2315407 (Refugee)

2315407 (Refugee) [2023] AATA 4860 (20 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)
CASE NUMBER:  2315407
COUNTRY OF REFERENCE:                   China
MEMBER:Rachel Da Costa
DATE:20 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 November 2023 at 9:50am
CATCHWORDS
REFUGEE – protection visa – China – religion – attendance at mainstream church in Australia – returned, failed asylum seeker with criminal record – delay in applying for protection – applied after period as unlawful non-citizen, criminal offences, imprisonment and immigration detention – truthful evidence but little understanding of circumstances and law, and poorly advised – no fear of harm – relationship with Australian citizen now ceased – intention to stay with Australian citizen child – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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 27 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of China and applied for the visa on 19 August 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form the applicant provides the following information. He was born in Changchun city, Jilin province, China in [Year]. His parents live in China in Changchun city. The applicant speaks, reads and writes Mandarin. He is a Christian.
The applicant is separated. He has a [Age]-year-old Australian citizen child who lives in Australia.
In China, the applicant always lived at the same address in the Lvyuan district of Changchun city. In Australia, the applicant currently lives at [an Immigration Detention Centre]. He has lived there since August 2022. Prior to that, he lived at various addresses in Sydney.
The applicant completed primary school and middle school in China and he withdrew from high school in December 2012. The applicant was [an Occupation] in [Employer] in China from December 2012 to December 2017. He lived in Jilin province. Since that time, he has been unemployed.
The applicant departed China [in] April 2018 and arrived in Australia the same day. He travelled on his Chinese passport and was the holder of a Student visa. He overstayed a visa in Australia.
Evidence before the Department
Protection visa application
In his protection visa application form, the applicant makes the following claims.
·     He came to Australia to study.
·     He met his ex-partner and they had a child but then they separated.
·     At this time, his emotions were not good and he was encouraged by friends to go to church.
·     On 8 January 2020, he joined [Church] in [Suburb]. He felt at home there and not alone. [Pastor A] give him a sense of harmony and care.
·     The applicant goes to church every Sunday to worship.
·     From friends at church, he knows that the church in China is not recognised, that the Three-Self churches have Chinese Communist Party overtones and are not real churches, and many rules are against the bible.
·     Christians in China are persecuted and do not have religious freedom. If he returns to China, he fears being attacked, imprisoned or killed.
·     He wants to stay in Australia to continue to serve the Lord.
Request for further information
On 16 September 2022, the Department wrote to the applicant inviting him to provide more information about his claims relating to his religious background and practices in China and Australia and inviting him to comment on country information about worshippers in state-sanctioned churches in China.
In response, the applicant provided a letter dated 5 October 2022 from [Rev B], Rector, [Church], [Suburb]. The letter states that [Rev B] has known the applicant since 2019, the applicant has been attending Sunday services at the church and has maintained relationships with some parishioners and he knows the applicant to be polite, kind and hardworking.
The delegate’s decision
The applicant was not offered an interview to discuss his claims. On 27 September 2023, the delegate made their decision. In the decision record, the delegate explains that based on the evidence before them, they were not satisfied that the applicant is committed to Christianity or that he is a practicing Christian or would be in the future. The delegate also expressed concern about the applicant’s delay in applying for a protection visa. Therefore, the delegate found that the applicant is not a person in respect of whom Australia has protection obligations either under the refugee criterion or the complementary protection criterion.
Evidence before the Tribunal
Application for review
On 29 September 2023, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided the Tribunal with a copy of the delegate’s decision.
Documents provided to the Tribunal
Prior to the hearing, the applicant provided the Tribunal with a copy of the letter of support from [Rev B], a copy of his child’s New South Wales birth certificate, several Child Support Account Statements from 2023 and a Certificate of Recognition dated [July] 2023 for his participation in various reintegration sessions prior to his release from custody.
The hearing
The applicant appeared before the Tribunal on 6 November 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 but his representative did not attend the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the hearing, the applicant gave evidence that his agent helped him fill out his protection visa application form, but he was not sure whether he had read the form or was familiar with its content. During the hearing, it became apparent to both the Tribunal and the applicant that the applicant had a poor understanding of his migration situation and the type of visa he had applied for, and the potential consequences of this.
In the hearing, the Tribunal discussed with the applicant his family, education and employment background, migration and custodial history in Australia and the reasons he claims to fear returning to China. Overall, the Tribunal found the applicant to be a truthful witness who, unfortunately, had little understanding of his situation in Australia and who had been poorly advised. This is discussed further below.
The applicant explained to the Tribunal that he came to Australia on a Student visa which had been arranged for him by an agent. He came to Australia because he wanted to learn English and “change my life”. He started a language course somewhere near Town Hall in Sydney, but he couldn’t understand what was going on in the classroom and he didn’t complete the course. The applicant gave evidence that after his mother passed away in China, he started using drugs and committed some offences. He has spent time in prison and immigration detention and feels as though everything has been ruined.
In 2019, after arriving in Australia, the applicant began a relationship with a woman that lasted for two years and they had a son, [Master C], together. Since they split up, [Master C] has lived with his mother in Sydney. Before being in detention the applicant used to visit [Master C] every week but since being in detention he has not seen [Master C]. The applicant does not have any other relatives in Australia.
The Tribunal asked the applicant why he fears returning to China. The applicant responded that he does not fear returning to China, but his child is in Australia and he wants to be able to stay to be with his child while he is growing up. The Tribunal asked the applicant why he applied for a protection visa and he said it was because he didn’t have a visa after his previous visa was cancelled. He said he paid his agent money and his agent arranged everything for him so he doesn’t know what was in the application. The applicant’s aim in applying for a protection visa was to be able to stay in Australia, to be with his child and care for him, and maybe bring his child back to China.
The Tribunal asked the applicant whether he has any particular beliefs or interests in his life. The applicant gave evidence that he thinks he believes in Christianity and Buddhism. He does not follow a particular religion and he has never followed a particular religion. As far as religious beliefs go, he knows he should take responsibility for his parents and child.
The Tribunal asked the applicant about the letter from [Rev B]. The applicant said it was a letter from a priest he met after he divorced. The applicant started going to church and believed in the religion, which was Christianity. The Tribunal put to the applicant that he had said earlier he was not religious and did not follow a religion. The applicant responded that people have different understandings, he believes in all types of gods, he has respect, he believes in many types of religions but does not have to follow them. The Tribunal asked him whether he currently followed any religion. He said he thinks as a human being you need to be a kind person. The Tribunal asked him whether he practiced any religion on a regular basis and he said he did not. The applicant gave evidence that after he divorced, he attended church every Sunday but he stopped once he was in detention. When he went to church, he helped with cleaning and donated some money and brought food to share with others, and that was all. The Tribunal asked him whether he ever attended church services at the church. He responded that he didn’t attend major church events but he would listen to the preaching on Sundays. The last time he attended church was Christmas 2022. The Tribunal asked the applicant whether he would follow a particular religion if he was released from detention and he said life is full of changes so he cannot say for sure.
The applicant gave evidence that he did not have any problems with the authorities in China before coming to Australia and he has not done anything since being in Australia that makes him fear returning to China.
In the hearing, the Tribunal discussed country information with the applicant about his church attendance in Australia. The Tribunal explained that country information such as the current DFAT Country Information Report on the People’s Republic of China[1] does not indicate that attending a mainstream Protestant church in Australia, like [Church], would put a person at risk of serious harm if they returned to China. The Tribunal put to the applicant that it might find his church attendance in Australia would not give rise of a real chance of serious harm if he returned to China in the reasonably foreseeable future. The applicant agreed with this and said he would not face harm on return; he just wants to stay with his son in Australia. He doesn’t want to lie about being harmed on return to China.
[1] 22 December 2021 (DFAT Report).
The Tribunal also put to the applicant that country information does not indicate that as a returned, failed asylum seeker with a criminal record in Australia, he would be at risk of harm from the authorities in China. The applicant responded that he doesn’t have a criminal record because he doesn’t have any offences. Based on the evidence before the Tribunal, including evidence provided by the applicant himself, the Tribunal finds the applicant has a criminal record in Australia.
The Tribunal asked the applicant how the documents he had provided to the Tribunal about his son, his payment of child support and his certificate of achievement in detention were relevant to his protection visa application. The applicant responded that in the past he just wanted to pay an agent and get a visa to stay in Australia. The Tribunal finds that the documents in question are not relevant to the applicant’s claims for protection and gives them no weight.
The Tribunal put to the applicant that in his protection visa application form he had claimed to fear persecution if he returned to China on the basis of being a Christian, but in the hearing he had told the Tribunal that this was not correct. The Tribunal put to him that based on his evidence in the hearing, it might find he is not a Christian and he does not follow any particular religion and he would not practice Christianity or any other religion if he returned to China in the reasonably foreseeable future. The Tribunal explained to the applicant that if this is what it found, this might lead it to find that he would not face a real chance of serious harm or a real risk of significant harm if he returned to China in the reasonably foreseeable future. The applicant responded that apart from Falun Gong, it is fine to follow any religion in China and you will not be harmed. He said he did not want to lie, he paid money to a migration agent and he has little knowledge of what is happening. The Tribunal has considered the applicant’s response and finds that while he did not respond directly to what was put to him, he also did not contradict what the Tribunal put to him in terms of what it explained it might find based on the evidence before it.
The Tribunal put to the applicant that he had said there were no reasons he feared returning to China and he applied for a protection visa so he could remain in Australia with his son. The Tribunal explained that if it accepted this, it might find that based on all the evidence before it, the applicant did not meet the criteria for a protection visa. The applicant said he had nothing to add. The Tribunal offered the applicant extra time to provide any further information in light of his situation, but he declined the offer and expressed frustration at the situation he realised he had ended up in.
Findings
Having considered all the applicant’s written and oral evidence about his situation, for the reasons set out above the Tribunal finds as follows.
The Tribunal accepts that the applicant came to Australia from China to study and to make changes in his life. The Tribunal accepts that the applicant did not have any problems with the authorities in China when he lived there and accepts that he was not a Christian in China.
The Tribunal finds that since being in Australia, the applicant has been convicted of some criminal offences and he has spent time in prison and in immigration detention.
The Tribunal accepts that the applicant was in a relationship in Australia which lasted for about two years and he has a son from that relationship who is an Australian citizen. The Tribunal accepts that the applicant applied for a protection visa without fully understanding its purpose or criteria because he wants to remain in Australia to be with his son.
Based on the applicant’s evidence in the hearing, the Tribunal accepts that the applicant has attended [Church] in [Suburb] in the past. The Tribunal is prepared to accept that for a time, the applicant used to attend church regularly on a Sunday and that he listened to sermons and helped with cleaning and providing food. The Tribunal accepts that the last time the applicant attended church was Christmas 2022. The Tribunal finds that when attending [church], the applicant attended as an ordinary worshipper. The Tribunal finds that since the applicant has been in detention, he has not continued any religious worship activities. Based on the applicant’s evidence in the hearing, the Tribunal finds that the applicant does not hold religious beliefs associated with any particular religion and that he does not follow any particular religion, including Christianity. The Tribunal finds that if the applicant returned to China in the reasonably foreseeable future, he would not practice Christianity or attend church. The Tribunal accepts that the applicant does not fear persecution if he returns to China.
Does the applicant meet the refugee criterion?

Based on the applicant’s evidence in the Tribunal hearing, the Tribunal accepts that he does not fear returning to China for any reason.
The Tribunal has accepted that the applicant attended [Church] in [Suburb] for a period of time and that he was an ordinary worshipper. For the reasons set out above, including the country information referred to, the Tribunal finds that the applicant would not face a real chance of serious harm due to his church attendance in Australia if he returned to China in the reasonably foreseeable future.
The Tribunal has found that the applicant has a criminal record in Australia. For the reasons set out above, including the country information referred to, the Tribunal finds that the applicant would not face a real chance of serious harm as a returned, failed asylum seeker with a criminal record if he returned to China in the reasonably foreseeable future.
As set out above, the Tribunal has found that the applicant does not follow any particular religion and that he would not practice Christianity or attend church if he returned to China in the reasonably foreseeable future. The Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to China in the reasonably foreseeable future.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[2] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. Therefore, 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] MIAC v SZQRB [2013] FCAFC 33
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).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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.
…

[2023] AATA 4860

20 November 2023

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Immigration

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