2308954 (Refugee)

[2023] AATA 3615

2308954 (Refugee) [2023] AATA 3615 (11 August 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Esther Yu (MARN 0980221)

Mr Simon Jeans

CASE NUMBER:  2308954

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE OF DECISION:  11 August 2023

DATE CORRIGENDUM

SIGNED:15 August 2023

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The Tribunal acknowledges that Mr Simon Jeans was a second representative on the record in the case and that his name was not included in the decision record finalised on 11 August 2023.

Mr S Norman
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Esther YU

CASE NUMBER:  2308954

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:11 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a temporary protection visa.

Statement made on 11 August 2023 at 12:00pm

CATCHWORDS
REFUGEE – protection visa – China – family farm appropriated with inadequate compensation – family petitioned local and provincial governments – warned by officials and brother detained – applicant principally working in other parts of the country and in third country at the time – father and applicant Falun Gong practitioners – warned and released – failed asylum seeker – lawful departure on own passport – no inquiry about protection in third country – application made in Australia after student visa cancelled on re-entry, refusal of immigration clearance and immigration detention – mental health – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASE
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 June 2023 to refuse to grant the applicant a Class XD - Temporary Protection visa (subclass 785) (TPV) 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 9 May 2023.

2. The Department delegate’s decision was not lodged with the Tribunal.

3. The applicant appeared before the Tribunal on 9 August 2023 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 (Ms Yu attended the hearing).  

CRITERIA FOR A PROTECTION VISA

1. The criteria for a TPV 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 TPV of the same class.

2. Section 36(2)(a) provides that a criterion for a TPV 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.

3. 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).

4. 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.

5. 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

1. 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

10.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Request for an extension of time:

11.  After the hearing, and by letter of 9 August 2023, a second appointed solicitor/agent (not Ms Yu) requested the Tribunal grant two weeks in order to provide submissions as to the conduct of and potential misunderstandings with the interpretation of the evidence at hearing. The examples provided in that letter related (principally) to whether the applicant’s brother was still detained in China, for having petitioned about confiscated land. As set out below, the Tribunal has decided to accept the brother is still detained.

12.  The solicitor continued that he was instructed (by Ms Yu who could presumably speak Mandarin) that ‘there are other examples of misunderstandings and matters about which the tribunal had no evidence, but that was put to the applicant as if that evidence existed.’ The Tribunal had invited Ms Yu to make submissions at the end of the hearing and she had referred to the aforementioned issue (principally) relating to whether the applicant’s brother was still detained. However, no further material example had been provided.

13.  The Tribunal notes that in the inquisitorial process of the Tribunal, it may be the case that (potentially material) issues are put to an applicant with no, or little evidence, as part of an attempt to clarify the evidence and submissions in the case. That is why the Tribunal makes it clear at the commencement of a hearing that it is ‘entirely OK to say the Tribunal is wrong’, but that if possible, then to ‘tell the Tribunal why it is wrong’.

14.  Regarding the ‘conduct’ of a hearing, the Tribunal also notes the High Court has stated:

… the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings …[1]

[1] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 (24 May 2001) Gleeson CJ, Gaudron & Gummow JJ, per the Court at [30–31].

15.  That being said, the Tribunal understands the importance of its ‘conduct’ at a hearing cannot be overstated. However, at the end of the hearing no submission about this was made, and neither in the Tribunal’s opinion would its conduct at hearing likely constitute error. Be that as it may, the Tribunal is always guided by the Court.

16.  In the circumstances, and given the issue of whether the brother was still imprisoned was settled in the applicant’s favour, and given there is no other detail of material error sufficiently specified (though presumably Ms Yu was able to understand at least some of what was being interpreted at hearing), the Tribunal has decided to decline the request for a two week extension within which to provide further evidence and/or submissions.

Meaningful opportunity to give evidence and submissions:

17.  It was stated inter alia the applicant suffered from depression and social anxiety after his divorce in 2019, and that he was heavily reliant on medication to control his mental health (though this did not prevent him from inter alia working in [Country 1] in 2021/2022). The applicant also said he had some problems in orally expressing himself, though at hearing the Tribunal had often asked if he understood a question that had been asked and he confirmed he had, and his subsequent response appeared to be meaningful.

18.  Further, during the course of the hearing there appeared to be some limited confusion between the applicant and the interpreter. However, that confusion appeared to be resolved when the issue was repeated, rephrased and/or it was confirmed the applicant understood what had been said, and the applicant then appeared to be able to provide a meaningful response.

19.  After then having considered the applicant’s evidence, including at the hearing, the Tribunal was satisfied the applicant was provided a real opportunity to put evidence and submissions in support of his case.

The applicants’ migration history and receiving country:

20. As noted in the delegate’s decision:

Date	Event details
[December 2022]	The applicant arrived in Australia as a holder of a Visitor visa subclass FA-600.
30 January 2023	The applicant lodged a Student visa application subclass TU-500.
06 February 2023	The applicant was granted a Student visa subclass TU-500.

[April 2023]	The applicant departed Australia
[May 2023]	The applicant returned to Australia as a holder of a Student visa subclass TU-500. However, he was interviewed at the airport, and subsequently, his Student visa was cancelled by a Border Force officer who found the

applicant to be a non-genuine student. Consequently, the applicant was refused immigration clearance, and he was detained under s 189 (1).
08 May 2023	The applicant lodged a Temporary Protection visa subclass XD-785.

21. In a solicitor’s letter of 12 May 2023, it was explained that in 2021 and 2022, the applicant worked for a named employer in [Country 1] as [an Occupation 1][2] - departing China [in] July 2021. At the hearing, the Tribunal understands the applicant said he did not return to China until [around] October 2022 (around which time his family land had been confiscated).

[2] PDF – p.86 (‘PDF’ refers to the electronic copy of the Department file – merged 27/07/2023 - on the Tribunal CASEMATE database).

22.  With the Department, the applicant also lodged a copy of the bio-data page of his Chinese passport (expiry date: [date] 2025[3]). Based on this evidence, the Tribunal accepts the applicant is a citizen of China and that China is his receiving country.

[3] PDF – p.85.

The Tribunal’s consideration of material claims:

23.  The Tribunal notes that much of the country information set out herein is from the DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021. However, the Tribunal had not located any more recent evidence which materially contradicted the information cited from that DFAT report.

24.  By solicitor’s letter of 6 May 2023 (and email of 10 May 2023), it was explained there would be ‘gaps’ in the initial evidence and submissions lodged and same would be remedied shortly. This was said to be due to the short time frame within which the applicant’s solicitor had to prepare and submit evidence and submissions.

25.  The applicant attended a Department TPV interview on 1 July 2023. That interview was conducted with the assistance of a Mandarin interpreter by video link. In his TPV form, the applicant said inter alia his family continued to reside in China, and that he is able to contact family in China by phone.[4]

[4] PDF – p.24.

26.  In the 8 August 2023 statement (lodged 5.49pm on the day before the hearing) the applicant said he and his family did not speak about sensitive matters by phone. However, at hearing the applicant was able to ‘confirm’ that his father continued to practise Falun Gong in China, and he knew this as his [sister] (a resident of Yingchuan city – about 220kms north-east of his parents’ home), had told him. He also said his father was able to ‘cautiously’ provide other information.

27.  Accordingly, the Tribunal finds the applicant was able to speak (at least cautiously) about some sensitive issues with his family in China, contrary to the claim in his 8 August 2023 statement.

28.  Next, the Tribunal had put the following to the applicant at hearing pursuant to s.424AA. That said, some five months after the applicant arrived in Australia ([in] December 2022) when the delegate had asked why he had not raised his protection claims in Australia before his Student visa was cancelled (in early May 2023), the applicant was recorded as saying he did not know about the TPV at that time. It was claimed it was only after he was detained by immigration in Australia (in early May 2023) that his friend and his solicitor advised him the basis upon which he could apply for a (T)PV in Australia. However, in the applicant’s written statement dated 8 August 2023, he said his education agent advised him the chance of being granted a ‘protection visa was slim’, and this is why he applied for the Student visa (lodged 31 January 2023).

29.  This is inconsistent, it is about a sufficiently material and or recent matter, and also forms a part of the reason the Tribunal did not accept the applicant was generally credible.

30.   As also noted at the hearing, the Tribunal said it understood that persons from China continue to constitute the largest cohort of protection applicants in Australia. The Tribunal would not expect an applicant to understand the intricacies of Australia’s migration law and practise, but given the applicant claimed to fear returning to China for reasons of his alleged Falun Gong practise and his alleged petitioning against the confiscation of his family’s farming land, and given the ongoing publication of issues pertaining to asylum seekers in Australia, the Tribunal again does not accept it plausible the applicant did not know about the ‘protection visa’ option in Australia, until he was detained in immigration detention.

31.  Next, the applicant was said to be [age] years of age and to have lived all his life in a ‘rural area of Henan province’ in China. The Tribunal will accept the applicant’s hukou (a household registration[5]), may have been listed in [Village 1], [Town 1], Baofeng County, Henan Province. However, it was also claimed in writing that between the ages of 19-23 years he lived/worked in Shenzhen City, some 1250kms south; between the ages of 24-27 years, he lived/worked in Rugao City, some 712kms east; and between 31-32 years he lived/worked in [Country 1].[6] The Tribunal accepts employment opportunities motivated the applicant’s relocation within China, and that same is common and tolerated by the Chinese authorities.[7] That means, that from around 2009 the applicant had principally lived/worked away from his home area in China.

[5] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021, at [5.25]. 

[6] PDF – p.86.

[7] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021, at [5.24].

32.  When discussed at hearing, the applicant said he still slept and or resided in his home village. However, given the length of time he was apparently away working and the distances between his place of work and his home village, the Tribunal rejects this as materially false. And again, it is one reason that satisfied the Tribunal the applicant was not generally credible.

33.  The Tribunal now accepts the applicant did not reside all his life in a rural area of Henan province, and that he appeared to have been far better travelled and possibly more sophisticated than someone who had ‘lived all his life in a rural area’.

Regarding the petitioning relating to the confiscation of the farming land:

34.  In his TPV form, it was claimed the applicant (DOB: [date]):

• departed China in order to avoid arrest – he fled China as he ‘was scared’

• He feared he would be arrested by the authorities on return to China, as his family petitioned the local government regarding the appropriation of their land

• The applicant feared the authorities would not protect him because they are the ones who wish to harm him

35.  Documentary evidence lodged with the Department included:

• a letter of Notification to the Family or Employer of a Detained Person (with translation)[8]

  ·     the delegate noted this Notification indicated the brother had been suspected and accused of ‘disorderly conduct’ pursuant to Article 61 of the Criminal Procedure Law of the People’s Republic of China and he was placed in criminal custody on [date]/11/2022

• a Household Register dated 8 January 2018[9]

  [8] PDF – p.171.

  [9] PDF – from p.255.

36.  At hearing, the Tribunal referred to evidence of high levels of document fraud in China.[10] The Tribunal also noted the aforementioned ‘Notification’ did not establish why the brother was detained or that it was for any reason claimed by the applicant. The applicant said (words to the effect) the Notification was legitimate.

[10] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021, [5.45].

37.  In evidence and submissions, including but not limited to the solicitor’s letter of 6 June 2023, and the applicant’s (translated) statement attached to the solicitor’s letter of 17 May 2023, it was claimed:

• the applicant’s family ‘were signed for’ (granted a lease for) MOU[11] of arable land (2666 square mtrs) by village leaders in order to grow crops (wheat in autumn and corn in summer). The land was granted in 2015

  [11] The delegate noted that ‘mou, Chinese unit of land measurement that varies with location but is commonly 806.65 square yards (0.165 acre, or 666.5square metres).

• the applicant’s father had suffered a heart attack and was provided stent surgery. After being discharged from hospital he was unable to work and neither Chinese nor Western medicine helped – which was why the father commenced Falun Gong practise (discussed below)

• the family’s farming land was later confiscated by the local authorities in or around October 2022 (though there was a 30-year lease) - all certificates were removed from the applicant and his family. It was also claimed that no documentation was available to explain the reason for the confiscation

• The applicant then returned from [Country 1] (where he was then working) and he and his brother attended the government offices to complain (the applicant had departed China for [Country 1] on 30 July 2021)

• The local [village] authority had cancelled the family’s lease (inadequate compensation was paid), which had left the family without any means of support. It was made clear this cancellation was due to their (the applicant’s and his father’s) involvement with Falun Gong (discussed below)

• on [Day 1] October 2022, ‘we attended the government building in Henan Province, to seek an explanation for the cessation of the lease to land’. They were asked to go home and wait patiently

• on [Day 2] October 2022, after having waited for at their home for ‘a week’, they had no further news. They were anxious as the corn planting season was approaching

• The applicant returned to the government building to make enquiries about their situation. At that time he ‘received a very unfriendly conversation, and was reprimanded for being disobedient, and told to wait patiently, and he went back’. The applicant was also told they would be notified of results

• After four attempts they were told by the authorities (the authorities became more aggressive), to go home and wait for an answer

• [in] November 2022, the village director ([Mr A]) attended the family home. The director refused to provide any legal documentation to justify the decision to end the lease of the land. The director did indicate it was a punishment for the applicant and his father for practising Falun Gong (but all villagers land was confiscated). The director also threatened to arrest the applicant and all his family, if they continued petitioning their land case

• The applicant’s family still asked for any legal document related to the confiscation of the land and the director refused. The applicant continued ‘it was all in accordance with the instructions of the leadership above’

• At hearing, the applicant explained this warning occurred prior to his brother’s arrest (referred to below)

• after a family discussion, it was decided ‘not to sit idly by’ given his father was [age] years old and his mother [age] years old and suffered from mental illness and she needed to take medicine throughout the year. The applicant further explained that his whole family relied on planting land for a living and now the farming land had been confiscated, they had to rely on a small piece of vegetable garden and the raising and selling of small farm animals to support themselves. The applicant said he was forced to borrow money from relatives to buy medicine for his mother as he did not have any other form of income – though the Tribunal notes he appeared to be able to travel for work

• as a consequence, the applicant decided to continue to petition Provincial government

38.  Regarding petitioning, the country information stated:

3.87 Disputes with government may be raised at petitioning offices, also called ‘letters and visits’ offices, a type of government service office. Millions of disputes are raised every year. Local authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means local authorities are incentivised to retaliate against petitioners, which might include charges such as ‘picking quarrels and provoking trouble’ … [12]

[12] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021.

39.  The applicant’s claim continued:  

• in November 2022, the situation was desperate as they needed to sow their crop/s

• [In] November 2022, the applicant and his brother attended the Henan Provincial government building to again appeal their land case. However, the applicant and his brother decided not to enter the government building since he (the applicant), had a record of affiliating with Falun Gong. Therefore, the applicant waited outside the building

• it was further claimed that when the applicant and his brother arrived at the (provincial) government building (Pingdingshan City), the officials were more angry, they were asked to register their identities, but the brother advised the applicant not to enter and wait for further news (given the applicant was previously warned about his Falun Gong practise). The brother was asking for a reason for the confiscation of the land

• shortly thereafter (within 30 minutes), the applicant saw his brother being arrested by the police (charged with disorderly conduct), and the applicant then ran away to avoid arrest

• at the Department interview, the applicant said his family were still not aware of the brother’s location

• the applicant requested someone ask about his brother’s situation, but he was unable to find anything out. His friend said that ‘people at the bottom of society like him, the government will not give any explanation, nor will they be treated fairly’

40.  Regarding petitioning in China, as well as that country information cited elsewhere, it was stated:

3.88 Land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villages. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation (thus, disputes are generally complaints against local government which may escalate to the national government, as outlined above). China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs’, who intimidate protesters or cut utility supplies, have been used and are allegedly hired by local governments.[13]

[13] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021.

41.  The Tribunal believed the brother’s current location may be of some importance to the case, so at the commencement of the hearing, and possibly prior to the applicant understanding how this evidence may be utilised, the Tribunal asked where the brother currently resided. This question was put to the applicant on more than one occasion. The applicant said his brother was unemployed (the brother had previously worked on the family farm-land) and also that the brother lived in a village near to the applicant’s parents. No correction was made by the applicant’s attending agent at that time.

42.  At the end of the hearing, the applicant’s attending agent said there may have been some misunderstanding about this evidence (relating to the brother’s whereabouts). However, given the Tribunal presumed this an important issue, I retain some doubt about whether the applicant misunderstood the earlier Tribunal’s questions. Be that as it may, in the circumstances the Tribunal has decided to accept the applicant’s brother was and is imprisoned due to the brother petitioning about the confiscation of the family farm-land.

43.  As the Tribunal believed it may be important, the Tribunal also confirmed (on more than one occasion) with the applicant at hearing that he and his brother continued to attend the same government building in order to petition. However, at the end of the hearing the agent said she believed the applicant had attended a different government building at the time the brother was arrested. The applicant then remembered this was correct. Again, the Tribunal proposes to give the applicant the benefit of any doubt, and accept that a different government building was attended [in] November 2022.

44.  The applicant continued:

• after the brother’s arrest, the applicant travelled to a friend’s house to seek refuge (hide). He claimed it had taken about ½ month before he ‘dared to contact his family’. His father then told him his brother was detained for disturbing public order. The father subsequently came to the house where the applicant was taking refuge and he told the applicant not to return to the family home or show himself in public, as he may be arrested

  ·     at hearing, the applicant explained that about two weeks after he went into hiding, he spoke to his father by phone ‘only’ (the Tribunal will accept this is correct). Therefore, though the applicant subsequently fled to Guangzhou and had turned off his phone in order not to be traced (explained below), there did not appear to be any concerns speaking to his father by telephone at which time he believed he was wanted by the Chinese authorities. The Tribunal does not accept this is plausible if the applicant feared he was of adverse concern to the authorities as he claimed

45.  The applicant continued that given he feared he would be arrested, he obtained a Visitor visa to Australia.

46.  The applicant also said he feared he would be arrested immediately, at the entry point upon his return to China (though he later resiled from this claim – see below). However, that when he departed China, he took multiple routes and boarded a flight out of China from a different province (Guangzhou  - over 1000kms south of his home village and near where he had worked for some four years). He explained that he was unable to use trains without showing his ID, so he caught a bus, and he also turned off his mobile phone so he could not be traced.

47.  Relevant country information included:

5.31 Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.

5.32 … Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list. …

5.33 If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons …  

…..

5.35 DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agent because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[14]

[14] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021.

48.  In the applicant’s TPV form, prepared with the assistance of a solicitor/agent, the applicant claimed to have departed China legally on his own passport.[15] He did not refer to any fraudulent documents associated with his departing China. When discussed at hearing, the applicant said his travel to Guangzhou by bus and his flight from Guangzhou was the only precaution/s he took when departing China.

[15] PDF – p.25.

49.  After then considering the applicant’s evidence, which included that he was fearful of being arrested due to his petitioning (and due to him being found at a Falun Gong practise group – discussed below), and after then considering the country information, the Tribunal is not satisfied the applicant would have been able to depart China lawfully (some months after being found at a Falun Gong practise group and some few weeks after his brother’s arrest), if he was of any adverse interest to the Chinese authorities as he had now claimed. The Tribunal is satisfied the evidence to the contrary is false.

50.  The applicant’s claims continued:

• after arriving in Australia, the applicant was put in contact with a named man who was described as a ‘princeling’ and who had ‘powerful connections in Henan Province’ (the applicant’s girlfriend in [Country 1] had advised the applicant of this). The applicant then departed Australia (in late April 2023), and he travelled to [Country 2] to meet with the princeling in order to inter alia secure the release of his brother. The solicitor also noted that after returning to Australia from [Country 2] (1 May 2023), while holding a Student Visa, it was when the applicant was detained in immigration detention

51.  The applicant said he paid the princeling the sum of RMB 50,000 (approx. AUD 10,325) as a first instalment. The second amount of RMB 50,000 would be paid once the brother was released and the farm-land had been returned to the applicant’s family.

52. When discussed at hearing, the applicant confirmed that he had electronically transferred money from a Chinese bank account in his name, to the bank account in the name of the princeling. The Tribunal referred to the sensitivities to corruption in China,[16] and to the substantial electronic surveillance capability of the Chinese government[17] (even the applicant had allegedly turned off his mobile phone while attempting to ‘flee’ China). The Tribunal then said (words to the effect) it may not appear plausible he would have taken this risk of being discovered, if he was of adverse interest to the authorities. In response, the applicant said he did not have sufficient cash with him in [Country 2] to provide the money otherwise that in electronic form. 

[16] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021, [2.3], from [2.20], and [5.35],

[17] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021, from [3.93]. 

53.  After then having considered the evidence, this is further reason that satisfied the Tribunal the applicant’s claim to have been materially engaged with petitioning against the confiscated land was false. That means the Tribunal does not accept the applicant’s alleged engagement with the petitioning for the recovery of the family farm-land (if any) was of any interest to the Chinese authorities. This is also another reason that satisfied the Tribunal the applicant was not generally credible.

54.  Be that as it may, and for the purposes of this decision, the Tribunal will accept the applicant’s family (leased) land was confiscated on or around [date] October 2022, that the applicant’s elder brother (principally if not solely) protested about this and the brother (who had worked on this farm land) was subsequently detained and remains in detention; and that the applicant visited [Country 2] in April 2023, in order to speak to a person from Henan province in an attempt to assist his brother. The Tribunal will also accept the applicant’s family were warned by the village director not to continue to petition, and that only the brother continued to do so and he was detained. The Tribunal is satisfied that since that time, the applicant’s family in China had not been harmed, harassed or even questioned.

55.  The Tribunal does not accept the applicant was engaged in any material protests/petitioning about the family farm-land (the Tribunal notes he was principally employed elsewhere). The Tribunal does not accept the applicant had to flee being arrested, and the Tribunal does not accept the applicant is of any adverse interest to the Chinese authorities for this reason on return – and at hearing the Tribunal notes the applicant conceded (words to the effect) he may not be arrested on return to China, but he feared he may be arrested at some time in the future (though the Tribunal understands this principally related to his alleged Falun Gong practise – discussed below). Also as a consequence, the Tribunal does not accept the applicant will continue to petition about the confiscated land on return to China, as I believe he would pursue his own employment opportunities.

56.  Next, the Tribunal did not intend to make the applicant’s case for him but there was no claim made that (ie) family members of petitioners or prisoners without more, would suffer serious or significant harm on return to China. After considering the findings, neither did the country information considered satisfy the Tribunal the applicant would be harmed for this reason in China – for instance, he speaks with his father, and allegedly more candidly with his sister in China and no evidence was provided that she or their parents were harmed, harassed or even questioned in China after the arrest of the brother.  

57.  Accordingly, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in China, for any claim discussed above.

Regarding the claim the applicant and his father practised Falun Gong:

58.  The evidence and submissions in support included:

• the applicant’s father suffered a heart attack and was provided stent surgery (which cost ‘a lot of money’). After being discharged from hospital he was unable to work and neither Chinese nor Western medicine helped

• [a Ms B] (a local villager – and a paternal relative[18]) introduced the father to Falun Gong and the exercises were of great benefit to the father’s health and well-being (the father commenced in March 2021)

  [18] See 8 August 2023 statement.

• the applicant had also been going through a ‘very difficult time following a divorce in 2019 which had affected him emotionally and psychologically and led to severe depression’ (hand tremor and no social life) – and near the start of 2019 he commenced to take medication for depression (though as noted herein, this had not prevented the applicant inter alia working in [Country 1] in 2021/2022)

• the applicant knew Falun Gong was considered a cult in China (that it was unlawful). However, as a consequence of his own health issues and the benefits experienced by his father, the applicant decided to practice Falun Gong from ‘about’ April 2021. The applicant practised both at his own home and at group sessions with his father and [Ms B] (at hearing he said he commenced the group sessions in April 2021. The applicant also said he attended weekly group sessions)

• however, on one occasion five persons were in attendance and [Ms B] and two others were arrested (on or about 15 July 2021). Due to the applicant and his father not having previously come to the attention of the authorities, their identities were recorded but they were released with a warning (and signing a statement) not to engage in Falun Gong again

  ·     In the 8 August 2023 statement, the applicant recalled that another named practitioner was tortured in order to reveal the names of other practitioners. This is how the Chinese authorities discovered the group sessions of [Ms B] (online evidence referred to). He also said the two others arrested were released after about two days, but [Ms B] was still imprisoned (he said his father had advised him of this by phone in a ‘cautious manner’). The applicant also fears he may eventually be arrested in China due to his own Falun Gong practise – which he said at hearing he would still wish to continue  

• the applicant had then explained he was ‘terrified by this incident’ (when he and his father were questioned by the authorities) so he obtained a work contract in order to work in [Country 1] (where he lived/worked from 2021-2022 – depart China [in] July 2021 and he returned to China around 22 October 2022 at which time the family land was confiscated)

• in the 8 August 2023 statement, the applicant also said he continued to practise Falun Gong in [Country 1]. He said he returned to China from [Country 1] as he did not have a visa to remain in [Country 1] (though he had earlier stated he returned to China to assist his family whose land was confiscated)

59.  At hearing, the Tribunal noted that the UNHCR appeared to have some limited presence in [Country 1][19] (including that the responsible UNHCR office is in [Country 3][20] – though the UNHCR also operates from [Country 4][21]). That said, between 2021 and 2022, the applicant worked for a named employer in [Country 1]. Given he was said to have ‘fled to [Country 1]’ and then to Australia, in fear of the Chinese authorities (for the reasons set out herein), when then asked what enquiries he may have made in [Country 1] regarding accessing protection, the applicant said he made no enquiries. Contrary to his other claims herein, he said he thought his situation ‘was not so severe’.

[19] Where we work | UNHCR , accessed 27 July 2023.

[20] UNHCR [Country 1], accessed 27 July 2023.

[21] [UNHCR, Country 4], accessed 27 July 2023.

60.  That being said, the Tribunal accepts that not all applicants would be aware of UNHCR but given the applicant allegedly fled China in ‘terror’, due to being questioned about his claimed practise of Falun Gong, the Tribunal does not accept it plausible he would not have even made enquiries about not returning to China if his claims were true. The Tribunal does not accept that any claimed mental health issue prevented him from doing this in [Country 1], and the Tribunal does not understand his claimed mental health prevented him from performing his work in [Country 1]. This is one reason that satisfied the Tribunal the applicant’s claims relating to his practise of Falun Gong were false, and another reason that satisfied the Tribunal the applicant was not generally credible.

61.  The evidence and submissions in support continued:

• as noted above, in October 2022 the local village authority decided to cancel the family’s lease on their farmland, which left them without any means of support. It was made clear this cancellation was due to their involvement with Falun Gong.

• However, the applicant had returned from [Country 1] and he and his brother attended the government offices to complain (the Tribunal has made findings about this above).  

62.  Next, in the delegate’s decision, when asked why he practised Falun Gong, the applicant said he had learnt about Falun Gong from his father. He said his father had commenced to practice Falun Gong in March 2021, and this was in order to improve the father’s health condition after a number of medical setbacks. The applicant also said he had suffered depression and social anxiety after his divorce in 2019. He also said he was heavily reliant on medication to control his mental health.

63.  The Tribunal did not propose to make the applicant’s case but there was no material country information that indicated the applicant would not again have access to that medical assistance available to all citizens of China in his home region. Neither was it claimed the applicant’s ‘depression and or anxiety’ caused him any material problem in China (and again, it did not prevent him from inter alia working in [Country 1]).

64.  The delegate noted that during the interview the applicant was said to have provided only ‘general details’ about Falun Gong. When prompted to provide more details he was said to have referred to basic information and (more than two years after claiming to have commenced to practise), that he was (words to the effect) still acquiring knowledge of Falun Gong. That said the applicant volunteered to perform a Falun Gong exercise on camera for the delegate. When asked the applicant also said he practised Falun Gong exercises twice per week, after dinner, by watching Falun Gong videos and reading the Falun Gong book on a USB key.

65.  At the hearing, when asked what he had meant by saying he was still acquiring knowledge (which he agreed was said), he said that Falun Gong is a learning process and he continues to learn – and the Tribunal accepts this is plausible. He also said he was in particular, interested in the spiritual component of the practise.

66.  When then asked at hearing about the spiritual component of Falun Gong, and also what benefits he obtained,  the applicant said he learnt about what Falun Gong is, how to improve the spirit, the benefits of good deeds and being courteous to others, and that his family land was confiscated (at least in part) due to his and his father’s practise of Falun Gong.

67.  Next, the applicant had also claimed to have practiced Falun Gong in group sessions on four or five occasions in China (he first attended in April 2021). The first session was held on (Saturday) 10 April 2021, and this was followed by other Saturday sessions. He said he had accompanied his father to these group sessions at a house owned by another Falun Gong practitioner ([Ms B]).

68.  Importantly, and as noted above, during this final group session, the group had been ‘raided’ by the police and [Ms B] and two other practitioners had been arrested. The applicant then said that the police had spared him and his father because they were ‘relatively new practitioners’. Nevertheless, the applicant and his father had been forced by the police to sign a statement that they would not again practice Falun Gong.

69.  At hearing, the Tribunal noted the following country information:  

3.64 Falun Gong was established based on the practice of qigong, a generic term for a family of meditative breathing and stretching exercises with a long history in China. Qigong experienced a resurgence in popularity in the 1980s and 1990s, and Li Hongzhi (Master Li) founded Falun Gong in 1992 at the same time as other movements were founded. Falun Gong is the most well-known qigong group outside China, but many others exist and many of them are banned or monitored in China.

3.65 By performing exercises, following the moral teachings of the religion and reading and re-reading the sacred text Zhuan Falun, believers hope to ascend to a state of perfection or ‘cultivation’. Practitioners may not see Falun Gong as a religion, seeing it as a method for ‘cultivation’ or science. Unlike other qigong practices, Falun Gong has moral teachings (for example teaching against gay sex and abortion) and supernatural aspects. DFAT understands from sources that these beliefs exist, but do not form a core part of Falun Gong belief or practice. The Chinese Government and some former members claim the religion encourages isolation from families or refusal of medical treatment. Falun Gong denies these claims.

3.66 Falun Gong has been illegal since 1999 and the government actively searches for and prosecutes practitioners. Adherents can be imprisoned for between three and seven years. For this reason, members do not openly proselytise and there is no initiation ceremony. Conversely, repression of the religion has become a key part of its teaching and practice abroad. Practitioners, including in diaspora communities, may be involved in anti-Chinese Government activism.

3.67 DFAT understands that many adherents are still active in China …The 2020 US Department of State International Religious Freedom Report estimates there are between 7 and 20 million Falun Gong practitioners in China, but this is hard to verify given that practice is often private, and the group is illegal and stigmatised.

…..

3.70 DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination. Falun Gong practitioners are generally able to practise privately in their homes …[22][emphasis added]

And:

Arrest Procedures and Treatment of Detainees

…..

Authorities used administrative detention to intimidate political and religious advocates and to prevent public demonstrations.  Forms of administrative detention included compulsory drug rehabilitation treatment (for drug users), “custody and training” (for minor criminal offenders), and “legal education” centers for political activists and religious and spiritual adherents, particularly Falun Gong practitioners.[23] [emphasis added]

[22] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021.

[23] US Department of State, 2022 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau, and Tibet).

70.  At hearing, and given the evidence indicated the Chinese authorities continued to be particularly concerned with Falun Gong practitioners, the Tribunal said (words to the effect) it may not accept the applicant or his father were Falun Gong practitioners as he claimed, otherwise they may not have been immediately released. The applicant said that [Ms B] explained to the police that the applicant and his father were only new practitioners, and/or they were not part of the Falun Gong group, but the Tribunal notes they were still asked to sign a document not to continue to practise Falun Gong. Further, the Tribunal does not accept it plausible the authorities would accept the word of an apparent Falun Gong group organiser who had been caught engaging in that practise, given the hostility of the authorities against (even mere) practitioners.

71.  After considering the country information, the Tribunal does not accept it plausible the applicant and his father would be released, and or the applicant would be able to depart China some two weeks later (to [Country 1]), if he or his father were questioned for the reasons claimed. This is a further reason that satisfied the Tribunal the applicant’s evidence about his and his father’s Falun Gong practise was false (also - no evidence was provided the father was presently harmed, harassed or even questioned in China, at least since the applicant’s brother was detained in November 2022). It is also another reason that satisfied the Tribunal the applicant was not generally credible.

72.  Next, the applicant said he continued to practise Falun Gong in [Country 1] (although privately due to the COVID-19 pandemic), and he continued to practise Falun Gong in Australia (again privately – and or by online exercises and videos). He said he practised at home as he could access Falun Gong materials online and without restriction. The applicant then said he could not join any group session or perform any public activity in Australia, because he was busy organising his studies and preparing for his entry exams (he claimed to continue to practise in [immigration detention centre]).

73.  At hearing, the Tribunal noted that evidence it had seen indicated that Falun Gong may be practised at home and or individually, but at hearing the applicant did concede that practising in a group (in China) had assisted him to work out problems or issues pertaining to his practise. The applicant said he may commence to practise in public, when ‘things had settled down’. He did not for instance, claim to fear the Chinese authorities might find out about his Falun Gong practise in Australia.[24]

[24] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021.

74.  That being said, if the applicant had regularly practised Falun Gong since April 2021 as he claimed, the Tribunal has serious doubts he would not have at least made enquiries in Australia about practising with others. Along with other findings herein, that he did not do this is another reason that has satisfied the Tribunal the claim that he and his father genuinely practised Falun Gong in China (or elsewhere) was false.

75.  Next, the applicant and his agent both said that should the applicant continue to practise Falun Gong in China, he would be harmed. Based on his responses to the questions asked, the Tribunal would accept the applicant knew some matters pertaining to the practise of Falun Gong. However, given the adverse credibility findings made herein, the Tribunal is not satisfied the applicant genuinely engaged in, or has a genuine interest in, Falun Gong.

76.  The Tribunal is also aware that sometimes persons may engage in a claimed practise for fraudulent reasons, then subsequently become genuine practitioners. However, the Tribunal is sufficiently satisfied the applicant is not generally credible such that I do not propose to ask ‘what if I am wrong?’ in this case. Be that as it may, I would accept that any practise he had undertaken in [immigration detention centre] may also provide (at least) a social opportunity for the applicant (and was therefore not undertaken for the sole purpose of strengthening his protection claim).  

77.  After then considering all the findings herein, the Tribunal now rejects as false that the applicant (or his father) has, or is known to have by the Chinese authorities, any genuine or other interest in Falun Gong. I am therefore satisfied the claim to the contrary is false. I therefore do not accept the applicant would have any interest in continuing to practise Falun Gong in China.

78.  Accordingly, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm, for any claim discussed above.

Failed asylum seeker:

79.  The country information stated:

5.28 DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear.[25]

[25] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021.

80.  When discussed at hearing, the applicant conceded he did not fear harm in China for any reason not already discussed. Based on all the findings and evidence herein, the Tribunal now finds the applicant does not have a real chance of suffering serious or significant harm in China, for reason of being returned as a failed asylum seeker.

81.  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).

1. 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). For the same reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

84.  The Tribunal affirms the decision not to grant the applicant a temporary protection visa.

Mr S Norman
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.

1. 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.

2. 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.

3. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…