2112411 (Refugee)

2112411 (Refugee) [2022] AATA 3598 (12 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)
CASE NUMBER:  2112411
COUNTRY OF REFERENCE:                   China
MEMBER:Mark Bishop
DATE:12 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 July 2022 at 1:29pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – underground/house church – Church of Almighty God (COAG) – engaged in evangelistic activities – claim lack details – not detained or interviewed by the authorities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 201 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 September 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China applied for the visas on 4 September 2019. The delegate refused to grant the visa on the basis that he was not satisfied that the primary applicant is a Christian in China and/or Australia as claimed.
In this review application [Mrs A] is the primary applicant. The secondary applicants [Mr B]and [Mrs C] are the spouse and mother-in-law of the primary applicant. The secondary applicants did not appear before the Tribunal. The applicant provided a copy of the decision record to the Tribunal.
The applicant appeared before the Tribunal on 28 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were 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). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The first applicant ([Mrs A]) is a [age]-year-old married Chinese national who currently resides in Australia with her daughter, spouse and mother-in-law. The delegate made a finding the applicant departed China lawfully on a genuine Chinese passport. The applicant currently resides in Australia as the holder of a bridging visa C. There are no visa conditions.
The first applicant provided a copy of a Statement of Claim in a Chinese language and in translation by a certified translator (Department File [number], TRIM Reference [number]). The Tribunal considered this Statement of Claim. As outlined above in paragraph 3 the applicant provided a copy of the decision record to the Tribunal. It is summarised in the decision record (for summary see paragraph 15 below). The Tribunal provides a brief summary:
·In November 2000 the applicant took over the gospel of God from her mother. Prior to that she attended the Three-Self Church. She discontinued this practice and from 2000 attended house church. House church was not allowed by the government. Hence she was required to keep watch outside.
·The applicant gained an understanding of being caring, patient, inclusive, tolerant and lenient. She lives in God’s harmony with her family. She now lives in a happy world with the love of God.
·She outlined the details of a number of incidents:
oIn July 2002 she and other mother were evangelising and a report was made to the police. She and her mother escaped.
oIn December 2003 a fellow member was caught. The applicant received a message to tidy the books. She removed the books and escaped attention from the authorities.
oIn April 2006 the applicant received sufficient warning of a police raid but again escaped with the help of the owner of the house ([Mr D]). Thereafter [Mr D] was monitored by village authorities.
oA fellow member [Ms E] was taken to a police station, escaped from the police station, fled her home for a period of 12 months, the police called at the home late at night for a lengthy period of time, after a period of 12 months [Ms E] returned home, her husband took her to the police, she paid a fine, the police checked on her at her place of work, for a period of 3 years [Ms E] ceased to practice.
oAround 2010 a disgruntled believer submitted her name (a false name) to the police.
oIn June 2018 local police from [a named] Police Station raided her family members. The husband of a member provided her real name and details to the police. The police raided her home but she had already left for Australia. The police continued to monitor her family in her absence in Australia.
oThe applicant’s mother evangelised in the period 2002 to 2009. Her mother was monitored by the village head at the behest of the Bureau of Ethnic and Religious Affairs, the Public Security Bureau and the Three-Self Church. A representative of the Three-Self Church attempted to persuade the applicant’s mother to return to the Three-Self Church.
·The applicant and fellow members have to disguise themselves. She is frightened to believe in God. Common people are encouraged to report house church members to the authorities. The freedom of faith no longer exists, let alone Christ, “We’re only allowed to be subject to the state, the government, the CPC and Marxism-Leninism and Mao Zedong thought. If I get [sent] back [to China], my result will be the calamity of imprisonment, not to speak of belief in God”.
·“When we first came to Australia, we’ve applied for student visa for short stay, with the hope of going back to my home someday when the overall environmental could be getting better. But now we give up this idea. It would invite a death wish as Christians are being captured and house churches are being persecuted by the government. For this reason, I would like to stay in Australia, a country with freedom of faith, with no impediment or oppression”.
On 24 December 2020 the Department granted each of the applicants a bridging visa C with “nil” visa conditions attached.
The delegate outlined the detail of the applicant’s protection claims as follows:
·“The applicant claimed that they fear returning to China because they are a Christian.
·The applicant claimed that house churches were not allowed by the Chinese government.
·They have been a Christian since November 2000.
·They engaged in evangelistic activities with their mother in July 2002.
·They were reported to the police by the husband of the person that they were talking to, however they did not get caught.
· In December 2003 another member was reported and captured. The applicant received a notice to tidy up the books. A patrol wagon followed her but she escaped with the books.
·In April 2006 they gathered at a house church. The neighbour reported to the police however they evacuated in time so they escaped from being caught.
·In 2010, the applicant had a conflict with another member who gave a list containing the applicant’s name to [a named] police station, however the applicant did not use their true name during gospel meeting in case of such events.
·[In] June 2018, the local police were asked to arrest the church members. One of the church members’ husband reported about the applicant’s true identity to the police.
·When the police came to their home, they had already left to Australia. Since then, every one and a half month or two months the police visited their family to enquire about them.
·If they return to their country they would be imprisoned because of their Christian faith.”
As detailed in the decision record in summary the applicant is female, married, unemployed, Christian and Han Chinese. The applicant claims as an adherent of a Christian (underground/house church) she engaged in evangelistic activities and gathered at house churches. The applicant was reported a number of times but was not caught. Since the applicant left China for Australia, the police have visited their family every one-and-a-half or 2 months to enquire about the applicant. The applicant believes she will be imprisoned because of her Christian faith if she returns to China.
The Department made a number of requests pursuant to s 56 of the Act for further information. The applicant did not provide any further information documents or commentary to the Department. The applicant did not respond to requests for information from the Department.
On 26 May 2022 the Tribunal wrote to the applicant and advised we (the Tribunal) had considered the material before us but were unable to make a favourable decision on this information alone. The Tribunal invited the applicant to attend a hearing on 28 June 2022. The Tribunal requested the applicant provide “all documents you intend to rely on to support your case by 21 June 2022”.
The applicant provided a 3-part pre-hearing submission as follows:
·A copy of DFAT Country Information (CI) report for the PRC dated 22 December 2021.
·A cover letter from the applicant’s Representative Stanley Immigration & Law that set out the following details:
oExtract from Schedule 2 Provisions and s 36 of the Act.
oCopies of paragraphs 3.57 to 3.63 of CI re the Church of Almighty God (COAG), a reference to United States Commission on International Religious Freedom (USCIRF) identified in its 2021 report with a brief extract that referenced the alleged harassment, detention arrest and imprisonment of members of Protestant house churches who refused to join the state-sanctioned ‘Three-Self Patriotic Movement’, the state sanctioned or approved destruction of Catholic and Protestant church buildings under its ‘Sinicization of Religion’ Campaign and the assertion that the ‘National Security Law has been used as a weapon to kill, torture and mistreat its own people’.
oThe submission that “the applicant if go back to living in China then she will be captured by the government and not treated fairly, the local Chinese government will intimidate and harm her again, according to her own statement; the police force will not take any action to protect her, therefore my client has well-founded fear of persecution (Please see MIGRATION ACT 1958 - SECT 5J, also WHO IS A REFUGEE? The High Court’s Interpretation: from Chan (1989) to Ibrahim (2000)).”
·Statement from the applicant with a translation date of 22 June 2022 signed by a certified translator that set out the following details as summarised by the Tribunal: the applicant’s arrival in Melbourne in July 2018, her contact with COAG, reception duty within COAG as directed by a ‘church sister’ her assistance to other COAG members, her progress through various stages of church teachings, a lengthy discussion of the concept of arrogance, the relationship between arrogance and God and Satan, online study group activities (particularly God’s Three Stages of Work), preaching the gospel on the internet post the commencement of COVID-19, the concept of jealousy as a practical impediment to change and the acceptance of the Words of God, the invisible lure via Satan of ‘fame and fortune’ and the realisation that the ‘Words of God’ had given “me the path to follow and the direction to take” leading to the conclusion that “…I will do my duty to satisfy God’s will”.
At the beginning of the hearing the applicant advised the Tribunal she would not call any witnesses. She provided 3 single page documents downloaded from the internet that were in the form of leaflets for future meetings. She advised the Tribunal she had not as yet issued the leaflets.
The applicant gave evidence to the Tribunal as follows:
Family
Her mother is alive, lives in China and her father passed in April 2022. The applicant lives with her spouse, mother-in-law and daughter in Australia. She has no other children in China. She has been self-employed and an independent contractor in recent years in China. Her business name is registered with the Chinese authorities.
Visa history and detention in China
She arrived in Australia as the holder of a 3 month visitor visa in July 2018. She wished to remain in Australia and sought advice from a Migrant Agent. Subsequent to this meeting she applied for a student visa. This application was rejected by the Department and she lodged a review application to the AAT. She advised the Tribunal she did not complete her course of study as her COE was cancelled. She advised the Tribunal the AAT affirmed the decision of the Department. She has not returned to China since her arrival in Australia. Her husband has returned to China on 2 occasions since his initial arrival in Australia in 2018 for 20 days and 2019 for a shorter period. The applicant advised the Tribunal the purpose of the first visit was to obtain some documentation left in China and the second visit was to fetch his mother and bring her to Australia. The Tribunal explored this family detail further and the applicant advised as follows:
·Her mother-in-law has come to Australia on 2 occasions, the first to see family and post her second arrival in Australia she decided she did not wish to return to China. Her mother-in-law has not made a separate application for a protection visa. She thinks her mother-in-law practises her religion privately in China and the applicant stated nobody in China is aware of this.
·As outlined above her spouse has returned to China on 2 occasions since his initial arrival in Australia.
·Her daughter is a student in Australia, will complete current studies in 2023 and intends to then enrol in a Master’s degree.
The applicant advised the Tribunal that none of the members of her family (spouse, daughter and mother-in-law) had ever been detained by the authorities in China.
Involvement with COAG
The applicant advised the Tribunal she first became involved with COAG in late 1998 after her mother’s initial involvement. She observed her mother’s participation and after a period of 12 months decided she wished to become more involved. From around November 2000 she engaged in readings at home and after July 2001 attended cell group meetings. These meetings usually occurred in private homes, were attended by a small number of people and led by one person. The process of the meeting was to pray, read scripture and share personal wrongs. Tasks were allocated to participants. The structure of the cell groups within COAG appeared to be leaders, nurturers and guardians. Activities involved evangelising. The applicant advised participation in COAG was important as she engaged in role playing, learned about the sinful nature of individuals, learned how to improve herself based around church values. In 2002 the applicant advised she decided to remain with God. She made this decision because the church was not focused on money and power. She was learning about God’s plan and work.
Reasons for leaving China
In China COAG is persecuted. The applicant advised if she participated in evangelising activities she felt under stress as she had to be careful. She felt the need to evangelise in China and later in Australia. She felt oppressed in China and wished to spread the gospel. She advised she had not been detained by the authorities in China and felt unable to relocate in China because COAG was an underground church.
Return to China and COAG in Australia.
The applicant advised the Tribunal the spouse of a fellow COAG member provided her details to the authorities in China. She thought she might be arrested and detained if she returned to China. Her spouse has been a member of COAG since 2004. Prior to the pandemic she used to attend face to face meetings. Since the time of COVID, meetings have shifted to online. Post pandemic she will start evangelising again by going out in pairs and handing out literature. She believes there was a Chinese government spy in her COAG cell group but he left as attendees used pseudonyms that prevent identification and spoke in code. There are 2 specific congregations in Australia one for newcomers and the other for experienced followers. She advised that during her husband’s recent trips to China he was not the subject of attention by the authorities and did not evangelise in China. His membership of COAG is not known in China. She advises he could not provide proof of membership of COAG. She advised she could not provide any witness statements or letters that might confirm her membership or participation in COAG as people felt it impossible to use their real name and when online use a codified language. She believes a ‘Judas’ sold out her details to the Chinese authorities. Her sole reason for not returning to China is that this Judas provided her details to Chinese authorities. Whilst in Australia she has not received any attention from the Chinese embassy or Chinese authorities. She believes living in China will be stressful.

The applicants’ solicitors provided a copy of the DFAT CI Report for the PRC dated December 2021. The written submission did not address any part of this report. Paragraphs 3.57 to 3.63 address COAG. The DFAT Report makes the following comments:
·COAG operates in secret both to avoid detection and as general matter of practice. Little is known about the church.
·COAG members believe they are in a constant mortal struggle against the ‘Great Red Dragon’ (a possible reference to the CCP), and that membership of the group will bring salvation from an impending apocalypse.
·Little is known about the identity of a central female figure. Within COAG there is much disputation as to the significance of this figure.
·There is no formal liturgy or sacraments in the COAG movement but weekly study meetings do occur. The leadership can change quickly. Members of the Church may deny, or not understand, the hierarchy and leadership of the Church, but DFAT understands that there is a hierarchy. Due to the secrecy that surrounds the Church, a common understanding may not be reached by members and questions about practice could genuinely be answered differently by different adherents. COAG members generally do read The Word Made Flesh, the central religious text of the group.
·COAG is not well understood but it is clearly illegal in China, and reports of widespread arrests are credible.
·It is illegal for them to proselytise; those who attempt to proselytise, as well as leaders in the Church, are subject to greater scrutiny by authorities. Inability to practise openly and alleged (but disputed) isolation of members from family and society could reduce exposure to societal discrimination. DFAT is unable to verify whether a former member or a person imprisoned for membership would be placed on an exit control list. DFAT assesses that members face a moderate risk of societal discrimination due to high profile anti-xie jiao campaigns that are critical of the group.
The Tribunal notes the applicant’s written statements and oral evidence as to recruitment, membership, church processes, church activities, proselytising, cell group structure, high regard for secrecy and forms of self-protection are largely consistent with the DFAT CI Report. The Tribunal notes the applicants evidence and written submissions as provided to the Tribunal and summarised at paragraphs 19 and 21 are largely similar with the DFAT CI Report as summarised at paragraph 22 above.
Refugee considerations
The Tribunal notes the applicant gave detailed evidence as to the arrival of various members of her family in Australia, their continuing residence in Australia up to the current time, their individual (spouse and mother-in-law) return to China on a number of occasions post their initial and separate arrivals in Australia, the lack of interest on all occasions of the relevant authorities in China of the departure and return of these family members, the deliberate and organised “fetching” of her mother-in-law by her spouse, the total lack of interest over time of the Chinese authorities in the applicant and her various family members and the fact that nobody in China was aware of that the applicant, her spouse and her mother-in-law might be members of COAG. The Tribunal is of the view this lack of interest is primarily due to the fact the applicant and her family members were not members of COAG in China, were not practitioners within COAG in China and hence were not of interest to relevant Chinese authorities. The Tribunal is concerned the applicant spent a period of time in Australia as the older of sequential temporary visas before making application for a protection visa. The Tribunal is of the view an applicant for a protection visa that has provided various reasons in her written documentation might have given a greater priority to safe-guarding her own welfare rather than awaiting the almost natural exhaustion of the student temporary visa path. The Tribunal is inclined to the view the applicant and her family are in the process of seeking to achieve a migration outcome. This migration outcome is unrelated to a well-founded fear of persecution.
The applicant claims she fears persecution in China as a member and practitioner of COAG. The particulars of her claim are set out in paragraphs 13, 15-16, 19 and 21 above. The applicant outlined a number of incidents that allegedly occurred in the period 2002 until 2009. See paragraphs 13 and 15 to 16 above. The applicant has provided little detail. The detail that is provided is general and contains few specifics. The applicant is unable to and has not provided any witness statements to any of these events or incidents. The Tribunal notes the generalised description of these various incidents is largely consistent with the DFAT report provided to the Tribunal. The lack of detail is not surprising. The incidents were singular in nature and occurred at different times in different places and involved different persons. The applicant was not detained or interviewed by the police. The applicant was not the subject of harassment by police or other Chinese authorities. The applicant did not advise the Tribunal that she or her family members were ever the subject of interrogation by police or other Chinese officials. The applicant was unable to directly detail police activities or police concerns as she was not at the relevant time a person of interest to the police. Notwithstanding the foregoing the Tribunal accepts COAG and practitioners of COAG in China are of interest to the Chinese authorities.
The applicant advised the Tribunal that neither she nor the other applicants had been of interest to the Chinese authorities. Both of the secondary applicants have departed China on 2 or 3 occasions in recent years. The applicant departed China in 2018. There was little evidence that suggests any of the applicants is or was of interest to the plethora of Chinese security agencies (Public Security, Customs, Intelligence, passport or local police). The applicant and secondary applicants as appropriate appear to leave and return to China as part of normal life without interruption or hindrance by authorities. The applicant departed China as the holder of a valid passport. The applicant and her family have led a life in China over decades that involved regular interaction with local and national authorities such as business registration agencies and passport authorities.As an independent contractor the applicant is known to local business authorities. She did not report any instances of undue state attention to herself by those authorities or other authorities in China. The Tribunal finds it difficult to accept that a known local business-woman engaged in public sales activities would not be relatively easy to locate and access if there was any substance to the various integers of complain as identified earlier in this paragraph. There is minimal evidence that the applicant is of interest to the authorities.
The applicant outlined a number of incidents that allegedly occurred in the period 2002 until 2009. The applicant has provided little detail. The detail that is provided is general and contains few specifics. The applicant is unable to and has not provided any witness statements to any of these events or incidents. This evidence is vague in nature and it is unsubstantiated by concrete evidence. For the reasons set out in paragraph 24 above the Tribunal finds the evidence to be unpersuasive.
In her written statement the applicant advised “since the applicant left China for Australia, the police visits their family every one and a half or two months to enquire about the applicant”. This statement troubles the Tribunal as the applicant was quite firm in her evidence all of her immediate family reside with her in Australia and have lived in Australia for some years. This statement appears to be inconsistent with the clear evidence that the applicant’s immediate family have lived with her in Australia in more recent years and two of those family members have departed and returned to China in those years on more than one occasion. As all of the applicant’s immediate family have lived in Australia for recent years and on occasion have returned to China without hindrance the Tribunal expresses concern as to the veracity of this statement. The Tribunal finds the evidence to be unpersuasive.
The evidence does not establish that the applicant was a member of COAG in China, that she is currently a COAG practitioner or that she would practise COAG if she were returned to China now or in the reasonably foreseeable future.
Based on the whole of the evidence that is materially relevant to the applicant’s claims and the protection claims themselves, considered individually and cumulatively, the Tribunal is not satisfied of the existence of a real chance the applicant would be subjected to serious harm because of her religion, or for any of the other reasons specified in s 5J(1)(a) of the Act, if she is returned to China now or in the reasonably foreseeable future.
The Tribunal finds there is no real chance the applicant would suffer serious harm for reasons of religion if she is returned to China now or in the reasonably foreseeable future.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied the applicant is a refugee for the purposes of the Act, and therefore the applicant is not a person in respect of whom Australia has protection obligations, and the applicant does not satisfy the criterion in s 36(2)(a).
Complementary protection
The Tribunal now turns to consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act. A person will satisfy the criterion if there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case China, there is a real risk the applicant will suffer significant harm. The definition of significant harm is stated in s 36(2A) of the Act which is reproduced in the attachment to this decision.
In view of the Tribunal’s findings that it is not satisfied the applicant was a COAG practitioner in China, or that she would practise COAG if returned to China, the Tribunal finds there is not a real risk the applicant will suffer significant harm as set out in s 36(2A).
In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246], [297], [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a) of the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk she will suffer significant harm.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa).
There is no suggestion that the applicant meets the family member criterion in s 36(2)(b) or (c) of the Act.
Applicants [Mr B] and [Mrs C]
The applicants, [Mr B] and [Mrs C] claim to be members of the same family unit, as defined in s5(1) of the Act, of [Mrs A]. However the Tribunal need not determine this issue since it have refused a Class XA - Protection visa (subclass 866) (PV) to [Mrs A]. The applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and the applicant does not satisfy s36(2)(b) or s36(2)(c) of the Act as they are not a member of the same family unit as a non-citizen who holds a Protection visa of the same class applied for in this application and who is a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) or s36(2)(aa) of the Act.
Therefore, [Mr B] and [Mrs C], are refused a Class XA - Protection visa (subclass 866) (PV) under s65 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Mark Bishop
Senior 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 3598

12 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice