2101676 (Refugee)

2101676 (Refugee) [2024] AATA 1684 (2 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2101676
COUNTRY OF REFERENCE:                   China
MEMBER:Rosa Gagliardi
DATE:2 April 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 April 2024 at 3:03pm
CATCHWORDS
REFUGEE – protection visa – China – political opinion – freedom of speech and human rights – no open expression of opinion or harm – limited additional information provided to department and no responses to tribunal’s invitations to provide information and attend hearing – applicant’s responsibility to supply facts in necessary detail – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 January 2021 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 (a matter the Tribunal accepts on the basis of the evidence) applied for the visa on 28 September 2019.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant’s engagement with the Tribunal
To reach out to the applicant to engage with their matter at the Tribunal, the Tribunal wrote to the applicant at an email address provided by her for the purposes of the review earlier this year. The correspondence of 30 January 2024 advised that the applicant’s file was being prepared to be given to a Member and invited the applicant to fill in a pre-hearing information form. The form, among other things, asked the applicant whether she would like to provide additional information about her claims for protection and were there any other reasons she was afraid to return to her home country.
The applicant never returned this pre-hearing information form with additional information or indeed any information.
On 12 March 2024 the Tribunal again wrote to the applicant at an email address provided by her for the purposes of the review, inviting her to attend a hearing scheduled for 2 April 2024, 10:00 EST. The hearing invitation stated that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. The hearing invitation also advised that if the applicant were unable to attend due to difficulty in participating, she was required to let the Tribunal know as soon as possible and that the Tribunal would make changes to the scheduled hearing if it was satisfied that it was reasonable and there were good reasons for doing so.
The applicant did not respond to the hearing invitation. It had not been returned to sender and there is no indication that the applicant did not receive the invitation. On the day and time of the scheduled hearing the applicant did not appear. Nor did she provide additional information or contact the Tribunal to postpone the hearing.
The Tribunal’s records demonstrate that two SMS messages were sent to the applicant to a phone number provided by her for the purposes of the review – on 22 March 2024 and on

28 March 2024 - to remind the applicant of the impending hearing. These reminders were not returned to the Tribunal as undeliverable, and the Tribunal is in a position to assume that those messages were received.
The Tribunal appreciates that the ability to proceed to a decision on the papers is discretionary and that such a decision should not be taken lightly. Having considered that the applicant has been placed on notice that the Tribunal could not make a favourable decision on the information before it alone and given that the applicant has provided a copy of the Departmental decision to the Tribunal, the Tribunal considers it reasonable to proceed to make a decision on the papers.
In passing, the Tribunal notes that the Departmental decision reflects that on 11 October 2019 the applicant was sent an acknowledgement of valid visa application letter by the Department which advised her that she could provide additional information relating to her claims and that there were three ways to provide it: ImmiAccount, mail or in person at the time of the collection of personal identifiers. In addition, on 13 October 2020 the applicant was sent by the Department a s.56 letter under the Migration Act seeking she provide additional information about what happened to her in China, including dates and locations of events.
In response to the s.56 invitation the applicant provided a series of social media screen shots in what appears to be Chinese script. No NAATI accredited translations were provided and no explanation was submitted as to the relevance of the screenshots to her claims. There is no further evidence the applicant had attempted to contact the Department.
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 has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and whether there is a real chance that if the applicant was returned to China now or in the reasonably foreseeable future, she would be persecuted for one of those reasons and whether she would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In her application form the applicant contended that she left China because it is a communist country. The nation is controlled by the Communist Party and people have no freedom. The applicant wrote that due to the country’s long-term regulation by the Communist Party, people have no freedom of speech and no human rights in China. If people say something wrong or are found to be using VPN to visit Facebook, Google or YouTube they will be caught by the Communist Party and will undergo three years imprisonment without legal procedure. The applicant wrote that she came to Australia seeking a better life.
The applicant wrote that she experienced harm in China. Asked to give details of such harm she answered (as written), “If any national has say something wrong or they be found using VPN to visit Facebook, Google, YouTube it will unconditional caught and jailed three years without legal procedure. Communist Party are too terrible”.
The applicant also wrote in her application that she did not seek help within China because all of China has been controlled by the Communist Party. Asked if she had tried to move to another part of the country the applicant repeated no, because all of China has been controlled by the Communist Party.
In terms of what the applicant thought would happen to her on return to China, she wrote, “All parties control by Communist Party. It will having and facing a terrible lifestyle. All of my assets has been confiscated by China Communist Party”. She articulated that she thought she would be harmed or mistreated if she returned to China.
The applicant was asked to set out the type of harm she was likely to experience on return to China and who would be responsible for the harm or mistreatment. The applicant responded, “The Communist Party know I have been using VPN services for browsing Facebook and using Google service in China before. They will caught me if I go back to China and they will charge me treason crime. If I go back to China I will innocent be caught by Communist Party government”. She did not think the authorities of her country would protect her. Asked to provide details she stated that the Communist Party government would catch and send her to jail without any reason.
Asked if she could relocate the applicant stated, no because the Communist Party would catch her and send her to jail without any reason.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal invited the applicant to a hearing as the Tribunal was concerned by the repetitive and general nature of the applicant’s claims which are lacking in detail and are so vague as to mean the Tribunal is unable to place them in any meaningful context to be able to determine that the events claimed by the applicant actually occurred.
For example, the applicant has made a general statement that there is no freedom or human rights in China due to the Communist regime. Nonetheless, at a hearing the Tribunal would have liked to ask the applicant whether she had a profile as someone who advocated openly for freedom of speech in her country, and to detail the kinds of other freedoms she wanted for herself and the country. The Tribunal has no information about the extent to which she had a profile, if at all, as someone who promoted freedom and human rights in her country and was a political activist, or whether she had at all given articulation to such political ideals.
The applicant has made general claims about living in a Communist country and the restrictions placed on the use of social media and other internet facilities, but it is unclear as to how these restrictions are captured by s.5J as any restrictions of social media and other websites apply to the nation as a whole and the laws of general application apply. The applicant has not provided detailed information about why she, in particular, was targeted by the authorities to deny her the use of such services. In any event, for the reasons below, the Tribunal does not accept that the applicant has any opposition to the Chinese government or that she has ever openly expressed any opposition to a lack of freedom of speech and the use of the internet, or that she has a profile as someone as a defender of human rights in China.
The Tribunal acknowledges that the applicant has elaborated that she will be arrested and charged with treason on return to China because she has used a VPN to access Facebook, Google, YouTube or any other form of media. At a hearing the Tribunal would have asked the applicant to provide roughly the number of occasions she had used a VPN, and to provide dates for such usage. While the applicant has submitted untranslated social media snapshots, without an authorised translation and without the opportunity to be able to ask the applicant what these snapshots represent, the Tribunal is not convinced that they support her claims at all.
Other questions the Tribunal would have raised at hearing is in what location she might have been when she was using the VPN. For example, was it in a public space where she might have been noticed by others using a VPN or was it in the privacy of her own home. Other significant gaps in the applicant’s claims relate to how the Communist authorities would have come to know that the applicant had been using VPN to access Facebook, Google and YouTube and how the applicant had come to know that they were aware of her usage.
The applicant has made a significant claim that she would be charged with the crime of treason on return to China – a serious charge in many countries. This being the case, the Tribunal would have liked the opportunity to explore with the applicant how she was able to obtain a passport to depart her country lawfully if she was wanted for treason because of any of her claimed activities in China. The Tribunal is not satisfied that had someone come to the attention of the authorities in China for actions attracting penalties for treason she would have been able to depart her country at all. According to the country information it is more realistic that she would have been intercepted at the airport to prevent her from evading punishment for a serious crime. It is fanciful that someone allegedly wanted for such serious charges, would be given a passport in her name to be able to depart her country as any other citizen would be able to do.
The country information in the Departmental decision reflects that the government in China maintains a system of border controls that prevents persons of interest departing the country. According to the Department of Foreign Affairs and Trade (Australia), the government uses exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents and persons employed in sensitive government posts.[1] Moreover, China’s passports use sophisticated technology, and its authorities have a high surveillance capability, particularly at train stations, airports and ports.[2] An ordinary citizen would also find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[3]
[1] Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report China, October 2019, Microsoft Word - DFAT Country Information Report - China 2019 - FAS MPD cleared (002) (ecoi.net).
[2] Ibid.
[3] Ibid.
The Tribunal would have inquired at a hearing what the applicant meant by all her assets had been confiscated by the government, and why. The Tribunal would have asked the applicant at a hearing to recount on which occasion this claimed confiscation had occurred; who had undertaken the confiscation; and what precisely was taken.
The Tribunal finds the applicant’s claims to be general and lacking in specific detail. They are broad and the Tribunal is not satisfied that the applicant has made out her claims. Given the Tribunal’s concerns it is not satisfied that:
·the applicant escaped China because of the communist government.
·the applicant opposed the Chinese government’s controls on human rights and freedom of speech either publicly or furtively.
·the applicant’s assets were confiscated by the Chinese Communist Party.
·on return to China the Communist government will arrest and charge her for treason because the government knows she had been using a VPN to access Facebook, Google and other sites.
·the applicant will be imprisoned for three years for using a VPN and accessing forbidden sites without legal procedure.
·the applicant cannot relocate because the Chinese government would be able to relocate her wherever she went in China and would imprison her without reason.

The Tribunal does not accept that the Chinese authorities are aware of any adverse activities by the applicant involving the use of a VPN or for any other reason and rejects that the applicant has a profile as someone who is wanted for treason in China. The Tribunal finds, therefore, that there is not a real chance that the applicant will face persecution on return to China on account of her political or imputed political opinion or for any other s.5J reason were she to return to China now or in the reasonably foreseeable future.
In assessing the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal has considered whether it has 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 the applicant will suffer significant harm. The Tribunal has had regards to the applicant’s claims, as above, regarding complementary protection, but has the same concerns which it wished to explore with her at hearing. The Tribunal is not satisfied that the applicant has established that she will suffer serious harm for her actual or imputed political opinion or for any other reason.
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from the Chinese authorities or anyone else for any reason if she returns to China, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the definition. Having found above that the Tribunal is not satisfied that the applicant has engaged in the activities as claimed, and that there is no real chance that the applicant will face persecution for any reason, it follows that the Tribunal is not satisfied that 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 that the applicant will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
Member

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

[2024] AATA 1684

2 April 2024

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