2016671 (Refugee)

2016671 (Refugee) [2024] AATA 2364 (23 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2016671

COUNTRY OF REFERENCE: China
MEMBER:Paul Windsor
DATE:23 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 April 2024 at 3:28 pm
CATCHWORDS
REFUGEE – protection visa – China – political opinion – protest in Hong Kong – particular social group – returned asylum seeker – detention – physical assault – exit and entry procedures – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 9 May 2019.
In his Protection visa application, the applicant stated he was born on [date] in [a location in] China, is ethnic Han Chinese, has no religion and is married. He indicated he departed China legally from Shenyang, Liaoning province [in] March 2009 and arrived in Australia the same day, entering on a Student visa, after departing Shenyang China. He indicated he returned to China in 2011, 2013-14, 2015, 2016, 2016-17 and 2018-19 to visit family.[1]
[1] See the Departmental file.
In his application, the applicant claimed to fear that he would be tracked down and jailed by Chinese authorities because he went to Hong Kong to join the ‘Occupy Central with Love and Peace’ event and was punched by a local police officer in 2011.[2]
[2] Ibid.
The delegate refused to grant the visa on the basis that the applicant’s claims lack detail or supporting evidence; he did not respond to requests to provide further information; and his ability to depart China lawfully on a genuine Chinese passport in his own identity is inconsistent with relevant country information regarding the inability of people of adverse interest to the Chinese authorities to depart China without coming to attention. The delegate was not satisfied the applicant participated in the event in 2011 as claimed or that he would suffer adverse treatment or harassment in China as claimed.[3]
[3] See the copy of the delegate’s decision record on the Tribunal file.
The applicant sought review of the decision on 16 November 2020. He provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 22 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
The applicant’s claims for protection, as set out in his protection visa application,[4] are summarised as follows:
[4] See the Departmental file.
- He went to Hong Kong to join the event ‘Occupy Central With Love And Peace’. He was punched by the local police officer in year 2011.
- He cannot seek help within the country and does not think the authorities in China can and will protect him because the local authority is the one which punished him and punched him.
- He has tried to relocate but the public security system has ‘the record’ and can track him down everywhere in China.
- He fears that, if he returns to China, he will be caught and put in jail.
Evidence from the hearing
At the hearing, the applicant indicated that everything in his application is true and correct as far as he knows and believes. When asked if there were any mistakes that he wants to point out to the Tribunal he said there were not. When asked if he had any help or assistance in completing the application form, he said a lawyer assisted him. When queried that it was stated in his application form that he did not have any assistance, which seems unusual if a lawyer assisted him, the applicant said he was in Hong Kong at the time and may have been ringing the lawyer seeking their help. He commented that he can’t recall clearly. When asked if he paid for this assistance, he said he did not, because the person was his friend.
The applicant confirmed the advice in his application that he married [in] November 2009. He indicated his wife is still in Australia. He said she used to be [an occupation 1] but is now studying and is on a Student visa. He said she is home at the moment as she injured her hand. When asked, he indicated he has one child, aged [age], who is also in Australia.
The applicant said he has his parents and [a sibling] in Liaoning province in China. He said he is in contact with them every 1-2 weeks.
Contrary to the advice in his application form (but consistent with Departmental movement records), the applicant said he first came to Australia in March 2010. He acknowledged that the date given in the application is a mistake. He indicated that he was on a Student visa for a time, as a dependent of his wife, but then held a subclass 457 Temporary Work (Skilled) visa for about four years. The applicant indicated later in the hearing that he has remarried since he came to Australia and his current wife has a different name to the person listed in his application. He said he was on a subclass 457 visa as a dependent of his first wife and she ‘removed’ him from her visa when they separated. When asked why there is no mention of his second wife in his application, he said they married after the application, in [year], when his child was born.
When asked why he applied for a Protection visa on 9 May 2019, the applicant said it wasn’t his plan to seek Protection but he was in Hong Kong and was arrested as if he was ‘a culprit’. He said he rang his lawyer friend who helped him come back to Australia. As his application indicated he was in Hong Kong in 2011, the Tribunal asked him when he was in Hong Kong. He said he thought it was 2018 or 2019, and then settled on 2019. When pressed to be more specific, he said he thought it was maybe in March or April 2019. When asked what he was doing in Hong Kong, he said he went there for a holiday.
Given the delegate’s concerns that the applicant had not provided any evidence in support of his claims when requested to do so, the Tribunal asked the applicant if he has any evidence that he was ever in Hong Kong. He said he only has one photo. When asked if he ever got a stamp in his passport when he went to Hong Kong, he said he did but he no longer has his passport as it expired and the Chinese consulate retained it when he tried to get a new one. He commented that his visa expired in 2020 and he tried to apply for a Student visa but the consulate thought that was illegal so held his passport. When asked why that would have been of concern to the Chinese consulate, he said it was because he had applied for a Protection visa. When queried further, he indicated that Australia immigration authorities told him he was not eligible to apply for Student visa because he had made a Protection visa application. He said when he sought a new passport from the Chinese authorities, they asked him what visa he had applied for, he indicated he showed them a letter from the Department and was told that he could not hold a Chinese passport while he held that visa.
The Tribunal observed that what he has told the Tribunal at the hearing is very different to the claims in his Protection visa application, where he stated he went to Hong Kong in 2011 rather than in 2019; and indicated he went there to participate in the ‘Occupy Central With Love And Peace’ event rather than for a holiday. The applicant said he can’t recall when it was. When the Tribunal observed it is a difference of eight years he said he was there once in 2011 but the incident was in 2019.
When asked what the incident in 2019 was, the applicant said he went to Hong Kong on vacation, nothing else. When queried why he had indicated previously that he had trouble getting out of Hong Kong, the applicant said someone was making a mess in Central and he was in the crowd and was arrested. When asked why he was arrested, the applicant said it was ‘maybe’ because they thought he was a leader. When asked why they might have thought that, he said because he spoke to the people who were protesting for the independence of Hong Kong. When asked why he spoke to them, he said it was because he didn’t like them and he had an argument and altercation with them because they were creating chaos.
When asked why that would have got him arrested, he said he was arrested by the local police and the others ran away. When asked if he was charged with anything, he said he was not. He indicated the police said he was one of the people who was advocating independence for Hong Kong. When queried that he had indicated he was opposing that, he replied, ‘correct’. When asked why, in that case, the police would have thought he was advocating for Hong Kong independence, the applicant said they thought he was the leading person. When asked why they would have thought that was the case, the applicant could not say.
The Tribunal asked the applicant how long he was held for. He said it was about three days or so. He said he contacted his friend, who suggested he apply for a Protection visa, and he was released after that. He said he showed the police the Protection visa application. The Tribunal observed the application was made on 9 May 2019, after he had returned to Australia, noting that a person must be in Australia to make a valid Protection visa application. The applicant commented that maybe his lawyer friend sent him some material for the lodgement. The Tribunal commented that it does not seem to make sense that Chinese authorities in Hong Kong would have released him because he told them he was making a Protection visa application in Australia. The applicant said many were arrested, including mainland Chinese, and he was only released after he said he was from Australia.
The Tribunal asked the applicant what he did after he arrested. He said he came back to Australia. The Tribunal asked him if he departed from Hong Kong itself. He said he did. The Tribunal put to the applicant for comment or response, in accordance of the requirements of s 424AA of the Act, that Departmental movement records indicate that he returned to Australia [in] February 2019 on [a specified flight number] from Guangzhou. The applicant indicated he understood why this information was relevant to the review and wished to comment immediately. He said he flew from Hong Kong to Guangzhou and then to Australia. When asked why he indicated previously that he flew directly from Hong Kong to Australia, he said misunderstood the question and forgot he went back to China.
The Tribunal asked the applicant if he was harmed at all when he was in Hong Kong. He indicated he was not. The Tribunal observed that in his Protection visa application he stated he was punched by a local police officer in 2011. The applicant said he thinks there was a fight when he was in Hong Kong in 2011 and he hit the person back. He said he was buying something and thought he was scammed and they had a fight. The Tribunal observed that there was no mention of this incident in his application. He commented that ‘maybe’ he did not include that.
The Tribunal asked the applicant what he fears if he had to return to China now. He said he is worried that China won’t accept him because he applied for a Protection visa. He said his family has told him they are checking on him at his home currently. The Tribunal queried why they would be checking on him now when he indicated that he was released after 3 days. He said he was released by the Hong Kong police. The Tribunal commented that the Hong Kong police are now working closely with the Chinese police. The applicant maintained that ‘lately’ someone has been checking on him at his parents’ home, asking why he is still overseas.
The Tribunal shared with the applicant advice from the current DFAT Country Information Report regarding Chinese exit and entry procedures and treatment of returnees.[5] In relation to the former, the advice indicates that exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from tax, customs, police or judicial authorities. This technology is used to create an exit control list. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list. If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT assesses it is almost impossible to exit China without authorities’ knowledge.
[5] DFAT Country Information Report, People’s Republic of China, 22 December 2021, sections 5.28 and 5.31-5.35.
In relation to returnees, DFAT indicates that Chinese authorities may know that applicants have applied for asylum and are likely to be aware of the behaviour of Chinese asylum seekers while they are outside of China. DFAT indicates it has no information to suggest that failed asylum seekers returned to China are targeted by authorities merely for having sought asylum.
The Tribunal commented that the country information indicates it is most unlikely he would have been allowed to leave from Guangzhou [in] February 2019 if he was of interest to the Chinese authorities, and that people are not targeted on return to China merely for having sought asylum in Australia.
The applicant said his father and mother told him if a person seeks protection their immediate family members are not able to become government officials or serve in the army. When asked how that affects him, the applicant acknowledged that it doesn’t. He said his immediate problem is that the Chinese authorities are declining to issue him a new passport. He added that he is planning to return to China but his wife and child do not want to, commenting that his wife’s employer is looking to get her a new work visa. He asked for advice regarding his options. The Tribunal suggested he consult a Registered Migration Agent or accredited Australian Legal Practitioner if he wishes to obtain advice regarding his immigration options.
Findings and reasons
Identity
On the basis of the certified copy of the biodata page of his passport submitted to the Department,[6] the Tribunal accepts that the applicant is a citizen of China and that his identity is as claimed. The Tribunal accepts that China is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[6] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of China, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
The Tribunal finds the applicant is [an age] year old ethnic Han Chinese, married man from Liaoning province in China.
The applicant claims to fear harm if he was to return to China because he was caught-up in a protest in Hong Kong and detained by the police there.
The Tribunal found the applicant’s evidence in relation to this matter to be vague, inconsistent and generally unconvincing. The Tribunal found his oral evidence was not spontaneous but altered in response to the Tribunal’s questioning.
The applicant provided no detail or evidence in support of his claims, including in response to requests from the delegate, as set out in the delegate’s decision record, to provide further detail, evidence and to comment on adverse information (in relation to his having returned to China on multiple occasions between 2011 and 2019).
The Tribunal found the applicant’s evidence at hearing differed from his written statement of claims in significant and material respects. In his written statement of claims he indicated he attended an ‘Occupy Central With Love And Peace’ event in 2011 and was punched by a local police officer. He stated the authorities want to punish him. He stated that he tried to relocate in China but ‘the public security system has the record and track me down everywhere in China’. At the hearing however, he made no mention, until this was put to him by the Tribunal, of having been in Hong Kong in 2011, having attended an ‘Occupy Central With Love And Peace’ event or having been punched by a police officer. At the hearing, the applicant said he went to Hong Kong for a vacation in 2019, nothing else. He said he was not harmed. Contrary to the advice in his application, the applicant said at the hearing that he had assistance from a lawyer friend in preparing the application. He did not satisfactorily explain, however, why the written statement of claims should be so different to his oral account at the hearing just because he had assistance from a lawyer friend.
Rather than state that he was supporting a pro-independence event in 2019, the applicant said he confronted the protesters because he didn’t like them causing chaos. Improbably, he stated he was then arrested and held for three days because the authorities thought he was the leader of pro-independence protesters.
The Tribunal also found unconvincing the applicant’s claim at the hearing that he was released because the authorities found out he was planning to apply for protection in Australia. It seems highly improbable that this would have been the case. Firstly (and contrary to his initial comment at the hearing that he was in Hong Kong in March or April 2019), he returned to Australia [in] February 2019 (and has not departed since), three months before he made his Protection visa application. Second, he has not advanced any plausible reason why the Chinese authorities would have released him if they thought he was a security threat, just because he told them he was going to apply for protection when he returned to Australia.
Given the relevant country information discussed with the applicant, the Tribunal finds the fact the applicant departed China from Guangzhou in Mainland China to return to Australia [in] February 2019, and experienced no difficulties departing China, is strongly indicative of him being of no ongoing interest to the Chinese authorities.
The Tribunal accepts that it is possible that the Chinese authorities have declined to issue the applicant with a new passport at this time, while his ongoing status in Australia is unresolved. Noting the country information discussed with the applicant at the hearing regarding returned asylum seekers, the Tribunal does not accept, however, that the Chinese authorities would not accept him back to China or issue him a passport or temporary travel document to facilitate this, once his ongoing visa status in Australia has been resolved.
Given its findings above, the Tribunal does not accept the applicant’s evidence late in the hearing that the Chinese authorities have been inquiring about him to his parent’s recently.
The Tribunal accepts that it may be the case that the Chinese authorities will not allow family members of people who have sought protection overseas to serve in government positions and in the armed forces and accepts that this would likely also apply to the applicant if he returned to China, but does consider this amounts to persecution involving serious harm or significant harm. The Tribunal notes that the applicant has indicated he has been working as [an occupation 2] in Australia.
The Tribunal accepts that it is possible that the applicant may have visited Hong Kong in 2011 and/or in 2019 (or on other occasions), but does not accept that he was involved in any protests (or in opposing any protest activity) or that he was ever detained or arrested by the authorities there, or ever punched by a police officer. The Tribunal does not accept that the applicant ever tried to relocate within China or that Chinese authorities are looking for him and wish to punish him. The Tribunal does not accept that the applicant will be caught by the Chinese authorities and put in jail if he returned to China.
Does the applicant have a well-founded fear of persecution if he returned to China?
Having considered the applicant’s claims, the Tribunal does not accept there is a real chance that the applicant will suffer persecution involving serious harm from the Chinese authorities, or any other authority, organisation, person or group, for one or more of the five reasons mentioned at s.5J(1)(a), if he was to return to China, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to China, the Tribunal has noted that in MIAC v SZQRB, 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 relation to the ‘refugee’ criterion.[7]
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Significant harm is exhaustively defined in s.36(2A): s.5(1). 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.
Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
Considering the applicant’s claims and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from the Chinese authorities, or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
Member

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

[2024] AATA 2364

23 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness