2109491 (Refugee)

2109491 (Refugee) [2024] AATA 1557 (18 March 2024)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  2109491
COUNTRY OF REFERENCE:                   China
MEMBER:Robert Mclaughlin
DATE OF DECISION:  18 March 2024
DATE CORRIGENDUM
SIGNED:18 March 2024
PLACE OF DECISION:
AMENDMENT:  The following corrections are made to the decision:

The Date of Decision on the first page was listed as 7 March 2024. The Date of Decision should have read 18 March 2024.

Statement made on 18 March 2024 at 4:03pm
Robert McLaughlin
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2109491
COUNTRY OF REFERENCE:                   China
MEMBER:Robert McLaughlin
DATE:07 March 2024
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2024 at 8:23am
CATCHWORDS
REFUGEE – protection visa – China – religion – suspected Falun Gong practitioner – exercises for rehabilitation after work injury – warned by authorities and fired by employer – credibility – vague and inconsistent claims and evidence – information about Falun Gong exercises from internet or practitioners – unhindered departure – country information – 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
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1885) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurani v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 08 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 11 January 2018. The delegate refused to grant the visa on the basis that the applicant was not a refugee and therefore was not owed protection obligations by Australia. The basis of this decision was that the applicant was not a Falun Gong practitioner and was not of a profile to attract the attention of authorities if returned to China. The applicant thus did not have a well-founded fear of persecution. The delegate was also not satisfied that any grounds for complementary protection arose.
The applicant appeared before the Tribunal on 06 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s5J in China, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk the applicant will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Preliminary matter: Nationality and identity
The applicant provided a copy of his People’s Republic of China (‘China’) passport to the Department. The Tribunal noted that the passport originally provided had an expiry date of 2027, but that a new passport was later provided to the Department. This passport has an issue date in 2023 and an expiry date of 2033. At the hearing, applicant explained that this was because his passport had been stolen in 2023.
The Tribunal accepts that the applicant is who he claims to be and that he is a national of China. The Tribunal also accepts that the applicant has no right to enter and reside, whether temporarily or permanently, in a third country. This is because the applicant has no visa for any such country notated in his passport, has stated that he has no such right, and there is no other information to suggest he has any such right.
Claims made prior to the hearing
The applicant submitted the following claims to the Department in his application:
·He has no relatives in Australia and is in regular (‘really often’) contact with family in China. At the hearing, he indicated that this contact was on an approximately three-monthly basis. However, nothing material turns on this difference.
·He has no religion.
·He left China in November 2017 and came to Australia because the people around him suspected he was a Falun Gong practitioner.
·He suffered harm in China, being mental torture and physical attacks, was fired from his workplace, and that his workmates, neighbours and close friends kept their distance from him.
·The government of China blackmailed him to report on Falun Gong followers.
·He was labelled as a criminal as a consequence of his imputed Falun Gong association, making him liable to be killed.
·He is not a Falun Gong practitioner.
In June 2021, the applicant was invited by the Department to present further information to assist in assessing his application. No further material was provided. The applicant was not invited to an interview with the Department. In the pre-hearing processes prior to this AAT hearing, the applicant was again invited to add to or clarify his claims. He indicated that he would bring his comments to the hearing.
The delegate’s decision refused a Protection Visa because they were not satisfied, on the basis of the limited material before them, that the applicant is a Falun Gong practitioner. The delegate was also not satisfied that the applicant is suspected by Chinese authorities of being a Falun Gong practitioner. The delegate also determined that the applicant is not of a profile to attract the adverse interest of Chinese authorities. Therefore, the delegate did not accept that the applicant had a well-founded fear of persecution if he returned to China. Consequently, the delegate found that the applicant is not owed protection obligations by Australia as a refugee.
The delegate also found that no complementary protection obligations are owed to the applicant by Australia.
The hearing
At the hearing, the Tribunal invited the applicant to clarify and expand upon his claims. There were three key matters around which the claims and evidence coalesced.
Claim regarding suspicion of being a Falun Gong practitioner
At the hearing, the applicant stated that he began using Falun Gong exercises in May-June 2015 for rehabilitation of [an] injury he sustained as [an Occupation 1]. He was told by his Doctor to do exercises as part of his rehabilitation, and he chose to do Falun Gong exercises. He found information about these exercises on the internet. He did these exercises in the morning – sometimes at home, sometimes in a local park. He did not do these exercises with others, but sometimes another person would also be in the park doing exercises.
The applicant further stated that sometime after he commenced these exercises he was reported to the authorities. The authorities came to his home on one occasion soon after and told him that he was a suspected Falun Gong practitioner and that he would suffer sanctions if he continued to be a Falun Gong practitioner. These sanctions were in relation to income and job opportunities, and freedom to travel.
The applicant stated that he told these authorities that he was not a Falun Gong practitioner, and that he was required by his Doctor to do exercises for recovery from his work injury. He signed an undertaking that he was not a Falun Gong practitioner. However, he says, the authorities did not believe him and continued to suspect him. He continued to do these exercises at home and also 1-2 days per week in the park.
The applicant stated that after this visit from the authorities, there were no further visits. However, the applicant stated that his Wife was visited by the authorities in February 2018. The reason for this visit was that the authorities came to check on him to see if he was still a Falun Gong practitioner.
Claim regarding harm suffered in China prior to arrival in Australia based in the imputed suspicion
The applicant stated that when visited by the authorities in 2015, he was told that he would be monitored, and that he could suffer income effects, restriction of travel opportunities, and job opportunities.
In his application, the applicant claimed that he was blackmailed and had to report on others. At the hearing, the applicant explained that by blackmail he meant the harms that the authorities had indicated could accrue if he was a Falun Gong practitioner (being loss of travel opportunities, employment, and income - as noted above). Further, the applicant stated that he had not been required to report on anyone regarding suspicions as to them being Falun Gong practitioners.
When specifically asked about any other harm, the applicant did not indicate any other harms.
Claim regarding harm anticipated if returned to China
At the hearing, the applicant stated that the harms he would face if returned to China exist because of continued official suspicions regarding him being a Falun Gong practitioner. Specifically, the claimed harms are:
(1) That he will not be able to do his usual work and receive a normal income.
(2) That he will not be free to travel.
At the hearing, when asked about further fears, the applicant indicated ‘not at the moment’, but that he did fear that his elderly parents might be denied security of health care. Again, the applicant stated that this was based on the authorities’ suspicion of him being a Falun Gong practitioner.
When asked if he feared being shot by the authorities for the reason that he is a suspected Falun Gong practitioner, as appeared to have been raised in his application, he indicated ‘yes’ without further detail.
Assessment of credibility of evidence
General assessment of evidence and credibility
In assessing the credibility of the applicant’s evidence, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’, or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the applicant must provide material, in as much detail as is necessary, to enable the Tribunal to establish the relevant facts as claimed. The Tribunal is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant.[1]
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1885) 6 FCR 155 at 169-170.
In determining whether an applicant is entitled to protection in Australia, the Tribunal is required to make findings of fact in respect of the claims advanced by the applicant. This may require an assessment of the applicant’s credibility, as is the situation in this case. The Tribunal is aware of the need for, and importance of, being sensitive to the difficulties applicants may face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to applicants who are generally credible, even if unable to substantiate all of their claims.
However, the Tribunal is not required to uncritically accept any or all of the allegations made by an applicant. The Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with independent evidence regarding the situation in the applicant’s country of nationality.[2]
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurani v MIEA & Anor (1994) 34 ALD 347 at 348 per Heery J; Kopalapillai v MIMA (1998) 86 FCR 547.
In this case, the Tribunal did not find the evidence of the applicant credible. Overall, the evidence provided was vague and inconsistent. Dates, places, people and authorities involved were vague and unspecified. The Tribunal also notes that the applicant provided inconsistent evidence as between the claims at application and at hearing. Additionally, the Tribunal notes that significant particulars of the claims put forward also shifted in the course of the hearing itself.
Assessment of credibility of evidence in relation to specific elements of the claim
Initial source of information about Falun Gong exercises. When asked about where the applicant accessed information on Falun Gong exercises, he initially stated that it was from the internet.
When the Tribunal raised with the applicant general information to the effect that the Chinese government had in place ‘the great firewall of China’, and that China closely restricted access to Falun Gong information online in China[3], the applicant then stated that he accessed the information from publicity materials distributed in public by 1-2 Falun Gong practitioners. He further stated that these practitioners handed out such material in public regularly. He stated that he first took this publicity material in April 2015 but thought little of it and only returned to it after his injury in May 2015 when he looked at Falun Gong exercises for rehabilitation purposes.
[3] Home Office, Country Policy and Information Note – China: Falun Gong (November 2023), paras 3.1.7, 9.3.1.
When asked if these practitioners suffered any sanction for this conduct, he stated that they were monitored, and later handed out the material without government knowledge.
The Tribunal does not find this evidence credible. In this regard, the Tribunal gives significant weight to the country information[4] relied upon as per paragraph 9 above. This is because of the official source, recent currency, and materiality of the content of this country information. The Tribunal noted that that these reports are recent, and that the applicant’s claims date from 2015. However, these reports note that Falun Gong has been illegal, and persecuted, since 1999 and thus they are relevant to this assessment.
[4] DFAT Country information Report: People’s Republic of China (22 December 2021), paras 3.64 – 3.70.
The relevant information, consequently, is that: Since 1999, Falun Gong is an illegal religious movement in China; that open/public practice of Falun Gong attracts high risk of official attention; and that the Chinese government actively searches for and prosecutes practitioners. This assessment has also been echoed in several other credible official reports and assessments which, although of recent provenance, note that this is a long-term policy of the authorities in China.[5]
[5] US Department of State, China: 2002 International Religious Freedom Report, pp10, 16-17, 44; UK Home Office, Country Policy and Information Note – China: Falun Gong (November 2023), section 3.
This information was put to the applicant plainly and unambiguously. Indeed, the applicant had already expressed his own similar assessment at the hearing and had also raised this matter in his application (see the assertions made in the application, including that: The Chinese government does not allow the Falun Gong religion in China; Falun Gong followers are killed; Falun Gong are considered violent to China). Indeed, the central plank of the applicant’s claim was that because he was suspected of being a Falun Gong practitioner, these consequences would accrue upon him if he returned to China.
However, the Tribunal pointed out that the logical consequence of the weight placed upon this country information (noting that the applicant had made similar assertions) is that the applicant’s claim was not credible because it conflicts with both his own assertions, and with the country information.
That is, the Tribunal does not accept as credible that Falun Gong practitioners, in early 2015, were regularly handing out Falun Gong material in the applicant’s city, and that the sanction applied by the authorities was that they were monitored rather than subjected to the more significant sanctions generally employed against Falun Gong practitioners who proselytise in public, given the illegality of the movement and the threat level attributed to it by the Chinese government. The Tribunal rejects the applicant’s evidence as to the alleged sources of Falun Gong material in this regard.

Continuing official suspicions. The Tribunal does not find credible the applicant’s claims that subsequent to a warning by the authorities he continued to use the Falun Gong exercises, including in public, for around two years, but was never again visited by these authorities. This is inconsistent with the country evidence insofar as much more attention would have been paid to the applicant if the authorities did hold on-going suspicions. The Tribunal rejects this evidence.
Subsequent visit by authorities to his Wife after the applicant had left China. The Tribunal does not find the applicant’s claim that the authorities subsequently visited his Wife in February 2018 (after the applicant had left China and entered Australia in November 2017) to check on the applicant’s Falun Gong status to be credible. This is because the Tribunal does not find it credible that the applicant was ever visited by the authorities in the first place.
This evidence is also not credible when weighed against the country information referenced above. The Tribunal also noted a chronological spread of similar reports from 2002 through 2015, until now. This information assesses that it is almost impossible to exit China without the authorities’ knowledge.[6] When this was put to the applicant, it was then claimed that the February 2018 visit was also because of suspicions regarding his Wife, because of the suspicions about him. However, the applicant confirmed that his Wife does not and has never practiced Falun Gong. This claim as to a subsequent visit by the authorities is not credible. The Tribunal rejects this evidence because it rejects both the allegation of visits to the applicant’s Wife by the authorities, and that that the authorities would not know that the applicant had exited the country and would therefore visit his home in 2018 to check on his Falun Gong status.
[6] DFAT, Country Report: People’s Republic of China (22 December 2021), para 5.35. See also DFAT Thematic Report on Unregistered Religious Groups in China (03 March 2015) para 3.30. See also Lili Song, ‘Exit regulation in the People’s Republic of China: Law, policy, and practice’ (2002) International Migration, at pp5-8. International Migration is a journal sponsored by the International Organisation on Migration.
Harms suffered in China prior to departure. In his application, the applicant stated that he was fired from his workplaces because of official suspicions about his Falun Gong status.
By contrast, at the hearing, the applicant provided the following evidence:
(1) That he ceased work as [an Occupation 1] in late 2015 / early 2016 because of his [injury] sustained in May 2015.
(2) That he then commenced work as [an Occupation 2], working in that role until September 2016.
(3) That from September 2016 until November 2017, when he came to Australia, he was engaged in caring for his elderly parents.
The evidence given at hearing clearly contradicts the evidence provided in the application. On one hand, the applicant says he was dismissed from employment as a result of official suspicions; on the other, the applicant has stated that his changes of employment, and the period of non-employment prior to travelling to Australia, are due to his need for alternative employment with less effects on his injured [Body part], and then the need to care for his ill parents. The Tribunal rejects both narratives in respect of this claim as they are manifestly inconsistent.
Additionally, in his application, the applicant stated that he had suffered mental and physical abuse from authorities. At the hearing, when invited (several times) by the Tribunal to elaborate on any and all harms suffered prior to his departure from China, the applicant did not raise any of these claims.
The Tribunal rejects this evidence as to having suffered mental and physical abuse.
Harms if returned to China. The applicant claims that the Chinese authorities will still be suspicious of him. However, there is no information to suggest that the Chinese authorities do in fact have a continuing suspicion of the applicant in respect of Falun Gong status, and the Tribunal rejects this evidence.
Further, there is credible evidence to the contrary – that is, there is evidence that there is no reason why the Chinese authorities would have any ongoing materially relevant suspicion of the applicant in terms of Falun Gong status. This evidence is as follows:
(1) The applicant was not subject to any of the threatened harms before leaving China.
(2) The Tribunal does not accept that he was visited by authorities. However, even if this were true, the applicant’s statement to authorities that he was not a Falun Gong practitioner, and his claim that he was not visited again after the initial claimed visit by authorities are relevant in this regard. This claim is internally inconsistent as it would suggest that - even in the light of continuing to do the exercises in public – he was not actually subject to official suspicion at any materially relevant level before he left China.
(3) The applicant was allowed to leave China, which indicates that even if under official suspicion, he was not of sufficient concern to the authorities that he be prevented from leaving China.
(4) There is no evidence suggesting that - in the absence of any new linkage to Falun Gong (of which there is none claimed) - the Chinese authorities would suspect the applicant of being a Falun Gong practitioner upon return to China.
(5) The applicant’s claims as to anticipated harm all hinge upon the authorities being suspicious to a materially relevant level as regards his Falun Gong status. The Tribunal did not find the applicant a credible witness and rejects that he is, or was ever, so suspected.
Findings of fact based on assessment of evidence and credibility: Is there a real chance the applicant will suffer persecution on return to China?
The Tribunal accepts that the applicant is not a Falun Gong practitioner.
The Tribunal does not accept that the applicant ever practiced Falun Gong exercises for health or any other reason.
The Tribunal does not accept that the applicant suffered harm (in this case, being dismissed from both jobs, threatened with loss of travel opportunities, employment, and income, and being required to report on others) in China as a consequence of claimed official suspicions regarding his Falun Gong status.
The Tribunal does not accept that the applicant left China because of fears in relation to claimed official suspicions reading his Falun Gong status.
The Tribunal does not accept that the applicant would be imputed by the Chinese authorities to be a Falun Gong practitioner if he is returned to China.
The Tribunal does not accept that there is a real chance that the applicant would face harm on the basis of religion or any other grounds upon his return to China now and into the reasonably foreseeable future.
Consequently, the Tribunal does not accept that the applicant has a well-founded fear of persecution on the basis of his religious beliefs, or on any other grounds, if he is returned to China.
Consequently, the tribunal does not accept that the applicant has a well-founded fear of persecution for any of those other s5J reasons, if returned to China.
New claims advanced by the applicant at the hearing
The Tribunal noted that the applicant did state at the hearing that he had taken a loan out, with his [siblings], to care for his parents in 2017. However, upon further examination, the applicant indicated that this loan had been repaid.
Complementary protection
Having concluded that the applicant does not meet the refugee criteria in s36(2)(a), the Tribunal looked to the alternative criteria in s36(2)(aa) (the ‘complementary protection criteria’). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, the applicant faces a real risk of significant harm.
Having regard to the applicant’s claims as above, in the context of the complementary protection criteria and for the reasons as set out above in respect of a real chance of harm, the Tribunal does not accept that the applicant faces a real risk of significant harm on the basis of any imputed religious beliefs, or on any other basis, if he is returned to China.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Robert Mclaughlin
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 1557

07 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice