2111311 (Refugee)

2111311 (Refugee) [2022] AATA 2327 (8 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2111311
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Katsambanis
DATE:8 June 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 June 2022 at 2:20pm
CATCHWORDS
REFUGEE – protection visa – China – religion – member of unregistered protestant house church shut down by local authorities – police custody, forced confession, abuse and threats – vague claims and evidence and limited documentation – consent to decision without hearing – applicant’s responsibility to specify particulars and establish claim – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
WAKK v MIMIA [2005] FCAFC 225
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 5 August 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 December 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by Section 5H of the Act. The delegate was therefore not satisfied that the applicant was a person was a person in respect of whom Australia has protection obligations as outlined in section 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there was a real risk they would suffer significant harm as defined in section 36(2)(aa) of the Act and accordingly the delegate was not satisfied that the applicant was a person in respect to whom Australia had protection obligations under section 36(2)(aa) of the Act.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
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.
Credibility assessments
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
ISSUES
The issues in this case are whether there is a real chance that if the applicant returns to China he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant lodged his application for a protection visa with the Department on 11 December 2017. Along with his application he provided a copy of his passport issued by the People’s Republic of China [in] 2014.
In his application the applicant stated that he was married and had two daughters. His wife and daughters were still living in China. He stated that he was of Protestant religion and that he had arrived in Australia [in] September 2017 on a visitor visa.
The applicant stated that he had been employed in China working in [a Work sector] team from 1988 to 2001 and then as [an Occupation] from March 2001 to March 2017. He stated that he was unemployed from March 2017 until his departure from China. He also stated he was religiously prosecuted and relied on support from his family.
The applicant stated that he had left China because he was forced to abandon his religious faith after being put under threat of being jailed and punished. He stated that he became a Protestant 4 years ago when a friend from work persuaded him to join his house church. The church is an unregistered church which means it is out of the control of the Chinese Communist Party. The local authorities came and shut down the church because they considered it evil and part of a dangerous organisation. The applicant took this as an insult because they were not doing anything wrong, and they were law abiding citizens who committed no crime. It also invaded their most sacred religious place of worship. The applicant stated that he was forced to write a letter of confession that he had participated in illegal gatherings and was put in police custody for two weeks after the authorities came and raided the church. He claimed that he resented the authorities because they gave him no chance to express his point of view and listen to him. He was humiliated and was put under pressure by the police who threatened to put him back in prison if he tried to go back to Protestantism.
The applicant stated that the Chinese government will never understand the suffering they have caused him. He claimed to have lost valuable and loving friends who are still in detention. He stated that he will never abandon Protestantism and his faith in Jesus Christ. He considered it was no longer safe to stay in his country especially after his was threatened and he left China to seek protection in Australia because he feels religiously free to express his faith in public and participate in religious activities as he pleases. He believes there is hope for him to lead a happy life away from the Chinese Communist persecutions of Protestants.
The applicant claimed to have experienced harm in China because he was put in custody for two weeks and was humiliated by two policemen inside who spat on his face when he said Jesus Christ was the only true God. They called him a fanatic and would push him around violently and insult him with cruel words. He was emotionally hurt from this abuse and treatment and felt he could not express his anger. He found it hard to sleep at night because he was worried about his life and he prayed when he had a chance to be able to find a way to get out from the oppressive environment.
The applicant stated that his family was there to support him when he got out of custody however he did not feel safe any longer because the damage was already done to him and there was nothing that could fix the terrible psychological pain he felt inside him.
The applicant stated that safety from religious oppression was very hard when the country is ruled by a regime that does not believe in religion in the first place. He stated that the Chinese government may say they respect religious freedom and human rights but this is not the case at all. He had witnessed and lived the persecution himself and so he did not think there is hope for any safety in China.
The applicant claimed that if he returned to China he would be persecuted and put inside a cell because he is a Protestant and because he wants to pray in a house church. He stated that he has the right to pray anywhere he wants, and it was part of his human rights to do so without being harmed.
He feared he would be mistreated by the police and authorities in China, and they would insult him for his religious beliefs. He stated that there was no protection in China from the persecution of the Chinese government against Chinese Protestants and also stated that he did not trust the Chinese authorities after what they had done to him. He did not think that relocating to another area in China would protect him from abuse and maltreatment of the Chinese government if he refused to abandon Protestantism.
According to the delegate’s decision record, on 19 May 2021 the Department of Home Affairs wrote to the applicant requesting further information from the applicant about his application for protection. No response was received from the applicant before the delegate’s decision on 5 August 2021.
Application for Review
The applicant lodged an application for review on 27 August 2021. Together with the application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record dated 5 August 2021 and a copy of the accompanying notification letter. The applicant did not make any further claims or submissions either with the application for review or subsequently.
The applicant was represented in relation to the review by a registered migration agent.
On 13 May 2022 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 31 May 2022. On 17 May 2022 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the basis of the evidence provided by the applicant to the Tribunal in support of his claims for protection.
On 7 June 2022 the applicant wrote to the Tribunal and provided it with a Change of Contact Details form indicating that he wished to withdraw his authorisation of a representative. The applicant further requested that the Tribunal do not send any further correspondence in relation to this matter to the former representative but instead to send such correspondence directly to the applicant. The applicant also provided the Tribunal with copies of his passport biodata page, his Western Australian drivers licence, a further copy of the delegate’s notification letter dated 5 August 2021 and a copy of the Tribunal’s hearing invitation letter dated 13 May 2022.
FINDINGS AND REASONS
There is no issue as to identity. The applicant arrived in Australia on a passport issued by China and holding a valid Australian visitor visa. The Tribunal therefore accepts that the applicant is a national of China and has assessed the applicant’s claims accordingly.
In his application for protection the applicant has claimed that he is a Protestant who had been attending an unregistered house church for religious worship for around 4 years after being introduced to the religion by a work colleague. He claimed that local Chinese authorities had shut down his church and had taken him into custody for two weeks. The applicant claimed that whilst in custody he had been humiliated, abused, pushed around and spat on by police officers. He claimed that he had been forced to abandon his religion by the authorities for fear of further harm and that he was forced to sign a letter of confession that he had participated in illegal gatherings. He claimed that police had threatened to put him back into prison if he continued to practice his religion as a Protestant. He further claimed that he had friends who were still being held in custody for their religious practice. The applicant claimed that after he was released from custody that he was supported by his family but that his still suffered emotional and psychological pain from his treatment by the authorities, which led him to depart China.
The applicant’s claims about his religious practice as a Protestant in China and the subsequent harm he had suffered from the authorities for his religious practice are vague and lacking in detail. The applicant did not provide details about his initial engagement with Christianity, including the name of the work colleague who introduced him to this religion. The applicant did not provided address or location details of the church that he attended, he did not provide any details of who else was present at the church when he was in attendance, he did not provide the date or approximate date on which the church was shut down by authorities, he did not provide dates in relation to his detention and release by police, he did not provide details about when he was asked to sign a letter of confession or the contents of this letter, and he did not provide any details about whether he sought any treatment for the emotional and psychological harm he claimed to have suffered in China. The applicant also did not provide any corroborating evidence from people who were familiar with his religious practice in China. The applicant did not provide any details about whether he had continued to practice his religion since his arrival in Australia, including which church he may have attended, the regularity of such attendance or provide any corroborating evidence from persons who were familiar with his religious practice in Australia. The applicant also did not provide any details about whether he had sought any treatment for his claimed emotional and psychological pain since his arrival in Australia.
As noted above, section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section of the Act, the Tribunal does not have the responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[1]
[1] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
The Tribunal’s letter of 13 May 2022 inviting the applicant to a Tribunal hearing put the applicant on notice that the Tribunal had considered all of the material before it in relation to his application but was unable to make a favourable decision on that information alone. However, the applicant elected not to attend the Tribunal hearing and did not submit any further information or evidence to the Tribunal.

The Tribunal notes that the applicant provided only limited documents in support of his application. He did provide any further submissions or evidence when lodging this review application. He has not provided any further submission or evidence to the Tribunal despite being provided with an opportunity to do so in response to the hearing invitation. He provided no corroborating evidence directed towards his claims to the delegate or to the Tribunal and he did not provide any further submissions or evidence when contacting the Tribunal to withdraw his authorisation of a representative.
Based on the vague and undetailed evidence before it, the Tribunal does not accept that the applicant is a Protestant as claimed or that he attended an unregistered house church in China as claimed. Further, the Tribunal does not accept that the applicant was ever arrested or detained by Chinese authorities as claimed or that he suffered any of the claimed harm, including being spat at by a police officer or any emotional or psychological harm, either whilst in alleged detention or as a consequence of this alleged detention. The Tribunal also does not accept that the applicant was forced to write a letter of confession that he had participated in illegal gatherings or that he was ever threatened with being returned to detention by the authorities.
Accordingly, on the evidence before it, the Tribunal finds that the applicant is not and never has been of Protestant religion as claimed, that the applicant has never been arrested or detained by the Chinese authorities as claimed, that he has never suffered any of the harm he has claimed to have suffered as a result of this detention, that he has never been asked to write a letter of confession and that he has never been threatened with being returned to detention by the authorities.
The applicant has claimed that if he was forced to return to China now or in the reasonably foreseeable future, he fears that he would not be able to freely practice his religion as a Protestant and that he would be detained and harmed by the Chinese authorities if he chose to continue to practice his religion as a Protestant.
However, on the evidence before it, the Tribunal has found that the applicant is not a Protestant and has not suffered any of the claimed harm in the past in China. Accordingly, on the evidence before it, the Tribunal is not satisfied that if the applicant was to return to China now or in the reasonably foreseeable future that there is a real chance that he would suffer serious harm amounting to persecution for reasons of being a Protestant or for reasons of refusing to discontinue any practice as a Protestant.
Therefore, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
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 has considered 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 that the applicant will suffer significant harm as defined in Section 36(2A) of the Act.
As outlined above, based on the applicant’s vague claims that were lacking in detail, the Tribunal has already found that the applicant is not a Protestant as claimed and that he has not suffered any of the claimed harm in China in the past. Apart from claims relating to his alleged religion as a Protestant, the applicant has not made any claims that he fears harm for any other reason in China. Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if he were to return to China. Accordingly, 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.
Peter Katsambanis
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 2327

8 June 2022

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing