2107598 (Refugee)

2107598 (Refugee) [2024] AATA 1908 (21 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2107598
COUNTRY OF REFERENCE:                   China
MEMBER:Hee-Jung Kim
DATE:21 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 21 February 2024 at 2:47pm
CATCHWORDS
REFUGEE – Protection Visa – China – religion – Roman Catholic – attended an underground Catholic church – applicant has genuinely converted to Roman Catholicism – state’s repression of underground religious activity – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 65, 91, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for 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 who claims to be a citizen of China, applied for the visa on 6 January 2020. The delegate refused to grant the visa as they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations. The delegate was not satisfied that the applicant is a genuine or committed Roman Catholic, and also found that even if she genuinely converted to Catholicism, she would practice at the official Chinese Catholic Church. Therefore, the delegate found that there is no real chance or real risk that the applicant would be harmed if she returned to China for her Catholic religion.
The applicant applied for a review of the delegate’s decision on 10 June 2021 and provided to the Tribunal a copy of the decision. She appeared before the Tribunal on 8 January 2024 to give evidence and present arguments, with the assistance of a Mandarin interpreter in the Fuqing dialect. At the applicant’s request and having regard to her vulnerabilities including mobility issues, the hearing was conducted by telephone. However, due to the applicant becoming very emotional and there being no support person to assist her, the hearing could not proceed.
The Tribunal wrote to the applicant after the adjourned hearing and requested her to provide further information in support of her application. On 22 January 2024, the Tribunal received the applicant’s written responses to the Tribunal’s questions, a letter from her daughter [Ms A] dated 19 January 2024, a letter dated 14 January 2024 from [Mr B], President of [Organisation 1], a letter dated 14 January 2024 from Friar [name] from [Organisation 1], the applicant’s patient health summary dated 15 January 2024 and a referral letter from [a named doctor] dated 6 December 2023.
The applicant appeared at a resumed hearing by video on 14 February 2024. The Tribunal received oral evidence from Ms [Ms A], the applicant’s daughter. [Ms A] also assisted the applicant as a support person at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin (Fuqing dialect) and English languages. On 18 February 2024, the applicant provided 6 unlabelled photographs of the applicant in groups in front of what appears to be various cathedrals.
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-5LA, 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) 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 there is a real chance that the applicant will face persecution in China or a real risk she will suffer significant harm if removed from Australia to China. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Nationality
The applicant claims to be a citizen of China and provided to the Department a copy of the biodata page of her Chinese passport issued on [date] 2018 in Fujian, China. At the first hearing the applicant provided details about her identity, family composition and aspects of life in China in a straightforward manner and consistent with the claimed background information in her Protection visa application. On the information before me, I am satisfied of the applicant’s identity as claimed and that she is a citizen of China.
I find that China is the country of reference for the purpose of assessing the applicant’s claims for protection under the refugee and complementary protection criteria. I find that the applicant is outside her country of nationality, and there is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than China.
Evidence before the delegate
In her protection visa application, the applicant claimed that she was born in [year] in Fuqing, Fujian province. She completed up to primary school and was employed as a labourer at [a workplace] from 1958 until her retirement in 1988. Her husband passed away in 1974 and she had to raise her 4 young children by herself. Her son born in [year] and daughter born in [year] live in China. Her youngest daughter [Ms A], born [year], is an Australian citizen and the applicant lives with her daughter’s family in Sydney. Between 2011 and 2019, the applicant travelled to Australia a number of times and stayed for durations ranging from 3 months to 1 year. From [date] May to [date] June 2017, the applicant travelled to [Europe] to participate in a pilgrimage tour. She last arrived in Australia on [date] November 2019.
The applicant claims to fear harm in China due to her Roman Catholic religion as summarised below:
·In July 2013, her oldest son died from a sudden illness and she felt as though the sky had fallen on top of her. His death brought back the same fear and sadness she experienced when her husband passed away. She tried to help herself by turning to Buddhism but it didn’t help.
·Her daughter in Australia invited her to come to Australia to heal her depression and sadness. Her daughter is a Catholic and she invited the applicant to believe in Jesus. In June 2017, her daughter enrolled the applicant to participate in her church’s pilgrimage tour in Europe. They travelled to all the famous Catholic pilgrimage sites around Europe, including the Vatican. The trip opened the applicant’s eyes and miraculously touched the deep inside of her heart. After returning to Sydney, the applicant started to follow her daughter to church on Sundays and gradually started to learn about the teachings of Roman Catholicism. The more she learnt and relied on Jesus, the greater peace she felt in her heart and her depression slowly started to heal.
·In January 2018, the applicant returned to China and visited the official Catholic church. She found that this church is controlled by Chinese government and it is not real church. Without hesitation, the applicant turned to underground Catholic church where she found the people to be kind and helpful. She regained strength and determination to live from stories of Jesus which inspired her and warmed her heart.
·On 10 September 2018, the applicant was baptised in China as a Roman Catholic. She is so grateful to God for keeping her alive so long for her to find a real soul-saving religion. Until she believed in God, she has never experienced such great peace in her heart for the past [number] years of her life.
·She attends the Catholic Church in [Suburb 1] with her daughter. If she returns to China, she will continue to attend underground Catholic church, loyal to Pope. As this is illegal in China she will be detained, tortured and brainwashed by the Chinese authorities. She will not have religious freedom in China and she will be persecuted by the Chinese government because of her Roman Catholic faith.
The applicant attended an interview with the delegate on 15 June 2020. Her oral evidence at the interview, as summarised in the delegate’s decision record, expanded on the above claims including the following additional information:
·Her son in China lives in Shaanxi province and her daughter lives in Fuqing. She does not live with either of them when she is in China. She has her own home in Fuqing.
·Her younger sister encouraged her to turn to Buddhism when her eldest son died in 2013. Previously she did not have a religion but after her son’s death she took religion for spiritual belonging and to relieve her pain. She is now Catholic, not Buddhist. She regards herself as having converted to Catholicism on 10 September 2018, the date she was baptised. Her Catholic religion takes her pain away and Jesus gives her a lot of inspiration. The most important aspect of her religion is her belief in Jesus, that Jesus, son of God, died for us on the cross and he will return to us.
·Her daughter arranged a Catholic friend in China to contact her so that she could attend an underground church. She attended Sunday services at a home of a member. She was baptised in the home of a commoner, by a father of the church. She studied Catholicism for 3 months in the home of a church member before getting baptised.
·She did not apply for a Protection visa on her earlier trips to Australia because she felt conflicted about making the decision not to return to China, as she had lived in China all her life and one should return to one’s birthplace to die in Chinese belief.
·She does not believe the Chinese official Catholicism is true Catholicism because it is controlled by the Chinese government, it must obey the government, and it does not listen to the clergy. She believes that Catholicism is passed down from Jesus. She will not attend an official church in China because it is the church of the Chinese government. She is afraid the Chinese government will arrest her because the government does not allow any activity from underground churches.
In support of her claim, the applicant submitted a letter dated 10 July 2020 from [the] President of [Organisation 1], and a letter dated 23 July 2020 from [an] Assistant Chaplain at [Organisation 1]. The letters simply stated that the applicant is an active member of the church community and has been regularly attending mass since mid-2017.
Evidence before the Tribunal
As noted above at [3]-[5], the applicant submitted supporting documents at the Tribunal’s request and gave oral evidence at the telephone and video hearing.
Given the applicant’s difficulties in giving evidence as was apparent at the first hearing and her claimed mobility and medical issues, I decided it would be appropriate to allow the applicant to appear by video with her daughter as a support person who could provide a comfortable environment and manage the applicant’s stress and emotions. Also noting the difficulties in communicating with the applicant over the telephone at the first hearing, I decided visual contact via video was important to assist the applicant’s understanding and familiarity with the hearing context. It was apparent from the applicant’s appearance on video that she was nervous and frail. She complained of dizziness and frequently lay her head down on the table. I note that such condition appears consistent with the diagnosis of ‘[a medical condition]’ since September 2020, as per her medical history provided to the Tribunal. It also was apparent throughout the hearing that the applicant was easily confused and had difficulty concentrating and recalling accounts. Accordingly, I decided it was appropriate to obtain detailed evidence from her daughter, [Ms A], first, particularly given the claim that [Ms A] introduced the applicant to Catholicism. The evidence of [Ms A] and the applicant before the Tribunal, where relevant, is discussed below in detail.
Assessment of claims and findings
I have carefully considered the applicant’s written and oral evidence, the supporting material, and the evidence of [Ms A]. I was unable to thoroughly test at the hearing the applicant’s claims in relation to her faith practice in China. She would often ramble and give unrelated answers despite multiple repeated and rephrased questions, become emotional when speaking of her life in China, and struggled to recollect past events. I note that she was able to provide evidence of her past events at the Departmental interview. I have listened to the recording of that interview and although her answers were not very detailed, I found the applicant’s responses to be forthcoming and frank. Having regard to the applicant’s vulnerabilities including her age, passage of time and various medical conditions impacting her capacity, I have not drawn an adverse inference from her inability at this hearing to recall and give detailed evidence regarding her religious practice in China. I have relied on her written evidence and the Departmental interview in assessing these aspects of her claims.
I also found [Ms A] to be a reliable witness and give weight to her oral evidence at the hearing. Although it became apparent at the hearing that she did not herself write the letter dated 19 January 2024 submitted to the Tribunal, I note that it was a very impersonal letter with very little detail which I consider to be of limited evidentiary value. I accept [Ms A]’s evidence at the hearing that her eldest daughter (the applicant’s granddaughter) assisted in preparing the latest submissions to the Tribunal and that the granddaughter wrote the letter on [Ms A]’s behalf. Given [Ms A]’s personal and frank evidence at the hearing, I do not draw an adverse inference from her submission of a letter purporting to be written by her.
At the hearing, [Ms A] stated that she became a Catholic in 2007, and as her faith helped her to let go of her memories of persecution, she believed it would help her mother mentally who she could see was miserable. She introduced Jesus to her mother, particularly that they must learn from Jesus who carried the cross on his back. In 2017, her church organised a pilgrimage tour to Europe [and] she invited her mother to come with her because she wanted her mother to experience the love of God. The purpose of this trip was for [deleted] and it was limited to a small number of people. No one else in her family could go but as she had been a Catholic for several years, she wanted to experience such Holy things and introduce her mother to the religion. During the trip, she observed her mother undergo a big change. Her mother understood that praying would calm her down and rid of unhappy memories, including the pain of losing her son, so she started to pray.
After the trip, she and her mother both learnt that they have to pray more to let go of mundane things in life as they only had a limited number of years in this world, and that the purpose of life is to achieve eternal life through God and forgive others. Her mother started attending church in Australia regularly with her after the Europe trip.
When her mother returned to China, she went to a state sanctioned church to continue her Catholic religious practice. However, the applicant saw that the state sanctioned church was different to the churches she had been exposed to in Europe and Australia and she asked [Ms A] why the Chinese churches displayed the national flag inside the church and why the government intervenes. [Ms A] then arranged for her Catholic friend in China to contact her mother to take her to an underground church gathering. [Ms A] introduced her mother to this gathering even though she knew it was dangerous because she felt it was important to have their souls saved and to share this with her mother. She felt it was her obligation and duty to share this gospel with her mother who is the closest person to her in the world. Her mother attended the underground church several times while she was in China. It was difficult for her mother to attend freely because the venue for the gathering would suddenly change at a moment’s notice.
Since her mother joined her in Australia, they have been praying so that their souls have a place to rest in heaven and for eternal life. She does not need to particularly help her mother grow in faith because as long as she takes her to church and allow her mother to experience and express her faith, her mother can enjoy the freedom to worship with fellow members who are loving and passionate. Her mother strictly observes her faith practice. For example, her mother is currently fasting even though the church said she doesn’t have to because she is over [age] years old and ill. Her mother insisted on fasting because she wants to experience Jesus’s pain, to repent and to prepare to welcome the resurrection of Jesus. [Ms A] asked her mother to stop fasting on the day of the hearing, but her mother refused as she believes that God will bless her through the suffering. [Ms A] also told her mother not to attend this year’s Eucharist procession given her mobility issues but she insisted on going so [Ms A]’s daughter had to buy a wheelchair and the children had to push the applicant in the wheelchair for her to participate. [Ms A] believed that her mother’s heart is filled with her faith.

[Ms A] believed that it would be difficult for the applicant to continue to freely practice her Catholic faith in China because she would have to hide to attend underground church, and because of her age and mobility issues, someone will need to help her which means less opportunity for her to attend church. However, she believed that her mother will definitely try to attend the underground church because her mother’s Catholic faith and practice are the most valuable belief for her and to fulfil her hope of saving her soul. [Ms A] stated that she cannot control what the Chinese government may do to her mother, her mother may be arrested or detained, and [Ms A] would be worried for her mother. She would like the applicant to stay in Australia so that she can continue to take her mother to mass and prayer to continue to practice their faith together to the end of their lives and enjoy the freedom of belief.
I am satisfied that [Ms A]’s account of introducing the applicant to Catholicism and her motivation for trying to convert her is consistent with the applicant’s evidence in this regard before the delegate. At the first hearing, the applicant was also able to speak about her first interest in spirituality and religion to help her grieve the loss of her son and how this led to [Ms A] bringing her to Australia and participating in the 2017 Europe pilgrimage tour. I note that the applicant’s evidence about this was lucid and forthcoming, until she was overcome by grief and could not continue with the hearing. On the material before me, I accept that the applicant was introduced to Catholicism by her daughter and was inspired by her participation in the pilgrimage tour to Europe in 2017 to become a Catholic.
I also accept on the material before me, including the 4 supporting letters from various church members, that the applicant started attending the [Organisation 1] at [Church 1] Parish in [Suburb 1] with [Ms A] and her family since around mid-2017.
As noted above, I was unable to undertake a detailed examination of the applicant’s religious practice in China. However, I am satisfied that [Ms A]’s evidence of introducing her friend to the applicant so that the applicant can attend an underground church in China is broadly consistent with the applicant’s own evidence about this before the delegate. At the first hearing, the applicant stated that she attended the underground church because the Chinese Communist Party does not allow them to have any relationship with the Pope. At the resumed hearing, she recalled her experience of attending a state-sanctioned church as being alarmed at seeing so many national flags on display as she entered and immediately feeling something was different, as though God was telling her in her heart to leave the church. She also recalled going to a Sunday worship at night by bus but finding that the gates closed and not being able to attend at all. Despite the applicant’s difficulties in recalling details of specific events, I found this evidence referring to her reaction upon attending a state-sanctioned church in China and attempting to continue her faith practice to be spontaneous and personal. Accordingly, I accept that the applicant initially attended a state-sanctioned Catholic church in China but through her daughter’s introduction was able to attend an underground Catholic church. I note that the applicant does not claim to have been harmed in China for attending an underground church and I accept that she has not been harmed in the past. However, I do not consider in this case that the absence of past harm and her limited experience as an underground Catholic in China are indicative of there being no real chance of future harm for the applicant should she return to China. For the following reasons, I find that there is a real chance of serious harm for the applicant in the reasonably foreseeable future for reasons of her Catholic religion, if she returns to China.
First, contrary to the delegate’s finding, I find that the applicant has genuinely converted to Roman Catholicism and that she is committed to practising it if she returns to China. Although the applicant’s ability to recall past experiences was constrained, I found her evidence in relation to her current faith practice in Australia to be authentic and honest. She was able to give credible responses reflecting her personal experience and current commitment to her Catholic faith. For example, while she could not recall exactly where and when she was baptised, she was able to describe her baptism experience and what it meant to her. Her account of the priest pouring water over her forehead to wash away her pain, giving her the name ‘[name]’ and her acceptance of becoming God’s assistant persuaded me that she was speaking of her own experience. She was also able to describe the minimum requirements in her religious practice including attending mass to listen to sermons, her rosary praying and monthly confession. Throughout the resumed hearing, she frequently spoke of her gratitude of having accepted God in her old age, of being alive to pursue her faith, of her family’s good health, and of practising her religion with her family in Australia. She described her latest attendance at Sunday mass and became emotional speaking of the Eucharist ceremony’s personal importance to her. I found her responses and reactions to be genuine in the moment and accept that these reflect her commitment to practising her faith. I also accept [Ms A]’s evidence and the photographs submitted post-hearing to support the applicant’s claim that she has been attending the mass and religious activities at [Church 1] Parish regularly as a committed Catholic.
Secondly, I accept the applicant’s reasons for not attending state-sanctioned church if she returns to China. While her answers in this regard were somewhat unsophisticated, I was convinced that she was speaking of her genuine adverse reaction to the state’s control over the Catholic church in China on visiting the church, and her claimed loyalty to the Pope and the Vatican suggested to me that she sufficiently understood the difference in the ideological focus. I accept the applicant’s claimed loyalty to the Pope and refusal to attend state-sanctioned church on this basis are important aspects of her religious practice. Accordingly, I accept that if returned to China, she would attend an underground Catholic church.
Thirdly, recent country information indicates that the situation for underground Catholics has deteriorated since the Chinese government’s efforts to ‘sinicise’ religion through implementation of various revised religious regulations from 2018. Independent country information[1] indicates that there have been increased surveillance of Catholics attending both state-sanctioned and underground churches and underground churches have been actively closed down. While officially the situation for Catholics in China ‘has been improving’ with the Chinese government’s 2018 agreement with the Holy See being renewed in 2020 and 2022, Catholics who have refused to join the Chinese Catholic Patriotic Association (CCPA) have reported harassment, detention and other ill treatment from authorities. Information also suggests that there has been drastic enforcement and massive reversal of flexible implementation of religious policy, leading to even official churches being shuttered in both rural and urban areas and restricting the activities and personal freedom of religious believers where authorities perceive these to be a threat to the interests of the state or the Chinese Communist Party. Fujian, a traditional stronghold for Catholicism, including underground Catholicism, has seen particular efforts by local officials to convert underground bishops to join the CCPA.[2] DFAT also assesses that underground Catholics are only able to practise their religion discreetly and some may face severe restrictions.[3]
[1] Research Directorate, Immigration and Refugee Board of Canada, ‘China: Treatment of members of house churches (also known as jiatang churches; jiatang congregations; family churches; home churches; unregistered churches), including Protestant, Catholic, and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse (2019-October 2021)’, 18 October 2021; United States Commission on International Religious Freedom, ‘United States Commission on International Religious Freedom Annual Report 2023', 1 May 2023.
[2] DFAT Country information Report – People’s Republic of China, 22 December 2021, [3.38]; United Kingdom Home Office, ‘Country Policy and Information Note – China: Christians’, November 2019, [5.2.2].
[3] DFAT Country information Report – People’s Republic of China, 22 December 2021, [3.40].
On the totality of the evidence before me, I find that the applicant is a genuine Catholic who will live and practice as a Catholic if she returns to China, including by attending Sunday mass at an underground Catholic church. I find that it would not be safe for her to pursue her religion in an underground church because credible country information referred to above indicates that she would be harmed including being harassed, arrested or detained, due to the state’s repression of underground religious activity, including in her home province of Fujian. Further, if she is unable to attend an underground church for her safety, she would not be able to practice her faith at all because of her adherence to Catholicism loyal to Pope, which is not practised at state-sanctioned churches. Expecting her to attend a state-sanctioned church would be unreasonable as it would be contrary to her belief and expression of religion that are fundamental to her identity as a Roman Catholic and would be requiring her to alter or conceal her true religious belief. As the persecutor in this case is the Chinese authority implementing the state’s religious policy and law nation-wide, I find that the applicant will not be able to relocate to avoid the harm nor will have effective state protection.
Having regard to all of the evidence and considerations referred to above, I am satisfied that the applicant faces a real chance of being persecuted in China in the reasonably foreseeable future for the relevant reason of her religion. I find she is a refugee as defined in s 5H of the Act.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Hee-Jung Kim
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 1908

21 February 2024

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Immigration

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