2101175 (Refugee)

2101175 (Refugee) [2022] AATA 4422 (3 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chang Liu (MARN: 1281426)
CASE NUMBER:  2101175
COUNTRY OF REFERENCE:                   China
MEMBER:Catherine Carney-Orsborn
DATE:3 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 November 2022 at 10:49am
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – fear of harm from parents and brother – refusal to enter arranged marriage and child born out of wedlock – now married with two children – household registration – country information – significant period as unlawful non-citizen – occasional communication with parents and in-laws – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZEPZ v MIMA (2006) 159 FCR 291
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, first arrived in Australia [in] September 2007 as the holder of a subclass 571 Student visa.
The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa on 5 October 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
On 12 April 2017, the applicant applied to the Tribunal for a review of the refusal decision. A previous Tribunal held a hearing, via telephone, on 9 September 2020. On 9 September 2020 the Tribunal affirmed the refusal decision in Tribunal case 1707943. The applicant provided the Tribunal with the delegate’s decision record.
[In] September 2020, the applicant commenced judicial review proceedings against the Tribunal’s decision in [Reference number]. [In] January 2021, the Federal Circuit Court remitted the matter to the Tribunal for determination according to law. The Minister consented to the course and the Court order noted that the previous Tribunal failed to consider the applicant’s claims of fear. That her parents and brother would harm her child because they were ‘very traditional’ and her pregnancy out of wedlock had ‘disgrace[d]’ them, and that the Tribunal failed to consider the applicant as a woman returning with a child born out of wedlock.
The matter is now before the present Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 25 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent, Mr Chang Liu.
What information can be considered on remittal?
Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding. In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted. This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.
In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is owed Australia’s protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department files and the previous and present Tribunal files.
The Department file contains documents the applicant provided to the Department including, a copy of the Protection visa application dated 3 October 2015, copy of a Protection visa application dated 25 August 2015, copy of Department’s notification of invalid Protection visa application dated 25 August 2015, a Bridging visa application from the applicant dated 27 September 2015, a Bridging visa application from the applicant dated [September] 2020, copies of rent receipts for a property in [Suburb] NSW from the applicant, copy of bank account transaction for the applicant, the delegate’s decision, copy of the Federal Circuit Court notice of filing and hearing dated [September] 2020, the applicant’s affidavit from the Federal Circuit Court dated [September] 2020, the previous Tribunal’s decision dated 24 September 2020, the biodata page of the applicant’s Chinese passport issued [in] 2007, a VEVO for the applicant’s Bridging C visa dated 24 September 2015 and a New South Wales birth certificate for [Child 1] date of birth [Date].
The previous Tribunal file contains a copy of the application for review form, the delegate’s decision, the Tribunal’s oral decision record dated 9 September 2020, a transcript of the Tribunal proceedings dated 9 September 2020, the Tribunal’s written decision record dated 24 September 2020, a Federal Circuit Court application for an order of review dated [September] 2020 and the applicant’s affidavit from the Federal Circuit Court dated [September] 2020.
The present Tribunal file contains a copy of the application for review form, the previous Tribunal’s oral decision record dated 9 September 2020, the previous Tribunal’s written decision record dated 24 September 2020, the delegate’s decision, a transcript of the previous Tribunal’s proceedings dated 9 September 2020, an application for an order of review to the Federal Circuit Court dated [September] 2020, and an order of the Federal Circuit Court dated [January] 2021.
The following information was provided by the applicant in her application form lodged with the Department. She is from Fujian province in China. The applicant speaks, reads, and writes Mandarin. The applicant’s mother, father and brother reside in Fujian, China. She completed primary school and middle school in Fuqing, Fujian, China.
The applicant claims that she will be persecuted by her parents and brother if she returns to China and that they may harm her child.
The applicant was pregnant at the time of lodging her application for a Protection visa on 3 October 2015.
The applicant claims that in 2008, while she was in Australia, her parents asked her to return to China for a family arranged marriage. She refused and her family stopped providing financial support.
The applicant fears that her family will not support her if she returns to China; her family had previously told the applicant to abort the pregnancy.
The applicant fears she will not have the financial means to pay the penalty and her child will not have a Hukou registered.
Nationality
The applicant claims to be a citizen of China. A copy of the applicant’s passport was provided. The applicant is a Chinese citizen. The Tribunal has assessed the applicant’s claims against China as her country of nationality for the purposes of the Convention and her receiving country for the purposes of s.36(2)(aa).
The hearing
On 25 October 2022 the applicant appeared before the Tribunal. The Tribunal explained that the matter had been remitted to the Tribunal for reconsideration. The Tribunal stated that it had before it the information supplied by the applicant to the Department and the previously constituted Tribunal.
The Tribunal then explained that the matter had been remitted to the Tribunal to be dealt with.
A summary of the oral evidence is as follows.
The applicant stated that she had family in Australia comprising of her husband and two children. She stated one child is [Age] years of age and the other is [Age] years of age.
She has family in China comprising of her parents and an older brother. She stated that she communicates with them “sometimes but not very often”.
She stated she and her husband were both doing some casual work in Australia.
They are both currently on bridging visas.
The Tribunal asked the applicant to explain why she cannot return to China. The applicant stated words to the effect that at the time of her application her family was against her and her relationship and while pregnant they would not support her. She stated that she was concerned that once her children are born, they will not be allowed to be registered in the household census. She stated that people will laugh at her family for not having a proper marriage and having children.
She stated that she married her husband in 2019. The Tribunal pointed out she is now married. She responded that she is still concerned about her children having a proper registration.
The Tribunal clarified with the applicant that her fear was only related to her children not being able to be registered under the “Hukou” system. She responded that was correct.
The Tribunal then discussed current - DFAT country reports which indicate that there has been a significant change in policy, and it now appears that her children will be registered.
She responded that the registration will be dependent on her parents’ household. She claims she will not have an individual household and if her parents do not agree they will be unable to go to school or have medical care.
The Tribunal asked about her husband’s family. She responded with words to the effect that her husband’s parents do not care for the children as she has never supported them (her in-laws) financially. The Tribunal asked if the parents speak to the children. She responded they only speak to the second child as he is a boy.
She went on to express words to the effect that the parents of both sides do not agree to their relationship. She stated that she is concerned they will be laughed at. She stated that her family do not like her husband as his family are poor.
The Tribunal then discussed the applicant’s migration history which included a significant amount of time being an illegal. The Tribunal pointed out that her history could indicate that her main motivation is staying in Australia. She responded that at the time she was pregnant, and her parents stopped supporting her and that was why she was illegal. She claims they wanted her to return to China for an arranged marriage and when she did not, they stopped supporting her and that is why she was illegal in Australia for over five years.
The Tribunal discussed the applicant’s concerns about her children obtaining registration. She responded that her only concern is that without having proper schooling and medical care her children will be looked at differently from the others in the neighbourhood.
The Tribunal asked the applicant to expand on her concerns. She responded that they would look at them with a different look.
The Tribunal again summarised the issue it was considering. The Tribunal stated words to the effect that while a lack of registration for her children could be seen in some circumstances as a significant harm which would impact on the applicant it appears from current country information that is no longer the case and the applicant’s children will be registered and not suffer harm.
The Tribunal asked if there was anything further, she wanted the Tribunal to consider. She responded no.
Country information
DFAT Country Information Report China December 2021
In 2016 the national government ordered all local governments to register children with a hukou, even if they were born ‘out of plan’. In-country sources told DFAT that increased discretion was being afforded to local governments to decide whether or not to charge out-of-plan fees to parents even before the 2016 reforms. This was especially true in rural areas.
In 2021 the law was changed to allow couples to have three children. Social compensation fees levied against people with ‘out of plan’ children were abolished. This reflects an overall de-prioritisation of the policy by a government that is now concerned with declining birth rates and an aging population.
The likelihood of enforcement or penalties for non-compliance, both before and after the new rules were implemented, varies from place to place. DFAT understands that Fujian, for example, does not enforce its family planning policy strictly and penalties have not been imposed in some years. People who give birth overseas would have their children counted as if they were born in China and the policies of the place, they return to in China would apply. Children born to single mothers might also be considered ‘out of plan’.
DFAT is not aware of any recent reports of people being imprisoned for failure to pay fees and is not aware of recent examples of forced abortions but understands that they are theoretically possible. While punishment for out-of-plan children is still possible, it is much less likely that it was in the past. Implementation differs from place to place (it is regulated by provinces) but DFAT is not aware of evidence that breaches of family planning laws are severely punished anywhere in China. Outstanding compensation fees, including for previous children, still need to be paid. DFAT assesses that official discrimination against people who have out of plan children is low. DFAT is not aware of patterns of societal discrimination against people with out of plan children.
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
Findings and Reasons
Children’s registration in the Hukou system
The applicant confirmed at hearing that her main concern was that her children will not be registered and due to this will not receive medical care or an education in China. She expressed her concern they would be laughed at for not being traditional and her family did not like her husband.
At hearing the Tribunal had a discussion about the most recent independent country information which indicates that China has changed the law in relation to its family planning policies. The applicant indicated that it was still her concern. She claimed that as her parents and brother do not support her relationship, she will not be able to register the children.
The applicant did not provide anything other than her own assertions that this was the case. When queried about her migration history she stated she only became illegal after she refused to return to China for an arranged marriage. Her migration history indicates that she became illegal in 2010, not in 2008 when she claims she refused to return to China.
The Tribunal prefers the Independent Country Information which is available to it and finds that if the applicant returns to China her children will be registered and will receive services and care which is afforded to children of Chinese citizens. There is nothing to indicate the applicant will have to pay a fine. Most recent information indicates that the Chinese authorities are encouraging of families having up to three children.

The applicant several times stated that she and her family will be laughed at. She was asked to clarify why this would be the case. She made references to not being married. This is in contrast to her evidence she provided at the hearing which was that the applicant and her husband married in 2019.
She was vague about any claims of the children being “laughed” at. The Tribunal prefers and accepts independent information available to it that there is no evidence of out of plan children being discriminated against.
The Tribunal could accept that children who are out of plan and whose parents are unmarried may suffer some societal disapproval. However, the applicant’s family are not one of those families as the applicant’s evidence is that she is now married, and Independent Country Information confirms her children will not be denied registration.
Information provided to the Tribunal by DFAT indicates the applicant’s children will be registered and receive services available to all Chinese citizens.
The applicant referred to her earlier claims that her parents are against her marriage. When asked how this would impact on the her, she suggested that her parents could stop the children from being registered. Independent evidence indicates that registration or Hukou would be available to the applicant and her children. Information indicates that the family could chose to be registered in either partner’s hometown. There is nothing to indicate that the grandparents could stop the applicant and her children from being registered other than the applicant’s assertions.
Harm from parents and brother in China
The Tribunal does not accept that the applicant would face significant harm in China from her family’s disapproval. The applicant has been together with her husband for some years and children have been born. The applicant’s earlier evidence is that she speaks to her family in China. Her in-laws speak to her son. When given an opportunity to discuss any harm the applicant might suffer from family in China the response lacked detail and was vague. She did not provide any details or express any fear at the hearing in relation to any harm her brother or parents may cause her or her child. When asked to clarify she stated that her only concern was the registration of her children.
On the evidence before it the Tribunal is not satisfied that the applicant refusing to return for an arranged marriage in 2008 would still have any impact on the applicant’s safety in China. It is now over 13 years later. The applicant is in in a long-term relationship, she is married and has two children. The Tribunal does not accept that the applicant or her children would be at risk of serious harm from her family in China including her parents or brother.
After considering the independent information the Tribunal is satisfied there has been a relaxation of the relevant family planning laws and there is nothing to indicate that the applicant would be at risk of serious harm or have any onerous conditions or fines applied to her because of out of plan children. The Tribunal finds the applicant will not suffer serious harm as the Tribunal accepts Independent Country Information that she will be able to register her children in China and they will be able to access education and welfare services available to all citizens in China.
The Tribunal, after considering the applicant’s migration history, the period of being illegal and then applying for protection, has formed the view that the applicant lodged an application for protection to achieve a visa to stay and continue to work in Australia and does not hold a genuine fear of serious harm.
The Tribunal does not accept that the applicant is at risk of serious harm from her parents or brother if she returns to China now or in the reasonably foreseeable future. The Tribunal for the reasons set out above does not accept that she will suffer serious harm as a woman returning with a child born out of wedlock.
The Tribunal on the evidence and information provided does not accept that the applicant will be deprived of her basic human rights for any of the reasons claimed if she returns to China. The Tribunal is not satisfied that she is at risk of serious harm or significant harm for any of the reasons claimed if she goes to China now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that she will suffer serious harm for reason of her membership of a particular social group, or any other grounds under the Refugees Convention if she goes to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a).
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
A person meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The Tribunal on the evidence before it does not accept that the applicant or her family will be discriminated against or denied services.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk she and her children will suffer significant harm. She therefore does not satisfy s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Carney-Orsborn
Member

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

[2022] AATA 4422

3 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction