2109501 (Refugee)

2109501 (Refugee) [2024] AATA 2490 (30 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2109501

COUNTRY OF REFERENCE: China
MEMBER:Robert McLaughlin
DATE:30 May 2024
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 May 2024 at 3:05pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – underground church – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159
Prasad v MIEA (1885) 6 FCR 155
SZLSP v Minister for Immigration and Citizenship [2012] FCA 451
SZVTC v MIBP [2018] FCA 824
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 7 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 25 May 2020. The delegate refused to grant the visa on the basis that they were ‘not satisfied that the applicant would suffer serious harm as defined in s 5J(5) of the Act at the hands of the Chinese authorities as a result of his religion’. Nor did the delegate find that the complementary protection criteria were invoked by this case.
The applicant appeared before the Tribunal on 30 April 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 persecution for reason of his religion. 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 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, 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 a statement attached to his application for a protection visa in May 2020:
·     That he is a Christian and that he cannot legally attend worship in China because the law in China does not allow this.
·     As a result, he can only attend an underground church and the Police in China arrest people active in such churches.
·     That he moved to another city in China but did not attend church as if he did, the Police would register him, and he would be forced to quit being a Christian.
·     That if returned to China he will be forced to quit his religion and will be harmed and jailed due to his overseas experience of Christianity.
·     That if returned to China he will be unable to find a normal job due to his religion.
·     That this situation applies to all of China.
In May 2021, the applicant was invited to provide additional information as to these claims. However, no further information was provided.
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: The applicant’s claim to be a Christian; the applicant’s claims as to harms suffered prior to leaving China; and the applicant’s claims as to anticipated harms if returned to China.
The applicant’s claim to be a Christian
At the hearing, the applicant stated that he began to attend a local church in his village when he was in [grade] at school – around 2004. He stated that his mother had already been in the church for 3-4 years at that time. He stated that he was then baptised in 2007.
The applicant stated that the church in question was a small church that began in a house, but then moved to a dedicated stand alone church building in the village. This church had been built with funds raised by the congregation. The congregation was initially about 12 people but grew to 20-30 people by 2013. The applicant showed a photo of the interior of a church on his phone, which he stated he had just asked his mother to send him, and which he said was the interior of the church in his village.
The congregation met on Sundays, and the leader was a Priest (name supplied) who initially visited the village, but after a while stayed in the village and ministered at the church. The Priest ministers as his full time job, is still in the village, and the church is still used in the village. The Priest led prayer and songs and discussed life difficulties with his congregation. This Priest also assisted the applicant’s mother, who was poor, with occasional food and money.
The applicant could not describe the denomination of this church. When asked if the church was Catholic or Protestant, he stated that it was Christian.
The applicant stated that at first, he did not have any profound understanding of Christianity, but in 2013-2014 he began to know more after he commenced working. His work was far away from his home village, and he did not return often – initially once every 2-3 months, and then from 2015-2018 (just before he arrived in Australia in April 2018) only once in those three years (in 2016 for a funeral).
In regard to church attendance from when he started working in 2013, the applicant stated that he did not attend church in any of the cities where he worked. He said that there was a Catholic church near one of his workplaces but that this was ‘not for him’. He stated that there was no church group in the other factory city where he was employed, and that he thus only went to the church in his home village from 2013-2014 when he went home every 2-3 months. Subsequent to this, as he only went home once in the three years prior to arriving in Australia, he did not attend any church.
When asked why he did not attend any church or church group in the cities where he worked, the applicant stated that he never looked for or attended such a group. He stated that he never talked to his workmates about Christianity as people consider such faith to be ‘a superstition’ and they would think him ‘insane’. Consequently, no one knew of his faith.
Additionally, the applicant stated that he did not exhibit any external manifestations of his faith through ritual, practice, or attendance at a group, due to the same concerns about being perceived to be superstitious.
When asked about his beliefs, the applicant stated that he did not have a profound understanding of the Bible but did know that it teaches people to be kind and not to do bad things. When asked about whether there was any particular story or verse from the Bible that was meaningful to him, he replied that he could not recall as his ‘brain was not functioning’, but that he remembered a paragraph about being kind to other people, although he could not recall the details.
When asked about his practice of Christianity since arriving in Australia, the applicant stated that:
·     He did not attend a church after he arrived in Sydney due to his poor English and the pandemic.
·     He did not attend church in Canberra from April 2020, due to the pandemic.
·     That he attended church in Australia for the first time on the Sunday just before his hearing (28 April 2024), and he provided the Tribunal with two handouts, in Mandarin, that appear to be information about [Church 1]. He stated that he picked these up from the church when he attended it on 28 April 2024.
The applicant’s claims as to harms suffered
At the hearing, the applicant stated that he did not suffer any harms personally in China on the basis of his Christianity. He stated that there was one incident in around 2007-2008 where the husband of one of the congregants reported the church to the Police. He said the Police came and the congregation dispersed, and that nothing else happened on that occasion. When asked about other incidents, he stated that nothing else ‘left any deep impression’ on him.
The applicant was asked about any employment consequences of his faith. He stated that there was no loss of employment and that he did not tell anyone about his faith.
The applicant was asked about any other persecution he suffered in China based on his faith. He responded that people of other beliefs thought that Christianity was ‘no good’ and that they did not understand the Priest in his home village, or the faith he taught.
The applicant stated that he did not feel that he ‘fitted into’ the other places he lived, so this had some mental impact upon him. He did not elaborate further upon this claim, which was tied to his claimed fear of being thought superstitious if he made his Christianity known.
The applicant’s claims as to anticipated harms if returned to China
The applicant stated that there was nothing in particular that made him fear for his safety if returned to China. He stated that he did not fear death, and because he had not committed any crime, he did not fear the death penalty. He stated that he did not fear torture or degrading or inhuman treatment.
When asked about his ability to earn a living, the applicant stated that this was a concern for him because he has no particular skills for jobs in China, as well as the potential for misunderstanding about his beliefs to impact on employment prospects. However, he reiterated that this had not been an issue in the past as he had been employed in a range of jobs and had never talked to others about his faith so there were never any job-limiting misunderstandings in his workplaces.
Assessment of credibility and evidence
In assessing the credibility of the applicant’s evidence, 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], or to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v MIEA (1885) 6 FCR 155 at 170.
In determining whether an applicant is entitled to protection in Australia, the Tribunal is therefore 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. In this regard, 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.
Overall assessment as to credibility
The Tribunal did not accept that the applicant gave generally credible evidence. This is based on the vagueness and implausibility of several key claims, and the fundamental inconsistencies between the claims as made in the protection visa application and then at the hearing.
This finding is also based on the Tribunal’s assessment of the applicant’s knowledge of basic tenets of Christianity and his very long-term non-participation in any of the ‘cultural’ aspects of Christianity.
Further specific assessments as to the credibility of the applicant’s evidence, which buttress this overall conclusion, are set out below.
As to being a Christian
The Tribunal noted that the delegate stated in their decision that ‘Whilst [they had] concerns about the credibility of some of the applicant’s claims, [they] accept, for the purposes of this assessment, that the applicant is a Christian’.
The Tribunal therefore also accepts that the applicant was at one time a Christian. The Tribunal accepts that the applicant attended a Christian church in his youth. The applicant was able to describe some important details of this early church attendance, including the name of the priest and what activities they undertook as a congregation. The Tribunal also accepts that the photo sourced by the applicant at the hearing is of the church in his home village. However, the Tribunal notes that this photo proves no more than that such a place exists – a fact the Tribunal already accepts.
However, the Tribunal does not accept that the applicant remains a Christian in any material way such as to enliven the prospect of persecution on the basis of his religion. This is for three reasons.
First, the applicant clearly stated that after he left his home village, he never attended any church or church group apart from the times when he went back to his home village - initially every 2-3 months during 2013-2015, and then once for a funeral between 2015-2018. He did not seek out any church or church group in the cities where he worked. He stated that he did not do so because he feared being thought of as superstitious.
The Tribunal does not accept this element of the claim. Indeed, once in Australia where there was no fear of being labelled as superstitious, the applicant did not attend any church or church group and made no contact with any church or church group, until Sunday 28 April 2024, just prior to the hearing. Although he stated that this was because of, initially, his poor English and then the pandemic, the Tribunal notes that there are many Mandarin language churches and groups in Australia – including in Sydney and Canberra - and that many of these held online gatherings during the pandemic.
The Tribunal also notes that the pandemic has not been a major limiting factor in movement and attendance at public events and gatherings since around 2021-2022. The fact that first time the applicant has subsequently attended a church or Christian gathering was the Sunday just prior to his hearing, speaks significantly against the applicant having any commitment to Christianity.
Second, and related to this finding, the Tribunal noted that the reasons given by the applicant for not attending church or any believers group in China (apart from the few times he claims to have attended church in his home village after 2013) was his fear of labelling and of being registered by the Police.
However, once in Australia, where these hurdles do not exist in respect of attendance at Christian worship, the applicant nevertheless did not attend. Being a Christian involves participating in worship as a community in a public manner. The applicant made no effort to engage with this aspect of his claimed faith. Again, this speaks significantly against the applicant having any commitment to Christianity.
Third, taking account of the nature of the applicant’s claimed adherence to Christianity, the Tribunal was not satisfied that he could express the meaning of this belief system for him beyond a very generalised and amorphous claim. The extent of his claim was that his beliefs were about being kind and not doing bad things.
In this regard, the Tribunal notes that credibility assessments in relation to religion claims are very difficult and must be quite personalised to the applicant. In this regard, the Tribunal must not make itself ‘the arbiter of doctrine’, nor ‘the arbiter of the level of knowledge to be expected by one who claimed to have practiced’ that faith in that place at that time.[2] There should be a logical connection between the evidence / probative material and the conclusions drawn by the Tribunal regarding whether the applicant is or is not a genuine follower of the particular faith in question.[3]
[2] Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159 per Jacobson J [24].
[3] SZLSP v Minister for Immigration and Citizenship [2012] FCA 451 per Bromberg J [55]-[57].

Nevertheless, ordinarily, an assessment of a person’s claim to be an adherent of a particular religion may involve an examination of the person’s knowledge of, connection with and participation in the religion by reference to evidence of what may reasonably be expected of a genuine adherent in the same or like circumstances. In this regard, if an applicant appears ‘wholly ignorant of these elements of doctrine’, then ‘it is a short step to infer that the applicant is not a follower of the religion as he or she claims’.[4]
[4] Ibid per Bromberg J citing Kenny J [26].
The Tribunal’s inquiries as to the nature of the applicant’s claimed belief in Christianity did not engage directly with any of that belief system’s detailed doctrinal aspects, but rather asked the applicant to explain his beliefs in order to discern what was specifically ‘Christian’ about those beliefs. And whilst, as noted above, it is very difficult to baseline a set of indicia for what ‘any’ Christian practitioner ‘should know’, it is still permissible to inquire as to how the most basic tenets of a faith are represented in the claimant’s practice as part of the credibility assessment.
The applicant did not express any distinct knowledge of his claimed faith. He could not detail any aspect of Scripture of significance for him and did not understand or recognise the issue of denomination within Christianity. The Tribunal does not accept that the applicant provided any evidence of a connection with and participation in Christianity by reference to what may reasonably be expected of a genuine adherent in the same or like circumstances.
Additionally, the applicant’s explanations of his Christian based belief system were so generalised as to be indistinct from any number of belief systems. That is, the Tribunal found no indications in the applicant’s evidence of any single, specific, or unique Christian component in his claimed belief system. Consequently, the Tribunal does not accept that the applicant has provided any evidence of knowledge of Christianity by reference to what may reasonably be expected of a genuine adherent in the same or like circumstances.
In SZVTC, the Federal Court noted that in some cultures and communities, where literacy and educational levels are low, there may be less emphasis on religious knowledge or doctrine, and the focus may be more upon external manifestations of faith such as church attendance, worship, prayer and community engagement. This is sometimes referred to as ‘cultural Christianity’.[5]
[5] SZVTC v MIBP [2018] FCA 824.
Consequently, the Tribunal also considered the cultural aspects of the applicant’s claim to be a Christian, being cognizant of the fact that his understanding of Christianity could be limited by the environment in which it was instilled and in which it evolved.
In this regard, the Tribunal noted that the applicant does not engage in any cultural aspects of Christianity. He does not attend any church in Australia where such attendance is safe and accepted. Except for the one instance on the Sunday before the hearing before the Tribunal, the applicant has not engaged with any Christian communities or groups in Australia, where such engagement is safe and accepted.
Further, as noted above, the applicant also affirmed that he never participated in any cultural aspects of his claimed faith in China, apart from his early attendance as a youth at the church in his village, and his few attendances at the same church when he occasionally returned to his home village.
Consequently, there is nothing in the material before the Tribunal to indicate that the applicant is a cultural Christian. There is nothing in the material before the Tribunal to indicate that he participates in any Christian gatherings at all – particularly in Australia, where such participation is safe and accepted.
In summary, the Tribunal’s reasoning is that:
·     The nature of the applicant’s claim is that he is a Christian.
·     The Tribunal therefore questioned the applicant in relation to two of the most basic doctrinal elements of Christianity – being denomination, and the Bible - and only in relation to his own experience or practice of them.
·     The Tribunal also questioned the applicant as to his participation in the cultural aspects of Christianity.
·     The evidence resulting from this questioning was (1) that there was not one single, specific, or unique aspect of the Christian belief system that was present in the applicant’s account of his beliefs and their practice, and (2) that the applicant does not participate in, and since 2015 (apart from one funeral) has not attended any, church or church gathering or Christianity related event.
·     Consequently, the Tribunal concluded that there was no material before it that pointed towards the applicant being a genuine adherent of Christianity.
Consequently, the Tribunal does not accept that the applicant is a Christian in any material way relevant to the assessment of religion for Convention purposes.
As to the claimed harms
At the hearing, the applicant could not detail any specific harms that he had suffered as a result of his claimed Christianity, apart from two points.
First, as to his capacity to earn a living, the applicant stated that he never suffered unemployment as result of his claimed faith, and never suffered any public ridicule or similar consequences as a result of his claimed faith. He also noted that this could be attributed to the fact that he never told anyone about his faith.
The Tribunal finds that the applicant, prior to leaving China, did not suffer any reduction of his ability to earn a living attributable to his claimed Christianity.
Second, the applicant did imply that he had suffered some mental distress as a result of not being able to practice his faith away from his village, for fear of being thought suspicious or insane.
The Tribunal does not accept that the applicant was ever required to conceal his faith. This is because the Tribunal does not accept that the applicant is a Christian, and consequently does not accept that the applicant has ever suffered any mental distress – including from concealing his faith - as a result of being a Christian.
As to claims of future harm
At the hearing, the applicant clearly stated that there was ‘nothing in particular’ that made him fear a return to China. However, he did raise two concerns.
First, the applicant stated that he would suffer a loss of earning capacity if he returned to China because he has no particular skills, coupled with the potential for misunderstandings about his beliefs.
In this regard, the Tribunal notes that from 2013 onwards, the applicant was fully employed in a range of industries prior to coming to Australia. Additionally, he has now learned skills as [an occupation 1] in Australia, an occupation in which he currently works. Thus, there is no evidence before the Tribunal to indicate that the applicant has no relevant skills of use in China, and/or no prospect of employment if returned to China.
Further, the Tribunal also notes that because it does not accept that the applicant is a Christian, it holds no concerns as to the applicant’s claimed faith becoming a hurdle to employment.
The second specific anticipated harm raised by the applicant relates to the mental distress of not being able to be a Christian in China.
In this regard, the Tribunal notes three points. First, the applicant agreed that he was now aware of licenced churches and that there was no reason he could not attend one. Second, the applicant agreed that the situation for Christians in China was ‘much better now’ so there is less chance of misunderstandings as to faith. Third, because the Tribunal does not accept that the applicant is a Christian, it does not accept that any such claimed potential mental distress would at any rate arise.
Overall conclusion
Having considered the applicant’s claim on the basis of all of the material before it, the Tribunal finds that the applicant has not established his claims and that there is no real chance that the applicant will face persecution for reasons of religion or for any other s 5J reason if he is returned to China, either now or in the reasonably foreseeable future.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined by the Act. The Full Federal Court has held that the ‘real risk’ test applicable in complementary protection assessments imposes the same standard as the ‘real chance’ test applicable in refugee criterion assessments.
The Tribunal has had regard to the claims as above in the context of complementary protection, but holds the same concerns as to the vagueness, lack of detail, lack of material, and lack of credible evidence in relation to these claims.
Specifically, the applicant advanced two especially relevant claims that must be assessed against the Complementary Protection criteria: The prospect of not being able to find employment and to subsist; and mental distress due to inability to practice a claimed faith. However, as noted above, the Tribunal does not accept any of these claims, and therefore the Tribunal is not satisfied that the applicant faces a real risk that he will suffer significant harm if returned to China, now or into the reasonably foreseeable future, for any reason.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
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).
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 2490

30 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Natural Justice

Appeal