2017544 (Refugee)

2017544 (Refugee) [2022] AATA 3030 (25 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Rabiah Khawala (MARN: 1799908)
CASE NUMBER:  2017544
COUNTRY OF REFERENCE:                  China
MEMBER:Dominic Triaca
DATE:25 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 August 2022 at 4:02pm

CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – conflict with town leader about sewerage – accused of assault, threatened and beaten, and family members beaten – accusations cleared by public security bureau – discrimination by employers and social media accounts blocked – credibility – delay in applying for protection and no independent evidence provided – relocation and multiple overseas trips to work – elapse of time and no current knowledge about town leader – applicant’s responsibility to specify particulars and establish claim – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J, 5H, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
AIE15 v Minister for Immigration (2018) FCA 610
AKH16 v MIBP (2019) 269 FCR 168
AON15 v MIBP (2019) 269 FCR 184
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
SZGHS v MIAC [2007] FCA 1572
MIAC v SZQKB (2012) 133 ALD 495
MIEA v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445
MIEA v Guo (1997) 191 CLR 559

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 November 2020 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s. 65 of the Migration Act 1958 (the Act)[1]. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611
The visa applicant applied for a visa on 12 February 2018. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s.36(2) (a) or (aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).

The applicant appeared before the Tribunal on 17 June 2021 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

For the following reasons, the tribunal has concluded the decision under review should be affirmed.

RELEVANT LAW

The criteria for the grant of a protection visa are set out in s. 36 of the Act and Schedule 2 of the Regulations. An applicant must establish that they are a non-citizen of Australia and that they are either:
(a)A person in respect of whom Australia has protection obligations because that person is a refugee (the refugee criterion)[2];
(b)A person in respect of whom Australia has protection obligations because of other complementary protection grounds (the complementary protection criterion)[3]; or
(c)A member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion)[4].
[2] Migration Act 1994 (Cth), s 36(2)(a)
[3] Migration Act 1994 (Cth), s 36(2)(aa)
[4] Migration Act 1994 (Cth), s. 36(2)(b),(c).
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 protection in that country.[5] 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 they are unable or unwilling to return to that country.[6]
[5] Migration Act 1994 (Cth), s 5H(1)(a)
[6] Migration Act 1994 (Cth), s 5H(1)(b)

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.

The term persecution is not expressly defined in the Act. The term persecute is not defined in the Act. The standard Australian dictionary, the Macquarie Dictionary, defines the verb to "persecute" as "to pursue with harassing or oppressive treatment; harass persistently" and relevantly, "to oppress with injury or punishment for adherence to principles".[7]
[7] See Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at [61] to [65] for a detailed discussion of the meaning of persecution.

Section 5J of the Act states that for the purposes of the application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race nationality, membership of a particular social group or political opinion’ and that there is a real chance they will be persecuted for one or more of these reasons in the event they return to their receiving country. The real chance of persecution must also relate to all areas of the receiving country.[8]
[8] Migration Act 1958 (Cth) s5J(1)(c)

In Chan v MIEA[9] the Court, when considering ‘well-founded fear’ for the purposes of the Refugee Convention, held that it involves both a subjective and objective element.[10] Mason CJ said at 389:... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. Dawson J said at [397] ‘Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear ‘and at 398 that a “real chance is one that is not remote regardless of whether it is less or more than 50%”. Toohey J said at 407:The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. McHugh J said at 429:...a fear may be well-founded for the purposes of the Convention and Protocol even though persecution is unlikely to occur...an applicant for refugee status may have a well-founded fear of persecution even though there is only a ten per cent chance that he will be...persecuted.
[9] (1989) 169 CLR 379
[10] the meaning of “well-founded fear of persecution”, and “real chance” of persecution were the subject of earlier judicial commentary when the applicable tests were found in the Refugees Convention. Those authorities remain apposite. In AKH16 v Minister for Immigration and Border Protection[2019] FCAFC 47; (2019) 269 FCR 168 (AKH16) (Besanko, Middleton and Mortimer JJ) and AON15 v Minister for Immigration and Border Protection[2019] FCAFC 48; (2019) 269 FCR 184 (AON15)(Besanko, Middleton and Mortimer JJ) the Full Court usefully discussed some of the main authorities.

The Act provides that a person is only considered to have a ‘well founded’ fear of persecution if three elements are satisfied.
(a)They fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;[11] and
(b)There is a real chance that, if they are returned to their home country, they would be persecuted for one or more of those reasons;[12] and
(c)The real chance of persecution relates to all areas of the receiving country.[13]
[11] Migration Act 1958 (Cth), s 5J(1)(a)
[12] Migration Act 1958 (Cth), s 5J(1)(b)
[13] Migration Act 1958 (Cth), s 5J(1)(c)
In the event that a person fears persecution for one or more of the prescribed reasons, the Act imposes the following three further requirements[14]:
(a)The identified reasons(s) for the persecution must be the essential and significant reason(s) for the persecution;
(b)The persecution must involve serious harm to the person; and
(c)The persecution must involve systematic and discriminatory conduct.
[14] Migration Act 1958 (Cth), s 5J(4)(a)(b)(c)
A person will not have a well-founded fear of persecution if effective protection measures are available to the person in their home country or if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in their home country.[15] In determining whether a person has a well-founded fear of persecution, any conduct engaged in by that person in Australia is to be disregarded unless the person satisfies the tribunal they engaged in the conduct otherwise then for the purpose of strengthening their claim to be a refugee.[16]
[15] Migration Act 1958 (Cth), s 5J(2) and (3)
[16] Migration Act 1958 (Cth), s 5J(6)
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 gran 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 consequences 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 36(2B) of the Act respectively, extracted in the attachment to this decision.

An applicant is considered not to be at real risk of suffering significant harm in a country if it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm[17],or the tribunal is satisfied that the applicant could obtain protection from an authority of that country such that they would not be a real risk that the applicant would suffer significant harm or the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally . That is, the level of protection must be such that the risk that the applicant will suffer significant harm is less than a real risk.[18]
[17] Migration Act 1958 (Cth), s.36(2B)(a)
[18] Migration Act 1958 (Cth), s.36(2B)(b).

The tribunal has concluded that the decision to refuse the applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:
(a)The delegate’s decision record;
(b)The applicant’s original written visa application;
(c)The oral evidence and arguments of the applicant presented at the hearing;
(d)All written material filed by or on behalf of the applicant in relation to this case;
(e)Other relevant documents on the Tribunal and Department files;
(f)The ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs’[19];
(g)Country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, also mandatory considerations under Direction No. 84.
(h)Detailed written submissions prepared by the applicant’s representative;
(i)Post hearing statutory declaration, written submissions and annexures submitted by the applicant.
[19] These are mandatory considerations as prescribed by Ministerial Direction No. 84, a direction made under s.499 of the Act (Direction No 84)
Not all the evidence and material that has been placed before the tribunal is specifically referred to in the tribunal’s reasons set out below. The reasons refer to information that is materially significant to the determination of the issues at hand.

CONSIDERATION OF CLAIMS AND EVIDENCE.
Applicant’s Background.

The applicant is a [Age] year old citizen of China. He states that he comes from the Jiangsu province. He provided a copy of his passport to the Department corroborating this claim. He does not claim to hold citizenship of any other country.
The applicant arrived in Australia in November 2017 on a Visitor (subclass 600) visa – tourist stream. The applicant lodged his application for Protection (subclass 866) visa and associated Bridging visa on 12 February 2018. He has remained in Australia since that time.

Protection Claims.

The applicant’s claims are summarised and set out in the delegate’s decision as follows:
(a)He left China because he was always being discriminated by people. He stated that he is looking for a place where he has freedom of speech.
(b)He cannot seek protection from the authorities because the government cannot take care of its people due to China’s large population.
(c)He is unable to relocate as people are restricted to other provinces.

The applicant submitted a separate statement, set out in the delegate’s decision as follows:
(a)He grew up with his mother, father and sister. He is married with two children. His wife and child live in the countryside away from where they used to live.
(b)Due to the issues with the village's sewage channel in [Year 1], he had a conflict with the town head who was known to use his power to take revenge on people he is in conflict with. As a result of this conflict, the police wanted to arrest him for assaulting the town head.
(c)After 1 year since he hid from the authorities, he visited the police station to clarify the accusation against him as advised by his parents. He was threatened and beaten at the police station, but he managed to escape. He was further accused of assaulting police. When the police came to his house the next day, he again managed to escape from them.
(d)After several attempts, his family’s complaint was dealt successfully by the public security bureau and all the accusations against him were cleared.
(e)His mother was assaulted by the town head and other family members, and was hospitalised due to the injuries sustained. His family won the case throughout the courts and the town head was imprisoned for a few days. After being released from prison, the town head vowed to take revenge on the applicant’s family.
(f)He moved to Shanghai, and the rest of his family left their house due to concerns regarding the town head’s threats.
(g)Whilst in Shanghai, his social media account was blocked for posting information about his personal experience and views. He was vocal in his opinions and, as a result, was insulted, abused and attacked in social media by some people. He felt lonely and abandoned by society.
(h)He was invited to the police station for the comments he published online, and was verbally abused, and beaten by the police. He was not detained due to his relatives help, but was warned not to publish similar comments again.
(i)He experienced discrimination and unfair treatment from his employers when he worked in China, [Country 1] and [Country 2].
(j)He wanted to escape China because he did not feel safe, and felt that he did not have any dignity or freedom to tell the truth.
(k)He went to [Country 3] to seek information about applying for a protection visa but was deported back to China as his visa was only valid for a month.
(l)He borrowed money from the bank to come to Australia. He arrived in Sydney, took a flight to [city] and worked on a farm.
(m)He fears harm from the Chinese government as they would suppress his online comments. He also fears the town head.
(n)His cousin’s wife had an accident, and his uncle was sent to the police station and was abused. His family continue to live in hiding.
(o)He is worried to go back to Chinas as a felt he had been abandoned by society and pushed aside by other people.
(p)He cannot avoid harm by the police because of the internet.

The applicant was sent an invitation to provide further information by the Department in accordance with s.56 of the Act. He responded to the Department and provided further information as follows:
(a)In [Year 1], he lived at [Address] [Village], [township], Peixian, Jiangsu, China.
(b)His family moved out of their town between [Year 2] and [Year 3]. They currently live in Pei County, in Jiangsu Province. His mother is still hiding from the town head since she was assaulted. He moved to Shanghai in 2003 and lived there until 2008.
(c)He cannot provide copies of court documents regarding his dispute with the town head as the documents are very old and his family could not find them. It is very dangerous for him to try to retrieve the document from China.
(d)He did not mention his discussions with the government officials regarding the dispute with the town head because the ‘discussions were very shameless’.
(e)Despite 22 years have passed he will be harmed by the town head, who has threatened to harm him. The town head had also taken revenge on other people.
(f)There have been no incidents of harm sine he moved to Shanghai or Australia, but authorities have banned his [Social media 1] and [Social media 2] accounts.
(g)The Chinese authorities cannot find him and his family so they targeted his cousin’s wife and uncle.
(h)Between 2012 and 2013 he was taken to the police station at Pei County, [Town] due to his posts on social media. He was not arrested, but stayed at the police station for an hour.
(i)His [Social media 1] and [Social media 2] accounts were blocked and he cannot publish truthful information on social media. If he returns to China and lives in remote areas, the authorities will find him if he publishes his views online, and eventually he will be killed.
(j)He will continue to publish online how individuals are treated unfairly. He has been posting on [Social media 2] and [Social media 3] while in Australia.
The applicant’s representative provided a submission to the Department, which is summarised in the delegate’s decision as follows:
(a)The applicant has a well founded fear of persecution in China due to, an actual and/or imputed anti government political opinion; and as a member of a particular social group being an individual who fears harm from the head of his village.
(b)He fears harm from the Chinese Government and their agents such as the National Security Bureau and police force because of his conflict with them and his political opinions. He fears he would be arrested and tortured and believes he would disappear.
(c)The applicant has suffered past harm which is an indication of future risk of harm.
(d)The applicant’s discussion of his anti-political views on social platforms would render him more susceptible to state persecution.
(e)If forcibly returned to China, the applicant will not be able to avail protection form the authorities as he fears harm from the authorities. He will not be given a fair trial due to the prevalence of corruption and lack of independence within the judicial system.
(f)If he returns to China, the applicant will more likely attract the attention of state authorities as he fears harm from the authorities. With the advance tracking system implemented, he would be unable to internally relocate.

In this submission, the agent provided several pages of country information about past harm as a future risk of harm, general human rights, persecution of individuals inciting anti-political views, and high corruption rates in police and judicial system in China.
Prior to the hearing, on 10 June 2021, the applicant’s representative filed a detailed (42 page) written submission with the Tribunal, together with a statutory declaration declared by the applicant. The tribunal has read and had regard to these documents.

Following the hearing, with leave of the tribunal, the applicant’s representative filed a further written submission dated 29 June 2021, together with a further statutory declaration of the applicant in which he sought to address matters raised during the hearing. The tribunal has read and had regard to these documents.
At the hearing before the tribunal, the applicant gave oral evidence which I summarise as follows:
(a)   He has worked extensively throughout his adult life in many different jobs. Whilst he said he could not remember all his various jobs over 20 years, a potted summary is as follows. He has worked in ‘all sorts’ of employment. He worked as [an Occupation 1] in Shanghai in [Year 2] -[Year 3], worked for a labour agency in 2004; worked in a factory in Shanghai in relation to [Work sector 1] (2007-2008); worked in Changsha (2011-2012); worked overseas for several periods including work in [Country 1] in [Work sector 2]; worked in [Country 2] [in Work sector 3] in 2014; worked in [Country 3] in 2017. His overseas work is interspersed with further work in China including work in Nanjing province. He currently works in [Work sector 2] in Melbourne as [an Occupation 2].
(b)   When he first arrived in Australia, he did not apply for protection immediately. He went to work on a farm.
(c)   He is married. His wife and two children remain in China in the Pei County. He would like them to come to Australia to join him.
(d)   He says that he ‘would not dare’ return home to China. When asked why, eh said that he was chased and abused by the town leader. He went into hiding. He has published anti-government political opinions on social media including the “[Social media 1] platform”. He says he was arrested and beaten up badly for publishing an inappropriate political opinion on the [Social media 1] Account.
(e)   He says he was arrested by police and warned. He was subsequently ‘let go’. This was before he travelled to [Country 2] for work and after he had returned from [Country 1].
(f)    He gave a detailed account of his dispute with the ‘town leader’ which dates back to [Year 1]. He says that in the pouring rain he became involved in a neighbourhood dispute about drainage in the corn fields and on the wrong side of the ‘town leader’. He said that following this incident his family was targeted by the town leader, including his mother being ‘almost beaten to death’. He says that his mother was injured and hospitalised and his family fled the local area.
(g)   He says that the town leader ‘did not win’ and ‘lost face’.
(h)   Following the initial incident, the town leader used his influence to have police arrest him. Charges were withdrawn and there is no independent evidence that supports these claims. The town leader threatened him.
(i)     He says that he was involved again with police in about 2013 when they questioned his social media activity. He feared the government at that time. He says that it is ‘too late’ for him to stop posting anti-government opinions on social media as he has now been doing it for a decade. He says he could not stop posting on social media. He says that Chinese internet controls are ‘tighter and tighter’ and he is concerned that he would be ‘investigated’ upon his return. He fears that Chinese authorities have monitored his social media activity.
(j)     He says that he is unable to relocate within China. He says that he could not live with his wife and children in their current location within China.
(k)   He claims to have been arrested in about 2015 or 2016 in Pei County. He says that he finished work and was waiting for a bus when he was asked by police to accompany them. He says he called his wife and told her ‘not to worry’. He was asked to empty his pockets, and provide authorities with his mobile phone. He was warned about his social media activity. The police demanded he ‘admit’ his ‘illegal activity’ in order to receive a ‘lighter punishment’. He says that 2 police officers beat him with sticks whilst he was handcuffed.

Country Information.

The Department of Foreign Affairs and Trade (DFAT) most recently published an information report about China in October 2019. That report provides the following information that is potentially relevant to the applicant’s case on review,[20] where it is relevant, that information is referred to in the body of this decision.
[20] Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China (3 October 2019).
The delegate’s decision also set out a summary of the available country information in relation to difficulties facing Chinese citizens who voice their political opinions. The applicant’s submissions provided further country information which I have read and had regard to.

Analysis of Evidence and Factual Findings.
Credibility.

When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
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'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant 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^.[21] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[22]
[21] Migration Act 1958 (Cth) s.5AAA
[22] MIEA v Guo (1997) 191 CLR 559 at 596

A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility[23]. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[23] Minister for Immigration and Ethnic Affairs and McIlhatton v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445 per Foster J at p.482

If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt where they are unable to fully substantiate their claims[24]. However, such a benefit should 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.
[24] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3]
The tribunal is not obliged to assist the applicant make their case. Nor is it required to accept uncritically and or all of their claims. It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[25]
[25] Migration Act 1958 (Cth), s.5AAA(2)

Identification.

In this case, the tribunal is satisfied that the applicant is a citizen of China and of his general personal background as described by the applicant tin his evidence before the Tribunal, and the delegate and his original protection visa application. In this respect the tribunal finds:
(a)The applicant is a citizen of China.
(b)China is the country of reference for the purpose of assessing his application against the criteria for the grant of a Subclass 866 visa.

Factual Findings and Analysis

Broadly, the applicant’s evidence fell into two categories, which I address separately. The first relates to his fears of the ‘town leader’. The second, his fear of harm in relation to his ‘anti-political sentiments’ which includes an incident of harm in China and his concerns relating to social media postings. He says that due to both of these issues, he is unable to relocate within China.
The determinable issue in this case is whether the applicant’s fear is well founded for the purposes of the definition in 5J of the Act. Relevantly, the question is whether there is a real chance he will be persecuted on the return to China, which must involve serious harm and systematic and discriminatory conduct. the Tribunal is required to assess an applicant’s claims to have a well-founded fear of persecution by reference to the reasonably foreseeable future and not merely the immediate future or the present situation: SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 (SZGHS) at [2] (Allsop J (as his Honour then was)); Minister for Immigration and Citizenship v SZQKB[2012] FCA 1189;(2012) 133 ALD 495 (SZQKB) at [41] (Yates J). [26] The risk must relate to all areas of China.
[26] AIE15 v Minister for Immigration & Anor (2018) FCA 610 per Perry J at [26] to [28]).

Fear of the town leader.

The applicant says that in [Year 1] the applicant became involved in a dispute with the town leader or ‘head of the village who is the person who deals with the issues of the village’. The genesis of the dispute was a broken sewage channel which resulted in water not getting through and killing crops. The applicant went into the field and unblocked the sewage channel, which was met with strong resistance by the head of the village. The applicant claims that he was verbally abused and hit with a spade. He also says that the town leader threatened to kill him.
The applicant says that subsequently he went into hiding for ‘three years’ during which time his parents lodged a complaint about the town leader. He says that he was able to return home eventually as police accepted that he was defending himself. However, this was not the case and when he returned to the village, the police were ‘setting a trap’ for him and demanded he confess to assaulting the town leader. Ultimately the applicant managed to escape the police on two occasions and remained unpunished. He left the town to seek work in Shanghai and has worked in various guises in China and overseas prior to coming to Australia. He gave further evidence that his family has remained in dispute with the town leader and have lodged complaints. He gave evidence that his mother was assaulted by the town leader or his associates. Ultimately the dispute went to Court. On the applicant’s evidence, the court case was successful for the applicant’s family as the town leader received some punishment by the Court. However, he says that this has left him concerned for his safety.
At the hearing, I asked the applicant how he knew that the town leader remained in the town, noting that the dispute commenced more than 20 years ago. He stated that he could not be sure as he had not returned for a long period of time. However, in his most recent statutory declaration, he stated that ‘the town leader remained a powerful figure in the town’. The tribunal rejects this further evidence. It is inconsistent with the applicant’s oral evidence at the hearing and appears manufactured and designed to shore up the applicant’s case. The fact the applicant would go to the length of preparing a contradictory statutory declaration post hearing weighs against his overall credibility. He has not returned home for many years, and he has no firsthand knowledge of the town leader’s current whereabouts or his status as ‘leader’ in the town. I do not accept he has any way knowledge of the town leader’s current whereabouts, position or attitude towards the applicant nor does he have any insight into these matters in the reasonably foreseeable future.
On his own evidence, the applicant’s dispute with the ‘town leader’ relates to a personal incident that occurred in [Year 1]. Since that time, the applicant’s evidence is that the dispute has extended to involve the applicant’s family. However, it seems relatively clear cut on the evidence that neither the applicant or his family are targeted because they are a relative of a person targeted for a reason other than those specified in s.5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group, political opinion.
Having regard to the applicant’s evidence, the tribunal does not accept that the applicant faces any present threat from the ‘town leader’. It is more than 20 years since the applicant’s dispute with the town leader and the tribunal does not accept that the town leader remains in a position to harm the applicant in 2022 or would be so inclined if the applicant returned.
In the circumstances set out by the applicant in relation to his fear of harm from the town leader or his associates, the tribunal finds:
(a)the applicant makes no claim that he is being targeted by reason of his race, nationality, membership of a social group or political opinion.
(b)It follows that there is not a real chance that the applicant will be persecuted for any reason including race, religion, nationality, political opinion or membership of a particular social group.
(c)Accordingly, any fear of persecution by the town leader or his associates, is not well founded as required by s.5J of the Act and, therefore, he is not a refugee within the meaning of 5H in relation to his claim.
In any event, if the applicant’s claims of fear of the ‘town leader’ did constitute persecution for a reason of race, religion, nationality, political opinion or membership or a particular social group, I would not have found that the applicant met the refugee criteria as I do not consider that the applicant has demonstrated he faces any risk in the foreseeable future nor has he demonstrated the applicant faces a risk throughout China.
There is no evidence to suggest that the applicant has ever faced any risk of harm from the ‘town leader’ or his associates outside his home town or that the ‘town leader’ has power beyond the town. The applicant’s evidence is that when he personally faced threats from town leader or his associates, including local police, he was able to escape and did so on two occasions. There is no evidence that the applicant suffered any form of harm due to the incident with the town leader outside his home town and I consider even if he could demonstrate a risk of harm that is not remote or speculative, any risk he faces is confined to his home town. In my view, this is not enough to establish a well-founded fear of persecution. The fear of persecution must relate to all areas of China (refer s. 5J(1)(c) of the Act).
It follows that the tribunal does not accept the applicant’s evidence that he cannot relocate within China. The applicant’s evidence is that he successfully relocated within China when he faced threats approximately 20 years ago. I reject the proposition that he would be unable to take this action today if he faced a similar threat.
The applicant’s evidence is that following the dispute with the town leader, he spent many years living and working in other parts of China, and has worked overseas in [Country 2], [Country 1] and [Country 3] prior to travelling to Australia. In his oral evidence, the applicant set out his work history which is detailed above. I consider that he would be in a similar position today if he returned and able to find employment in other areas of China.

48.In these circumstances, I reject the applicant’s submissions that he would have difficulty relocating within China. He has demonstrated, by his own evidence, that he has moved within China and overseas over a course of many years. He has found work in a major city such as Shanghai. For reasons set out below, I do not accept that the applicant’s more recent ‘anti-government profile’ is of such a nature that it would have the effect of limiting his ability to relocate within China were he to return there.

49.In relation to the applicant’s evidence in relation to his concerns about the ramifications from his feud with the ‘town leader’, it is plausible that the applicant had a dispute with the town leader, that has its origins in about [Year 1]. However, in assessing whether there is a real chance of the applicant being targeted by the town leader if he returns to China in 2022, it is relevant to consider whether there is any evidence about the town leader’s activities since the alleged conflict, and whether the town leader has any interest in seeking revenge against the applicant after so many years.

50.It is plausible that the town leader may have sought revenge against the applicant many years ago. On the applicant’s own evidence, many of the events that he claims took place occurred over two decades ago.
51.Whilst it is plausible the applicant was threatened with harm during the period between [Year 1] and [Year 2], there is no evidence that any steps were taken to pursue him since that time. He claims his family fled the village in [Year 2] to Pei County in Jiangsu Province. There is nothing to suggest that his family have suffered any harm since that time. His evidence in relation to his detention by police in '2015 or 2016' related to his stated ‘anti-government profile’ and did not relate to his dispute with the ‘town leader.’

It is also relevant that the applicant was able to freely move to Shanghai away from his home town and does not appear to have suffered any harm whilst in Shanghai. He has also lived and worked in [Country 1], [Country 2] and [Country 3] before travelling to Australia. He travelled to Australia in the usual channels on a tourist visa.

There is no evidence of recent threats against the applicant or his family from the town leader or his associates.

Accordingly, even though I accept that the applicant may be fearful of the town leader, I am not satisfied that this fear is rational. His concerns have an air of unreality to them. The applicant has not crossed paths with the town leader in approximately 20 years and there is nothing in the evidence to suggest that their dispute is likely to be renewed if he returns to China.
I am not satisfied that the town leader will pursue the applicant after so many years. There is no evidence of continuing interest in him, and I find the applicant’s fear about this speculative and any risk is remote. I am not satisfied that there is a real chance the applicant faces serious harm from the town leader or his associates in China.
The tribunal has regard to the applicant’s submissions in response to the concerns raised by the delegate. The applicant is concerned that the delegate placed no weight on the documentation relation to the town head’s arrest and his mother’s medical report on the basis that they were unable to verify the genuineness of the documents due to the prevalence of fraud in China.

The tribunal considers that the reality is that any documentation in relation to the dispute with the town leader is more than 20 years old. As such, it is unrealistic to expect the applicant to be in a position to verify documents of this nature from such a long time ago. I make no adverse findings against the applicant regarding the documents and accept them at face value. Notwithstanding I am prepared to accept the veracity of such documents, they are of no assistance to the tribunal. These documents tend to support the case that the applicant and his family were involved in a localised dispute over 20 years ago. These are matters that the tribunal is prepared to accept. However, the documents do not alter the tribunal’s view that the applicant does not face any kind of threat in 2022 due to this dispute.
The applicant’s alternative argument is that he fears harm from the Chinese government because he has an ‘anti-government profile’ having discussed his anti-government opinions on social media, in particular the Chinese [Social media 1] social media platform.
The applicant’s submissions provided a summary of the applicant’s anti-government activity and referred to country information that suggests the Chinese government condemns what it considers anti-government opinion, including negative social media posts. The applicant submitted that the Chinese government monitors its citizens social media posts and Chinese authorities monitor social media both nationally and internationally. It was submitted that China has ‘almost zero tolerance of governmental criticism’. It was said that the applicant is ‘zealous’ in his beliefs, concerned by what he sees as ‘Injustice’ and will be unable to keep his ‘anti-political sentiments to himself as outspokenness is a fundamental characteristic of the applicant’s personality.’
The delegate found that the applicant lacked a profile that would attract targeting by Chinese authorities based on social media posts. In response to this, the applicant provided a series of translated social media posts which he suggested demonstrated an anti-government profile which has placed him at risk of persecution at home.
The tribunal has considered the applicant’s evidence and submissions. Having regard to the totality of the evidence it does not consider that the applicant has an anti-government profile that places him at any elevated risk of harm.
The applicant says that he began publicising his political opinions over a decade ago over social media on the [Social media 1] social medial platform. He claims to have been arrested due to his political opinions in about 2015 or 2016 and beaten. He says that he was that insulted and attacked by other Chinese citizens due to his opinions.
I have considered the country information provided, including the following. DFAT states in their most recent report on China that, “the CCP has little tolerance for public dissent on a wide-range of matters considered politically sensitive, including social stability, the legitimacy of central authorities and one-Party rule, and other topics that authorities consider might aggravate social unrest. Examples of issues which authorities deem sensitive include, but are not limited to, commentary on serious economic, health and environmental concerns, financial risks, land and property issues, ethnic and religious unrest, labour disputes and official responses to natural or anthropogenic disasters. The Party and government may, in limited circumstances, tolerate commentary on corrupt local officials, particularly those already under investigation (see Corruption). What the authorities deem sensitive can change with no warning.[27]
[27] DFAT Report on China, October 2019 see 3.121 – 3.126

Further, “The law allows Chinese authorities to monitor social media and collect online private messages.[28] Issues may be discussed privately or in small groups, however questioning the legitimacy of the CCP is not tolerated and online content is monitored and may be blocked by the ‘great firewall’. Phone calls, texts, emails and instant messages may be monitored. All Chinese social media users must use their real names or be identifiable by the state. The law also allows the state to ‘monitor, defend and handle cybersecurity risks and threats originating from within or outside China and the Chinese social media applications (including digital assistants and payment platforms like We Chat, popular in Australia may be monitored by the Chinese government. Information from We Chat social network can be used as prosecution evidence in trials. Posts that attract a significant number of followers or re-posts may be targeted for scrutiny. Organisers of chat groups are responsible for ensuring that impermissible content is not shared on the group chat.
[28] “Freedom in the World 2017 – China”, Freedom House, 1 February 2017 at p.9, see Delegate’s decision p.7
The Chinese government has the capacity to read and track down low-level social media commenters including using automated methods such as algorithms and some users attempt to defeat this filtering… some low-level complainants have reportedly been brought in for police interrogation. Others have been arrested or disappeared for preserving or archiving posts that were made before they were moved by censors.”[29]
[29] See summary of relevant country information and articles in delegate’s decision , p.7
The tribunal has considered the applicant’s evidence and submissions in relation to his ‘anti-government’ profile and political opinions. The applicant says that he has harboured anti-communist sentiments and expressed his political opinions for over a decade via social media and attending protests. It was submitted that the applicant has participated in protests[30] in relation to human rights issues, against the Chinese authorities, holds and has publicised anti-government or anti-communist views. It was submitted that authorities tightly controlled and censor domestic internet usage and monitor social media activity. Further, it is submitted that the Chinese government’s surveillance on [Social media 2] and [Social media 1] is pervasive. The thrust of the argument is that these matters, and the applicant’s propensity to talk about his political views place him at an elevated risk of harm in China.
[30] For example, he attended a protest against the production of ‘Lake Honghu in concert.’
It is convenient to address the applicant’s concerns by separating his evidence in relation to his activity prior to travelling to Australia and his activity post arrival.
He claims to have expressed his political opinions on the social media platform [Social media 2] over a decade ago. He says that he was beaten by police officers in about 2015 or 2016. In his response to the Department’s s.56 letter, he said that he was not actually arrested, however in his evidence he did use that terminology. I do not hold this inconsistency against him due to the language barrier. His evidence is that he was taken by police and beaten due to his online comments and political opinions and I accept that this is his evidence whether he was technically arrested or not. He also claims to have been verbally abused and discriminated against by other Chinese citizens who support the CCP.
However, I do not accept his evidence regarding his social media and anti-government activity during his time in China. It does not have the ring of truth to it. Whilst it may be that he harboured anti-government views, the objective evidence is that these opinions do not appear to have had any significant impact on his day-to-day activities in China. The country information[31] makes plain that it is very difficult for persons who have an adverse profile with Chinese authorities to travel internationally. Chinese authorities have access to sophisticated monitoring of international exit points and Chinese passports use sophisticated technology and its authorities have high surveillance capability, particularly at train stations, airports and ports.
[31] DFAT Country Information Report China 2019
The applicant says that he travelled to [Country 2], [Country 1] and [Country 3] prior to his travel to Australia. When in China he was employed and travelled between various Chinese cities in pursuit of employment opportunities. He travelled on a Chinese passport and there is nothing to suggest that he did so outside the usual channels. It is difficult to reconcile his evidence that he held an adverse political profile with his ability to freely travel and I reject his evidence regarding his social media posts, his concerns in relation to his profile and his detention and beating by authorities.
The tribunal does not accept that the applicant was detained and beaten by police on account of his social media posts in 2015 or 2016 as alleged. It does not accept he was interrogated and taken to a detention centre, nor that he was mistreated in the manner indicated due to his social media posts. The tribunal does not accept the applicant’s claims that having come to the attention of authorities in such a manner he remained free to travel internationally. His evidence regarding this incident was unconvincing and I do not accept that a person who genuinely came to police attention on account of his adverse political opinion and beaten as suggested would have been able to freely go about his business following the incident. The tribunal does not find the applicant’s account of his arrest due to social media activities to be credible, nor does it consider his claims are supported by the country information. The tribunal does not accept the applicant was a person of interest when he left China.
The applicant provided further evidence in the form of translated social media posts received following the hearing. The tribunal has reviewed the information. Presumably this information is designed to address the delegate’s assessment that the applicant lacked a profile that would attract targeting by Chinese authorities based on his social media posts.
The applicant’s table of posts that he says represents his online activity and various translated posts. The tribunal considers these social media posts are relatively benign and there is nothing to suggest they have attracted the attention of authorities or that the applicant is at an elevated risk due to the social media posts. Taken at their highest, the documents show that the applicant’s social media accounts have been suspended on occasion, but it also appears that the accounts have been reinstated and the applicant has been able to continue to use those social media platforms.
The applicant’s evidence also highlighted social media posts that do not appear likely to concern any Chinese government. Many of the translations are described by the translator as ‘illegible’ or pictures. Some example of the applicant’s highlighted posts include postings that appear to relate to the former Japanese Prime Minister Shinzo Abe and in other posts mentions Donald Trump. He also posted about the conflict of Zhenbao Island, a dispute between China and Russia in 1969. It is difficult to see how an historic reference to a 50 year old conflict would draw the attention of the authorities.
Whilst there are some posts during his time in Australia that may be of concern to the government, there is no evidence to suggest that this is actually the case. For example, he says he commemorated the anniversary of Tiananmen Square in June 2019. This post may be described as 'anti government'. He also said that the government did not provide ‘things benefiting the ordinary people of China’, and in 2020 he posted an article on [Social media 3] by Xia Cai that is said to refer to the Chinese Communist Party as the ’zombie party’. These posts may be described as 'anti government'. However, there is no evidence to suggest that the applicant’s posts have, in fact, been viewed by anyone beyond the applicant’s immediate social circle and the applicant failed to provide any evidence to support the proposition that the Chinese authorities had monitored these posts. The tribunal does not accept that the fact the applicant has had his social media accounts cancelled or suspended leads to a finding that those accounts were monitored by Chinese authorities. It does not accept that the Chinese authorities have observed these adverse posts, made no attempt to silence or contact the applicant at the relevant time, but intend to do so upon his return to China where they will punish him.
The tribunal has regard to the applicant’s statements that he is ‘zealous’ in his political views and that he would be unable to ‘stay quiet’ and ‘not continue to post on social media’ in China. The tribunal is of the view that it is highly unlikely that this is the case. The applicant’s own evidence is that ‘before I came to Australia, I was not as active on social media as I am now, but I did do some posts on line.’ The tribunal considers that if he returns home to China, he is more likely to revert to his previous disposition and minimise any risk of harm by limiting his social media activity rather than seek to agitate the authorities and draw attention to himself.
Another matter that weighs against the applicant’s credibility is the fact he says he has a wife and two children remaining in China. The tribunal does not accept that the applicant is so invested in his political views that he would knowingly place his family at risk by purposely aggravating the Chinese authorities.
It was submitted that the applicant faced ‘harsh treatment’ in returning to China as a failed asylum seeker. The submission referred to country information in relation to Uyghur and as such, it is not relevant to the applicant’s case. The tribunal considers there is no evidence to support this proposition in relation to China, having regard to the relevant country information which provides, “DFAT is not able to verify the treatment of failed asylum seekers returned to China. DFAT has no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention. DFAT is unable to verify whether having sought asylum abroad would worsen the situation of individuals attracting adverse attention from authorities for other reasons.”[32]
[32] DFAT Country Information Report China 2019 at 5.44
Accordingly, the tribunal finds the applicant does not meet the refugee criterion.

Does the applicant meet the Complementary Protection Criterion?

A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the tribunal is satisfied that Australia has protection obligations because the tribunal 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 [they] will suffer significant harm.[33]
[33] Migration Act 1958 (Cth), s 36(2)(aa)
‘‘Significant harm’ for these purposes 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.
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.
For the same reasons that have been set out above, the tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk the applicant will suffer serious or significant harm.
The tribunal is not satisfied that the applicant meets either the refugee criterion or the complementary protection criterion.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Dominic Triaca
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

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

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 3030

25 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing