimed that in March 2013 her father suffered a stroke, so her mother and she worked to support the family. Her parents were fearful about her future, so they sent her away from home to stay with her cousin in Shenzhen City where job opportunities were plentiful. She stayed in Shenzhen for about a month but because of the Family Registration System or the “Hu Kou” in China, it was difficult for her to rent a house, find a job or receive any social benefits without the proper ID. As the penalty for using a fake “Hu Kou” was so severe she had no choice but returned reluctantly to her hometown in April.
The first named applicant stated that some of her friends suggested to her that she escape from the oppression by leaving China. Later a good friend of hers helped her to apply for a student visa to Australia and it was granted in early May 2013. She took the train to Shanghai before departing China [in] May 2013. At the airport she was asked by the immigration officer to sit aside and wait while they made a few calls before questioning her on her reasons for visiting Australia, what she would be doing there and when she would return. After about 45 minutes she passed through immigration, flew to Australia and arrived in Perth [in] May 2013.
The first named applicant claimed that prior to her departure her parents held a meeting with her and they all agreed that their rice field that the town government was chasing was in fact inherited by her grandfather, who was also a rice grower. Because of this sentimental value, they had a consensus that under any circumstances they would not sell it or exchange it for anything valuable. She therefore asked her father to put the ownership certificate in a safe place and without it, any transaction on land sale would be rather difficult, although not impossible, for a third party or a town government. She also asked her parents to claim that she had taken the ownership certificate with her and fled China so they could expect to be less bothered by the authorities.
While in Australia, the first named applicant claimed that she had kept in contact with her parents by phone on a regular basis. Her mother told her that the government had raised the compensation to a higher level and that all their neighbour owners, expect her father, had already surrendered their ownership certificate to claim their share of compensation. Her father was still sticking to their earlier agreement and declined the offer so they became the only land owners who were not co-operating with the town government headed by governor [Mr A].
The first named applicant claimed that she has reasons to believe that should she go back to China from Australia she was bound to be persecuted by the town government in order to seize her father’s ownership certificate from her with whatever means they can deploy. She stated that this was because of her earlier agreement with her parents that they would not sell the land or exchange it for something else. She also claimed she was pregnant and will give birth to a child soon. She would not like to involve her new-born in this whirlpool of conflicts and result in any possible bodily harm or personal safety issues affecting her child.

The first named applicant therefore urged the Department to assess her case with special consideration as she strongly believed her ordeal would meet the criteria of being an eligible applicant for a permanent protection visa.
It is noted that in the typed statement of the first named applicant referred to above, the year 2013 is on several occasions recorded as 2015. However, the Tribunal accepts the explanation provided to the Department in a Form 1023 “Notification of incorrect answer(s)” dated 27 September 2020 and signed by the first named and second named applicants that this was a transcription or typographical error as it had been difficult for the representative to decipher the figures “3” from “5” based on how the numbers had been scribbled by the first named applicant.
On 15 December 2017, the first named and second named applicants applied to have the third named applicant added to their application on the basis that she is their daughter. The third named applicant was born at [Suburb] in Western Australia on [Date]. No new claims for protection were made on behalf of the third named applicant. Instead, she relied on the claims made by her mother, who is the first named applicant.
The applicants’ representative provided a submission dated 17 September 2020 in response to a request for further information and specific documents from the Department, which had been made on 20 August 2020. In this submission, the representative made the following claims:
·     The first named applicant had hidden the title deeds in a secret hiding place away from home on behalf of her father before she left China but her parents cannot locate the place now even under her guidance.
·     The first named applicant remembers that at the time when she and her family received the compensation offer, they were so upset and angry that it was so minimal so they tore up the offer document and ignored it under stress and emotion.
·     The first named applicant could not provide any copies of letters or petitions she had sent to government officials about the land dispute because although she had asked her parents to search the belongings of hers that remained at home in China, they had not found them.
·     In the absence of the ownership certificate or title deed the first named applicant asked her father to go to the village committee to verify and issue a certifying letter, a translated copy of which was provided with the submission.
·     In response to a request to provide evidence that the first named applicant had formed an action group among neighbours, it was submitted that the first named applicant was not a well-educated person and she did not have or keep any meeting agendas or receipts for expenses spent on formation of the action group. It was stated that it was not a formal group as such, and it had been formed between only 2 or 3 people. The representative stated that the first named applicant had asked one of these people to write a testimonial for her recently, but the person declined due to fear of retribution from the authorities and family safety.
·     In response to a request to provide evidence of being held at a detention centre, the representative stated that no such evidence was available because the police had not issued any arrest warrant before or after the first named applicant’s detention. However, it was stated that the first named applicant could produce a medical certificate issued by the local hospital right after her release from the detention centre. The reason she had this document was because she wanted to keep the document with her to remind her of the ill treatment she had received in this matter.
·     In response to a request to provide evidence of being summoned to appear at the police station, the representative stated that first named applicant explained that the legal system in China was far different from Australia. Police can arrest people in the absence of an arrest warrant, especially in rural villages. This explanation was also offered as the reason for the first named applicant not being able to provide any arrest warrants or charge sheets she had received in relation to this matter.
Together with this submission, the representative provided the following additional documents that had not been previously provided to the Department:
·     A photograph of a field with trees and muddy water, which was claimed to be the rice field of the first named applicant’s father that was the subject of the dispute with local authorities
·     An uncertified handwritten note containing Chinese characters and a seal, with a certified English translation stating:
o   Testimony. This is to certify that [the applicant], female, who identity card number is [Number], has residential address as [Village] Residents’ Group, [Village], [Town], Guangshan County, Xinyang City, Henan Province. Her father is [Mr B], and their family possesses a piece of agricultural land with an area of [number] mu*. The circumstances above are genuine. [Village] Committee (SEAL). 30 August 2020. *Translator’s note: Mu, a Chinese unit of measurement, is equivalent to about 666m2.
·     An uncertified document with Chinese characters and a seal, together with a certified English translation. The translation indicated that the document was a Certificate of Diagnosis from the [Hospital] dated 20 November 2012 and signed by Orthopaedic [Physician]. The document stated that the first named applicant had undergone examination in the hospital on 20 November 2012 with a resultant diagnosis of a minor fracture on her left calf and external injuries observed on multiple parts of her body. It was recommended that the first named applicant rest and recuperate in bed, avoid putting burden on the affected limb and ensure restricted movement, and routine follow-up examinations and consultations recommended whenever experiencing discomfort.
The delegate refused to grant protection visas to the applicants on 23 September 2020.
Application for Review
The applicants applied to the Tribunal for a review of the delegate’s decision on 30 September 2020. The applicants also provided the Tribunal with a copy of the delegate’s decision record and a copy of the accompanying notification letter.
On 23 October 2020, the applicants’ representative informed the Tribunal of the first named applicant’s new email address.
Written Submissions to Tribunal
In a submission dated 12 June 2022, the applicants’ representative summarised the first named applicant’s claims as follows:
·The applicant was born in a farming family of four, including her parents and an elder sister. She objected to the local government’s plan to acquire and develop her family’s only farmland and believed the compensation for the land acquisition was grossly unfair.
·Because her father was in ill health at the time, she represented her household and joined an action group formed by other impacted village neighbours. They went to the town government office to form a demonstration and protest.
·In the middle of the protest, she was apprehended with other participants by the public security (police) officers in plain clothes. She was physically assaulted in the nearby detention centre and lost consciousness.
·When she regained consciousness, she was interrogated by the governor and a public security (police) officer, claiming that she and others had disturbed the public order. She was physically assaulted again and lost consciousness repeatedly.
·After she was released, she did seek medical care and later she decided to write to different levels of government to lodge her complaint and to seek justice.
·As a result, she was later summoned by the police for interrogation and got physical assaults again.
·The applicant did try to report her ordeal to her local and other police stations but they did not want to take up the case and sent her home instead.
·In Feb 2013, the governor sent in a group of police officers and demolition workers to acquire the land. Their action was not fruitful as the applicant and other residents formed a human barrier to deter their demolition attempt. Because of media attention the demolition did not go ahead.
·In March 2013 the applicant was asked by her father to leave her hometown and stay with her cousin in Shenzhen City (7-hour train ride) in southern China to keep safe. However, after arrival the applicant found that she could not find work to survive in a strange city due to her illegal residential status without an official Household Registration paper. She was advised by her cousin to apply to study in Australia to escape for her safety. She followed the advice and after another two weeks she saw no further hope and had no choice but to return to her hometown in April 2013.
·The applicant later applied for a Student visa from Australia and before she left home for Australia, she told her parents to tell the Town government authorities that she had taken with her the “Certificate of the Right to use Land” in order to avoid her family being harassed by the authorities.
·After the applicant arrived in Perth, Australia [in] May 2013, she was in reunion with her boyfriend (now husband) in Perth – the secondary applicant. They studied and took care of each other and when the applicant’s visa expired, she feared she would be persecuted, suffered bodily harm or personal safety risks including, but not limited to, detention, arrest or assault by the local government authorities if she returned to China. The two married in Perth soon afterwards.
·According to the applicant, because of their limited English capability and small social circle in the community, she and her partner had no idea there existed a visa called Protection Visa, which she was eligible to apply to the Department of Home Affairs. It was not until late 2016 in around November, they accidentally saw the ad of their migration agent in the newspaper and had a consultation over the phone then they decided to apply for the Protection Visa.
·Later, as the applicant had fallen pregnant and with a number of sickness associated with pregnancy, the Protection Visa paper application was dragged on and finally it was lodged to the Department on 28 Jun 2017. The application was only acknowledged on 18 Aug 2017 and on [Date] the applicant’s son (secondary applicant) was born.
·On 17 Sep 2020, in response to the department’s s56 invitation, the following documents were submitted by the applicant to substantiate her claim. They were the following:
oThe applicant’s Chinese passport Biometric Page;
oMedical Certificate as proof of medical care sought at hospital after assault;
oA letter issued by the Village Committee of applicant’s village certifying the land ownership of applicant’s father;
oA photograph of the applicant’s farm land in dispute which was remained deserted.
·The applicant’s application for a Protection Visa was refused on 23 Sep 2020.
·They lodged an application for review with the AAT on 30 Sep 2020 and the application was acknowledged by AAT on 1 Oct 2020;
·The applicant has been notified by AAT on 1 June 2022 that a hearing has been scheduled for them in Perth on Monday 20 Jun 2022.
In the submission, the representative outlined the reasons why he believed the applicants should not be returned to China. The representative stated that it was not difficult to see and imagine that the first named applicant would be subject to persecution in the form of physical assault, bodily harm or mistreatment as to endanger her life and wellbeing resulting from possible retribution by the governor of the local town authority. The representative stated that based on the first named applicant’s communications with her parents over the phone, the governor has been doing well over the last few years and was now sitting in an even higher position with stronger power.
The representative stated that every national or citizen of China needed to establish a household registration known as “the Hukou”. It was claimed that without this, it would be extremely difficult if not impossible to enrol in school, find work, build or buy a house, apply for a job or obtain any government benefits or incentives. It was stated that for the first and second named applicants their previous Hukou had long been de-registered whereas for the child applicant, who had been born overseas, it could be hard to apply for a Hukou and without it the child’s future would be doomed. It was stated that this was a nightmare for the applicants.
The representative stated that the first named applicant and her husband have already adapted to living in Australia for over 9 years, their English was improving, and they have made a number of local friends. It was stated that if they were sent back, China will virtually become a strange country to them where their old social circle was gone and they had to start afresh with no job, no money and no friends. It was claimed that it would be very harsh and terrifying for them, let alone their younger child who would suffer most.
The representative stated that in his opinion the applicants had a well-founded fear of persecution and therefore satisfied the criteria to be granted protection in Australia. In the alternative, the representative stated that in relation to whether the applicants would face a real risk of suffering significant harm, as defined in s 36(2A) of the Act, the personal circumstances of the applicant should be taken into account. The representative stated that he found that the first named applicant could not obtain protection from an authority of the country so there was a real risk that they would suffer significant harm under s 36(2B)(b) of the Act and that would mean the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act.
Also provided to the Tribunal, along with the submission, were the following documents:
·A scanned copy of the first named applicant’s Chinese passport biometric page;
·A photograph of a field with trees and water, claimed to be the first named applicant’s family farmland in dispute, which remained deserted;
·A scanned copy of an uncertified and untranslated letter written in Chinese, claimed to be a letter issued by the village committee of the first named applicant’s village certifying the land ownership of the first named applicant’s father; and
·A scanned copy of an uncertified and untranslated document written in Chinese, claimed to be a medical certificate as proof of medial care sought at hospital after assault.
These documents appear to be identical to the documents previously provided to the Department, which included translations of the letter from the village committee and the medical certificate.
On 20 June 2022, immediately prior to the scheduled Tribunal hearing, the applicants’ representative handed the Tribunal a submission dated 19 June 2022. In this submission the representative stated that on 18 June 2022 the applicants’ family members in China had recovered and emailed some crucial documents in support of the application. The representative stated that the documents had been forwarded to a NAATI accredited translator to translate into English and the relevant translations would be provided to the Tribunal in the next few days.
There were 8 documents attached to this submission as follows:
·The passport biometrics page for the first named applicant;
·A photograph of 4 people, described by the representative as a family portrait of the first named applicant with her parents and elder sister;
·A 6-page booklet with a red cover written in Chinese characters and described by the representative as a ‘booklet named the “Permit of the Right to use a Collective Land” outlining details such as the owner’s name, land size, location boundary etc’;
·A picture of a field with trees, shrubs and water described by the representative as being a picture of the farmland in dispute which remained deserted at the time of taking. This picture appears similar or identical to photographs previously provided in support of the applicants’ claims;
·A hand-written document in Chinese characters with a red stamp affixed to it and described by the representative as an official letter from the Village Administrative Committee certifying ownership of the disputed land owned by the first named applicant’s father;
·A document containing typed and hand-written Chinese characters with a red stamp affixed and described by the representative as being a medical certificate from hospital showing proof of bone breakage of the first named applicant;
·A document containing typed Chinese characters and described by the representative as being a CT scan report on the brain of the first named applicant’s father; and
·A document containing typed Chinese characters and a graph, which was described by the representative as being a blood test report on the first named applicant’s father demonstrating his health conditions.
The Tribunal has read and considered these submissions and supporting documents before making a decision in this matter.
First Tribunal Hearing
At the Tribunal hearing held on 20 June 2022, the first named applicant confirmed her date of birth and stated that she had been born in [Town], Guangshan county, Huan Province, China. She stated that her hometown was near to Hubei province. The first named applicant stated that her parents still lived in her hometown and sometimes worked in odd [jobs]. She stated that this work was unstable, so they sometimes travelled to Hubei province for two months at a time to work. She also stated that they had a small plot of land that had been given to them by her mother’s brother. They grew vegetables on this land for their own consumption and to give to relatives. When asked where this land was located, the first named applicant stated that she was not sure but it had been given to her parents by her mother’s brother as his family were not always home.
When asked to clarify if both parents would travel to Hubei for work, the first named applicant stated that only her mother did because her father was sick. She added that her mother could not find a permanent job locally. She stated that her father had suffered a stroke and had a problem with his brain. He had previously been paralysed but now he could walk, although his mind was still not clear. When asked when this stroke happened, the first named applicant stated that it was in March 2013 after conflict about their land, when she had formed a group to protest, and her father was so shocked and worried about these events that he suffered a stroke.
The first named applicant stated that she had an older sister who was around [number] years older than her and had married when she was around [age] years old. She stated that her sister lived in the city of Shenzhen in Guangdong province, China. Her sister had originally worked in Shenzhen and later her parents-in-law had bought her family a house there. The first named applicant claimed that she had been in regular contact with her parents since she arrived in Australia but as soon as she had become pregnant her sister had stopped contacting her.
The first named applicant stated that she had not gone to senior high school in China. After junior high school, she had attended and graduated from a vocational training school that was similar to TAFE in Australia and had studied [Subject]. When asked what work she had done in China after she finished this course, the first named applicant stated that she had worked for a short while in [a] factory but her sister got married and her parents got sick so she had to return home. She claimed that this was around 2009 when her father had suffered a heart attack.

The first named applicant stated that the [factory] was located in Xiamen City, Fujian Province and added that this was like a practicum organised by her training school. She stated that the school was located in Luohe city, Hunan province and was around two to three hours from her hometown. The first named applicant claimed that she lived in accommodation provided by the school when she was studying and claimed that her studies took around two and a half years followed by a six-month placement in Xiamen City for practice. She claimed that she went to this school when she was around [age] years old, after she had finished [high] school.
When asked when she had worked in Xiamen City, the first named applicant stated it was around 2010 or 2011. When asked if this was before or after her father had suffered a heart attack, she stated that it was afterwards and added that they did not tell her initially but when the hospital gave him a diagnosis of serious illness the first named applicant left the city and went back home. When asked to specify exactly when she had left the city and went home, the first named applicant stated that it was in the second half of 2011 or close to 2012 when she went home.
The Tribunal asked the first named applicant to clarify how long she had worked in Xiamen City. She responded that she did not remember clearly because it was too long ago. The Tribunal stated to the first named applicant that earlier in the hearing she had stated that it was for around 6 months as part of a training school placement. She responded that it was around that length and somewhere between half a year and a year but not longer than that. She stated that whilst working in Xiamen City she had lived in accommodation provided by the factory and the cost was deducted from her salary. She stated that the factory was far away from her family home and that she would take a 6-to-8-hour train ride overnight and then a shorter bus trip to get from her workplace to her hometown. She confirmed that travel from her hometown to the factory required an overnight trip.
The first named applicant claimed that after she returned to her hometown around 2011 she only did some agricultural work [on] her family property to help reduce the workload on her parents. She confirmed that she had not suffered any problems when she was living in Xiamen and added the land conflict had not arisen at that time.
The Tribunal asked the first named applicant if she had lived anywhere else in China between her return from Xiamen in 2011 and her departure in May 2013 for Australia. She stated that she had not lived anywhere else during this time.
When asked to outline to the Tribunal in her own words what problems she had suffered in China, the first named applicant stated that in 2012 her family received a notice from the town council that in February 2013 they would come to take away her family’s land and they were prohibited from growing anything on that land anymore. She claimed that the head of the town, [Mr A], worked with land developers but his projects were of no use to local people. She stated that when he gets funds for his projects from the government he spends less and keeps more funds for himself. She stated that her family plot of land was [number] Mu in size and was the only asset they owned so, if he took the land, they would have no source of income. She claimed that the money offered for compensation was so little that it would not fund them for a year, so they objected against this move. She claimed that because of this situation she went to see the village, local and county authorities but they did not take notice of her requests. She stated that in November 2012 she went to the town government where she met with the town head and his associates, but they did not listen to her but beat her up.
The first named applicant claimed that when a security guard saw the head of the town was beating her, the guard also beat her. She was scared and lost consciousness. When she recovered consciousness, she was on the ground in a detention centre, her clothes were torn, and she was in a bad state. She was only [Age] years old and realised what had happened to her but did not know who did this to her. The next day three policemen came and took her to be interrogated. They were very stern and told her that she had disturbed public security. When she told them her concerns, they did not listen to her and after she complained they beat her again. After they had assaulted her, they took her back to detention for another 15 days, and after this assault her mind was not clear. While in detention she was often beaten up, but she did not know who they were and each time she would make herself very small to avoid the effects of the beating. One time, she had heard someone say do not beat her to death or make her an invalid.
The first named applicant claimed that after her release from detention she went home and spoke with other villagers to form a group to protest against the land policy. After they formed the group, they held demonstrations in front of the town administration. She claimed that of the 35 families in the village only 10 were affected by the land claim and of those families 8 or 9 people were at the demonstration. She claimed that during this demonstration the staff tried to persuade them to go away then threatened the group. Some people became afraid and left so only 3 people remained. The first named applicant stated that she was the only woman in this group of 3, and the group was taken away by the police to the station where they were beaten up. She claimed that when she returned home, she was still angry so she sent a written complaint to the town council and the city council. She claimed that after this letter she was again taken away by police and when they took her away, she thought they may deal with the issue but instead beat her up and tried to threaten her. Upon release, she went to complain to a police station in the county, where there was more than one station, but she was told that it was not in their jurisdiction so they were not responsible. Someone told her to go home to wait and they would inform her if there was any news.
The first named applicant stated that in February 2013 the head of the town council sent a group to demolish the land where they grew vegetables and she recognised some of these people as being local rascals. Some of the affected families tried to stop them from coming in and the situation escalated. She claimed that each time the town head comes to start a project he sends a local media group that works for him to report on his work, but because of her group’s objections there was no report and no positive publicity which made the town head even angrier.
The first named applicant stated that in March 2013, after she had been beaten up and persecuted by these people, her father was so panicked and shocked that he suffered a stroke and was paralysed. As he was the main breadwinner, after he fell ill they had no income so she and her mother had to work to support the family. Her mother got diabetes, had poor sight and developed a rash. Because of the situation, they could not find proper jobs and her mother was concerned for her welfare so she sent the first named applicant to her cousin’s house in Shenzhen where she stayed for a month. But in Shenzhen she could not find a job because her ID card had been confiscated by the town council and without an ID card, she could not rent a place to live or get a sponsorship card from the city therefore nobody could hire her for work. She tried to find a job to survive but she couldn’t, so she went back to her hometown. Then she got to know her husband on the internet and he was in Australia. Her cousin suggested she should join her boyfriend in Australia. The first named applicant then stated that she knew her boyfriend for many years from when they were young, so she told him about her problems and he was willing to help her. Her husband organised a student agent, she sent him information and he applied for a student visa on her behalf. The first named applicant stated that she got her Australian student visa in May 2013. She was scared and told her parents of her decision and she arrived in Perth [in] May 2013.
The first named applicant stated that her airfare to Australia was purchased by her boyfriend’s mother and his relatives. She claimed that she went to Fujian and then to the airport in Guangzhou where she departed for Perth. She stated that her parents had never met her boyfriend, but her mother came with her to Fujian to meet his parents. The first named applicant stated that at the airport when she was queuing for immigration everyone else went through easily, but one staff member had been very rude to her and then another staff member had asked her a lot of questions. She was delayed for a long time and it was only when the airport was calling her name that they consented to let her leave.
After a five-minute break, the first named applicant stated to the Tribunal that before she had left China, she and her family had made up a story to tell local authorities that she had taken the land title for the disputed land with her to Australia, however she had really left the title with her sister. She stated that she had been beaten up and persecuted several times and her father had fallen ill. She claimed that other villagers had submitted their land titles to the local government and also claimed that the compensation for the land had been raised but her father refused to hand over his title. She also stated that as a result of the land dispute not going so well for the head of the town council he did not get promoted and was very upset at that.
The Tribunal asked the first named applicant when her family had first been notified of the land claim and she stated that it was in September 2012. She claimed that the communication had happened in various ways with the town council sending people door to door, putting up a public notice and writing about it in chalk on the town blackboard. She claimed that they did not mail a notice as this was not usually done in China and also stated that the family had never been given any written notice about this land dispute. She also stated that the offer of compensation was never put in writing to the family, and they had never received any written notice of an offer of compensation.
The Tribunal asked the first named applicant to clarify how many times in total she had been detained by police. She responded that the longest time she had been detained was 15 days and that on other occasions she had been taken to the station, beaten up and then sent home. She stated that the 15-day detention was in early November 2012 and that it had taken place at the only police station in [Town]. She claimed that she had been beaten up 3 times in total – in early November 2012, in late November 2012 and either in December 2012 or January 2013 when she had lodged a complaint with the town before Chinese New Year.
The first named applicant claimed that she had not been issued with any documents evidencing her detention for 15 days or her release from detention because it was in a small country town where they did not do things according to regulations. When asked if she had ever been charged with, fined or jailed for any criminal offence, the first named applicant stated that she was not sent any documents but each time she was taken to the police station she was told she had committed a crime of disturbing the social order and each time they kept records on their files.
When asked if she had any copies of the petition she had sent to the authorities, the first named applicant stated that she did not. She claimed that she had lodged them by post but did not keep copies. She also claimed that when she was interrogated by the police, she saw her letter on the table, so she knew they had intercepted it. She confirmed that other villagers had accepted a higher compensation offer and had handed over their land but claimed that her father had not been offered any higher compensation and in addition he was not allowed to grow anything on the land. She claimed that every other family apart from hers had now handed over their titles and when asked what had been built on the land over the past 10 years since the original dispute, she stated that there had been no construction but they had extended the public transport roads to replace the old clay roads in the area.
The first named applicant was asked to clarify who now had possession of the title to the disputed land. She responded that it was at their house and her father had kept it. She stated that before she left China, she had taken the title to her sister in Shenzhen and left it with her but now her father had it.
The first named applicant confirmed that she had arrived in Australia in May 2013 on a valid Australian student visa and claimed that she studied here for a while, but her English was poor, and she could not catch up. She also stated that she did not have financial support and her mood was not stable at the time. She claimed that she did not remember when her student visa was cancelled but when the Tribunal suggested that immigration records show it was in February 2016, she agreed that this was the case.
At this point in the hearing the applicants’ representative suggested that there had been some delay in the department processing the applicants’ protection visa application and claimed that the application was lodged on or around 28 June 2017. The Tribunal indicated that it was prepared to accept that this date was correct as it was corroborated by the delegate’s decision record.
The first named applicant was asked if she had received any assistance to complete her protection visa application form. She stated that she had found her representative after she fell pregnant and had been informed by hospital staff that she did not have the correct migration status to be allowed to give birth in the hospital, so she searched and found the representative to help her. She stated that she went to see him, he learnt her story and assisted her to lodge her application for migration. When told by the Tribunal that her application that was the subject of this review was not a migration application but an application for protection, the first named applicant agreed that this was the case.
When asked why she had taken more than four years after her arrival in Australia to lodge her application for protection even though the issues she had claimed to have suffered were in existence upon arrival, the first named applicant claimed that she had no knowledge of Australian law at the time and did not know she could do that. When told that this long delay in lodging her application created concerns that she was not being credible in her claims, the first named applicant stated that she did not really know about a protection visa to protect her and her intention on arrival in Australia was to study to fulfill herself. She claimed that her English was poor, and her financial situation would not allow her to study and also due to the persecution she needed to recover her health. When the Tribunal pointed out to her that in order to get a student visa, she would have needed to demonstrate that she did have the financial ability to support her studies, the first named applicant stated that her mother had got a loan from the bank to guarantee her study and her initial funding was from her boyfriend’s family.
When the Tribunal pointed out that even after her student visa was cancelled the first named applicant still did not apply for protection for almost 18 months, she responded that it was because she did not know Australian law or that there was a humanitarian policy.
When asked whether she was currently working in Australia, the first named applicant stated that after she gave birth she could not find full time work and stated that her husband, the second named applicant, does temporary work [in Work sector]. She stated that she worked occasionally as [an Occupation 1]. The first named applicant stated that her husband was from Fujian province and claimed that she only met him in person for the first time after she arrived in Australia. Before that they had only ever seen each other by video link. She claimed that she first met her husband in 2009 and stated that at the time when they met she was at the vocational school in Luohe City. When asked where her husband was located when they first met, the first named applicant stated that she thought he was in Australia. When the Tribunal pointed out that it would expect the first named applicant to know this detail with some specificity rather than simply think he may have been somewhere, the first named applicant stated that her husband was in Australia at the time. She could not remember which month in 2009 they have first met online however stated that it was in the second half of 2009. When asked when they commenced a relationship as boyfriend and girlfriend, the first named applicant stated that it was sometime between 2010 and 2011 when they were still communicating online.
The Tribunal asked the first named applicant if she had ever met the parents of the second named applicant being her husband. The first named applicant replied no she had not and added that it sounded ridiculous, but she was so young and had no life experience. When asked if she had ever been to her husband’s family home, the first named applicant responded no.
The Tribunal asked the first named applicant to clarify whether she had ever met her husband’s parents or ever been to their family home. She responded that she had not done so until May 2013 and she had not met them before then.
The Tribunal pointed out to the applicant that she had given two directly contradictory answers to the same issue and sought to clarify whether she had ever met her husband’s parents or not. She responded that no she had not. When asked if she had ever met then in May 2013, she again responded that she had not met them.
The Tribunal asked the first named applicant to clarify whether she had ever at any time met the parents of her husband face to face, and she responded that she had not met them before May 2013.
At this point, the Tribunal sought clarification from the applicant as to why she had provided such contradictory answers about a basic fact of her life that she would ordinarily be expected to know. The first named applicant responded that there had been a misunderstanding because in May 2013, before she had left China, she had gone to their house and met them. She added that she had not met them before then.
The first named applicant claimed that her husband had not met her own parents face to face and had only seen them online. She confirmed that both families approved of the relationship and were quite happy they now had a granddaughter, but her mother also wanted her to have a son.
The first named applicant was asked what she feared may happen to her if she returned to China now or in the reasonably foreseeable future. She responded that in 2017 after she gave birth to her daughter, she asked her mother if she could return, but her mother told her no. She claimed that the town councillor had got a promotion and had now become head of the town committee so because of this promotion he had more power, and her mother cannot get proper work in the area. She also stated that her household registration had been cancelled by the head of the town.
When asked if her household registration may have been cancelled only because she hadn’t lived there for so long and she could apply to get it back on return to China, the first named applicant stated no, not really because if she returned home local people won’t offer her jobs and she could not grow anything on her family land. She added that her daughter would also not be registered and would not be able to go to school.

185. Accordingly, based on these findings, the Tribunal is not satisfied that if the second named applicant returned to China now or in the reasonably foreseeable future that he would suffer any harm resulting from his wife’s alleged land dispute with local authorities in her hometown and the Tribunal is also not satisfied that if the second named applicant returned to China now or in the reasonably foreseeable future that he would suffer any harm because his wife’s alleged problems would prevent their family from obtaining household registration, including registering their marriage and the birth of their child upon return to China.
186. Therefore, having considered the second named applicant’s claims individually and cumulatively, the Tribunal is not satisfied, on the evidence before it, that the second named applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
187. For the reasons given above, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the second named 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 being removed from Australia to China, there is a real risk that the second named applicant will suffer significant harm as defined in s 36(2A) of the Act.

189. As discussed above, the Tribunal has already found that the alleged land dispute involving the second named applicant’s wife never occurred as claimed and the Tribunal has already found that the applicant family would not be prevented from obtaining household registration, including registering their marriage and the birth of their child upon return to China. Apart from claims relating to these matters, the second named applicant has not made any claims that he fears harm for any other reason in China, and no other claims arise from the facts before the Tribunal.
190. Having considered all of the second named applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the second named applicant will suffer significant harm if he were to return to China. Accordingly, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
191. The third named applicant is an infant child and has not made any claims of her own. However, her parents (being the first named and second named applicants respectively) have advanced claims on her behalf that if the third named applicant was to return to China now or in the reasonably foreseeable future she would face harm because she may not be able to obtain registration of her birth or household registration, and because she had spent all her life in Australia and would find it hard to adjust to China which would be a foreign country to her.
192. In relation to the registration of birth and household registration, the Tribunal has already found that it is not satisfied that if the first named applicant and her family returned to China now or in the reasonably foreseeable future that they would be denied household registration or would find it onerous or difficult to re-establish household registration, including the ability to register their marriage and the birth of their child. Accordingly, based on this finding, the Tribunal is not satisfied that if the third named applicant returned to China now or in the reasonably foreseeable future that she would not be able to obtain registration of her birth or household registration.
193. In relation to the claims about the third named applicant not being able to adjust to life in China because she had been born and raised in Australia, the Tribunal notes that the child is just under [age] years of age. However, as discussed with the second named applicant at the first Tribunal hearing, both of the third named applicant’s parents are Chinese nationals and native Chinese speakers. They are also the primary carers of the third named applicant. Accordingly, the Tribunal is not satisfied that if the third named applicant returned to China now or in the reasonably foreseeable future that she would be unable to adjust to life in China because she had been born and raised in Australia.
194. Therefore, having considered the third named applicant’s claims individually and cumulatively, the Tribunal is not satisfied, on the evidence before it, that the third named applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
195. For the reasons given above, the Tribunal is not satisfied that the third named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the third named 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 being removed from Australia to China, there is a real risk that the third named applicant will suffer significant harm as defined in s 36(2A) of the Act.

197. As discussed above, the Tribunal has already found that the alleged land dispute involving the third named applicant’s mother, being the first named applicant, never occurred as claimed and the Tribunal has already found that the applicant family would not be prevented from obtaining household registration, including registering the marriage of the third named applicant’s parents and the birth of the third named applicant upon return to China. Apart from claims relating to these matters, no claims have been advanced on behalf of the third named applicant (who is an infant child) that she would face harm for any other reason in China, and no other claims arise from the facts before the Tribunal.
198. Having considered all of the claims made on behalf of the third named applicant individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the third named applicant will suffer significant harm if she were to return to China. Accordingly, the Tribunal is not satisfied that the third named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
199. As the Tribunal has found that the first named applicant does not satisfy s 36(2)(a) or (aa), the Tribunal further finds that the second named applicant and the third named applicant each do not satisfy the criterion in s 36 (2) on the basis of their membership of the first named applicant’s family unit or for any other reason.

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
decision

201. The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Katsambanis
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.
…

[2022] AATA 3773

29 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction