2014745 (Refugee)

2014745 (Refugee) [2022] AATA 3177 (9 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)
CASE NUMBER:  2014745
COUNTRY OF REFERENCE:                   China
MEMBER:Karen Vernon
DATE:9 August 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 August 2022 at 2:02pm
CATCHWORDS
REFUGEE – protection visa – China – political opinion – reported tax official for corruption –warned and detained by police – credibility – undetailed claims and no supporting evidence – departures and returns on own passport – delay in applying for protection – consent to decision without hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1)(a), (4), 36(2)(a), (aa), (2A), 56, 65, 425(1)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Randhawa v MIEA (1994) 35 ALD 1
Subramaniam v MIMA (1998) VG310 of 1997
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 21 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
Background and migration history
According to the visa application, the applicant was born in [City 1], Guangdong Province, China on [Date]. He claims to be a Han Chinese with no identified religion. The applicant’s parents and [siblings] were also born in Guangdong Province, China.
The applicant attended and completed primary and high school in [City 1] from [Year] to [Year].
From 2003 to 2010, the applicant worked in a factory in Dongguan City before becoming a self-employed [Occupation] in [City 1] from 2010 to 2015. He became the manager of a [business] in Dongguan City from 2015 to 2017.
The applicant states that he has never married. No children are listed on the application.
The applicant states that he lived in China from birth until August 2017 when he travelled to Australia. He has travelled to several other countries in the last [Number] years for holidays, including [Country 1] in 2012, and a trip through [two countries] and [Country 1] from 8 to 16 June 2017. He claims that he does not have any other nationality and does not have the right to enter or reside in any other country than China.
The applicant was granted a visitor visa on 16 March 2017 which expired on 15 November 2017. He first travelled to Australia on that visa [in] March 2017 and returned to China [in] April 2017.
According to the Department’s movement records, [in] August 2017, the applicant again arrived in Australia from China travelling on a valid Chinese passport issued [in] 2010, expiring [in] 2020.
Protection visa and delegate’s decision
On 13 November 2017, the applicant applied for a protection visa. He was granted a bridging visa on 16 November 2017.
On 19 August 2020 the Department of Home Affairs (Department) wrote to the applicant (addressed to the applicant’s designated email address) pursuant to s 56 of the Act inviting him to provide additional information in support of his protection visa application, in particular about what happened to him in China, including copies of complaint letters sent to the government, and any copies of arrest warrants or charge sheets.
The applicant did not respond to the Department’s request.
On 21 September 2020, the delegate refused the applicant’s claims on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2) of the Act. In summary, the delegate was not satisfied that the applicant had complained about a local tax official or suffered the kinds of adverse treatment or harassment in China as he had claimed or had any profile that would be of adverse interest to the Chinese authorities or anyone else if the applicant returned to China.
Review Application
The applicant lodged a review of the delegate’s decision with the Tribunal on 1 October 2020.
On 20 June 2022 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 8 July 2022 pursuant to s 425(1) of the Act.
On 1 July 2022 the applicant’s representative advised the Tribunal in writing that the applicant would not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow the applicant to appear.
I am satisfied the applicant does not have any new evidence to present to the Tribunal, and consents to the Tribunal determining the review without appearing before it. This matter has therefore been determined on the information available to the Tribunal.
Evidence before the Tribunal
The evidence available to the Tribunal comprised a copy of the Department’s file (including the application for the protection visa), the delegate’s decision record dated 21 September 2020, and the Tribunal file on the application for review.
ISSUES FOR DETERMINATION
The issues in this review are:
a.whether the applicant is a refugee, pursuant to s 36(2)(a) of the Act; or
b.if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk she will suffer significant harm, pursuant to s 36(2)(aa) of the Act; or
c.whether the applicant is a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act, and who holds a protection visa of the same class as applied for by the applicant, pursuant to s36(2)(b) or (c) of the Act.
For the following reasons, I have concluded that the decision under review should be affirmed.
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 (Regulations). An applicant for the visa must meet one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c) of the Act. That is, the applicant 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.
Refugee criterion: s36(2)(a)
Section 36(2)(a) of the Act 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: s5H(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) of the Act.
Under s 5J(1) of the Act, 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 of the Act, 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.
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation. 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 at 397.
A fear of persecution is not well-founded if it is merely assumed, or if it is mere speculation: MIEA v Guo (1997) 191 CLR 559 at 572.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act, 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) and (c) of the Act.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L of the Act. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
Complementary protection criterion: s36(2)(aa)
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, 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) of the Act.
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.
In MIAC v SZQRB [2013] FCAFC 33 at [246], [297], the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
‘Significant harm’ is exhaustively defined in s 36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’.
Membership of same family unit criterion: s36(2)(b) and (c)
Sections 36(2)(b) and (c) of the Act provide an alternative criterion for a protection visa where an applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa), and who holds a protection visa of the same class as that applied for by the applicant.
Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by r 1.12 of the Regulations.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, 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.
PROTECTION ClaimS
In a statement attached to the protection visa application, the applicant set out the following information in support of his claim for protection:
I am [the applicant], I have been in Australia for a while and I think it is the time for me to talk about my story of what happened in China.
Since ascending to the Chinese Communist Party General Secretary position in late 2012, Xi Jinping’s anti-corruption campaign has targeted widespread graft in Chinese officialdom. Deeply rooted corruption in China contributes to income inequality and compromises the legitimacy of the Communist Party. Skepticism also surrounds the campaign; with experts asking to what extent the campaign is an attempt to reaffirm domestic social power, and whether the campaign is a means to an end, or an end in itself.
I have reported one of the officers in my city, the Tax office, I have known this officer for long time, and I knew he always took the tick back form the companies including mine, therefore, I reported him to the Government, however the officer [Mr A] has noticed this, all the department are connected together, they found I did the report. After that I was warned and taken to the police station, I was in the local police station for over three days.
However, things are never as straightforward as they seem. Ironically, despite the CPC touting in 2016 that more than 1 million corrupt officials had been probed since the campaign’s launch, the scope and length of the anti-corruption campaign has in fact led to an increase in the Chinese population’s perception that the central government lacks the political will to seriously punish corrupt officials – especially at the grassroots level. A 2016 study by researchers at Sun Yat-sen University concluded that the number of reported graft cases in the Beijing prefecture in fact had a positive correlation with perceptions of corruption in the local government and, by extension, failures at the central level. In attempting to separate the wheat from the chaff in his own party, Xi may be inadvertently covering himself in dust.
I have to quickly leave the country after I release, I came to Australia and I can not go back, I am afraid the Government will took me to the detention center and I will lose my freedom for ever.
I am seeking the protection in Australia to let me get away from the persecution, I hope Australia will help me. Thank you very much
In summary, the applicant claims protection based on the following:
a.He believes corruption in China is deep rooted, and he critical of the Chinese government’s anti-corruption efforts;
b.he reported the corrupt activities of a tax officer to the government;
c.after he made the report, the corrupt officer found out, and subsequently the applicant was warned and taken to the police station where he was detained for over 3 days.
ANALYSIS OF EVIDENCE AND FINDINGS
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.
The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically, any and all the allegations made by an applicant: Randhawa v MIEA (1994) 35 ALD 1, 13.
The applicant’s claims are lacking in detail and supporting evidence. The applicant did not respond to the Department’s letter dated 19 August 2020 seeking further information to support his claims, and on 1 July 2022 he declined the Tribunal’s invitation to attend a hearing and requested a decision on the papers.
I am satisfied that the applicant had notice that the Tribunal did not have sufficient information to make a favourable decision on the information supplied by the applicant, that the applicant has had a reasonable opportunity to provide further information to the Tribunal in support of his claims but did not to do so.
Identity and receiving country
The applicant provided the Department with a copy of a valid Chinese passport issued in 2010 with an expiry in 2020, and I note the delegate was satisfied as to the applicant’s identity and nationality.
I am satisfied as to the applicant’s identity and the validity of his identity documents. I find that the applicant has Chinese nationality, and that the receiving country for the applicant on this review is China.
Delay in seeking protection
The application for a protection visa was made approximately 3 months after the applicant arrived in Australia.
In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a 3-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution in the absence of a reasonable explanation.
There is no explanation for the applicant’s delay in applying for a protection visa. I consider that the delay in applying for protection in Australia casts doubt on the genuineness of the applicant’s fear of persecution.
Political opinion about government corruption and government anti-corruption efforts
The applicant states that corruption is deeply rooted in China, however he expresses scepticism around the Chinese Communist Party’s anti-corruption campaign, and states that the scope and length of that campaign has in fact led to an increase in the Chinese population’s perception that the central government lacks the political will to seriously punish corrupt officials.
I accept that the applicant holds strong political opinions about government corruption generally in China, and about the Chinese government’s anti-corruption campaign led by President Xi Jinping. However, there is no evidence before me to suggest that the applicant has made his political opinions known in China, or that he has been openly critical of the Chinese Communist Party or its leadership in such a way as to bring him to the attention of the Chinese authorities.
Reported a corrupt government official to authorities

The applicant says that he made a report to the government about an officer in the Tax Office in his city, for taking a “tick back” from companies like the applicant’s company. I find that the applicant’s use of the expression “tick back” is similar or the same as the Australian colloquialism referred to as a “kick back”, meaning the officer was receiving benefits in the form of monetary payments from companies to which the officer was not lawfully entitled to receive in the course of performing his duties as an officer in the Tax office.
Although the applicant appears to call the tax officer “[Mr A]”, and says that he has known the tax officer for a long time and that the Tax Office is in the applicant’s city, there are no other details provided about when and how the applicant knew the tax officer, how the applicant first came to be involved in giving tick backs to the tax officer, what the tick backs were supposed to be for, how the tick backs were given to the tax officer by the applicant, how many tick backs the applicant’s company gave to the tax officer, when each tick back was made to the tax officer, or how the applicant knew that the tax officer was receiving tick backs from other companies.
The applicant did not provide any details about when the applicant reported the tick backs as corrupt conduct, to whom in the government he made the report, what he included in the report, or how he made the report. The applicant did not provide the Tribunal with a copy of the report he claims he made to the government, in support of his claim.
Based on the limited evidence before me, I do not accept that the applicant made a report to the government about the corrupt behaviour of the tax officer.
Interaction with police
The applicant further claims that the tax officer found out that the applicant had made a report about him because the departments are all connected. The applicant did not provide any details about when and how he learned that the tax officer had found out about the report, or how long after he had made the report when the tax officer apparently became aware of it.
Subsequent to the tax officer finding out that the applicant had made a report about him to the government, the applicant claims he was warned and taken to the police station where he was detained for over 3 days. The applicant has not provided any details about who warned him, what warning he was given, how long after he reported the conduct that he was taken to the police station, which police station he was taken to, why he was detained for over 3 days, or what, if anything, happened to him during his detention.
Having regard to the extremely limited evidence before me, I do not accept that the applicant was warned or taken to the police station and detained for over 3 days.
Is the applicant a refugee under the Act?
According to the Department of Foreign Affairs and Trade Country Information Report on China (22 December 2021) (Country Information), the Chinese government takes corruption seriously as a threat to its legitimacy, and individuals critical of the Chinese Communist Party and its leadership can face detention (para 2.23).
I accept that the applicant fears persecution in China for reasons of his political opinion about corruption generally in China, and about the Chinese Government’s anti-corruption campaign. I find that the applicant does not have a profile based on his political opinions that would be of adverse interest to the Chinese authorities.
The applicant did not allege that he suffered any harm in China by reason of his political opinion about the Chinese government’s anti-corruption campaign or for any other reason. I find that he did not suffer any harm in China because of his political opinion.
I also find that the applicant did not suffer any harm in China by reason of my finding that the applicant did not make a report to the government about the corrupt behaviour of the tax officer, and my finding that the applicant was not warned or taken to the police station and detained for over 3 days after making such a report, or for any other reason.
The applicant says he fears he will be detained and lose his freedom if he returns to China. However, the applicant’s travel history casts serious doubts on the genuineness of his stated fear of returning to China, given that he states he left China for a holiday in Australia for 8 days in March/April 2017 before returning, and again left China for a holiday through 3 [countries] for 9 days in June 2017 before returning to China, all before travelling to Australia in August 2017. Based on the travel history, I find that the applicant’s stated fears are not credible.
Country Information states that exit and entry to China is strictly regulated. The government knows when people enter or leave the country through air and seaports (para 5.31). Exiting China by land outside of border crossings would be very difficult (para 5.34). DFAT assesses it is almost impossible to exit China without authorities’ knowledge (para 5.35).
The applicant’s travel history also suggests that the applicant does not have a profile that is likely to have been of adverse interest to the Chinese authorities, because if the applicant’s political opinions and/or activities were of interest to the authorities, then I am satisfied that he would have been detected by authorities each time he departed China for a holiday, and he would have been prevented from doing so.
Considering the evidence provided by the applicant, individually and cumulatively, I find that there is no real chance that the applicant would be persecuted by the government or any authorities if he returned to China by reason of his political opinions about corruption in China, or the government’s anti-corruption campaign, or for any other reason, now or in the reasonably foreseeable future.
It follows that I am not satisfied that the applicant has a well-founded fear of persecution pursuant to s.5J(1) of the Act, and I am not satisfied that the applicant is a refugee under s 36(2)(a) of the Act.
Is the applicant entitled to complementary protection under the Act?
Having found that the applicant is not a refugee, I have considered whether the applicant is entitled to complementary protection under section 36(2)(aa) of the Act.
Based on my analysis of the evidence and findings above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.
Is the applicant a member of a family unit?
The applicant does not make a claim based on membership of a family unit. As such, no family claims arise in this case.
CONCLUSION
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
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) of the Act. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
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) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Karen Vernon
Senior 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 3177

9 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Standing

Statutory Construction