2018463 (Refugee) - [2025] ARTA 1493

2018463 (REFUGEE) [2025] ARTA 1493 (17 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2018463
Tribunal:General Member B Gogarty
Date:17 April 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 17 April 2025 at 1:21pm
CATCHWORDS
REFUGEE – Protection Visa – China – unintentionally participating in a mass protest event in Hong Kong – claims made in the original application were not the applicant’s – identical claims – not satisfied that the applicant faces a real risk of serious or significant harm – not satisfied the applicants have a well-founded fear – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 December 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for a review of that decision to the Administrative Appeals Tribunal (AAT) on 27 December 2020. As the review was not finalised by 14 October 2024 when the AAT became the Administrative Review Tribunal (the Tribunal), the application for review to the AAT is taken to be an application to the Tribunal.[1]
[1] By virtue of the operation of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The applicant who the Tribunal accepts is a national of China, applied for the visa on 14 December 2018. The delegate refused to grant the visa on the basis that they were not satisfied the applicant had provided sufficient evidence to substantiate their claims for protection under the Act.
The applicant appeared before the Tribunal on 4 April 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Quotes in this decision attributed to the applicant from the hearing are her statements as they were interpreted to the Tribunal.
BACKGROUND
The background of the applicant, which the Tribunal accepts as factual, is as follows. She was born in Sichuan province and grew up in a rural farming [village]. She received limited education, leaving school at the age of [age] years old to work (unpaid) on a farm. While initially she described this as a “family farm”, she later stated that the family was not hers, but that she was an orphan who was raised by villagers who were “really kind” and who provided help and support to her. When she was around [age] or [age] years old, she began to take on paid work at other farms in the area. In the early 1990s, she moved to Hebei Province to work on farms there. At an undisclosed time, she married her husband in [a] region of Hebei.
The applicant’s husband died in 2018. She told the Tribunal: “I came to Australia after my husband passed away because there was no reason for me to stay in China anymore.” Movement records for the applicant show that she applied for a tourist visa to Australia in October 2018 and arrived in Australia on [date] November 2018. As noted, the applicant then applied for protection on 14 December 2018.
The applicant told the Tribunal that after arriving in Australia she initially worked on a farm for “several years”, but then moved to Melbourne, where she worked as a [occupation]. That role was too difficult for her, for transport and other reasons, and she now works in a [workplace].
Evidence before the Department
In the applicant’s original application for protection, she made the following claims:
“I joined "occupy central with peace and love assembly in Hong Kong in year 2011, and I was catch by the local officer and they put me to jail without giving me a chance to explain …
… I had tried to relocate. However, the public security system has record and track me down everywhere in my country.
… [if the applicant returns she fears] They will punch me and put me to jail.
…[country authorities cannot provide protection because] The local authority is the one threat me and punch me.
…[relocation is not possible because] I had tried. Unfortunately, i don't have a chance to relocate. I will be caught, once I go back to my country
“ [Mistakes in original]
In respect of the questions; “Did the applicants receive assistance from an interpreter to complete this application?”; and “Did the applicants receive assistance in completing this form?”; the response “No” was selected as an answer on the application form.
On 11 November 2020, the Department wrote the applicant seeking better and further particulars about her claim, particularly in respect of evidence that she was in Hong Kong in 2011, was at the assembly she claimed she was, and any documentary evidence relating to her arrest or charges.
The departmental file contains no record of the applicant responding to the invitation to provide further and better particulars of her claim, nor any record of her providing any of the information or evidence requested by the delegate.
The department did not interview the applicant.
In their decision, the delegate noted the “lack detail or supporting evidence” to support the applicant’s claims. Absent that detail and evidence, and after reviewing the relevant country information in relation to the claims before them, the delegate concluded that they were not satisfied the applicant’s claims were substantiated in respect of the activities or adverse treatment alleged in them. The delegate therefore found that there was no evidence the applicant faced a real chance of serious or significant harm if she was returned to China and was therefore not a refugee, or a person owed complementary protection for the purposes of the Act.
Evidence before the Tribunal
The applicant made no pre-hearing submissions to the Tribunal, including in response to a pre-hearing invitation to provide any updates to their claims and evidence.
Based on the applicant’s claims in her original application the Tribunal sought and had before it country information relating to China. [2] That included information prepared by the Department of Foreign Affairs and Trade (DFAT) relating to China as a whole, and separate thematic information about Hong Kong protest laws, articles and ordinances.[3] The Tribunal notes that country information predominantly focuses on protest activities occurring on or after 2014, with the greatest attention directed to laws and events relating to crackdowns on protesters in Hong Kong after 2019. Neither DFAT report mentions any notable assemblies or protests in Hong Kong in 2011 nor concerns about state responses to such events. As such, the Tribunal sought separate country information on protests occurring in, and laws relevant to protest in existence in and around, 2011 and to the extent relevant to the applicant’s claims at any other dates. That information is set out immediately below and otherwise referred to and cited in this decision.
2011 Hong Kong protests
[2]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.
[3] Department of Foreign Affairs & Trade DFAT Country Information Report – People’s Republic of China (27 December 2024); Department of Foreign Affairs & Trade DFAT Thematic Report Hong Kong SAR of China - Protests Laws Articles and Ordinances (4 April 2025)
The Tribunal was unable to find any country information about an assembly titled “Occupy Central with Peace and Love” occurring in 2011. However, it was able to find information about an assembly with a similar, shorter, name, specifically “Occupy Central” (absent any reference to “Love and Peace”), which began on 15 October 2011,[4] and was inspired by the earlier “Occupy Wall Street” movement in New York City.[5]
[4] Frederik Balfour "Occupy Central Hong Kong Protesters Enter Their Second Day” Bloomberg L.P. (16 October 2011) < Kahon Chan “Bailiffs Evict Occupy Central Protesters from HSBC HQ” China Daily (Hong Kong ed), (12 September 2012) <>
The 2011 “Occupy Central” assembly in Hong Kong took place on and around the premises of a global financial corporation (HSBC) and involved a ‘sit in’ protest in which protesters set up camp, in tents. Country information indicates the protesters remained there, relatively undisturbed by authorities, for around 10 months.[6] The assembly was eventually disbanded after the corporation obtained court orders to remove the protesters from its property.[7] While there appears to have been a very small number of arrests (for assaulting the security officers executing the court orders), these appear to have been subject to regular criminal procedure and judicial supervision.[8] Most critically, the information indicates that police did not arrest “Occupy Central” protesters until 2012. The Tribunal considered that these events were unlikely to be the ones referred to in the applicant’s original application for protection.
[6] Ming Yeung “Occupy Central protesters defy court eviction order” 28 August 2012, China Daily (HK ed). < >.
[7] Ibid.
[8] Associated Press, “Occupy Hong Kong Camp Cleared from HSBC Headquarters”, The Guardian (Online, 11 September 2012) < Kahon Chan(HK Edition) “Bailiffs Evict Occupy Central Protesters from HSBC HQ” Daily (Hong Kong ed), (12 September 2012) China <>
The Tribunal subsequently reviewed country information to determine whether the applicant may have been inadvertently referring to a different protest in 2011. The only potential event identified by the research was a mass assembly on 1 July 2011 (known simply as the “1 July March” or “annual Hong Kong march”), which at that point was part of an annual march to mark the anniversary of the Island’s transfer from British to Chinese control in 1997.[9] There is some evidence that there were concerns about the way police dealt with participants of the 1 July march in 2011, but it is limited in scope and relevance to the applicant’s claims.
[9] Hong Kong Free Press, ‘Timeline: Hong Kong’s July 1 Carnival of Dissent - How 17 Years of Protest Demands Fell Silent’, Hong Kong Free Press HKFP (2 July 2022) < (‘Timeline’).
The most significant information from an authoritative source that related to police conduct at the 1 July 2011 march before the Tribunal was a report by the UN Committee for Human Rights which raised the following concerns:[10]
“The Committee expresses concern about reports of excessive use of force by members of the police force, not compatible with the United Nations Principles on the Use of Force and Firearms by Law Enforcement Officials, in particular by the inappropriate use of pepper spray to break up demonstrations to restore order, notably with regard to demonstrations surrounding the annual Hong Kong march on 1 July 2011.”
[10] ‘Concluding Observations on the 3rd Periodic Report of Hong Kong, China, Adopted by the Committee at Its 107th Session, 11-28 March 2013 : Human Rights Committee’, Refworld, 3 [11] <>
Further details of the allegedly inappropriate conduct by police at the 1 July 2011 annual Hong Kong march was set out by the International Non-Government Organisation as follows:[11]
“The alleged abuses occurred in the early hours of July 2, after the rally ended as the remaining protesters converged in front of the Bank of China Tower and Cheung Kong Center in central Hong Kong. Police briefly detained Law Yuk Kai, director of Hong Kong Human Rights Monitor, a nongovernmental organization, as he videotaped police officers removing and arresting protesters who were blocking traffic. Police released him shortly afterward, but removing him from the scene prevented him from effectively monitoring the protest.…
Journalists have alleged that police at the scene unnecessarily used pepper spray against reporters covering the march. The Hong Kong Journalists' Association chairwoman, Mak Yin-ting, complained in a letter sent to Police Commissioner Andy Tsang Wai-hung, news reports said, that police used pepper spray against at least 19 journalists, including three reporters who were sprayed directly in the face and eyes. The journalists' group is demanding a police investigation. "At a time when freedom of speech and assembly and the rights of a free press are under serious attack by Chinese security forces just over the border, it's essential for the Hong Kong government to demonstrate a strong commitment to the defense of those same rights and freedoms in Hong Kong," Richardson said.…
Human Rights Watch has noted that despite the allegations, the Hong Kong government has not yet spoken out in defense of the rights of the July 1 protesters. Donald Tsang Yam-kuen, the Hong Kong chief executive, has instead so far only praised the police for exercising "a high level of restraint" on July 1 and 2, while criticizing some protesters for "behaving with disregard for the safety of others and the law, causing a disruption of public order….
If Donald Tsang and the Hong Kong government turn a blind eye to alleged police abuses, they risk Hong Kong's reputation as a bastion for civil liberties," Richardson said.”
[11] ‘Hong Kong: Investigate Police Actions at July 1 Rally | Human Rights Watch’ (11 July 2011) < (‘Hong Kong’).
The Tribunal notes the last paragraph of that report which indicates that, at the time, the use of force was considered relatively aberrant and contrary to an international human rights organisation would have expected from Hong Kong authorities in 2011. Country information about the state of civil liberties and human rights protections in 2011 is set out below.[12] More relevantly, the Tribunal considered that the 1 July events were unlikely to be the ones referred to in the applicant’s original application for protection given the human rights complaints related to dispersing protesters at the assembly not arresting them. While the information indicates that there were arrests, the Tribunal noted that these were the day after the protest march and appeared to involve targeted conduct by police.
[12] Paragraphs ‎25 -‎28.
The Tribunal was unable to identify any other 2011 assemblies or protests in Hong Kong which might describe or account for the events in the applicant’s original claims on the information before it.
Occupy Central with Love and Peace and related protests in Hong Kong
Having explored country information about Hong Kong protests that occurred in 2011, the Tribunal reviewed information about assemblies in the special administrative region matching the title “Occupy Central with Love and Peace” (as described in the applicant’s original application). The information indicates that a “movement” or “campaign” by that name (sometimes referred to as “OCLP”) was initiated in 2013, and that protests arising from it occurred in 2014. While the “Occupy Central with Love and Peace” campaign shares its name with the 2011 “Occupy Central” tent assembly it was distinct and “fights for something rather different” to the earlier anti-capitalist protest.[13] Specifically, the Occupy Central with Love and Peace movement opposing perceived interference in Hong Kong’s democratic and constitutional autonomy by the Government of the People's Republic of China (PRC).[14]
[13] Karita Kan, ‘Occupy Central and Constitutional Reform in Hong Kong’ (2013) 2013(3) China Perspectives 73, 73 < Ed. “What was Hong Kong's 'Occupy' movement all about?” Reuters (24 April 2019) <>
Members of the Occupy Central with Love and Peace campaign were instrumental in organising street protests in August 2014 in response to a declaration by the Chinese National People’s Congress that the movement considered interfered with the Islands constitutional and democratic autonomy.[15] Those protests are separately referred to as the “Umbrella Movement” in reference to the umbrellas that protesters used to shield themselves against pepper spray, tear gas, and batons used by police to disperse protesters. Given leading members of the “Occupy Central with Love and Peace” campaign organised the Umbrella Movement protest, and many of its members were subsequently arrested by state authorities, the movements are often associated and referred to interchangeably.[16]
[15] Ngok M and Edmund W Cheng, The Umbrella Movement: Civil Resistance and Contentious Space in Hong Kong (Amsterdam University Press, 2020), 17.
[16] Ibid.
The “Occupy Central with Love and Peace” and Umbrella Movement protests are not directly dealt with in the current DFAT Country Report for China, but are set out in the DFAT 2025 Thematic Report on Protests: Laws, Articles and Ordinances Hong Kong Special Administrative Region, People’s Republic of China, inter alia, as follows:[17]
Hong Kong has a long history of large-scale protests and marches. Demonstrations of note include … ‘Occupy Central Movement’ (2013-14), [and] ‘Umbrella Movement’ (2014).
Large-scale protests occurred in Hong Kong between September and December 2014, in reaction to the People’s Republic of China’s (PRC) decision to only allow Chinese Communist Party (CCP) pre-approved candidates to contest the 2017 HKSAR Chief Executive elections. International media reported tens of thousands of people, many of whom were students, had camped in the streets of Hong Kong for weeks demanding the right to ‘fully free’ leadership elections.
…International media reported that early on the evening of 28 September 2014, the HKPF fired 87 rounds of tear gas to disperse a group of high school students who had climbed over fencing to close off Civic Square in front of the Central Government Offices in the Admiralty District of Hong Kong. … Local and international media reported that during the protests in 2014 HKSAR and PRC’s authorities had colluded with criminal gangs (Triads) to cause violence. Local and international media also reported violent methods had been employed by HKPF against protesters. For example, Ken Tsang was arrested by police in October 2014 and had his hands tied behind his back as a group of about six HKPF officers punched, kicked and stamped on him. Several local and international journalists also reported the HKPF had assaulted them in 2014 while covering the protests. International human rights organisations and scholars stated the HKPF often punished anti-government protesters while overlooking violations by those aligned with the HKSAR Government.
.. On 15 December 2014, Commissioner of the Police, Andy Tsang, stated 955 individuals had been arrested in relation to the Umbrella Movement protests.…
In the years following the Umbrella Movement protests of 2014, a number of high-profile pro democracy activists were arrested for their roles in organising the demonstrations. For example, human rights organisations reported that 13 Hong Kong pro-democracy protesters were convicted on 17 August 2017 of ‘unlawful assembly’ and sentenced to between eight and 13 months in jail. These protesters had previously been sentenced to community service, but had heavier penalties imposed by a court of appeal. Joshua Wong and Nathan Law were convicted of ‘unlawful assembly’ on 17 August 2017 for their participation in the Umbrella Movement, with Wong sentenced to six months in jail and Law to eight months.”
[17] DFAT Thematic Report, note 2, [2.2] – [2.6].

The Tribunal considered the events occurring in the 2014 Umbrella Movement protests may correspond with those in the original claims of the applicant, although the dates were clearly different and much later.
Protection of civil liberties and procedural protections at relevant times
Given the information about Hong Kong’s apparent reputation for protecting civil liberties at the relevant times,[18] the Tribunal prepared additional information about state treatment of and protection for protesters so that it would take account of any changes between 2011 and 2025 (the time of the hearing and decision).
[18] See paragraph ‎19.
The Centre for Asian Law explains: “In retrospect, it’s clear that 2014 was a turning point: after the Umbrella Movement ended, the central government in Beijing pursued a more hardline policy on Hong Kong”.[19] Prior to that date adherence to Hong Kong’s Basic Law and Bill of Rights by regional authorities guaranteed supervision and scrutiny of police powers, legal representation and prompt judicial review for those involved in protest activities.[20] While there has been a subsequent erosion of those guarantees, it has been limited and gradual in scope. As relevant DFAT information indicates, even the protesters arrested in 2014 were subject to prosecution, trial and sentencing in the courts. The Centre for Asian Law indicates that the effective loss of legal and procedural protections in Hong Kong did not come much later, and that:
“To be sure, the Basic Law structure that has been in place since 1997 has always been imperfect: colonial-era laws remained on the books, and the courts were at times unwilling to issue rights-protective rulings in line with international human rights law and comparative best practice. That said, Hong Kong could credibly claim to be an open society prior to … 2020.”[21]
[19] Olivia Chow, Thomas E Kellogg, Eric Yan-Ho Lai “Anatomy of a Crackdown: The Hong Kong National Security Law and Restrictions on Civil Society” (Georgetown Law, Centre For Asian Law, March 2024), 12 < Country Reports on Human Rights Practices for 2011 – China (includes Tibet, Hong Kong, and Macau) – Hong Kong United States Department of State, Bureau of Democracy, Human Rights and Labor, 97-107; Centre for Asian Law, note 15, 10; Kin-man Chan “Occupying Hong Kong” (2015) 21:12 Sur Journal, 6.
[21] Ibid, 5.
DFAT also considers that: “The space for peaceful protest has declined considerably since … 2019-2020”, and explains that while “Hong Kong once had a vibrant civil society… the space for civil society had closed significantly, primary due to the introduction of the [security laws] in 2020”.[22] The report also indicates that reports of arbitrary arrests and detentions on national security grounds have become more common as a result of the same laws passed in 2019 and 2020.[23] Despite the broader erosions of civil liberties and procedural rights for protesters and dissenters DFAT reports that, as of April 2025:[24]
[Hong Kong Police Force] officers generally apprehend suspects openly when they observe them committing a crime or hold warrants issued by a duly authorised official … arrested suspects are generally brought before a judicial officer within 48 hours and all police interviews are videotaped.
In-country sources said in 2023 that matters of ‘national security’ involving the National Security Department were generally handled in the same manner as other police operations under the existing framework of the [Hong Kong Police Force], but judicial proceedings were handled in a different manner … a magistrate can authorise [police] to extend the period of detention of a person who has been arrested ‘without charge’ upwards of 14 days, restrict consultation with a particular legal representative or consultation with any legal representative during the period of the first 48 hours after arrest, and restrict movement to a specified place and when associating or communicating with specified persons.…
Arrested individuals have the right to access a lawyer assigned … through legal aid. Local media reported the HKSAR Government capped access to legal aid in 2023 …
… prosecutions are not made unless, according to the judgment of the prosecutor, there is sufficient evidence for a reasonable prospect of conviction. Any person charged with an offence is presumed innocent until convicted by the court, in a legal right protected under common law and Article 87 of the Basic Law (1997). At the trial, the burden of proof is generally on the prosecution, which must convince the court that the accused is guilty of the offence beyond reasonable doubt. …
[22] DFAT Thematic Report, note 2, [3.14].
[23] Ibid, [4.13]
[24] Ibid, [4.17]-[4.21].
The Tribunal considered the country information to indicate that human rights and legal protections for dissenters and protesters in Hong Kong has degraded since 2014. That is, contemporary information on state practice may be relevant to how a person may be treated on their return to Hong Kong or mainland China but may not be an accurate basis for assessing how they may have been historically treated by Hong Kong authorities. However, the Tribunal considered that, given the changes in state practice involved a degradation of protections. Furthermore, the contemporary information indicates that Hong Kong retains procedural and judicial controls on police powers, arrest, and detention. That indicates that the contemporary standards would reflect a minimum level of guarantees provided to those arrested in Hong Kong at the time, and, in practice, legal and procedural guarantees would have been much stronger and better respected than what they are now.
Similar cases
Given the uncertainty about which assembly the applicant’s claims were addressed to, the Tribunal reviewed similar cases involved claims relating to an “Occupy Central with Love and Peace” assembly or protest. The Tribunal identified a group of five other cases by a class of applicants seeking protection in Australia on the basis of harms arising from their attendance at an assembly of that name in Hong Kong.[25] Five decisions set out original claims for protection made in 2018 by unrelated applicants that were in similar or identical terms to the claims made by the applicant in this case; namely that the relevant applicant had joined an assembly titled “Occupy Central with Love and Peace” in 2011 (rather than the correct date of 2014) in Hong Kong, that they were punched and placed in gaol. All said they could not relocate due to the public security system and that they feared being caught, punched, and put in goal if they returned to China. In one matter, the Tribunal included the full claims made by the relevant applicant from their original decision – as has been done in this case at paragraph ‎7 above – and those claims appear to be a textually identical verbatim reproduction of the claims made by the applicant in her original application in each relevant question box of the application form.[26]
[25] ART Case Number 2400079; AAT Case numbers 2013609, 2013671, 2017202, 2013327.
[26] AAT Case Number 2017202.
The Tribunal was unable to identify any relationship between the applicants in any of the class of cases it has before it, other than they made identical, or close to identical claims, including incorrectly describing the Occupy Central with Love and Peace as an assembly occurring in 2011. All cases within the class were affirmed by the relevant Tribunal, in all but one case without a hearing due to non-attendance, and in the case in which there was a hearing the applicant subsequently altered their claim.[27]
[27] ART Case number 2400079.
The Hearing
The substantive hearing for the matter was held over two sessions on the morning and afternoon of 4 April 2025.
Evidence about original application
At the hearing, the applicant was asked if she had completed her original application for protection. She answered that another person had, but that the claims were hers. The explanation for how this situation came about, and just what she had told the person assisting her, was involved and lengthy. In summary, the applicant provided the following narrative of events:
·When she arrived in Australia, she did not speak English, know anyone in the country, or know where to go after she landed at the airport;
·She overheard a stranger speaking Chinese on the phone in the arrivals area of the airport;
·She approached the stranger, who was from [Country 1], but studying at university in [Country 2], and asked her if the stranger knew where she could go for work;
·The stranger suggested that the applicant accompany them to a farm where she was visiting friends as there may be work there and the applicant agreed;
·The farm was around six or seven hours drive away, but the applicant could not identify the name of the farm, the company that operated, what town it was in, whether it was in Victoria or an adjacent state (potentially South Australia or New South Wales based on the distance she said she was driven);
·The people at the farm were very friendly and immediately provided the applicant with paid work and accommodation because of the “terrible treatment” she told them about being subjected to in China;
·The stranger from [Country 1] stayed for around a fortnight before departing back to her studies in the [Country 2];
·Before they left the [Country 1] stranger asked the applicant whether she would like to stay on the farm and the applicant said she would, so the stranger told the farm “Boss” her story and he agreed to help;
·The farm Boss spoke English, but did not speak Chinese, the applicant thought he was an Australian citizen, but could not say for sure;
·Asked how the boss knew what to write in the form given the [Country 1] stranger had departed, and her boss didn’t speak English, the applicant said that the [Country 1] stranger may have told another Chinese speaker the applicant’s story, and that person assisted the Boss;
·The farm Boss told the applicant, through the friend of the [Country 1] stranger, “don’t worry, I will find a way to help her stay here”;
·Initially the applicant said she was not sure about how or when the application for protection was filled out, however when it was highlighted that the form contained a range of personal background information that only she would know, she said that she had communicated these things to the boss through the [Country 1] stranger’s friend; and
·In respect of her claims the [Country 1] stranger’s friend had asked “why I didn’t want to back to the heartbreaking place and I said it was a really sad story, I didn’t want to mention it to anymore … so she didn’t ask the specifics”, but the applicant had given a rough account of her claim to the boss who completed the form in English.
Based on the department and movement records these claimed events are taken to have occurred over 17 days, between [date] November 2018 (date of arrival) and 14 December 2018 (date of application). The applicant said she subsequently worked on the farm for several years and she knew that farm grew [fruits], but at no time while she worked there or afterwards was she aware of its location. She said that the decided to leave because of the lodging conditions and the Boss asked a driver to take her back to Melbourne.
The Tribunal read the applicant’s claims from the original application back to her and asked her whether they reflected the story she had told the person who filled out the form. She confirmed that it was. Asked whether the claims in the original application constituted an accurate record of the claim she made at the time she agreed they were.
Re-articulation of claims for protection
Given the applicant had said a third person had completed her form, the Tribunal asked the applicant about her history and background. Her answers largely corresponded with what was written in her original application, and to the extent they differed or expanded on what was there, the Tribunal adopts her oral evidence. The relevant background information of the applicant from these sources of evidence is set out above.[28]
[28] Paragraphs ‎4.- ‎5.
Asked what her claims were, the applicant said that they were the same claims as she had made in her form, namely that:
·She had joined the “Occupy Central with Peace and Love” Assembly in Hong Kong in the year 2011;
·She was caught by police officers and placed in gaol without being given a chance to explain;
·That she fears returning to China because of the national surveillance system there which would mean state authorities would identify, apprehend her, “punch” her and place her in gaol.
Later in the hearing, the applicant was asked to articulate her precise fear of returning to China and she said: “My biggest fear if I will return back to China is that I'm afraid to meet with other people or governments or officers from governments”. She said that was because while she was in Hong Kong she should have been given an opportunity to clear her name, but was not, and instead was beaten and when she returned to mainland China, she was again not given the opportunity to clear her name and didn’t have the opportunity to continue her life.
Claim to have been arrested and detained in Hong Kong in 2011
The applicant was asked to confirm that she had gone to Hong Kong in the year 2011. She said that was the correct year and, other than coming to Australia, that was the only time she had been “overseas”.
Asked about the timing and circumstances of her visit to Hong Kong, the applicant said that she had travelled for one week, because a woman from her husband’s village was going and her husband paid for her to take a holiday. She said that the trip was taken in summer between June to August 2011 but that couldn’t remember the exact date. She said that she stayed with her travel companion in a small hotel outside of the CBD area of Hong Kong.
Asked about how she became involved in the assembly, the applicant said that on or around the fourth day of the holiday she had become very sick and had left her accommodation to obtain medication. Outside her hotel was an assembly on the street which was like a “parade”, which was “really crowded” with people waving flags. She could not recall or describe the flags.
The applicant said that she saw a child in the crush of people, who was about 11 or 12 years old, who had fallen and was being stepped on and was bleeding. She said that she rushed into the crowd to rescue him, and all her attention was on him. When she reached him, she helped him stand up and he “passed his flag into my hand”. Asked what was on the flag, the applicant said she could not recall. She said that, later, a man came to “us” (which the Tribunal took to mean the applicant and the boy) and pushed her to the side of the road. She said that after that she was arrested with a “whole lot of other people” and “it was a mess there”. Asked how long after she was pushed to the edge of the road that she was arrested, she said it was around 5 or 6 minutes.
Later in the hearing, the Tribunal noted that it did not seem plausible that, having been ejected from a crowd, she would still be holding a flag she picked up some five minutes before. The Tribunal also noted it did not seem plausible that she would not remember what was on a flag given her holding apparently led to her arrest and detention. The applicant sought to clarify that she had not been pushed out of the crowd but into it and didn’t have time to identify what was on the flag before she was caught up in a mass arrest by Hong Kong police. She said she had never been in that sort of situation before and “didn’t know what was going on”.
The applicant said that after she was arrested, she was taken to a police station and put in custody. She said that she did not know where that station was. The applicant said that she was not permitted to talk and every time she tried to, she was beaten. She said: “they kept us there for about six or seven months and we asked for appeal, but they didn’t give us the opportunity to appeal, and they didn’t believe in what we said, and every time we try to talk or try to say something, we were beaten by them”. Asked if she was provided legal aid she said: “I had no opportunity to talk with the lawyer”. She insisted that the police refused to disclose why she was detained, including any information about the assembly she had been arrested at.
Claim to have been incarcerated and maltreated in mainland China
The applicant said that, after the six or seven months of detention in Hong Kong, she was handed over to “Chinese police”, which the Tribunal took to mean mainland Chinese police. She said those police also “didn't believe that I was actually innocent, so I was locked in the police station in [mainland] China, and I had a really rough time there”. Asked how long she was in detention, she said that it was for about one year. Asked where she was detained, the applicant said that she was placed in a women’s prison in [a region], where she was “was beaten up by them … every time I tried to talk to them about how innocent I am”.
The applicant was asked what the charges against her were and she said she did not know exactly; “but I think it's about ideology and also rebel against them”, which the Tribunal took to refer to Chinese authorities. She said that she was not charged in Hong Kong as she was beaten up every time she attempted to talk. The applicant said it was mainland Chinese police who first told her that she had participated in the “Occupy Central assembly” and “it was the first time … that I knew about this”. Asked if she was referring to the assembly from her original application she said, “I'm actually not too sure about the name of the event because I didn't know any of this” but agreed “Occupy Central with Peace and Love” was the name mainland Chinese police gave her at the time.
The applicant told the Tribunal that her husband “bailed her out” of gaol in around 2013 and later in the hearing that she was released on the condition that she not leave the area so that authorities could monitor her. After her release the applicant said that she and her husband returned to his village, but that because she had been arrested and incarcerated everyone there “said I was a terrible person” and would beat her and humiliate her. As a result, she said that she and her husband took up residence in a tent in farmland nearby the village.
The applicant said that one day she was sick and had to go to a clinic for medication, where she ran into some villagers who humiliated her and threw eggs at her. Her husband confronted the villagers about the harassment and, during the subsequent altercation, he suffered a heart attack. The applicant said that after that her husband became very ill and eventually died at some time in 2018.
Following her husband’s death, the applicant said she was devastated and alone and experienced suicidal ideation. She said that she eventually went to a river to attempt suicide but was rescued by a man who was in his [age]. The applicant said that the man was an ex-convict who had served a sentence for killing a person and, upon release had also considered suicide. The applicant said that the man took pity on her when she told him her story and decided to help her as she still had a life ahead of her. She said that the man initially recommended she go elsewhere in China, but she explained that the police told her to stay in the same area. She said the man suggested that she go overseas and assisted her to obtain a visitor visa to Australia, paid her airfare and her outstanding debts in China.
Responses to issues and concerns raised about the claims and evidence

After the applicant had set out her narrative of events supporting her claim, the Tribunal raised concerns it had with aspects of her claims and evidence.
The Tribunal explained that the country information before it – which is set out above[29]– did not appear to match the date and type of assembly the applicant had described being caught up in in 2011. The Tribunal explained that protests associated with a movement same name as the assembly described in her original application did occur in Hong Kong, but not until after she had said she visited that region. The applicant insisted the things she said happened to her were true, and that: “I know it is difficult for you as a foreigner to believe what I said, but it is what actually happened at that time”. She acknowledged sometimes being confused about the events given that she was “not meant to be part of that, but I was dragged into it … and I was put in prison because of what happened”. She said that she didn’t know the meanings of the terms relating to the assembly she was caught up in, but that (differently to what she had said earlier about Chinese Authorities telling her the name):“After I came to Australia, I saw similar occasion and people told me that that is what we call a protest and that that is when I understand what is the protest”.
[29] Paragraphs ‎15. - ‎22.
The Tribunal summarised relevant country information about the state of civil and procedural protections at the relevant times – which is set out above[30]– under Hong Kong’s Basic Law and human rights laws for the applicant. The Tribunal explained to her that the country information did not appear to support a claim that a person would be detained for six months without a charge, legal support, or trial in the circumstances she described. The applicant answered:
“Sometimes there are two people fighting on the street and they will be arrested by the police and put into and put into prison … That's what may happen in in China. I have to say I don't understand laws and I'm not well educated … I don't know about the events and I don't understand why they put me into gaol. I was not part of the March or the protest and I was not trying to, to fight against the government. So I, I just feel like, I just feel that I have been wronged. And they also in China, they always say the government will protect you, government will protect your safety and the government will make sure you have a good living environment. But that's, that is not what happened on me. … what I want to say is that as an ordinary [person] sometimes police come to you and they told you that you've breached the law even though you didn't do anything, breach the law. But as long as they say you breach the law, then you will be defined as a person who breached the law and there's no chance for you to fight back. … I don't even know how to protect myself, but I'm just here to tell you what real, what really happened on me.”
[30] Paragraph ‎27.
The Tribunal raised concerns it had with the plausibility of the applicant’s story about how she came apply for protection after arriving in Australia. The Tribunal suggested the more plausible answer was that the applicant had pre-arranged her employment before she came to Australia. The Tribunal further:
·     Noted that the phrasing of the application did not appear to be that of a person whose first and only language was English.
·     Explained to the applicant that it had a range of cases before it that involved identical claims to the applicant’s, reciting the same narrative of facts, involving the same misattribution of the date of the Occupy Central with Peace and Love protests to 2011 not 2014.
·     Suggested that this indicated the claims included in her original application were not her own but were rather a pre-prepared set of claims with a story prepared by others.
The applicant acknowledged the Tribunal’s concerns and that it might find her story difficult to believe, but reiterated “I told you exactly what happened [to] me … I told you my personal experience” and that “if I would like to lie to you, then I would ask someone to help me find the correct information and provide all the correct information to you, including the name of the event and also the date”. The applicant did not otherwise respond to the information about, and issues raised in relation to, identical claims in other cases.
The Tribunal explained that, based on the country information before it,[31] had the applicant been arrested, detained, and controlled for political crimes, it was unlikely that she would have been permitted to leave and come to Australia. The Tribunal explained that would indicate she was not considered a threat by Chinese authorities. The applicant reiterated that when she was “bailed out” by her husband the police had told her: “I must remain in this area and if I leave this area, they will get to me, and I will receive very severe punishments.” The applicant reiterated that when she had returned from Hong Kong, mainland Chinese authorities did not help her clear her name, but rather subjected her to more serious punishments. The applicant did not otherwise address the Tribunal’s concern about her ability to leave China or the issues it raised.
[31] DFAT Country Report, note 2, 70-71 [[5.32]-[5.39].
The Tribunal asked if there were any other matters the applicant wished to raise or have considered. The applicant said that: “Even though I need to go back to China in the future, I will consider my period in Australia as the happiest.”
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
The Tribunal’s fact finding role
In assessing the credibility of an applicant's claims, the Tribunal must make findings of fact in relation to each claim and its integers. This process necessarily takes places within a statutory framework that places the onus on the applicant to establish that they are a person in respect of whom Australia has protection obligations.[32] At the same time, the Tribunal must remain alert to the inherent difficulties faced by applicants who may have fled their country of origin, or who are required to recount experiences of harm, including the effects of trauma, cultural differences, language barriers and the passage of time.[33] Given these factors may affect the applicant's ability to produce documentary or other evidence to substantiate their claims there is no legal requirement that those claims must be corroborated to be accepted by the Tribunal.[34] However, that does not mean that the Tribunal must uncritically accept claims or evidence that it considers implausible, manufactured or otherwise unreliable.[35] Rather it is the role of the Tribunal to assess the veracity of each claim in light of the material facts before it.[36] A reasonable approach to credibility must be adopted, taking into account the totality of the evidence, the particular circumstances of the applicant, and the country information available applicable to it.[37]
[32] Migration Act 1958 (Cth) s 5AAA; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 570.
[33] MIAC v SZRKT [2013] FCAFC 80, [79]; MIEA v Wu Shang Liang (1996) 185 CLR 259, 291; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1992, [196].
[34] MZXRY v MIMA [2006] FCA 1475, [11]; Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[35] Randhawa v MILGEA (1994) 52 FCR 437,451.
[36] Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[37] MIAC v SZGIZ [2013] FCA 427, [42]; MIMA v Rajalingam (1999) 93 FCR 220, 224.
REASONS AND FINDINGS
Central to the applicant’s case is her core claim to have been arrested for unintentionally participating in a mass protest event in Hong Kong in June or July 2011. That part of her narrative supports and connects all other relevant integers of her claim for protection; why she may have been detained in the way she was, for the period she was, and notably, why there is a real risk or real chance of her being harmed on return to China. For the reasons set out below, the Tribunal is not satisfied that the applicant’s core claims are credible and finds that they did not happen. By consequence, the residual parts of her claim are not supported, and the Tribunal is not satisfied there is an objective basis for the grant of protection under s 36 of the Act on the entirety of the evidence before it.
The Tribunal considers that the applicant’s narrative explaining how she came to apply for protection in Australia is implausible. That is, her claim to have met a stranger in the arrivals lounge of the airport, who drove her six hours to a remote farm, where she was immediately given employment and accommodation and then encouragement and assistance to seek protection by the stranger who then departed, leaving an intermediary to assist her non- Chinese speaking employer to record her claims in a form two weeks later. Perhaps by itself the narrative might not be so implausible that it could properly be said to be impossible. However, when it is considered in the context of the following issues with her evidence, the Tribunal finds the narrative lacks sufficient credibility to be believable or reliable.
First, the Tribunal does not accept the applicant never knew the location or name of the farm she was taken to after arriving in Australia or the details of her employer who volunteered to help her apply for protection. This was not a situation in which an applicant can be expected to not recall events occurring in, or produce evidence from, the country of origin from which they have fled. The applicant was in a place of refuge, where she lived and worked for a substantial amount of time. The applicant’s evidence was that there were other Mandarin speakers at the property, including the [Country 1] stranger who took her there, the intermediary who assisted her to communicate her claims to her employer, and presumably others who assisted her to communicate about her employment and eventual return to Melbourne when she completed it. That is, she was not linguistically isolated or unable to communicate about her circumstances or receive information about them and can be expected to have been informed of her whereabouts and employer in the several years she was on the farm. Despite attempting to assist the applicant to identify the identity of the farm and her employer, she insisted that she did not know. She could not, in the Tribunal’s view, provide a satisfactory answer as to why that was the case. The Tribunal considers the applicant to have been evasive at the hearing about where she was located for several years after arriving in Australia and concludes that this was to avoid disclosing who it was that completed her application for protection or what the proper circumstances relating to that application being completed were.
Second, the Tribunal is not satisfied the claims included in her original application were her own. Those claims were verbatim identical, or functionally identical to claims made in other, apparently unrelated cases filed close to, but before her own. The Tribunal has considered the possibility that all of these cases relate to a class of persons who were caught up in the same exact circumstances at exactly the same time in Hong Kong but is not satisfied that is an appropriate explanation for the verbatim textual repetition of claims in each. Nor does it explain why all the claims misattributed the date of the “Occupy Central with Love and Peace” to 2011, not 2013 or 2014. Nor does it explain the broader inconsistencies the claims all share in respect of available country information about civil and procedural protections in Hong Kong at the time (set out below[38]). The fact that the verbatim textual reproduction of claims from other cases apparently occurred via two intermediaries – who she had only recently met, and who spoke two different languages – documenting her oral claims further takes the narrative beyond all realms of possibility. The Tribunal is not satisfied that the applicant’s answer that if she wanted to lie, she would have obtained assistance to do so to properly, addresses the information and arising issues put to her. The Tribunal is not satisfied that any other answers or evidence the applicant gave properly addressed its concerns either. Given that is the case, the Tribunal concludes that the claims made in the original application were not the applicant’s and finds that they were pre-prepared and written by others using a template or ‘boilerplate’ claim.
[38] Paragraph ‎67.
Considered together, the issues with the applicant’s evidence indicates that her explanation about how and why she made her application for protection is not credible or reliable. The Tribunal finds that the applicant’s original application was prepared by others and not based on statements she made or evidence she gave to them. The words and substance of the claims were made and crafted by others and were not hers. By consequence, the Tribunal places little weight on the claims contained within that application as truly accounting for what happened to the applicant in that country, her reasons for coming to Australia or why she fears returning to China.
Turning to the claims the applicant made in the hearing, the Tribunal notes that they expanded upon and sought to explain the basis for those made in the original application. Given the Tribunal has found those claims to constitute a pre-prepared boilerplate claim, which was not the applicant’s, it considers her oral evidence to be of similarly limited credibility and reliability.
The Tribunal is also not satisfied that the events the applicant recounted are supported by the country information before it. Specifically, the dates of the claimed events, do not correspond with either “Occupy Central” related protests which the information says occurred in Hong Kong. That is especially the case for the “Occupy Central with Love and Peace” protests referred to by the applicant in her original application and at times in her oral evidence – those occurred years later in 2013. The applicant was clear at the hearing that her claim was to have been in Hong Kong between June or August 2011, not later.
The Tribunal has considered the applicant may have mistaken the time of year she was in Hong Kong and referred to the wrong “Occupy Central” protest. However, it is not satisfied that addresses the reliability issue given that tent sit-in was an entirely different form of assembly than what she described. The sit-in began months after the applicant said she was in Hong Kong. It was an anti-capitalist event which did not appear to attract significant concern from Hong Kong or Chinese authorities as later anti PRC protests did. Relatedly the assembly did not involve the form of degree of police interference she referred to in her claims. Most relevantly the information indicates that the few arrests that did occur occurred in 2012, which was the year after the applicant claimed to be in Hong Kong. The Tribunal is satisfied the applicant could not have meant, nor have been referring to, the 2011 “Occupy Central” Hong Kong assembly in her written or oral claims.
The Tribunal has also considered that the applicant was wrong about the name of the 2011 assembly and that she may have been referring to the 1 July annual March in that year. However, it is not satisfied that is a possible answer to the reliability issues with her evidence. There is limited information about police misconduct or human rights abuses at the 2011 annual Hong Kong march, but what does exist relates to circumstances that were very different to the scenario put by the applicant. Most notably human rights concerns relate to protesters being dispersed with chemical agents, rather than being detained en masse or arbitrarily. While the information indicates a limited number of arrests did occur the day after the rally, these related to people blocking traffic or filming police making those arrests, and those arrested were subsequently released by police. The Tribunal is satisfied the applicant could not have meant, nor have been referring to the 1 July annual Hong Kong March.
The Tribunal is therefore not that the applicant’s narrative corresponds with any country information about known mass protests or assemblies in Hong Kong in 2011.
The Tribunal is also not satisfied that the country information supports the applicant’s claims of maltreatment by Hong Kong authorities in 2011. The information indicates that those arrested on any charge, including protest charges, in Hong Kong enjoyed a basic minimum standard of procedural and legal protections, including: rights against arbitrary arrest and detention without charge, legal representation and prompt judicial review.[39] The Tribunal has no information before it, and the applicant did not provide any other information, to suggest that she would have been treated any differently by Hong Kong authorities because she was from mainland China. Rather, the applicant appeared to at sometimes represent Hong Kong and mainland authorities as ubiquitous but then at other times describe Hong Kong police as if they were from an entirely separate country. The Tribunal considers the country information about Hong Kong laws and procedures to be more reliable in the circumstances than that provided by the applicant. Having considered that country information, the Tribunal finds that the applicant’s evidence as to her arrest, arbitrary detention, maltreatment, and lack of legal aid or judicial review to lack credibility in the circumstances.
[39] See paragraph ‎27.

The Tribunal made several attempts to explain the issues raised by the country information to the applicant, but her consistent response was to insist that the events happened as she described them. The Tribunal considers that the applicant was unwilling or unable to engage with or respond to its concerns and is not satisfied by the answers she did provide. In the context of all her evidence, and the credibility and reliability issues it raises, the Tribunal relies on the country information before it and finds the events she claimed happened in Hong Kong that support her claim did not happen.
By consequence of its finding that the asserted events in Hong Kong did not happen the applicant’s claims about her treatment in mainland China also fall away. That is because the applicant asserted that her arrest in Hong Kong led to her incarceration in mainland China, and that incarceration was the basis for her mistreatment by mainland Chinese authorities and citizens. The Tribunal therefore finds that the applicant’s evidence relating to her treatment upon returning to mainland China is unreliable and lacks credibility and did not happen.
Equally, the Tribunal is not able to reach a state of satisfaction that the applicant was subject to surveillance, restrictive controls, or monitoring by Chinese authorities; given all these asserted forms of state interference with her rights were based on claimed events which the Tribunal has found did not happen. The applicant’s ability to freely leave China is further evidence of that. The Tribunal finds that there is no objective basis for the applicant to be considered a subject of concern to Chinese authorities, nor that she risks harm from them if she is returned to China. For the avoidance of doubt that includes the Tribunal’s consideration of the country information which indicates that she would not face harm from Chinese authorities as a returnee who had failed a protection claim in Australia.[40]
[40] The Tribunal accepts the country information which indicates that “failed asylum seekers returned to China were not specifically targeted by authorities and did not face official discrimination merely for having sought asylum overseas” DFAT Country Information Report – People’s Republic of China (27 December 2024), 67 [5.27].
The Tribunal is therefore not satisfied that any aspects of the applicant’s claims, including its integers, are credible. The Tribunal does not consider that any remaining credible or reliable aspects of the applicant’s narrative give rise to residual claims. By consequence the Tribunal finds that there is no credible or reliable objective evidence before it that the applicant will face any harm, much less serious or significant harm, as a foreseeable consequence of being returned to China. Those findings being essential criteria for the grant of protection under either arm of s 36(2)(a) or (aa), the Tribunal determines the applicant is not a refugee or person in respect of whom Australia owes complementary protection obligations.
The applicant did not contend that she was 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)(b) or (c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:                4 April 2025
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.
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