2109177 (Refugee)

2109177 (Refugee) [2022] AATA 1244 (3 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2109177
COUNTRY OF REFERENCE:                   China
MEMBER:Meena Sripathy
DATE:3 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 March 2022 at 4:00pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong practitioner – inconsistent work and address history – significant inconsistencies and contradictions – departed China legally on own passport – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 5 July 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 30 December 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied on the limited evidence before the Department that the applicant was a Falun Gong practitioner as claimed and therefore found that she did not face a real chance of serious harm upon return to China for that reason or for any other of the reasons set out in s5J(1)(a) of the Act and is not a refugee as defined by s5H(1). The delegate was also not satisfied that she faced a real risk of significant harm within the meaning of that term in s36(2A) for the purposes of the complementary protection criteria.
The issues in this case are whether there is a real chance, if the applicant returns to China, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm.
The applicant appeared before the Tribunal on 25 February 2022 by telephone 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 also invited to appear again at a further hearing on 3 March 2022 at 10.30, however she did not appear on the day and at the time and place of this scheduled hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Information in the Department file indicates the applicant was born in [year] in Huanren, Liaoning Province. She married in 1988 and provided details of her husband and two adult children born in [year] and [year] and her parents who reside in China. She arrived in Australia [in] November 2019 on a Visitor visa, on her own passport that was issued [in] 2016 and is valid to 2026. She provided two addresses in China, from 1999 to February 2018 in Huanren County, Benxi, Liaoning Sheng and from February 2018 to November 2019 in Tianjin, Tianjin Shi. She indicated she was a [Occupation 1] from February 2018 to November 2019 [Company 1], and prior to that from 1982 to 2018 she was employed as a [Occupation 2] at [Business 1]. She is educated to middle school level.
The applicant made the following claims for protection in a personal statement submitted with the application:
·She heard about the teachings of Falun Gong and accepted them. She deeply sympathised on sufferings of Falun Gong disciples. In September 2017 under the introduction of her friend [Ms A], she joined and became a member of Falun Gong.
·[Ms A] and herself were from the same village and shared similar experiences. They played the game of ‘go’ together and became good friends in this context.
·On 8 September 2017 she went to [Ms A]’s house to play “go” together. [Ms A] shared with her that she was practising Falun Gong in the bedroom. When the applicant put to her that Falun Gong was considered an evil cult by the Chinese government, [Ms A] replied “Falun Gong is never an evil cult. As an adult, cannot we judge that?” “Practising Falun Gong could produce a sound body” and also improve “personal moral level”.
·That same day the applicant started to practice Falun Gong that same day, under [Ms A]’s instruction, after hearing her friend’s words. Since then they often practiced together and communicated their experiences with each other. They practiced at each other’s homes or the homes of other practitioners. The applicant found that through studying and practising, “Falun Gong could help cure diseases and keep fitness and also improve our moral and sublimate our mind”.
·On the morning of [date] December 2017, when the applicant, [Ms A] and two others were practising Falun Gong at the applicant’s home, the door was forced open and a few policemen came in. They confiscated books and DVDs and they were taken to the Public Security Branch. The applicant was later told that the residents’ committee reported to the police that some people were getting together at her home.
·The police made a secret investigation of her. On [date] December 2018 she was charged with illegal practising and sent to a local labour camp for one month.
·At the labour camp she was forced to do heavy works every day. Her body became swollen but she was not given any treatment, only allowed to have rest for 7 days.
·One day she sat quietly on her bed to adjust her body through Falun Gong and was seen by a guard policemen in the labour camp. He took her into the office and punched and kicked her telling her it was not allowed to study and recite Falun Gong there.
·She was released from the labour camp in early February 2018 and was ordered to report her activities every month.
·Because of this she was dismissed from her employment.
·From February 2018 until she came to Australia she was in a different city and working in a different employment.
·She was angry about what the Chinese Communist Party had done to her so she decided to leave China. She asked a friend to help her apply for a visa for Australia and arrived here [in] November 2019.
·She should have applied for a protection visa earlier, but she was told by her friend it could cause problems for her family in China if her application failed.
·She deeply enjoys the freedom of religious belief here and hopes the Australia government can give her protection considering she has been persecuted for practising Falun Gong in China and will likely be persecuted if she returns to China.
On 2 June 2021 the applicant was sent a letter inviting her, under s56 of the Act, to provide additional information about some of her claims and to provide clarification on particular points. The s56 invitation advised the applicant that her statement of claims lacked substantiating details in regards to her claims, such as dates and locations and supporting documentation, and that she had not provided any details or documentary evidence to support her claims. The applicant was invited to provide more information about what happened to her in China, including dates and locations of events, to assist the delegate in assessing whether her claims are genuine. The letter also invited the applicant to provide specific details and supporting documents relating to her claims or if she could not provide copies of documents, she should provide a detailed explanation of why she could not provide them, and of the efforts she made to obtain them.
No response to the Department’s invitation was received nor was there any request to provide additional time to respond and the delegate considered the application on the limited information provided with the application. The delegate refused the application on the basis of not being satisfied that the applicant was a genuine Falun Gong practitioner.
Tribunal Hearing 25 February 2022
The applicant appeared before the Tribunal by telephone hearing. The Tribunal exercised its discretion to hold the hearing remotely given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not conducted remotely. The applicant was invited to participate in a video hearing using the MS Teams platform. On the day of the hearing she did not join via the video link and explained that the link had been sent to her agent and she had no email address. The Tribunal discussed with the applicant whether she is comfortable proceeding by telephone or if she would prefer a face to face hearing. She indicated that she has a bad back and with her limited English it would be difficult to attend for an in person hearing, and her preference was to proceed today by phone. The interpreter was present by video and audio link and all parties confirmed that they could clearly hear each other. The hearing proceeded for just over one hour before taking a short adjournment. Upon resuming the hearing, the applicant failed to answer the telephone when the Tribunal called her telephone number. Despite multiple attempts made by an officer of the Tribunal to connect with her by telephone over the next half an hour she did not reconnect to the hearing. The hearing was ended and closed.
The Tribunal scheduled a further hearing on 3 March 2022 at 10.30 am to provide the applicant a further opportunity to present evidence. The applicant was invited to appear by telephone. An officer of the Tribunal tried to call the applicant several days prior to the hearing to advise her of this further hearing opportunity but was unable to make contact with her. On 25 February 2022 the Tribunal wrote to the review applicant inviting her to a further hearing on 3 March 2022. The invitation stated that if she did not attend the hearing, the Tribunal may make a decision on the case without further notice. The Tribunal also sent her an SMS reminder about the hearing one business day before the scheduled hearing. On the day of the hearing an officer of the Tribunal made repeated attempts over a period of 30 minutes to call the applicant on the telephone number provided by her to no avail.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The following evidence was obtained from the applicant at the hearing on 25 February. She lives alone in a rented premises in [Suburb 1] since arrival in Australia. She works casually and supports herself. She sends money home to her family on occasion. Her family comprises a son, who is attending university, and a daughter who is married and has two young children of her own. The applicant’s husband lives in the south of the country, in Guangzhou where he works in the construction industry. He has lived there for many years, and returns home from time to time. When asked if they were still a married couple she said they have children together and neither are involved with any one else.
The Tribunal asked the applicant how she completed the application form. She said the person she engaged to do it completed the form. He asked her some questions and filled out the form. The Tribunal asked how the written statement of claims was prepared. She said the agent wrote it.
The Tribunal asked the applicant about where she lived prior to coming to Australia. She said she lived in [Area 1] Liaoning Province. She lived in this property with her family since around 2009, prior to that they lived in [Village 1] in the same area. The property is now in her daughter’s name. Her son lives with his sister when he is not staying at the university. Her daughter previously lived at her in law’s property in a nearby city in the same province, called Fushun City. She came and went from the family property in Benxi. The applicant said that apart from this address she has not lived elsewhere in China prior to coming to Australia.
The Tribunal noted that in the application form another address is provided in Tianjin from 2018-2019 and asked her if she lived in Tianjin at any time. In response she said she may have long ago but she cannot recall. The Tribunal put to her that her earlier evidence was that she has only ever lived in Liaoning Province, and given the significant distance between these places, it would expect her to have mentioned if she lived in Tianjin just prior to coming to Australia and invited her comment. The applicant made no further comment.
The Tribunal asked the applicant about her work history. She said she worked in a [business] called [Business 1], she cannot remember since when. When asked if she worked there since before she had her children she said yes. She said she stopped working due to bad health, about 5-6 years before coming to Australia. She was not sure of the year she stopped. The Tribunal asked if she had any other jobs after that. She said she did not.
The Tribunal asked about her education history. She said she went to primary and high school and that is all. It asked about her travel history. She said she and her husband went to [Country 1] for sightseeing some years ago. When asked if this was during the period of her current passport which was issued in 2016 she said it was. This is the only passport she has held. She confirmed that she applied for her passport in person and had no issues getting it. The Tribunal asked if she experienced any issues departing China when she came to Australia in November 2019. She said she did not.
The Tribunal noted that in her application it is mentioned that she held another job from February 2018 to November 2019 as a [Occupation 1] for a company in Tianjin and this is different to her evidence just now. It invited her to comment. She said, initially that she may have worked there for some time but she cannot remember when. The Tribunal put to her that it would not appear to be consistent with her evidence to the Tribunal about her address history, work history and education level that she worked as a [Occupation 1] for a company in Tianjin in the 18 months prior to coming to Australia. She made no further comment.
The Tribunal asked the applicant why she came to Australia. She stated that she was ‘persecuted’ and could not stay there anymore. The Tribunal said it would like to ask her more about that. She then said that she is tired and would rather not discuss it. The Tribunal asked if she would like a short break before continuing. It explained that the hearing is her opportunity to discuss her claims and answer questions and it is important that she provide any further information she wants the Tribunal to consider. It explained to her that following the adjournment she should answer the phone when the Tribunal calls to re-join her to the hearing. A 10 minute break was taken.
After the adjournment, the Tribunal unsuccessfully tried to reconnect the applicant by telephone over the next 30 minutes before ending the hearing. As described above, the Tribunal tried to arrange a further hearing on 3 March 2022 for the applicant to give evidence but she did not appear.
FINDINGS AND REASONS
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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 or herself, 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 or her. 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.)

Based on the copy of the applicant’s passport provided to the Department with her application, the Tribunal accepts that she is a citizen of China and assesses her claims against China.
In her application, the applicant made claims that she practised Falun Gong in China; that the police came to her house and confiscated books and DVDs and took her to the Public Security Branch and that she was subsequently was arrested, charged and taken to a labour camp where she was mistreated and subjected to forced labour. She claims she lost her employment after this and had to move to a new city. Apart from the written claim no other supporting evidence was provided with the application.
The applicant told the Tribunal at hearing that she had assistance to complete the form. She said the agent she engaged completed it and was responsible for writing the statement.
The Tribunal obtained direct evidence from the applicant at the hearing about her education, work and address history prior to coming to Australia. Much of this information was and different to, and inconsistent with, the information contained in her application. For example, she indicated she was living in the address in [Area 1] Liaoning from around 2009 until 2019 when she came to Australia, contrary to the application form which indicates she lived in Tianjin from February 2018 until November 2019. She also told the Tribunal her only employment was at [Business 1] and she ceased that employment due to ill health some 5-6 years prior to coming to Australia. She said she had no other employment prior to coming to Australia. This was different to the information in the application which indicated that she worked as a [Occupation 1] in Tianjin from February 2018 to November 2019. The applicant also told the Tribunal she was educated only to high school level. Her education and employment background are not consistent with this claimed employment as a [Occupation 1]. When these inconsistencies and contradictions were put to her the applicant gave no explanation.
The applicant had the opportunity at the hearing to provide evidence about her claims and address concerns the Tribunal had with the evidence before it. However, when asked to discuss and elaborate on the reasons for making the application she told the Tribunal that she was ‘tired’ and did not wish to talk about it. She referred only to ‘being persecuted’ and being unable to remain in China. She gave no further details about why she was persecuted, and what had happened to her to make her fearful of returning.
Given the significant inconsistencies and contradictions in her oral and written evidence about her address history, education and work background and the absence of any detail about the reasons for her fear of return in her oral evidence to the Tribunal, it is not satisfied that the information in the written application is truthful and accurate. Despite the opportunities provided by the Tribunal to the applicant to present evidence, the Tribunal was unable to explore and test the veracity of her written claims to be a Falun Gong practitioner with her at hearing. Specifically, she made no reference to Falun Gong when specifically asked why she lodged the application. She referred only to having ‘suffered persecution’ but gave no other details. On the information before it, the Tribunal is therefore not satisfied that the applicant was a Falun Gong practitioner in China, or that her house was raided by police for this reason. It does not accept that she was charged for practising Falun Gong and taken to a labour camp or that she was mistreated or subjected to forced labour, or lost her job for this reason. The evidence she gave to the Tribunal about her address and work history directly contradicted these claims. Consequently, it does not accept that she will seek to practice Falun Gong in future if she returned to China. She has not claimed, and the Tribunal is not satisfied, that she practises Falun Gong in Australia. The applicant told the Tribunal she experienced no issues departing China to come to Australia in 2019, and travelled here on her own passport. This further supports that she is not of adverse interest to the authorities and has no subjective fear of them.
Not being satisfied that she is a Falun Gong practitioner, or that she has suffered any past harm for that reason or any other reason, the Tribunal is not satisfied that she will suffer serious harm in the reasonably foreseeable future if she returns to China for reason of her religious beliefs, or for her membership of a particular social group or for any other reason specified in s5J(1).
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China and is not a refugee within the meaning of that term in s5H(1)(b) of the 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).
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). Having regard to the findings made above rejecting the applicant’s claims to be a Falun Gong practitioner and finding that that there is no evidence she suffered any past harm on that basis in China, the Tribunal is not satisfied that there is a real risk she will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to China. 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.
Meena Sripathy
Member

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

[2022] AATA 1244

3 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Appeal

Statutory Construction