2214528 (Refugee)

2214528 (Refugee) [2024] AATA 2225 (25 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2214528

COUNTRY OF REFERENCE: China
MEMBER:Robert McLaughlin
DATE:25 May 2024
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 May 2024 at 2:34pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – complaints about veterans’ compensation – physical assault – school enrolment – fear of detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191 at 200
Prasad v MIEA (1885) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 September 2022 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 6 October 2018. The delegate refused to grant the visa on the basis that they did not accept that the applicant’s claims were genuine, nor that the applicant was of a profile that would be of adverse interest to the Chinese authorities.
The applicant appeared before the Tribunal on 3 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant was involved in an incident which resulted in him becoming of adverse interest to the Chinese authorities such that if he returned to China he would be arrested and would suffer harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Preliminary matter: Nationality and identity
The applicant provided a copy of his People’s Republic of China (‘China’) passport to the Department. The Tribunal accepts that the applicant is who he claims to be and that he is a national of China. The Tribunal also accepts that the applicant has no right to enter and reside, whether temporarily or permanently, in a third country. This is because the applicant has no visa for any such country notated in his passport, and there is no other information to suggest he has any such right.
Claims made prior to the hearing
The applicant submitted the following claims to the Department in a statement attached to his application for a protection visa in October 2018:
·     That his father had served in the Navy for [number] years in his youth and subsequently suffered health problems including [medical condition 1] and that he for years had to stay in bed.
·     That the applicant organised some military veterans, including his father, to visit the local Civil Affairs office to seek compensation for injuries suffered during military service.
·     Whilst at the office, the group were physically and verbally abused, including through punching and kicking.
·     Thugs were used to put pressure on them at their workplaces, and these thugs came to the applicant’s workplace.
·     Thugs came to the applicant’s home, while he was there, and threatened him.
·     Thugs sometimes stopped the applicant on the street on his way to/from work and verbally and physically abused him and told him they wanted to kill him.
The hearing
At the hearing, the Tribunal invited the applicant to clarify and expand upon his claims. There were three key matters around which the claims and evidence coalesced.
Context of claim
At the hearing, the applicant stated that his father, who is now in his [age range], had served in the PLA-N (Navy) for about [number] years, in the [year range]. Initially, the applicant was not sure when his father served, stating that it was in the [year range], but upon further questioning, he recalled that his father was born in [a specified year]. The Tribunal suggested that if his father had begun service at the age of [age], this would mean the earliest he would have been in the navy was from the [year range]. The applicant agreed with this assessment.
The applicant did not know what rank his father achieved in the Navy but recalled that he worked in the [specified] field. The applicant stated that his father’s service had been completed before the applicant was born in [year]. The applicant stated that his father was a conscript.
The applicant stated that during this period of service, his father suffered a [specified] injury during rough seas, but that he could still walk and work. Upon leaving the Navy, his father was a farmer but from his [age range], as he aged, his condition worsened. He was still engaged in light farm work until 2018 when he moved to live with his brother in Nanjing. The applicant stated that his mother was also aged and could not look after his father and that this is why they moved to live with his father’s brother, who owns a business in Nanjing.
Claim regarding incident at the Civil Affairs Office
The applicant stated that his father and mother went to the county Civil Affairs office once or twice a year from 2015 until 2018. The purpose was to ask for financial assistance. They were refused each time.
The applicant stated that in July or August 2018, he accompanied his father to the Civil Affairs office to make a claim. They were at the office by about 0900, which was opening time, but that they were outside the office waiting to go in. there was a group of people also waiting. When asked if this was a coordinated event, the applicant said no, but that there were 10-20 other veterans and claimants (all farmers) outside the office that morning also. He stated that he did not know them and did not know if any served with his father.
The applicant stated that shortly thereafter, two medium sized buses arrived and about 20-30 security personnel disembarked and confronted the group, which the applicant now corrected to have been 20-30 because the number of the group and the number of security personnel was about equivalent. The security personnel hit some people and arrested some people. The applicant did not know any of these people and was not physically harmed or arrested. The security personnel then told the group to ‘not do this again’. The applicant and his father then left and went back to his father’s house.
The applicant stated that did not report the incident as it would have been of no use. He stated that although the security personnel did not wear the same uniform as police, they were clearly official so it was no use reporting to the Police. The applicant stated that the Police later attended the incident but did nothing.
Claim regarding subsequent persecution
The applicant stated that the Police came to his house 2-3 days after the incident. When asked why this had occurred, the applicant stated that he believes they wanted to arrest him for having been at the incident and wanted to scare his parents to not go to the Civil Affairs office with his father’s claim again. The Tribunal asked after further details, which resulted in the following elaborations:
· The Police visit was to his parent’s house, not his house, noting the applicant was [age] years of age at the time, married, had a child, and that they lived in a different house.
· The police did not go to his house or the place where his wife and child lived.
The applicant stated that after the incident he never went home to his own house or to his parent’s house. He stayed at different friends’ houses for the 2-3 months until he departed China to come to Australia [in] October 2018. He stated that he did not return to work at the [factory] so that the police would not find him. He stated that he had no interactions with the Police from the time of the incident until he departed China.
The applicant stated that the Police then came to his parent’s house every few days from then until they moved to Nanjing in late 2018, after the applicant had come to Australia. The applicant stated that his child was denied enrolment at school and so his wife and child moved to Anhui so their child could access schooling, and that the Police did not call on her there.
Claim as to harms anticipated if returned to China
The applicant stated that he was worried that if he were returned to China, there would be trouble if the government ‘would not let the incident go’. When asked why the government would still be interested in an incident from [number] years ago, the applicant stated that he did not know if they were but that he could not take the risk.
When asked as to the specific trouble he anticipated, the applicant stated that he would definitely be arrested and that after that, the harms would be unpredictable. When asked why he would be arrested, the applicant stated that the authorities would make up an offence, probably related o the incident at the Civil Affairs office in mid-2018.
Link to the refugee criterion
On the basis of the protection visa application, the Department’s decision, and the additional statement outlined above, the only claim before the Tribunal is in respect of the claimed incident at the county Civil Affairs office in mid-2018, and its sequelae. The Tribunal accepts that if such an incident occurred, and if the applicant had been involved, this could constitute membership of a particular social group (veterans and their families seeking compensation) or give rise to an imputation of political opinion.
Assessment of credibility and evidence
In assessing the credibility of the applicant’s evidence, the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’, or that it is for the reason claimed.
A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the applicant must provide material, in as much detail as is necessary, to enable the Tribunal to establish the relevant facts as claimed. The Tribunal is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant[1], or to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191 at 200; Prasad v MIEA (1885) 6 FCR 155 at 170.
In determining whether an applicant is entitled to protection in Australia, the Tribunal is therefore required to make findings of fact in respect of the claims advanced by the applicant. This may require an assessment of the applicant’s credibility, as is the situation in this case. In this regard, the Tribunal is aware of the need for, and importance of, being sensitive to the difficulties applicants may face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to applicants who are generally credible, even if unable to substantiate all of their claims.
Overall assessment as to credibility
The Tribunal did not accept that the applicant was generally credible. This is based on the vagueness and implausibility of several key claims, and the fundamental inconsistencies between the claims as made in the protection visa application and then at the hearing. Further specific assessments as to the credibility of the applicant’s evidence, which buttress this overall conclusion, are set out below.
Assessment as to the applicant’s father’s Naval service
The Tribunal asked the applicant if he had any documents relating to his father’s service or injury claim. The applicant stated that he might be able to get some. The Tribunal asked that he do so if possible and agreed with the applicant that he would have four weeks (until 01 May 2024) to provide any such documents to the Tribunal before any decision was made and finalised.
No documents were subsequently submitted.
The Tribunal put to the applicant some material regarding military pensions in China. This material was from a report on civil service and military pensions in China.[2] The essence of this material was that:
·     Conscripts do not receive a pension because of their relatively short period of service.
·     Military service for <10 years results in a pension of 65%.
·     If an injury is suffered in service, this pension can rise to 95%.
[2] Stuart Leckie, Civil Service and Military Service Pensions in China, (2011), pp17-18 - >
Additionally, because the applicant’s father had served for 6 years, he was a volunteer (conscripts only serving, at that time, for a maximum of 4 years in the Navy according to the Military Service Law of the PRC as at 1984, which was the relevant time frame[3]) and thus entitled to a pension.
[3] Military Service Law of the PRC, 31 May 1984, article 18.
The Tribunal explained that the consequence of this material, if the Tribunal relied upon it, was that – if the Tribunal as a preliminary were to accept a claim that the applicant’s father had served in the Navy - the Tribunal would find that the applicant’s father was entitled to a pension.
The applicant was offered an adjournment to consider and consult on this adverse material but saw no need. He stated that regardless of this information, his father never received a naval pension.
Additionally, the Tribunal noted that the initial claim made was that the applicant’s father had [medical condition 1]… He could not participate the physical work for years, always just stay in bed’.
At the hearing, however, the applicant stated that his father’s injury was [specified], and that he walked and worked into his [age range] and that the decline in his mobility was ‘gradual’. The applicant stated that his father was still doing light work on the farm in 2018, prior to moving to Nanjing.
The Tribunal does not accept that the applicant’s father served in the PLA-N. Consequently, the Tribunal does not accept that the applicant’s father suffered the claimed service injuries. On this basis, all of the subsequent claims fall away as there is therefore no contextual basis for the claimed incident and subsequent situation.
However, applying the ‘what if this is wrong’ benefit of the doubt – even though the Tribunal’s general assessment was that the applicant’s evidence was not credible – the Tribunal proceeded on the basis that the applicant’s father may have served in the PLA-N.
Assessment as to the applicant’s claim regarding the incident at the County Civil Affairs office in mid-2018
The Tribunal does not accept that this incident occurred, or that the applicant was there.
This is because there is significant inconsistency between the claims made before, and then at, the hearing. The primary inconsistency is that in his application, the applicant stated that he had organised the visit to the Civil Affairs office. However, at the hearing, the applicant clearly stated that he did not organise this visit and did not know any of the others who were there. The applicant did not resolve this inconsistency at the hearing.
These claims are so fundamentally inconsistent that they go to the heart of the credibility of the claim as to this incident occurring and the applicant’s involvement in it.
Further, in both his statement attached to the protection visa application and at the hearing, the applicant claimed that the persecution was perpetrated by ‘thugs’. The applicant could not explain who these thugs were or who they worked for, but stated that they were, in his view, officially sanctioned. However, the harassment was unofficial, the applicant stated, because it would have been a scandal if the Police had been involved.
The Tribunal put to the applicant that Australian government country information[4], which the Tribunal considered highly credible given its official status and provenance, stated that spontaneous protests do occur without invoking a police response and that there were thousands of protests in China each year.
[4] DFAT, Country Information Report: People’s Republic of China, 22 December 2021, para 3.86; MRT-RRT Background Paper: Protesting in China, 12 April 2013, p2.
The Tribunal asked the applicant why this particular incident, in comparison to other such small-sized incidents, would attract such an intense and sustained response and use of thugs to apply unofficial, but officially sanctioned, pressure. The applicant responded to the effect that this information is incomplete, and that people don’t really know because they never hear about all the protests that were responded to. When asked why this incident would attract official attention, the applicant stated that it was because it involved military pensions and therefore was of national interest.

In the overall context of the claims made, the Tribunal did not accept as credible that a single small incident of 10-30 people regarding an issue of military pensions would attract such a significant and sustained ‘unofficial’ but officially sanctioned post-incident response in respect of a person who was not arrested at the time.
Assessment as to the subsequent claims of harm and persecution between the incident and the applicant’s departure from China
The Tribunal does not accept that the incident occurred. Consequently, the Tribunal does not accept that any of the claimed subsequent persecution occurred.
However, it is necessary for the Tribunal to set out its assessment of these subordinate claims, even though that rely upon a headline claim that the Tribunal does not accept, because these claims go to the Tribunal’s overall assessment that the applicant did not present credible evidence.
As to the claims regarding Police visits after the claimed incident. In his statement attached to the protection visa application, the applicant stated that he was visited at his home by ‘thugs’ while he was present in his home.
At the hearing, the applicant stated that he was never visited at home as he never returned home after the incident but rather stayed with various friends to avoid any interactions with the Police. When asked to clarify whether the visits were to his parent’s house or his house he shared with his wife and child, the applicant was unable to give a clear answer.
As to the claims about being visited at his workplace by thugs after the incident. In his statement attached to the protection visa application, the applicant stated that in order to ‘put pressures’ on him, the thugs ‘came to my workplace to see me’.
At the hearing, the applicant stated that he never returned to work after the incident as he was in hiding. When asked about this inconsistency, he stated that his work colleagues told him that the thugs had visited.
As to the claims about being harassed while travelling to/from work. In his statement attached to the protection visa application, the applicant stated that thugs ‘sometimes stopped me on my way to/from work, verbally and physically abused me, even say wanted to kill me’.
At the hearing, when asked to clarify how this could have occurred if he never returned to work after the incident but was in hiding, the applicant stated that he still took on some casual jobs and that it happened then. When asked how many times, he stated once. When asked what time of day, he stated night. When asked where, he stated in an alley so there were no witnesses. When asked about the threat to kill, he stated that it was implied, and the threat was to leave the county or else. The applicant could not explain how the thugs had found him, who they worked for (except that they were official in his view), or why they wanted him to leave the county.
New claims advanced by the applicant at the hearing
The applicant was invited to advance any other claims. The applicant did not advance any new or related claims.
Findings of fact based on assessment of evidence and credibility: Is there a real chance the applicant will suffer persecution on return to China?
The Tribunal does not accept that the Civil Affairs office incident in mid-2018 occurred, nor that the applicant was involved in any such incident.
The Tribunal does not accept that any of the claimed sequelae from this claimed incident occurred.
The Tribunal does not accept that the applicant, if returned to China, would engage in any activity in relation to this claimed pension grievance.
Having considered the applicants claim on the basis of all of the material before it, the Tribunal finds that the applicant has not established his claims and that there is no real chance that the applicant will face persecution for reasons of membership of a particular social group, or political opinion, or for any other s 5J reason if he is returned to China, either now or in the reasonably foreseeable future.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined by the Act. The Full Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable in complementary protection assessments.
The Tribunal has had regard to the claims as above in the context of complementary protection, but holds the same concerns as to the vagueness, lack of detail, and lack of material in relation to these claims. The Tribunal is not satisfied that the applicant faces a real risk that he will suffer significant harm if returned to China, now or into the reasonably foreseeable future, for any reason.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Robert McLaughlin
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2225

25 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Standing