2115519 (Refugee)

2115519 (Refugee) [2024] AATA 4198 (26 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  2115519
MEMBER:Adam Johnson
DATE:26 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets section 36(2)(aa) of the Act

Statement made on 26 August 2024 at 5:01pm
CATCHWORDS
REFUGEE – protection visa – China – worked at family store next to factory – factory representative made under-valued offer for land – threats, disruption and assault – representative’s political and police connections – applicant detained, seriously harmed and forced to sign admission and transfer of land – continuing surveillance and harassment, and requirement to pay representative compensation for injury – surreptitious departure, including bribe to airport officers – continuing harassment of family – detailed and comprehensive evidence – country information – fear of harm not for refugee criteria reason – complementary protection – real risk of significant harm – relocation not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1885) 6 FCR 155
R v Milk Board; Ex parte Tomkins [1944] VLR 187; [1944] ALR 388
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurani v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 5 October 2017. The delegate refused to grant the visa on 26 October 2021.
The delegate made the decision on the basis that evidence submitted by or on behalf of the applicant did not substantiate the claims required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).
The applicant appeared before the Tribunal on two occasions on 26 February 2024 and on 15 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review, including on both hearing dates when the Tribunal took oral evidence. The representative attended the Tribunal hearings.
At the hearing the Tribunal received detailed oral evidence where the applicant was examined at length concerning the events relied upon by her which formed the basis of her claims for protection. In light of the evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in section 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 sections 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: section 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: section 5H(1)(b).
Under section 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 sections 5J(2)-(6) and sections 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in section 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: section 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 sections 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under section 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 is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit is a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law, mandatory considerations and extract of key provisions of the Act is set out in the attachment.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Nationality and Identity
The applicant provided a copy of her passport issued by the People’s Republic of China to the Department and at the hearings. The Tribunal accepts on this information that the applicant is who she claims to be and is a national of China. The applicant’s claims will be assessed as against China as the relevant reference country.
Hearing, credibility, assessment and findings
In assessing the credibility of the applicant’s evidence, the mere fact that a person(s) claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’, or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the applicant must provide material, in as much detail as is necessary, to enable the Tribunal to establish the relevant facts as claimed. The Tribunal is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant.[1]
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1885) 6 FCR 155 at 169-170
In determining whether an applicant is entitled to protection in Australia, the Tribunal is 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.
However, the Tribunal is not required to uncritically accept any or all of the allegations made by an applicant. The Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with independent evidence regarding the situation in the applicant’s country of nationality.[2]
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurani v MIEA & Anor (1994) 34 ALD 347 at 348 per Heery J; Kopalapillai v MIMA (1998) 86 FCR 547
During the hearings on 26 February 2024 and 15 May 2024, the applicant gave detailed and comprehensive evidence with the necessary detail to support the claims for protection made in her protection visa application dated 5 October 2017 and the supplemented particulars contained in her statutory declarations declared 19 September 2019 and 9 October 2020 respectively. The Tribunal is reasonably satisfied as to credibility with the evidence provided in support of the claims made by the applicant, as outlined in the amalgam of facts detailed below.
By way of observation, the Tribunal having some residual evidential reservations, the Tribunal is not in a position to be the investigator concerning asserted facts, nor be a contradictor in the proceedings as it is not resourced to do so, noting such a role is properly the remit of the Department as Respondent to the review, who did not appear nor take any active role in the current review. It is well accepted aTribunal should not necessarily “descend into the fray”[3] in proceedings.
[3] R v Milk Board; Ex parte Tomkins. [1944] VLR 187; [1944] ALR 388
The applicant is a citizen of China, born [Date] in [Town], Shandong Province, who arrived in Australia [in] July 2017. As outlined above, the Tribunal is satisfied the applicant is a citizen of China and her claims were assessed as against China as the relevant reference country.
The amalgam of the claims for protection made in her protection visa application dated 5 October 2017 and the supplemented particulars contained in her statutory declarations declared 19 September 2019 and 9 October 2020 respectively, reveal the following.
The applicant commenced school in [Year] and studied up until [high] [school]. The applicant was not able to continue her schooling as she had difficulties with her studies.
The applicant commenced working at her family’s [store], ‘[Store name]’, located on [Road], in [Town], in [2000].
The store was located next to a factory called [Factory name]. The [raw product premises] and headquarters of the factory was located in [Village], [Town] in China. The legal representative of the factory was [Mr A], whose father was the deputy president of [Town] and his mother the [occupation 1] of the township government. [Mr A] also had relatives in the local police force, Public Security Bureau, Jining municipal government and Shandong provincial government.
The applicant was married in December 2006 and had a daughter, born [Date]. In January 2015, the applicant and her husband separated. The applicant clarified and confirmed that she and her husband are not officially divorced. Her parents in China are unable to locate her marriage certificate. She gave evidence her husband moved to [Country] after separation.
The applicant worked in her family’s [store] after marrying her husband. In 2012, as a consequence of [certain workers] in China receiving an attractive or good income, the applicant’s parents and brother began working at [that type of workplace], whilst the she continued to operate and superintend the family business, which her parents were unwilling to give up, sell or relinquish.
The applicant’s passport expired in approximately [2016] and she obtained a new passport. At the time of issuance of the replacement passport, the applicant did not have any issues with the authorities.
In February 2017, [Mr A] instructed his men to speak with the applicant about purchasing the land on which her family’s business was located. The applicant was told that her family would receive 30,000RMB as compensation, however the land, excluding the business and stock, was worth at least 600,000RMB according to the applicant. [Mr A]’s offer of compensation of February 2017 for the land was verbal and not in writing. The applicant rejected the offer.
From February to April 2017, [Mr A] and his male associates threatened the applicant on a number of occasions and caused trouble for the applicant’s business in the form of disruption, running amok in the store and acting in intimidatory manner.
The applicant reported the matter to the police and township government of [Town], however she did not received any assistance or support, nor was anyone willing to protect her and her family’s business from the harassment activities.
In May 2017, [Mr A], his male associates, together with numerous construction workers, attended the applicant’s family’s store to demolish her family’s building structures and business in order to occupy the land by force. The applicant gave evidence the assembled mob behaved like “gangsters”, punching and kicking the applicant and her staff and dragging them from the store. The applicant defended herself with a stick. [Mr A] became upset and called the police, informing them that the applicant was a “trouble maker”, hurting him and jeopardising public security.
At approximately 11 o’clock in the morning the police, who were colluding with [Mr A], arrived at the premises. The applicant was then later arrested. The police did not present an arrest warrant to the applicant.
The applicant was initially taken to [Town] police station, then [Public] Security Bureau, and later sent to [the] county detention centre, where she was detained for a month, during which time she was seriously harmed by the police and criminals associated with the dispue involving [Mr A]. The applicant stated that during her one-month detention she was not given any official documents or charges and was unable to provide this as evidence to the Tribunal.
The applicant asserted in her statutory declarations and whilst giving evidence that under the pressure of duress in the form of torture, she was forced to sign a statement, prepared by the police admitting to hurting [Mr A] and admitting to ‘jeopardising public security’.
The applicant maintains that she did not willingly confess to any crime or allegation. By signing the prepared document, the applicant was said to have agreed to ‘give up’ or transfer the land on which her family’s [store] was located and the business conducted on that property. The result of that event was that after signing the prepared document, whilst under the pressure of what the applicant described as torture, under duress, the applicant lost the rights to her store and property.
At the hearing and in her statutory declarations, the applicant asserted she was unable to provide any evidence of her family’s business and their ownership of the land because she was subjected to torture by the police in May 2017, at which time she was forced to hand over all documents relating to her family’s property to the police, including the certificate of land title and property, business registration, and other relevant financial and business documents.
The applicant was released by the police in June 2017 and was continually harassed by them after her release. Following her release the applicant was under surveillance by the local authorities, which she said made it impossible for her to lodge a complaint regarding her circumstances and the treatment she endured at the hands of [Mr A], his male associates, aligned police and government authorities. The applicant and her family continued to be harassed by the police who would attend her home once or twice per week to raid her home, search the premises and remove any documents or records, including files of any of her attempts to complain to the authorities. She was also warned her that she was not permitted to leave [Town].
After her release, [Mr A] issued a demand that the applicant pay him 800,000RMB as compensation for his injuries allegedly sustained at the hands of the applicant during the altercation in May 2017. The applicant did not have the funds available and gave evidence she considered it was unfair that she should pay him, given the circumstances of what occurred. The demand(s) went unsatisfied by the applicant.
After continual monitoring akin to in-house detention, the applicant’s family were concerned about her continuing situation and future. This then led her parents to enlist the help of family friends, who had a daughter in the travel agency industry, located outside the geographic locale of the family.
As a result, the applicant received help from the family friend [Ms B] who arranged for her to leave China [in] July 2017. The applicant’s friend [Ms B] who was/is an overseas travel agent helped to arrange the applicant’s travel and departure from China, as well as facilitating the elaborate logistical arrangements outlined below.
The applicant gave evidence her exit involved an elaborate plan of leaving her home in the middle of the night (accompanied by a small amount of her possessions) with little notice from her family friend [Ms B], by being picked up in a car and then driving some distance to Beijing.
Upon arrival in Bejing, after travelling a number of hours for a long distance, she was then accommodated in one of two rooms in a hotel which were booked under another name (not connected to the applicant) as arranged by [Ms B].
[Ms B] also reportedly arranged the payment of a bribe to airport officers and arranged for a friend who was employed at the Bejing airport to assist the applicant navigate immigration controls and boarding gates. The applicant then quickly left China on flight to bound for Australia. [Ms B] also made limited logistical arrangements for the applicant upon her arrival into Australia.
Since leaving China the applicant gave evidence that police have continued to cause issues for the applicant’s parents and brother, as the authorities regard the applicant to be a troublemaker who has seriously jeopardised public security. The applicant gave evidence that since leaving China the police would cause issues those issues for her family with a frequency of once or twice per month. She gave evidence that of recent times, adverse attention from the authorities or police would normally occur during or coincide with festive days, such as Chinese New Year. The police would repeatedly question the applicant’s family regarding information about her and tell them to warn the applicant that she should not engage in any anti-Communist activities whilst abroad.
In order to conceal her daughter’s whereabouts and avoid the possibility of detection by familial connection (which could be used as a means of coercing the applicant), the applicant placed her daughter in a boarding school, which she funds by remittal of funds to the School and/or her parents.

The applicant gave evidence that should she return to China, she fears she will be subjected to persecution, arrest and/or imprisonment and will suffer will significant harm and mistreatment in the same manner to which she was exposed previously in 2017, as [Mr A] is widely connected in China. As a result, the applicant gave evidence she has been blacklisted by the Chinese authorities and therefore it would be impossible to relocate within China if she was to return.
Independent Information
The Country Information regarding the Chinese authorities’ ability to monitor citizens indicates that the Chinese government’s monitoring and collection of information is comprehensive. This includes monitoring of arrivals and departures at international airports. Information obtained by the Immigration and Review Board of Canada (Canadian IRB) from the Counsellor of the Embassy of the People’s Republic of China in Ottawa indicates that ‘Information on passports and exit and entry’ is one of the databases of the Golden Shield. The Golden Shield is comprised of eight databases, including databases on population information, mainly the information on citizen identity, as well as databases on criminal record information and on criminal fugitive information. Police are in charge of exit and entry administration and can connect to the system at all ports of entry, including international airports.[4] The Department of Foreign Affairs and Trade (DFAT) stated in 2015 : […] China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive.[5]
[4] Immigration and Refugee Board of Canada 2009, CHN103133.E: China: Whether the Public Security Bureau (PSB) has set up a national computer network for information sharing, 2 July
[5] DFAT Country Information Report China 3 March 2015
The applicant’s elaborate means of leaving her home in the middle of the night, driving some distance to Beijing, being anonymously or surreptitiously accommodated in a hotel and then expeditiously leaving China on flight to Australia from Beijing (rather than her closest international airport) seems to have defeated the localised authorities or airport watch list by leaving China in the manner described.
Based upon the above evidential matrix the Tribunal makes the following findings.
The Tribunal finds the refugee criteria under section 36(2)(a) of the Act have not been substantiated or met, as the applicant does not meet the definition of ‘well-founded fear of persecution ‘ under section 5J(1) of the Act, as the fear of persecution articulated by the applicant in her evidence, does not relate to her race, religion, nationality, membership of a particular social group and/or political opinion.
Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as defined in section 5J of the Act for any of the reasons in section 5J(1)(a), in China. It follows the Tribunal is not satisfied the applicant meet the criteria in section 5H(1) of the Act and that the applicant is not a refugee, as defined in section 36(2)(a) of the Act and as a consequence is not a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion (complementary protection) in section 36(2)(aa) of the Act.
Based upon the evidence given by the applicant outlined earlier in this decision, the Tribunal is satisfied that 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 she will suffer significant harm, as defined in section 36(2A) of the Act. The Tribunal finds relocation is not reasonable based upon the evidence of the applicant where she outlined the influence and close relationship between [Mr A], the police and government authorities, such that the Tribunal also finds she would not be able to obtain protection from the authorities, due to their close relationship with [Mr A]. The Tribunal finds the real risk of significant harm is one faced by the applicant personally rather than the population of the country generally. It follows the Tribunal finds section 36(2B) of the Act is not enlivened to remove it from the definition of ‘real risk’ of significant harm.
In the premises, the Tribunal therefore is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. The Tribunal finds the applicant does not satisfy the criterion set out in s 36(2)(a) but does satisfy the criterion in section 36(2)(aa) for a protection visa. Given the findings of the Tribunal, it is not necessary to consider the criterion set out in s 36(2)(b) or (c).
DECISION
The Tribunal remits the application for reconsideration, with the direction that the applicant meets section 36(2)(aa) of the Act.
Adam Johnson
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 4198

26 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice