2107222 (Refugee)

2107222 (Refugee) [2024] AATA 927 (29 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Amy Lee (MARN: 0215803)
CASE NUMBER:  2107222
COUNTRY OF REFERENCE:                   China
MEMBER:Sue Zelinka
DATE:29 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 January 2024 at 12:39pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – parents arrested and friends disappeared – vague and inconsistent claims and evidence – age when started practicing, with parents and/or friends, in home country or Australia – limited knowledge of teachings and practices – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 May 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant appeared before the Tribunal on 15 January 2024 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.
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 a person in respect of whom Australia has protection obligations. The applicant claims that he is a practitioner of Falun Gong and that he will face harm in the future if he returns to China. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.
The applicant, whose passport shows he is a citizen of China, applied for a protection visa on 3 July 2017. The delegate refused the grant of a protection vis on 31 May 2021 because he was not satisfied that the applicant was, or had ever been, a Falun Gong practitioner and was not satisfied that he would be targeted by the Chinese authorities on the basis of his religion.
Background
Information on the passport and the protection visa application show that the applicant arrived in Australia [in] January 2012. He has parents and twin sons (born [Year]) still in his home province of Shandong. After schooling in Shandong he attended a [college] in Beijing, finishing in [Year], but made no mention of any work he undertook between then and leaving China to attend an English language course in Australia.
Early Falun Gong practice
The applicant’s claims were first set out in a statement attached to has protection visa application. He indicated that he had first come into contact with Falun Gong whilst a language student in Sydney: he does not give a year, but it was after 2012. He claims that he has benefited from Falun Gong but has learned that practitioners in China are persecuted. He claims that Falun Gong has become part of his life activity and that if he returns to China he will continue to practise. He fears that this will bring harm to his parents and his children. The applicant included a long account from a Canadian newspaper about a Canadian citizen of Chinese ethnicity who was persecuted in China for her Falun Gong adherence.
At the departmental interview, the applicant gave a different account of his introduction to the practice of Falun Gong. He claimed that he had taken up Falun Gong in 2009, or at the end of 2008. His mother had taken up Falun Gong earlier as she was unwell and the practice made her mental health much better. Appreciating that, and noticing that his mother’s friends were happy, he himself started to practise. Before he started Falun Gong, he was a Buddhist, claiming to have been brought up that way. He added that both his parents and his sons currently practise Falun Gong. Although he came to Australia to study English, the applicant claimed he stayed because he met people practising Falun Gong and he wanted to stay and get to know them.
Before the Tribunal hearing, the applicant sent a written submission in which he stated that he started practising Falun Gong in Australia in 2012 and learned most of his teachings from practitioners here. His parents in China had been involved in Falun Gong a very long time ago and he himself had been involved there in 2008-2009. However, he stopped and did not resume the practice until after arriving in Australia. He spread the message of Falun Gong to friends in China and influenced them to practise. They came to the attention of the police and when interrogated told the police it was the applicant who had spread Falun Gong to them. Hence he fears he will be arrested if returned to China. He notes that Falun Gong is prohibited in China and the authorities harshly punish people who practise. He fears he will be harmed if he returned to China.
Applicant’s testimony at the Tribunal hearing about his Falun Gong practice in China
At hearing, the applicant said that his parents practised Falun Gong when he was very young, perhaps about ten years of age. They were arrested and were away for over six months. He can’t remember exactly when this was but still during his childhood – perhaps he was just finishing primary school. They did not dare to practise Falun Gong after that. However, the applicant took up the practice in 2008 with some of his friends. In answer to the Tribunal’s question, he said he had not taken up Falun Gong earlier even though he always believed in it because his parents were afraid to teach him and all the books they had on the subject had been confiscated when they were arrested. The applicant needed someone to teach him Falun Gong and to mentor him; he also needed access to books and materials. Some friends got access to these things but he does not know how. However, he understands that their families were practitioners. The applicant’s own family disapproved of his taking up Falun Gong but he kept on; in any case, by 2008 he was not living at his parent’s home.
The applicant’s friends – there were two of them – initially taught him the principles of Truth, Forbearance and Compassion. They taught him verbally as no texts were available. The applicant needed to do the standing pose which he believes is different to what practitioners do in Australia. The exercise he did was to keep the position of holding the Falun, or wheel.
After the applicant left China, the two friends vanished. They were still practising Falun Gong when he left, but after he arrived in Australia, he could not contact them; neither answered their phones. The applicant amended this statement to say that one friend answered once but never again. The applicant said that a few months after he arrived in Australia, the police went to his parents’ house and asked where he was and how he could be traced. The applicant assumed that his friends had been arrested (hence lack of contact) and had been forced to give his name to the police (hence the police visit to his parents’ house). His parents told the applicant that his friends had been arrested and after that he was too afraid to go back to China.
The applicant’s Falun Gong activities in Australia
In his initial statement of claims, the applicant said that Falun Gong was an integral part of his life but he gave no details about how, when and where he practised it. At the departmental interview, he said he attended a group practice session in a park in [Suburb 1]. He had been going for about six months on a more or less weekly basis. Before joining this group, he practised at home.
The Tribunal asked how he found fellow Falun Gong practitioners after his arrival in Australia. He said that he had been handed a flyer about Falun Gong in [Suburb 2] so he asked the person where he could find a group. He was directed to a group in [Suburb 3] where he was living – this was about a year after his arrival, hence in 2012. He went along to the group who taught him the five Falun Gong exercises. He continued with this group for two or three years, on Saturdays and Sundays. When he later moved to [Suburb 1], he followed the same process of looking out for someone distributing flyers near the railway station and asked that person where the local group practised. He was directed to a site in [Suburb 1] park.
For the past year, the applicant has been practising with a group in [Suburb 4], varying in size from three or four people to a group of seven or eight. There is a practitioner whose movements everyone follows. They do it to music, saying the steps of the exercise. When they do exercises which require sitting on the ground, the applicant repeats the two exercises he can do while standing (his knees don’t allow him to sit cross-legged). It takes him about 20 – 30 minutes to do his exercises but the other practitioners, doing the full suite, can take an hour and a half or up to two hours. Sometimes the applicant leaves when he has finished; at other times he will stay and watch the rest of the group.
Applicant’s knowledge of Falun Gong
At the departmental interview, the delegate explored the applicant’s knowledge of Falun Gong and concluded that it was neither accurate nor extensive.
At hearing, the Tribunal asked the applicant what he knew about Falun Gong. He correctly identified the Master as Li Hongzhi and said that Falun Gong teaches one peace of mind plus the principles of Truth, Forbearance and Compassion. Falun Gong focuses on Truth, Forbearance and Compassion and also harmony between people. The Tribunal asked if there were any cosmic or supernatural components and the applicant said that sometimes he gets visions of beautiful things and feels his body does not belong to him, but only if he has been holding the pose of “Holding the Falun” for a long time.
The Tribunal asked if he accessed any other Falun Gong materials or activities apart from the exercises and the applicant replied that he had borrowed the book named Zhuan Falun. He said it introduces the principles of Truth, Forbearance and Compassion. It also introduces the five exercises. The Tribunal asked if it had had illustrations. The applicant replied that the exercises were shown by way of illustrations; the book read like a textbook. The book was complied by Li Hongzhi who created and established the five exercises.
The Tribunal asked the applicant how many of the five exercises required sitting down. He said three of them. The Tribunal asked if there was some allowance made for people who could not sit cross-legged on the floor and he said no. The guide at his Falun Gong practice told him simply to repeat the two standing exercises he could do.
The Tribunal asked him if he had ever thought of accessing Falun Gong online, to see if he could find practice groups or other information. He said he never thought of looking on the internet.
The applicant’s contact with China
In the departmental interview, the applicant said that he set up a WeChat group with people in China, including his parents. He started talking about Falun Dafa and upset many of the group, who cut his parents off. This reaction has led him to fear that the government will arrest him and persecute him if he returns to China.
At the hearing, the Tribunal asked the applicant about the WeChat group. He said it doesn’t exist any more because they can’t be found. In answer to the Tribunal’s question, he said “they” meant the two friends with whom he learned and practised Falun Gong in China (see pararaphs 16 – 18). About one or two years after his arrival in Australia, he lost contact. The Tribunal put it to him that he had already stated in hearing that he was out of contact with the two from the moment of his arrival (see paragraph 18). He said that what he meant was that he could not contact them but did not delete the contact from his phone for one or two years.
The applicant said that immediately after his arrival in Australia he sent lots of material about Falun Gong, including photographs, to his friends in China. This was before he knew that they had been arrested – information he had got from his parents perhaps six months or a year after his arrival in Australia
Tribunal puts its concerns to the applicant
The Tribunal put it to the applicant that it had several areas of concern regarding the veracity of his testimony which might lead the Tribunal to reject his claims and find that he was not a person in respect of whom Australia has protection obligations. These are set out below.
His parents’ practise
At hearing, the Tribunal asked the applicant if his parents still practised Falun Gong. He said they did not. The Tribunal put it to him that in the departmental interview, he had stated that his parents both practise Falun Gong and are teaching his sons. The applicant replied that he heard from his sons that their grandmother was showing them some exercises. The Tribunal asked if he tried to restrain his mother from doing this if he believed that such practice might get the practitioners into trouble with the authorities. He replied that when his children misbehaved, his parents might teach them some Falun Gong. He elaborated to say that children are normally naughty and his parents might teach them some exercises to calm them. The Tribunal asked if they could consider exercise from tai chi or yoga – non-prohibited forms of exercise – but the applicant replied that his parents only believed in Falun Gong. He said his parents cannot practise properly, only at home, not in public.
The Tribunal put it to him that he had not mentioned before this hearing that his parents had been arrested and detained for a period of six month in relation to Falun Gong activity (see paragraph 16). He said he had not been asked this question and the Tribunal reminded him that it was his responsibility to put forward all information that might be relevant in support of his claim. In any case, he said he could not remember when his parents had been detained. He was at school. He was a young boy, perhaps 10, when his parents were Falun Gong practitioners.
The Tribunal put it to him that when he was 10, the year was [Year]: hence it was not possible for his parents to have been practising Falun Gong or being arrested for this practice because Li Hongzhi did not invent Falun Gong until 1992 and the Chinese Government did not ban it until 1999. The applicant said only that it was a long time ago and he can’t remember very clearly.
His practice with his friends in China and contact through WeChat
The Tribunal put it to him that he had not mentioned his friends, despite their pivotal role in his adoption of Falun Gong, prior to the Tribunal hearing. The Tribunal put it to him that it seemed implausible that these friends had the knowledge and temerity to teach him Falun Gong in 2008 although it had been banned for nine years. He replied that he did not know where their knowledge came from but he understood their families were practitioners. He said he was not living in his family’s home town at the time – also the home town of the friends – but would visit there once a month and meet up with his friends for practice.
The Tribunal asked the applicant if it was these friends who constituted the WeChat group to whom the applicant sent the Falun Gong material from Australia, and the same friends from whom he had never heard since his arrival in Australia. He said that it was actually earlier than 2012 (his arrival in Australia) when he lost contact with them. They used to talk on WeChat when they were in China – as the applicant had said, he did not live in the same town as the other two. Then they disappeared at the end of 2009: he does not know what happened to them. He amended this to one disappeared at the end of 2009 and the other was around for a bit but he didn’t know what happened to the missing friend. Then he apparently disappeared too. The applicant said he kept the WeChat contact details. The Tribunal put it to him that his testimony kept changing.
The Tribunal asked if this new timeline (the loss of contact in 2009) meant that the applicant after arriving in Australia sent a whole lot of Falun Gong material and photographs to the WeChat number for his friends, despite the fact that they had not been in touch with him, nor had he seen them, since 2009. He said that was so. The Tribunal said that was hard to believe that he would send incriminating material (in Chinese terms) to people with whom he had had no contact for three years. He replied that they were his Falun Gong friends and he wanted to show them what Falun Gong was like in Australia.

The Tribunal asked the applicant whether he continued his own Falun Gong practice in China after his fiends disappeared in 2009. He said he practised by himself in places with no-one around.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims that he has practised Falun Gong consistently in Australia since 2012, having had an initial involvement in the practice in China from 2008-09 with friends. He claims that these friends have now disappeared: they may have been taken by the police and given the applicant’s name to the police. The applicant fears he may be arrested and harmed in China if he were to return as the practice of Falun Gong is forbidden there. For the following reasons, the Tribunal does not accept his claims and affirms the decision not to grant a protection visa.
The applicant claims to have had knowledge of Falun Gong since he was a child as his parents were practitioners and were arrested and detained for six months for this practice. Although he was generally vague about dates, he said several times that believed he was about 10 years old, in primary school at the time of the detention. The applicant’s passport shows that he was 10 in [Year]. The Tribunal accepts reliable independent evidence that Falun Gong was not invented until 1992 and not made illegal in China until 1999 (DFAT, Country Information Report: PRC, 22 December 2021 at para. 3.64). The Tribunal rejects the applicant’s claim that his parents were practitioners of Falun Gong and that he himself had an awareness of it from childhood.
The applicant claims that he began practising Falun Gong with friends in China in 2008. His testimony about these friends has been vague and inconsistent: he said he had no knowledge as to how they knew Falun Gong when it had been banned in China for nine years by that stage; he indicated that they had been arrested (his parents told him so) shortly after his arrival in Australia in 2012 but he also said that they had both disappeared in 2009 and he had no contact with them after that. The applicant said he sent a good deal of information including photographs about Falun Gong from Australia after his arrival to these two friends using their WeChat number: either despite his lack of contact, or alternatively (in his first version), causing them and consequently himself to be of adverse interest to the Chinese authorities. The Tribunal is not satisfied with the account of the friends in China and the contact with them, finding it to be inconsistent, contradictory and implausible. The Tribunal rejects the claim that the applicant leaned Falun Gong with friends in China and sent them Falun Gong material from Australia.
The applicant has learned the Falun Gong phrase Truth, Forbearance and Compassion and gave it as the answer to a variety of questions about the content or the benefits of Falun Gong. However, he was unable to answer the most basic question about the practice of Falun Gong – namely, the exercises which constitute the practice. He knew that here are five exercises but he did not know that four are performed standing up and the final exercise – the meditative one – is performed sitting on the ground, ideally in the full lotus position. The applicant said that there are only two standing exercises and they are the only ones he can do as he has trouble sitting cross-legged. It is implausible that a person attending Falun Gong practice sessions in Australia since 2012 – where practice is done openly and with no restrictions – should be unaware of the sequence of five exercises that constitute the Falun Gong session. Even if he could not sit cross-legged, he would have observed his fellow-practitioners doing the fifth exercise, as he stated that he sometimes stayed and watched the class all the way through. The Falun Gong website (falundafa.org) shows and explains the sequence of the five exercises and offers both diagrams and videos (see Chapter 11: Illustrations and Explanations of the Exercise Movements); and the Tribunal is satisfied that the performance of these five exercises is the fundamental and essential practice of Falun Gong. A person cannot claim to be a practitioner of Falun Gong without an accurate knowledge of these exercises. The Tribunal is not satisfied that the applicant is a practitioner of Falun Gong.
FINDINGS
The Tribunal is not satisfied that the applicant is a practitioner of Falun Gong. It rejects the claims that his parents were practitioners during his childhood and that he learned from friends in China in 2008. It rejects the claim that he has sought out practice groups in Australia and has practised Falun Gong since his arrival here in 2012. It rejects the claims that he has communicated Falun Gong material to China through WeChat, or any other methods.
The Tribunal finds that the applicant is not, and has not been in the past, a practitioner of Falun Gong. The Tribunal is satisfied that he has not come to the adverse attention of the Chinese authorities for reason of this practice which is banned in China. The Tribunal is not satisfied that harm will befall the applicant in the reasonably foreseeable future if he were to return to China for reason of this practice – that is, for reasons of religion and political opinion. There are no claims, nor does the evidence suggest, that the applicant fears harm for any other reason.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a). He is not a refugee within the meaning of s 5H(1) of the Migration Act.
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).
As the Tribunal has found that the applicant does not met the refugee criterion in s 36(2)(a), it has considered whether he meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa) of the Act.
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion, for the same reasons as set out above, the Tribunal finds that the applicant does not face a real chance of significant harm. The Tribunal is not satisfied that 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. Therefore 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.
Sue Zelinka
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 927

29 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Remedies