2017815 (Refugee)

2017815 (Refugee) [2024] AATA 3457 (3 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2017815
COUNTRY OF REFERENCE:                   China
MEMBER:Member Nathan Goetz
DATE:3 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision dated 8 December 2020 refusing to grant each applicant a protection visa.

Statement made on 03 September 2024 at 12:16pm
CATCHWORDS
REFUGEE – protection visa – China – decision on the papers – land dispute – inadequate compensation – credibility concerns – departed country legally – issued with new passports while overseas – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65, 425, 426A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister who refused to grant each applicant a protection visa.
The applicants were not represented in the review.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
BACKGROUND
According to the visa application forms, the applicants are [the first named applicant], a male citizen of China who was born on [date] in that country and his wife [the second named applicant], a female citizen of China who was born on [date] in that country. The forms identify that the applicants are presently located in Australia.
[In] November 2017 [the first named applicant] and [the second named applicant] arrived in Australia holding visitor visas that was valid [until] February 2018.
On 29 January 2018 the applicants applied for the protection visas.
On 8 December 2020 the delegate refused to grant each applicant a protection visa. The delegate found that each applicant did not satisfy s 36(2)(a), (aa), (b) or (c) of the Act.
On 12 December 2020 an application was made to the Tribunal to review the decision to refuse each applicant a protection visa. In the review application form they identified their residential address as an address in [Suburb 1], Victoria.
On 18 July 2024 the Tribunal wrote to the applicants under s 425(1) of the Act and invited them to appear at a Tribunal hearing scheduled to commence at 10:30am on 9 August 2024 at the Melbourne registry. Included with the hearing invitation was a ‘response to hearing invitation’ that the applicants were directed to complete and return within 7 days.
On 6 August 2024 the Tribunal received the completed ‘response to hearing invitation’ indicating that they would not participate in the Tribunal hearing. [The first named applicant] specifically consented to the Tribunal making a decision on the review without taking any further steps to allow or enable him to appear at a Tribunal hearing. [The second named applicant] indicated that she would not participate in the Tribunal hearing.
In the circumstances where [the first named applicant] consented to the Tribunal making a decision ‘on the papers,’ he no longer has a right to appear at a Tribunal hearing: s 425(2)(b), (3) of the Act. The Tribunal hearing in respect of [the first named applicant] was cancelled. [the second named applicant] did not appear at the Tribunal hearing and the Tribunal determined that it was appropriate to make one decision record in respect of both applicants, instead of initially dismissing [the second named applicant]’s review and allowing for reinstatement in circumstances where she specifically said she would not attend the Tribunal hearing: s 426A(1A)(a) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether either applicant satisfies s 36(2)(a), (aa), (b) or (c) of the Act.
If the Tribunal finds that a particular applicant satisfies s 36(2)(a), (aa), (b) or (c) of the Act, the correct or preferable decision is to set aside the decision refusing to grant that applicant a protection visa and to remit the visa application back to the delegate for reconsideration, with a direction concerning the criterion the Tribunal has found that applicant satisfies.
If the Tribunal finds that a particular applicant does not satisfy s 36(2)(a), (aa), (b) and (c) of the Act, the correct or preferable decision is to affirm the decision refusing to grant that applicant a protection visa.
The Tribunal has considered all the material provided in the visa application and the review. The material is summarised and considered as follows:
The visa application forms identify that both [the first named applicant] and [the second named applicant] were born in Fuqing, Fujian province, China. They were married [in] September 2009. They each provided a copy of their Chinese passport issued in their name and claimed to have no citizenship other than Chinese, and that they did not have a right to enter and reside in any other country, other than Australia.
[The first named applicant] detailed that he holds a passport issued [in] 2016 and valid [until] 2026 which was issued in [Country 1], and [the second named applicant] declared that she holds a passport issued [in] 2009 and valid [until] 2019 issued in [Country 1]
The applicants declared that they had departed China from Fujian in November 2017 and left the country legally.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent DFAT Country Information Report on China is dated 22 December 2021 and the Tribunal has taken that into account when assessing the claims.
The applicants were the only two people included in the visa application form. They identified that they had a member of the same family unit who was not included in the visa application, namely their child [Ms A] who was born on [date] in Fuqing, Fuzhou China and resided in that country.
In the visa application form, [the first named applicant] declared that he was raising his own protection claims. In that same form, [the second named applicant] declared that she was not raising her own protection claims. As she was a member of the same family unit as [the first named applicant], [the second named applicant] was claiming to meet the requirements for the protection visa based on this family membership, meaning that for [the second named applicant] to be granted the visa, [the first named applicant] would need to be satisfy either s 36(2)(a) or (aa) of the Act.
[The first named applicant] claimed that he left China because he ‘had a dispute with the local land office for unsatisfied land compensation.’ He declared that he had not experienced harm in China and that he did not move, or try to move, to another part of China to seek safety. [The first named applicant] attributed this failure to move to the fact that his whole family and relatives resided in the hometown. Despite [the second named applicant] claiming that she was not making her own protection claims, when asked what [the first named applicant] thought would happen to him if he returned to China, he wrote ‘I believe me and my wife will get harmed’ and claimed that they would be mistreated if returned to China by ‘people in the local land office.’ [The first named applicant] did not believe that the authorities in China could and would protect him because ‘the local government and authority will protect each other.’
The applicants declared in the visa application form that neither of them had been charged with any offence awaiting legal action, that they had not been convicted or any offence, that they had not been the subject of an arrest warrant or Interpol notice, nor were they aware that they were the subject of a criminal investigation or have criminal charges pending against them.
The claims as detailed in the protection visa application were very broad. It was presumably for this reason that the delegate wrote to the applicants under s 56 of the Act on 24 July 2020 and requested more information from the applicants. The delegate wrote that in order for the delegate to determine whether the delegate should accept that a dispute took place as claimed, the delegate required information including dates and locations of events and copies of any documents or other evidence the applicants could provide in support of the claims. The delegate asked for the following:
·     Copies of land documents/title deeds for the land which the dispute is about
·     Copies of any offers of compensation the applicants received
·     Copies of any letters or petitions sent to government officials about this matter
·     Copies of any arrest warrant/charge sheets the applicants received in this matter, if the applicants had been arrested or faced arrest over this matter.
The delegate also asked information about how the applicants would be harmed, who would harm them, and why they would be harmed. The delegate noted that [the first named applicant] had detailed in the visa application form that he resided in [Country 1] from December 2004 until November 2017 and that the applicant departed Fujian for Australia in November 2017 and asked for information about why he would be harmed in China because [the first named applicant] had been able to reside outside of China for over 15 years and had been able to freely move in and out of the country. The applicants were given 28 days to provide the information requested or provide an explanation about why they were not able to provide the information requested within the proposed timeframe.
On 24 July 2020 the applicants responded to the delegate, asking for more time to provide the information requested because of the COVID-19 pandemic.
On 17 August 2020 the applicants provided the delegate with the following documents, with Department references attached to properly identify the documents:
·     [Department number 1]: A document in a language other than English.
·     [Department number 2]: A document in a language other than English.
·     [Department number 3]: A document in a language other than English.
·     [Department number 4]: A typed document in English, not identified as a certified translation from an accredited translator, detailing that ‘[Mr B], an investigator of this office, shall be responsible, [The first named applicant], [Address 1], Fuquing city, Fujian province, was detained.’ Detention to prevent government demolition, disturbing public order. Detention period [date] June 2004, this card in June [date], 2004. Report to my office at 10:30. Detainee [The first named applicant].’
·     [Department number 5]: A typed document in English, not identified as a certified translation from an accredited translator, titled ‘Notice’ which detailed that ‘due to the need for road expansion, the residents in the following subdivided areas are now notified as follows. The houses and land currently occupied by the residents due to the government’s road planning needs are now decided to be requestioned for this piece of land and houses, the specific compensation is as follows. 1. The old houses pays 150 yuan per square second, the newly-built house has a property certificate of 400 yuan per square third, the land without a property certificate of 200 yuan per square fourth, the land is between 12,000 and 16,000 yuan per mu (if there are other crops to be compensated), the above notice shall become effective when it is served on the notified person, please cooperate with us. Any dissatisfaction or refusal will be regarded as illegal obstruction of law enforcement.
·     Notice authority: Government of the People’s Republic of China, [Town 1], Fuqing city, Fujian provice.
·     Notified person, [The first named applicant]
·     Notice time, May [date], 2004
·     Implementation time, June [date], 2004.’
The applicants did not provide any land documents or title deeds to show ownership of the claimed property in dispute, nor provide any letters or petitions sent to the authorities in China concerning the claimed land acquisition.
The DFAT Country Information Report provides the following concerning land disputes (3.86 to 3.89):
‘All gatherings of more than 200 people must obtain approval from public security authorities. The Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges. Public demonstrations are rarely approved. Spontaneous protests sometimes occur. Common protest themes are related to labour disputes, environment, land disputes and local corruption. Recent estimates on numbers of protests are not available, but DFAT understands they have become much less common under President Xi.
Disputes with government may be raised at petitioning offices, also called ‘letters and visits’ offices, a type of government service office. Millions of disputes are raised every year. Local authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means local authorities are incentivised to retaliate against petitioners, which might include charges such as ‘picking quarrels and provoking trouble’. According to the 2020 US Department of State Human Rights Report, local governments have sent personnel to Beijing to force petitioners in the capital to return home. While examples of violence and, in extreme cases, deaths are reported, many complaints are resolved through the petitioning process.
Land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villages. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation (thus, disputes are generally complaints against local government which may escalate to the national government, as outlined above). China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs’, who intimidate protesters or cut utility supplies, have been used and are allegedly hired by local governments.
DFAT assesses that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.’
The applicants did not detail what they did upon receipt of the ‘Notice’ dated May [date], 2004, nor provide an explanation about why the ‘detention’ document (if that is what it is) issued on June [date], 2004 was issued to [the first named applicant], given it was not claimed that he had done anything on receipt of the ‘Notice’ and, according to his visa application form, he was able to depart China on December 2004 and reside in [Country 1] until November 2017, when he returned to China and then travelled to Australia. The ‘detention document’ suggested that the [the first named applicant] was required to attend detention on [date] June 2004, but [the first named applicant] did not claim that he was detained, and did not provide an explanation about what happened (if anything) during the period until he travelled to [Country 1].
[The first named applicant]’s ability to depart China legally in December 2004 despite the ‘detention notice’ appeared to be at odds with the DFAT Country Information Report which provides the following concerning the entry and exit proceeds in China (at 5.31 to 5.33; 5.35).
“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 to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.

National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. 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. DFAT is also aware of instances where members of certain ethnic minority groups have been denied passports.
If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons. There is a legitimate risk that family members of an individual under investigation by Chinese authorities could be subject to an exit ban. This is not only for sensitive charges but also economic charges such as fraud.
DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.’
Concerning the applicants’ ability to be issued with Chinese passports while they were overseas in [Country 1], the DFAT Country Information Report provides the following (at 5.39 to 5.40):
‘Passport applicants must provide their RIC, hukou, recent photos, an application form and, if required, permission to enter and reside in the country to which they are intending to travel. Renewal might also require a certificate of Chinese nationality. Ordinary passports have the holder’s name, sex, date and place of birth, date of issue, term of validity, place of issue and issuing authority.
The term of validity of an ordinary passport is 10 years (five years for a person aged under 16). Passport applications may be refused if a person is serving a prison sentence, is a defendant in a criminal case, or is a criminal suspect. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uyghurs and Tibetans.’
The applicants provided no explanation of how they were able to issued Chinese passports in 2016 while in [Country 1] which would enable their further travel if [the first named applicant] had outstanding issues with the Chinese government concerning land acquisition or why [the second named applicant] would be issued with a Chinese passport if the Chinese government wished to cause her harm because of [the first named applicant]’s land dispute. The applicants also provided no evidence about whether they had experienced any harm when they returned to China from [Country 1] during the time between their return and departure to Australia.
As detailed previously, the applicants were invited to appear at a Tribunal hearing so they could give evidence and present arguments relating to the issues arising in relation to the decision under review. The hearing invitation form made it clear that the Tribunal had considered the material it had but the Tribunal was unable to make a favour decision to the applicants on the information alone. The applicants were on notice that without more, the Tribunal would not find that they met the requirements for the grant of the protection visa.
Despite the applicants being on notice about this, they declined to participate in the Tribunal hearing and did not indicate in the ‘response to hearing invitation form’ that they had any witness statements, written submissions, county information or other evidence’ that they wished the Tribunal to consider. Although the Tribunal conducts merits review of decisions and not judicial review of delegate decisions, the applicants did not seek to address any of the concerns or findings made by the delegate with the Tribunal, such as addressing the concerns that the documents provided were not genuine by providing an explanation to address the delegate’s concerns so the Tribunal could consider that explanation, nor address the delegate’s concerns about how the applicants were able to freely depart China on multiple occasions after the claimed land dispute in 2004, nor provide detailed specifics of their own experiences in China to address the delegate’s concerns that the applicants had provided very few details concerning their protection claims. The applicants also provided no explanation about why the documents they provided which appeared to corroborate their claims were not included with their protection visa application form and provided approximately two years later.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal accepts that the applicants are [the first named applicant], a male citizen of China who was born on [date] in that country and his wife [the second named applicant], a female citizen of China who was born on [date] in that country. The Tribunal comes to that conclusion based on the applicants providing their Chinese passports issued in their name and the absence of any evidence to suggest that the documents are bogus.
The Tribunal accepts that the applicants do not have the right to enter and reside in any country other than China and Australia. The Tribunal comes to this conclusion because there is no evidence to undermine this claim.
The Tribunal accepts that the applicants are married and that, in those circumstances, they would be members of the same family unit in the event that either one of the applicants satisfied s 36(2)(a) or (aa) of the Act. However, as discussed below, the Tribunal has concluded that neither applicant satisfies s 36(2)(a) or (aa) of the Act, meaning that the applicants are not members of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
The Tribunal is not satisfied that either [the first named applicant] or [the second named applicant] were the subject of a property acquisition in China, nor that [the first named applicant] was the subject of a detention notice. It follows that the Tribunal is not satisfied of the factual narrative that forms the basis of the protection claims, and it follows that the Tribunal is not satisfied that there is a real chance of serious harm to the applicants in China based on this factual narrative, nor that there is a real risk of significant harm to the applicants as a result of their removal from Australia to China based on this factual narrative.
The Tribunal reaches those conclusions for the following reasons.
The applicants provided no evidence about what they did on receipt of the ‘Notice’ that the land was to be acquired by government authorities in China. The applicants claimed in the protection visa application form that they had not been harmed in China, meaning that nothing occurred as a result of that ‘Notice.’ It was not claimed that [the first named applicant] or [the second named applicant] petitioned any authority, or engaged in any protest about this acquisition. The applicants provided no evidence about whether they accepted the compensation or not.
The only thing that appears to have occurred as a result of this ‘Notice’ is that [the first named applicant] was given a ‘detention document.’ The Tribunal finds the issuing of the ‘detention’ document curious in circumstances where it was not claimed that [the first named applicant] or [the second named applicant] did anything in opposition to the ‘Notice.’ The Tribunal finds it unlikely that a ‘detention’ notice would be issued to [the first named applicant] is those circumstances.
Further, despite the ‘detention’ notice, and it appearing that [the first named applicant] did not serve that detention because it was not claimed that he was arrested or detained, [the first named applicant] and [the first named applicant] or [the second named applicant] were apparently free to leave China in December 2004 and travel to [Country 1] where they resided for a significant number of years. Despite their claimed profile as being of adverse interest to the Chinese authorities, [the first named applicant] or [the second named applicant] were issued new Chinese passports while in [Country 1], enabling their further travel on those passports. Then, they were able to return to China prior to their departure from Australia and did not encounter any problems upon their return to China, despite the belief that ‘Me ([the first named applicant]) and my wife ([the second named applicant]) will get harmed.’
The Tribunal finds it more likely than not that if [the first named applicant] or [the second named applicant] were the subject of a land dispute with the authorities in China and that [the first named applicant] was the subject of a ‘detention’ notice, he would have faced great difficulties departing China and being issued a new passport once outside of China. The Tribunal’s assessment of the country information provided by DFAT is that [the first named applicant] and [the second named applicant] were able to depart China, reside in [Country 1] and be issued with a new passports, return to China and again depart to travel to Australia is because they were of no interest to the authorities in China. The Tribunal is satisfied that if they were the subject of a land dispute which resulted in a ‘detention’ notice as claimed, it would have been nearly impossible for them to depart China.
The Tribunal accepts that on face value, the documents appear to corroborate claims about land acquisition and detention. However, the timing of the production of those documents in the context of the absence of any evidence that [the first named applicant] or [the second named applicant] did anything in opposition to the ‘Notice’ for the acquisition of land, results in the Tribunal placing no weight on those documents. The Tribunal is not satisfied that they are genuine.
The Tribunal is not satisfied that there is any truth to the protection claims made by the applicants.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that [the first named applicant] or [the second named applicant] have a well-founded fear of persecution in China.
Therefore, the applicants do not satisfy s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for belieiving that, as a necessary and foreseeable consequences of [the first named applicant] and [the second named applicant]’s removal from Australia to China, there is a real risk [the first named applicant] or [the second named applicant] will suffer significant harm.
Therefore, the applicants do not satisfy s 36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that [the first named applicant] and [the second named applicant] are members of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Therefore, the applicants do not satisfy s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision dated 8 December 2020 refusing to grant each applicant a protection visa.
Nathan Goetz

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 3457

3 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction