2420544 (Refugee)
[2025] ARTA 860
•5 June 2025
2420544 (Refugee) [2025] ARTA 860 (5 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2420544
Tribunal:General Member J Ermert
Date:5 June 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 05 June 2025 at 10:16am
CATCHWORDS
REFUGEE – protection visa – China – particular social group – people in China who have posted online about government corruption or other sensitive information – car accident – fracture – falsified accident report – car that struck her son was a government vehicle – bribery – unfair treatment and harm – victim of assault and threats – speaking up against injustices both personal and general – political opinion – anti-government political beliefs – social media posts – large following – not possible to access state protection or relocate – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 56, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 June 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of China, applied for the visa on 27 December 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.
The applicant applied for review of the delegate’s protection visa refusal decision with the Administrative Appeals Tribunal (‘AAT’) on 29 June 2024.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant appeared before the Tribunal on 6 May 2025 by video 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.
This is the decision and statement of reasons of the Tribunal.
BACKGROUND
The applicant is a [Age] year old woman who was born in Yichang, Hubei Province, China. She divorced her husband in 2007, and she was granted sole custody of her son, who is now [Age] years old.
According to movement records maintained by the Department, the applicant arrived in Australia [in] October 2022 on a Class TU Subclass 590 student guardian visa with her son, who held a Class TU Subclass 500 student visa. She has remained in Australia since with her son, who is the holder of a (further) student visa valid until 31 October 2025.
Prior to arriving in Australia, the applicant worked as a [Occupation 1] and also as a [Occupation 2] at a local [workplace]. In 2018, the applicant established her own business in Yichang, named [Business name 1], selling [goods], until June 2022.
The Tribunal accepts each of the above matters to be true.
Evidence before the Department
The applicant claims to be an ethnic Han Chinese and a Christian. The reasons she gave in her protection visa application for seeking Australia’s protection are summarised as follows:
·She left China because she was persecuted by the authoritarian Chinese government.
·10 years earlier (in 2013), her son, who was then [Age] years old, was struck and run over by the car driven by a government official [Mr A]. The accident caused serious injury to her son’s [body part].
·Due to collusion and corruption, the doctor treated her son’s injuries indifferently. The traffic police officer [Police officer A] refused to properly record details of the accident, and the judge refused to hear her case.
·The applicant was forced to sign a falsified accident identification report. She was also shoved, threatened and detained in the court office in relation to the accident. The judge even assaulted her causing [an injury requiring hospitalisation].
·In 2015, five men, including two traffic police officers, broke into her house in the middle of the night and forcibly took away all of her information. They also threatened her and her son.
·She attempted to appeal her son’s case without any success. As retaliation for her actions, government officials forcibly closed and demolished her shop and made further threats against her and her family.
·She fears returning to China where she would be confined and physically harmed by the autocratic and corrupt Chinese government which suppresses the people and deprives the people of their rights.
The applicant provided a number of documents in support of her protection claims, including:
·A translated medical imaging diagnosis report dated [January] 2014 relating to a CT scan of her son’s [injury] showing comminuted [fracture details].
·Two x-ray dated [March] 2014 and [April] 2014, respectively, of her son’s[fracture].
·A translated diagnosis certificate dated [April] 2014 from[the hospital], confirming her son’s diagnosis of [a fracture].
·A photograph of the street view of her [goods] shop[Business name 1].
·A photograph of the building where the shop had been, with rubbles in the foreground, after it was demolished.
·A photograph of her demolished shop, covered up from street view by metal sheet fencing.
·A notarial certificate, with English translation, of ‘no criminal record’ in China up to [July] 2022.
·Copy and English translation of her business licence.
Pursuant to s 56 of the Act, the delegate invited the applicant to provide further information in relation to the following matters:
·Reason for her 12 months delay after arriving in Australia to lodge the protection visa application.
·Reason for not including her son in her protection visa application, and whether her son has any protection claims of his own.
·More detailed information about the car accident involving her son, and detailed information about all the events that happened subsequently (when, what happened, who were involved), including but not limited to the claimed refusal by the judge to deal with her case and the claimed assault, the claimed forced entry and search of her home in 2015, and the claimed forced closure and demolition of her shop.
·Evidence to substantiate her claims, such as photographs of her son’s injuries, the false accident identification report she was forced to sign, evidence of her attempted legal action and court appeal, etc.
·Explanation for the harm she claimed to fear upon return to China, and explanation as to why she would be unable to avoid the feared harm by relocation.
·Explanation as to how she was able to depart China despite her claimed persecution by the Chinese authorities.
·Explanation about any information or documentary evidence she is unable to provide, and detailed information about the attempts she has made to obtain the documents she is unable to provide.
In response to the delegate’s request for further information, the applicant provided the following relevant information.
·She did not immediately apply for a protection visa after arriving in Australia because she was afraid that once she applied for a protection visa, her funds in China would be frozen and she would be unable to access them to pay for her son’s tuition fees and support their living costs in Australia.
·She did not include her son in her protection visa application because he was only [Age] years old at the time of the accident and he was not part of her protection petition.
·Her son’s doctor told her the perpetrator took him to dinner and asked him to persuade her to sign the false accident report. She refused, and the doctor stopped making daily rounds to check her son, and he denied her request for a CT scan of her son’s [fracture].
·She cannot provide documents about the court appeal or legal challenges as these have all been taken away.
·The judge in her court case tried to persuade her to accept the compensation offered by the perpetrator in exchange for her signing the false accident report. When she refused and tried to leave, the judge threatened and assaulted her and told her that none of the courts in the country would accept her lawsuit. There were no witnesses to the assault.
·She attended hospital for [an injury] from the judge’s attack, but evidence of the diagnosis was forcibly removed from her in 2015 when five men burst into her apartment late at night [in] May 2015 and took all her information about the accident and threatened her.
·She has no documentary evidence about her consultation with a lawyer in relation to her intention to sue those involved in the accident and the coverup because it was over the phone.
·The day after she called the lawyer, government officials told her that her shop was an illegal construction and ordered her to vacate from the shop immediately. That evening her goods were removed and the shop was demolished. It happened so fast that it surprised all the people around the shop because the building had existed on the street for over 30 years.
·Her bank account was frozen and she can no longer withdraw RMB, and her social media accounts were shut down, after she applied for a protection visa. Government officials asked her relatives and friends for her information, and she was monitored, controlled and abused while she was in China. She cannot return to China as she would lose her personal freedom and her property.
The delegate refused the applicant’s protection visa application as the delegate did not accept that the applicant would have no documentary evidence at all of the legal actions that the applicant claimed she commenced. The delegate also found the documentary evidence the applicant provided to support her claims to be fabricated, such that it undermined her credibility. The delegate therefore found that the applicant’s protection claims were not made out and that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The applicant and her representative made detailed submissions before the hearing in relation to her protection claims and provided comprehensive relevant country information to substantiate her claimed fear of harm. At the hearing, the Tribunal questioned the applicant extensively, and found the applicant was able to spontaneously and forthrightly give detailed description of the events which constituted her claims and provide reasonably plausible explanations for the matters which otherwise seemed incongruous or unclear. To the extent that there appeared to be gaps or inconsistencies between her oral evidence to the Tribunal and the evidence she previously provided in writing to the Department, the applicant explained that she was unrepresented at the time, and because her English is not good, she has had to rely on translating apps to translate her claims and evidence from Chinese to English, with no means of checking whether the resulting translation was in fact accurate in conveying what she wanted to say.
Based on the applicant’s pre-hearing submissions and her oral evidence, the Tribunal understands the applicant’s claims and evidence to be as follows:
·The applicant and her son lived in Zigui county, which is under the administration of the prefecture-level city of Yichang in Hubei province, at the time of the [December] 2013 accident.
·The applicant and her son were waiting at the bus stop early that morning around 6am, when her son was struck by the car driven by [Mr A], who the applicant did not know at the time but who she later found out occupied [a government security role].
·She found out about [Mr A’s] government position from her son’s doctor during the course of the doctor’s attempt (at [Mr A’s] request) to persuade her to sign the falsified accident report and accept [Mr A’s] offer of compensation.
·A motorist delivering [food] who witnessed the accident helped the applicant stop [Mr A] from fleeing the scene of the accident and call the police. The police did not attend the scene of the accident but directed [Mr A] to drive the applicant and her son to hospital.
·Traffic police officer [Police officer A] arrived with another officer at the hospital to take a statement. An accident report was made on the day with details of [Mr A] and the registration of the car which struck her son, and it was signed by both [Mr A] and the applicant. The applicant was not given a copy of the signed accident report, although she took a photo of it. At the urging of [Police officer A], [Mr A] paid RMB[amount] to the hospital towards her son’s treatment.
·To the applicant’s knowledge, [Mr A] and [Police officer A] are not related to each other. However, [the shared surname] is a relatively common family name in the region.
·A few days after the accident, the applicant and her ex-husband (who had rushed to the hospital on the day of the car accident after the applicant called him) went to the police station to request a copy of the signed accident report. Instead of giving the applicant a copy of the signed accident report, [Police officer A] presented her with a falsified accident report with the name of the driver and the registration of the car altered. The applicant was told she would be given a further RMB[amount] in compensation if she signed the falsified accident report. She refused.
·The applicant does not know why [Police officer A] did this after having previously taken a statement and made an accident report at the hospital. She believes [Police officer A] was bribed or otherwise influenced by [Mr A] to alter the report.
·When the applicant’s son subsequently needed a second operation because his [fracture] was not healing properly after the first operation, the doctor told her that [Mr A] had taken him to dinner and asked him to persuade her to sign the falsified accident report in exchange for the compensation previously offered. The doctor told her that [Mr A] was eager to be dissociated from the car accident because the car that struck her son was a government vehicle, and [Mr A] was at the time driving it for personal use which was prohibited. The doctor told the applicant that [Mr A] has threatened to walk away and refuse to take any further responsibility for the accident if she continued to refuse to sign the falsified accident report.
·When asked by the Tribunal why the doctor, who was apparently only a school friend of [Mr A’s] [in-law] and therefore did not have a close relationship with [Mr A], would help [Mr A] to try and persuade her, the applicant said she did not know exactly why, but believed the doctor could also have been bribed if [Mr A] was desperate to be dissociated from the accident. The strong influence of ‘guanxi’[1] could also have been a factor.
[1] ‘Guanxi’ refers to a complex network of personal connections and social relationships that one can use for professional or other advantage in China. There are many articles and discourses on the importance of ‘guanxi’ in Chinese society, see for example, ‘The importance of relationship building in China’, Harvard Law School, 25 February 2025; ‘Chinese “guanxi” – the oil that keeps China running’, China Mike, 13 January 2024; ‘Guanxi: unlocking the power of relationships in Chinese business’, China Scholar, 4 May 2023; and ‘The theory of guanxi and Chinese society’, Oxford University Press, July 2021.
·[In] May 2014, the applicant attempted to take the matter further by filing a lawsuit in [Court 1] against [Mr A] and [Police officer A] for the car accident and for falsifying the car accident report. However, the judge refused to accept her petition without the signed car accident report, instead ordering the applicant to mediate with [Mr A] and [Police officer A] that same afternoon. At the mediation, [Mr A] again offered the applicant RMB[amount], or even more, to sign the falsified accident report and drop the matter. When the applicant still refused, [Mr A] signed the report and left the mediation room with [Police officer A], and the applicant was left alone in the mediation room, where she took a photo of the falsified accident report.
·When the applicant also attempted to leave the mediation room, she was pulled back inside the room by [Police officer A] and the judge who were standing outside the room, and told she could not leave without signing the accident report as well. When the applicant protested that she had to go home to her son because she had been there for 2 hours already by that point, she was held down and threatened, and the judge told her that no court in the country would accept her petition. She struggled free and ran towards the elevator which was opposite the mediation room, however as she did so she was shoved and slapped which caused her to hit the side of her head against the elevator. When she got home, she found she could not easily move her jaw, and she experienced sharp pain [when she drank]. She went to the hospital, where they discovered [the injury].
·The Tribunal asked the applicant why the judge would take [Mr A’s] side and pressure her to mediate her dispute with [Mr A] over the car accident. The applicant stated that authorities in China are all interconnected and work to protect each other’s interest and control the general population, including by covering up misconduct. When the Tribunal queried this given President Xi’s crackdown on corruption, the applicant responded that bribery and corruption in China remains rife despite President Xi’s efforts. Whilst the central government might be engaged in cracking down corruption, the people they appoint to implement the crackdown can become corrupted themselves and become part of the wider cover for lower levels of government, which is why President Xi is having to frequently rotate and replace the central government appointed anti-corruption supervisors.
·With no official recourse, the applicant began making online posts about the car accident and the injustices she faced on [Social media 1],[2] however her posts were repeatedly deleted. Hoping to find the motorist who witnessed the car accident and could help her prove what happened, particularly as her ex-husband’s attempt to access CCTV footage of the accident was declined on the ground that all the cameras were broken and the one that worked was obscured by trees, the applicant put up notices looking for the motorist on the external walls of [her workplace], which she gave evidence is located at the intersection near where the car accident occurred.
[2] [Social media 1] is one of the most popular social media platforms in China, see ‘The 8 top Chinese social media apps, sites and platforms 2025’, Meltwater, 12 December 2023.
·The applicant was asked to remove the notices and to resign by [her employer]. When asked why [her employer] did this, the applicant explained that although the [employer] felt sympathy toward her for what happened, they were concerned that her actions would cause problems for the [employer], particularly as the car accident and the subsequent events she was agitating about involved government officials and a member of the judiciary. To compensate her for asking her to resign, the [employer] offered her RMB[amount] severance payment. The applicant resigned from [Occupation 2] as requested, but continued to make online posts which included the names of those involved.
·In 2015, [Police officer A], along with another traffic police officer and three other plain-clothed government officials, went to her home late at night, and forcibly entered her apartment when she answered the door. [Police officer A] questioned why she was making all the online posts, while the other men searched her apartment and deleted or took away her documents that included evidence of her medical diagnosis and report for [her injury], and photographs of the falsified car accident report and the signed real car accident report, etc. The incursion left the applicant and her son terrified and unable to sleep.
·After the incident of the late night incursion, the applicant and her son moved away from Zigui to Yichang. However, she still travelled regularly to Zigui because she was still trying to find ways of obtaining justice for her son and because the matter must be dealt within the location where the accident happened.
·The applicant continued to make online posts about the car accident specifically and about government corruption generally, not only on [Social media 1] but also on [Social media 2]. However, due to the experience of the late night incursion, instead of directly mentioning the names of those involved, the applicant began posting using wordplay and alternative terms like ‘dictatorship’ and ‘emperor’ to refer to the corrupt government regime and officials. The applicant estimated that she made at least 10 posts per year on average.
·In 2016 and 2018, the applicant was ‘invited for tea’ at the police station, where she was locked in a room for hours with a pen, paper and a laptop notebook and told to write a ‘self-examination’ about all the ‘offences’ she has committed as a result of her online activities. The applicant did not write anything on either occasion, however she was warned before her release against making further online posts with anti-government content because it was sensitive and contrary to national security. The applicant was told if she continued, she would be identified as a dangerous element and be arrested and jailed.
·Despite the threats she received at the police station, the applicant continued posting online using the social media handle of her [goods] shop,[Business name 1]. She was also encouraged and emboldened by [Business name 1’s] [large number of] followers many of whom made supportive comments in relation to her posts.
·In June 2022, police turned up at her shop [Business name 1] to conduct a ‘security check’ and took her computer and mobile phone, although they gave her back her SIM card. The police took her to the station for questioning, where they interrogated her about her online posts using the [Business name 1] social media handle. The police told her that since she is regarded as a public figure due to [Business name 1’s] [number] followers, it is improper for her to post anti-government content online. The police wanted her to disclose the details of the followers who interacted with her online posts. The police also told her that they knew from CCTV footage that many anti-government ‘bad guys’ hung out in her shop, and that she would be formally arrested and punished if she continued to allow those people to visit her shop.
·The applicant went online seeking legal advice to respond to the problem she was experiencing and options for prosecuting her son’s case. A lawyer responded to her online request and invited her to call him on his contact number to discuss privately. During this phone call, the lawyer counselled the applicant to cease and desist from further online posts critical of the government. There are many other cases far worse than hers that have gone nowhere, and people have disappeared in some cases for speaking up as a result. Persisting in obtaining justice for her son and simultaneously exposing government corruption in the way she was doing would only cause her and her son more harm, which was not worth it. No lawyer, including him, would be able to take up her case against the government because it could cause them to lose their own practising licence, or worse.
·The following day after the phone conversation with the lawyer, police went to her shop again. This time they told her the building was illegally constructed and ordered her to vacate immediately. The applicant only had enough time to move a couple of the equipment she used for her [goods] and a couch, before the police returned with a demolition team and demolished the shop signage and the interior with all the stuff still inside and then fenced off the remnant of the shop with metal sheets to prevent access.
·Fearing for her safety because of this latest development, the applicant came to Australia at the earliest opportunity with her son without telling anyone, and they arrived in Australia in October 2023. Two days after their arrival, the applicant made a video which she posted on [Social media 2] telling her story and disclosing the name of everyone involved. Her [Social media 2] account was subsequently shut down.
·She also found out later that the day after she posted the video on [Social media 2], police and personnel from [a] psychiatric hospital went to her former address looking for her, and that they told her neighbour she had mental illness requiring immediate hospitalisation and treatment to prevent her from causing harm to others. The police and the hospital personnel also visited her father’s home after failing to find her at her former address and encouraged anyone who saw her or became aware of her whereabouts to contact the authorities.
·The applicant claimed she continued to make online posts after her [Social media 2] account was shut down, including on [Social media 3], not only about her case but also about other sensitive topics, such as [a fatal apartment fire], the situation with Taiwan [and other topics]. When asked by the Tribunal why her online posts expanded beyond seeking justice for her son, the applicant claimed she had in fact begun posting about other sensitive topics as well since 2018 under her business’s social media handle using wordplays and alternative terms after becoming emboldened by the number of followers she had, it is just that she feels safer making more online posts about sensitive topics from Australia.
·The applicant claimed her bank account was frozen approximately a year after she arrived in Australia. With her son on a student visa, she could withdraw RMB 80,000 annually, but she had only withdrawn RMB[amount] when her account was locked and she lost the ability to access her funds. She believes this occurred because of her online activities.
·Since the Chinese government has shown they are willing to go to any length to silence dissent from people like her, she decided to apply for a protection visa, using a translation app to change the information she wrote in the visa application form from Chinese to English. She did not include her son in the protection visa application because she was unaware that she could include her son in the application, and since she is the one who fears harm from the Chinese government for speaking out, whereas her son does not have any direct fear of harm due to his young age when the accident and the subsequent harassment occurred.
·She predominantly fears harm from [Mr A] who has been trying to cover up their unauthorised use of the government vehicle involved in her son’s accident, and from [Police officer A] and the judge of [Court 1] who have been complicit in the attempted coverup. The Chinese central government does not tolerate corruption and she believes this is the reason why [Mr A], [Police officer A] and the judge would go to any length to keep her quiet. However, after spending years trying to seek justice and assert her rights in an authoritarian regime via online posts, and having questioned the government’s stance on a range of sensitive topics, she now also fears harm from the Chinese government. Specifically, she fears the government would be able to easily track her down using their very sophisticated and vast surveillance capabilities and network, and she could be imprisoned, assaulted, institutionalised, interrogated, and/or made to disappear like many others who have spoken up or shown dissent against the government and the authorities.
·She cannot avoid her risk of harm by relocation because China is an authoritarian state where freedom of movement, speech and justice is severely restricted and there is extensive government surveillance and control everywhere. Once a person comes to the government’s attention, there is nowhere to hide. She also cannot seek state protection. Her past attempts at seeking state protection have only led to further persecution because of collusion and corruption.
In addition to the documentary evidence that she previously provided to the Department (as outlined in paragraph 13), the applicant has provided the following supporting material to the Tribunal:
·Translated statement from the applicant’s ex-husband regarding the car accident and his initial involvement in seeking to access CCTV footage of the accident, and his subsequent attempt with the applicant to obtain a copy of the accident report.
·Translated statements from the applicant’s father and her neighbour, regarding their respective experience of the visits from the police and personnel from the psychiatric hospital in October 2022 looking for the applicant.
·Translations of screenshots of the applicant’s social media posts from 2014 regarding her son’s car accident and her struggles in seeking justice for her son.
·Translation of screenshot of notification of the applicant’s social media account ban.
·Translation of screenshot of notification of the applicant’s frozen bank account/denial of money transfer transaction.
·Translated screenshots of social media posts made by the applicant after arriving in Australia about her son’s car accident and her subsequent ongoing struggles in seeking justice for her son.
·Translated screenshots of social media posts made, commented on and/or reposted by the applicant in the same period regarding a range of topics including but not limited to the issue of Taiwan, forced demolition of civilian properties by the government, mistreatment of people who voice dissent, and police abuse during arrest, etc.
The applicant’s representative also made post-hearing submissions reiterating the applicant’s claims and the risks of harm she would face on return to China because of her longstanding and persistent online posts critical of the handling of her son’s accident and expressing her views on a range of sensitive topics.
The representative reiterated their pre-hearing submissions that country information supports a finding that the applicant has a well-founded fear of persecution for the essential and significant reasons of her nationality as a Chinese, her membership of the particular social group of ‘people in China who have posted online about government corruption or other sensitive information’, and her imputed anti-government political opinion. The representative also submitted that the applicant’s circumstances, viewed in the context of the available country information, are such that she meets the criterion for complementary protection in s 36(2)(aa) either in addition to or as an alternative to the refugee criterion in s 36(2)(a).
The representative submitted that the applicant cannot avoid the risk of harm by availing herself of state protection or the option of relocation, in circumstances where her persecutor is the Chinese authorities with wide ranging surveillance capabilities. Furthermore, the applicant cannot avoid the risk of harm by modifying her behaviour, having regard to her clear pattern of behaviour in speaking up against injustices both personal and general and her evidence that she would not stop posting online about her and her son’s unfair treatment at the hands of the Chinese authorities even if she was required to return to China. In any event, it was submitted that any behaviour modification that the applicant would be required to adopt to lower her risk of harm to less than real chance would involve modifications that fall within one or more of the exceptions in s 5J(3).
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
Despite provisions for freedom of speech, the press, assembly, association, procession and demonstration in Article 35 of China’s Constitution, in practice a wide range of topics are considered sensitive and censored, with those raising them liable to formal punishments. Censorship increased significantly in recent years, and the issues that are considered sensitive include, but are not limited to, commentary on political issues and events (including the policy direction of the CCP and nation, as well as anniversaries like the Tiananmen Square massacre), economic issues, health (including COVID-19 origins and the handling of the outbreak), land and property rights, environmental issues, labour rights, religious or ethnic issues, human rights issues, and the legitimacy of central authorities and the CCP. Topics that are deemed sensitive may change quickly, and education institutions and creative industries, academics and performers are censored under ‘cultural management’ policies to bring them into line with approved government messaging and avoid portraying the CCP and the government in a negative light.[3]
[3] DFAT Country Information Report – China, Department of Foreign Affairs and Trade, 27 December 2024, [3.127]-[3.129].
Tolerance for private criticism of the Government of China or CCP, even if only among friends and family, has reduced significantly since 2019 because potential ‘red lines’ had become less clear. The government intensified its national security drive and in June 2020 announced 'material rewards' of up to and above RMB 100,000 (AUD 21,000) for tip-offs about anyone ‘endangering national security’. The Ministry of State Security, which oversees intelligence and counterintelligence within China and overseas, in August 2023 encouraged citizens to actively participate in ‘counter-espionage work'. Activists and human rights advocates and lawyers face significant and sustained government surveillance, intimidation and harassment, for example ‘invitations for tea’ with authorities (understood to be a euphemism for a private warning in the form of a thinly veiled threat and/or coercion),[4] and those who question the CCP’s legitimacy and authority or criticise President Xi can face harsh punishments including deprivation of rights that make it difficult to find employment, travel, or obtain residence or accommodation. Arbitrary detention, torture, and long prison sentences under poor conditions are also possible.[5]
[4] DFAT Country Information Report – China, Department of Foreign Affairs and Trade, 27 December 2024, [3.138].
[5] DFAT Country Information Report – China, Department of Foreign Affairs and Trade, 27 December 2024, [3.130]-[3.132] and [3.138]-[3.141]; 2023 Country Report on Human Rights Practices – China (includes Hong Kong, Macau and Tibet), US Department of State.
An increase in electronic surveillance in public spaces, coupled with the movement of many citizens’ routine interactions to the heavily monitored digital space, means the government monitors an increasing percentage of daily life.[6] Conversations in groups or peer-to-peer on social media platforms and via messaging applications are subject to censorship, monitoring, and action from authorities. Authorities often arrest and detain citizens for ‘spreading fake news’ or ‘spreading rumours online’ for activities ranging from sharing political views or promoting religious extremism to sharing factual reports on public health concerns, including COVID-19.[7] In 2013, the Supreme People’s Court ruled that any social media post shared more than 500 times, or viewed more than 5,000 times, was considered ‘misinformation or propaganda’ and could result in imprisonment. However, even on occasions where these thresholds have not been reached, prominent posters on social media have still been publicly arrested, through a policy known as ‘kill the chicken to scare the monkey’.[8]
[6] DFAT Country Information Report – China, Department of Foreign Affairs and Trade, 27 December 2024, [3.161]-[3.162].
[7] 2023 Country Report on Human Rights Practices – China (includes Hong Kong, Macau and Tibet), US Department of State;
[8] DFAT Country Information Report – China, Department of Foreign Affairs and Trade, 27 December 2024, [3.165].
On 21 June 2024, the Government of China issued a set of judicial guidelines imposing criminal punishments on ‘acts of separatism’ and ‘inciting separatism’ related to Taiwan independence, with immediate effect. The guidelines are not legislation, but provide instructions on how to apply several existing laws to ‘Taiwanese independence separatists’. The guidelines (Articles 2 and 7) provide a specific list of acts for the crimes of separatism or inciting separatism, including: initiating or establishing 'Taiwan Independence' separatist organisations; seeking to change the legal status of Taiwan as part of China; ‘wantonly misrepresenting the reality that Taiwan is part of China’ in fields such as education, culture, history or news media; supressing political parties, groups, or persons that support the peaceful development of cross-Strait relations and national reunification; and promoting 'Taiwan Independence' separatist ideas and their separatist principles, plans and programs. Punishment under the guidelines range from sentences spanning 3-10 years in prison, life sentences or even the death penalty for 'ringleaders' or those who had committed 'major criminal acts'. The guidelines stipulate harsher sentencing for acts committed in collusion with foreign or ‘non-mainland’ institutions or individuals. They also stipulate that trial in absentia may apply for ‘diehard Taiwan independence’ elements.[9]
[9] DFAT Country Information Report – China, Department of Foreign Affairs and Trade, 27 December 2024, [3.133].
Freedom House scored China only 9/100 in its 2025 Freedom in the World Report, including 1/4 for individuals’ freedom to express personal views on political or other sensitive topics without fear of surveillance or retribution. Administrators of social media applications like WeChat, which is practically indispensable in China due to its popular use not only for personal communication but also for payments and shopping (through WeChat Pay),[10] closely monitor user discussions for conformity with government content restrictions, and the country’s cyber security laws oblige companies to store users’ data domestically and to submit to often intrusive security reviews by the police, with the consequence that netizens face account deletions, job dismissals, arbitrary detention and police interrogation for critical or satirical social media posts on sensitive topics.[11]
[10] DFAT Country Information Report – China, Department of Foreign Affairs and Trade, 27 December 2024, [3.162].
[11] Freedom in the World 2025 – China, Freedom House.
China ranked 76 out of 180 countries and territories in Transparency International’s 2023 Corruption Perceptions Index (where 1 is perceived to be least corrupt). Corruption in China is described as ‘serious’, and court decisions and areas ‘heavily regulated by the government’, such as land usage rights, real estate, mining and infrastructure development, are reportedly susceptible to fraud, bribery and kickbacks. Interactions that might be perceived as corruption by those not of Chinese background may be viewed by Chinese people as ‘guanxi’, in which the giving and receiving of ‘face’ and the exchange of favours are important. Good ‘guanxi’ can help obtain favourable business, social and legal outcomes, whilst bad ‘guanxi’ can make things impossible. Allegations of corruption are taken seriously by the CCP, which view such allegations as a threat to its legitimacy. Since President Xi launched a nationwide anti-corruption campaign in 2013, a large number of officials were disciplined, including about 1 per cent of national and provincial leaders.[12]
[12] DFAT Country Information Report – China, Department of Foreign Affairs and Trade, 27 December 2024, [2.58]-[2.61].
Despite the implementation of President Xi’s anti-corruption campaign, corruption in China remains endemic, due to structural features that centralise power, eschew independent checks or accountability, and produce perverse incentives for political advancement and financial enrichment. The Central and regional Commissions for Discipline and Inspection are the organs primarily responsible for investigating misbehaviours, but they work directly for their Party committees and lack independent external oversight, which allow them to pursue anti-corruption cases in often arbitrary ways. Centrally directed economic growth targets for local governments (which must be achieved for career advancement) but decentralised decision-making at provincial and other local levels of government allows significant flexibility in policy implementation, and effectively encourages provincial and local leaders to take illicit actions for personal and professional gain. The potential benefits of acquiring membership in elite organisations such as the National People’s Congress, whether it be status, authority and/or access to sensitive government information, also incentivise individuals to pay high costs to join, often through bribes, and to accept bribes while a member, or even upon completion of service, to facilitate business deals.[13] The corrupt relationship is also frequently very subtle wherein the parties never directly discuss exchanges of favours for bribes, but rather engage in diffuse reciprocity in which financial considerations are repaid indirectly and seemingly in the normal course of business.[14]
[13] ‘Wealth and Corrupt Activities of the Leadership of the Chinese Communist Party’, US Office of the Director of National Intelligence, March 2025.
[14] Andrew Wedeman, ‘Growth and Corruption in China’, China Research Centre, China Currents (2012) Vol. 11, No. 2.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a ‘refugee’ for the purpose of s 36(2)(a), or a person who meets the complementary protection criterion in s 36(2)(aa), such that she is a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity and country of nationality
The applicant has consistently claimed to be a citizen of China. She has provided uncertified colour scans of a Chinese passport bearing her claimed full name and date of birth and her Chinese national identity card to the Department in connection with her protection visa application, both of which can be found on her departmental file.
In the absence of evidence that the identity documents scans of which were provided are bogus documents as defined by s 5(1) of the Act, and given checks of relevant departmental systems did not raise concerns that the applicant has provided a false identity, the delegate has accepted the applicant’s identity and Chinese citizenship as claimed.
The Tribunal also accepts the applicant’s claimed identity and citizenship of China based on the above information. The Tribunal therefore finds the applicant’s country of nationality and receiving country for the purposes of s 36(2)(a) and s 36(2)(aa) is China.
Credibility
The first step in assessing the applicant’s claims for protection is to determine the credibility of those claims. In this regard, the Tribunal is aware of the importance of adopting a reasonable approach when making credibility findings. In Guo v MIEA (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:
“…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”
The Tribunal also notes the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 2019) states at paragraph [196] that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicant. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The applicant has consistently maintained her claims throughout the protection visa application and review processes. She gave her evidence at the hearing spontaneously and in a forthright manner, and she was able to provide detailed account of events when questioned. The content of her claims is coherent, plausible, and generally consistent with available country information, and her claims are corroborated by documentary evidence including, but not limited to, witness statements from her ex-husband, neighbour and father, x-ray scans and medical reports in relation to her son’s injury, photographs of her shop [Business name 1] before and after the demolition, and screenshots of social media posts and notifications of account closure/blocked money transfer.
The Tribunal notes the various credibility concerns raised by the delegate in his decision record. With respect, the Tribunal does not agree with them or the delegate’s reasons for them.
Firstly, the delegate did not accept that the applicant was unable to provide any evidence of having commenced legal action in relation to the car accident which injured her son. The delegate also took issue with the discrepancy between her initial claim in the protection visa application that she commenced legal action in 2022, and her subsequent response to the s 56 notice that there were no documents about the legal action because she has only had a phone consultation with a lawyer. The Tribunal acknowledges the delegate’s concerns. However, those concerns could have been readily dissipated had the delegate invited the applicant to an interview and sought clarifications about the perceived discrepancies with the aid of an interpreter.
In this case, if the applicant was unable to adequately express herself in English and had to rely on a translating app to convert her written claims in Chinese into English, and if her limited English ability was such that she did not have any meaningful way of confirming the accuracy and appropriateness of the translated claims and making necessary adjustments to compensate for the shortcomings of direct literal translations often associated with using translating apps, it is quite conceivable that aspects of her claims were ‘lost in translation’ in the protection visa application.
Proceeding on the basis of the Tribunal’s understanding of the applicant’s oral evidence, she has never actually instigated formal legal action because she never got the chance. Her first attempt to file a petition with [Court 1] in May 2014 was rejected by the judge who ordered her to mediate instead with [Mr A] and [Police officer A]. Her second attempt in 2022 to take legal action did not proceed beyond the private and exploratory phone consultation with the lawyer who responded to her online plea for legal advice, during which the lawyer counselled her to give up her futile and risky quest for justice. This would explain why the applicant was unable to provide any evidence of having commenced legal action, because it never happened. The Tribunal also considers that the discrepancy in the applicant’s initial claim of having commenced legal action vis-à-vis her later response to the s 56 notice that she has not commenced legal action can be reasonably explained by her reliance on a translating app to express her claims, as noted by the Tribunal in the preceding paragraph.
As for the delegate’s second concern that the documents the applicant provided in support of the claims about her son’s car accident are inconsistent internally and with her claims, the Tribunal rejects the delegate’s reasoning on which he based his concern because the delegate’s reasoning is plainly unreasonable. There is no sound basis for the delegate’s conclusion that the applicant’s son could not have required 4 months treatment for what appeared to be ‘a relatively minor fracture’, which is a call that in the Tribunal’s opinion the delegate is not qualified to make. On the contrary, open source search on comminuted fractures indicates that it is a major impact injury caused by something hitting the body with a lot of force and often at high speeds, such as car accidents. As the bone is broken into three or more pieces, comminuted fractures take longer to heal than most other types of broken bones, and the more severe the fracture the more likely that the bone may not fully heal. Children are more likely to face complications from comminuted fractures because their bones are still developing.[15]
[15] See, for example, Comminuted Fracture: Symptoms, Causes, Treatment | ER of Mesquite; Comminuted Fracture: Causes, Symptoms, and Recovery
The Tribunal finds the open source information about comminuted fractures to be entirely consistent with and supportive of the applicant’s claim that her son’s bones did not heal properly after the first operation and that he required a second operation. It also provides a reasonable explanation for the x-rays taken in March and April 2014 in order to examine and assess the state of recovery of the broken bones. As for the delegate’s finding that the Chinese hospital where the applicant’s son was being treated would not have provided a medical diagnosis report in English, the Tribunal acknowledges it might be unusual, but it does not mean it is impossible. In any event, nothing turns on this as the Tribunal finds the English version of the medical diagnosis report to be a translation. More importantly, having regard to all of the above, the Tribunal is satisfied that, contrary to the delegate’s findings, the documentary evidence lends credibility to the applicant’s claims about her son’s injury.
Finally, the Tribunal disagrees with the delegate’s finding that the photographs and the business licence the applicant provided of her [goods] shop are fabricated. In the first instance, the delegate’s reference to the shop in the first photograph with the name ‘[Business name 2]’ (sic) which translates to ‘[translation]’ is clearly incorrect; the applicant’s shop is the one next to it with the yellow and green façade bearing the characters [Business name 1] (paragraph 61 of the applicant’s 28 April 2025 statutory declaration refers). Moreover, contrary to the delegate’s finding that the name of the shop as recorded in the business licence is different, the Tribunal finds the shop’s recorded name – [Business name 1] – is in fact the same as that claimed by the applicant. This is confirmed by matches between the characters in the Chinese version of the business licence and the characters on the yellow and green shop façade in the photograph, with the only difference being the last [character], where the character in the business licence is in simplified Chinese whereas the character on the shop façade is in traditional Chinese (as explained by the applicant in paragraph 61 of her 28 April 2025 statutory declaration).
The Tribunal also disagrees with the delegate’s finding that the photographs of the applicant’s shop before and after the demolition are different locations. Whilst the second photograph of the demolished shop shows a single storey building as opposed to the double storey building seen in the first photograph, the top floor of the building in the first photograph appears to have consisted entirely of the (yellow and green) shop façade and business signage. If the demolition team had come and demolished the shop signage and the shop interior before fencing the building with metal sheeting as claimed at the hearing, then it is not surprising that the photograph after the demolition shows only a single storey. The Tribunal has also closely examined and compared the surrounding areas in the photographs. Whilst there is no absolute certainty given the photographs were taken at different times from slightly different angles and different distances from the applicant’s shop building, on the basis that the pedestrian footpath with the ramp in the foreground and the apartment buildings in the background appear to be the same, the Tribunal is satisfied on the balance of probability that the pre- and post-demolition photographs are of the same location.
For all the reasons discussed, the Tribunal rejects the delegate’s credibility findings. Instead, the Tribunal finds the applicant’s claims and evidence to be credible and the Tribunal therefore accepts them as claimed.
Assessment of refugee status
To satisfy the definition of ‘refugee’ for the purpose of s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution in China, because of which she is unwilling or unable to avail herself of the protection of China. This requires the Tribunal to be satisfied that if she returned to China, there is a real chance that she would suffer serious harm in the reasonably foreseeable future for reasons of her race, religion, nationality, membership of a particular social group, or political opinion.
‘Real chance’ in this regard has been found to mean one that is not remote, insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The sources of the applicant’s risk of harm were originally confined to [Mr A], [Police officer A] and the judge of [Court 1] and were related specifically to her son’s car accident. However, the sources and the level of her risk of harm became elevated over the years when the applicant began to make regular online posts under the social media handle of her business [Business name 1] that were broadcast to its [number] followers, and when the content of her posts began to seep beyond seeking justice for her son into other topics of sensitivity including corruption and generalised criticisms of the government. The Tribunal is satisfied that the Chinese authorities’ escalating interest in her as a result was amply demonstrated by her ‘invitations for tea’ in 2016 and 2018 where she was threatened and warned against posting anti-government content, the 2022 ‘security check’ on her business in ostensible association with ‘national security’ and the subsequent demolition of her shop in the pretext that the building was an illegal construction despite the fact that she had run her [goods] business there since 2018, and the 2023 visits by the police and personnel of the [psychiatric] hospital to her former address and her father’s home purporting to take her away for hospitalisation and treatment of her ‘mental illness’.
Since arriving in Australia, the applicant has continued to make online posts about the injustices she experienced in relation to her son’s car accident and expressing her views critical of the Chinese government. In this regard, the Tribunal notes that s 5J(6) of the Act states that in determining whether the applicant has a well‑founded fear of persecution, any conduct engaged in by the applicant in Australia is to be disregarded unless the applicant satisfies the Minister – or in this case, the Tribunal – that the applicant engaged in the conduct otherwise than for the purpose of strengthening her claims to be a refugee. Accordingly, the Tribunal has considered whether the applicant’s online posts on [Social media 2], and later on [Social media 3] after her [Social media 2] account was shut down, were made for the purpose of strengthening her claims to be a refugee. Whilst it is almost certain that the applicant’s online posts on [Social media 2] and [Social media 3], especially her post on the issue of Taiwan which is an extremely delicate subject for the Chinese government, has further increased her risk of being targeted and harmed by the Chinese authorities upon her return, on balance and having regard to all the circumstances, the Tribunal is satisfied that she did not make the online posts on [Social media 2] and [Social media 3] for the purpose of strengthening her protection claims. Rather, her online posts since arriving in Australia are a continuation of the activities she was already engaged in in China, albeit undertaken with a stronger sense of safety.
Therefore, on the basis of country information that criticism of the CCP and the government is not tolerated in China and that people who raise sensitive subject matters deemed to question or undermine the CCP’s legitimacy or authority face harsh punishments that range from deprivation of rights which make subsistence difficult to arbitrary detention, torture, and lengthy prison sentences under poor conditions, and on the basis that China has extensive and sophisticated surveillance capabilities enabling the government to readily identify and locate persons of interest, the Tribunal is satisfied that there is a real chance – in the sense that it is not remote, insubstantial or farfetched – that the applicant would face serious harm in the reasonably foreseeable future if she returned to China. Moreover, the Tribunal is satisfied that the essential and significant reason for the applicant’s real chance of serious harm is her actual or imputed anti-government political opinion arising from her persistent online posts over the years critical of the government and its corruption (both in relation to her son’s car accident specifically but also generally) and raising issues that the Chinese government is sensitive to. The Tribunal is also satisfied that the persecution she faces involves systematic and discriminatory conduct.
Does any of the exceptions apply to the applicant?
The Tribunal has also considered whether it is possible for the applicant to avoid or reduce her real chance of serious harm by accessing state protection, relocating to an area of China other than her ‘home region’, or by modifying her behaviour. In circumstances where the applicant’s persecuting agent is the Chinese government and authorities, and having regard to the pervasiveness and sophistication of China’s surveillance capabilities, the Tribunal is satisfied it is not possible for the applicant to access state protection or relocate.
Insofar as behaviour modification is concerned, the Tribunal is also satisfied that this option is not reasonably available to the applicant. As the applicant’s representative submitted, for the applicant to avoid or reduce her real chance of serious harm by behaviour modification, she would essentially be required to cease making online posts on social media platforms about the injustices she and her son have suffered because of her son’s car accident and about the other issues she holds an opinion on, such as government corruption and human rights abuses. However, such behaviour modification is excluded under s 5J(3) because it would conflict with a characteristic fundamental to the applicant’s conscience and require her to conceal her true political beliefs.
In conclusion and for all the reasons discussed, the Tribunal finds the applicant has a well-founded fear of persecution in China. Therefore, it follows that she is a person in respect of whom Australia has protection obligations as a refugee, pursuant to s 36(2)(a) of the Act. Furthermore, as there is no evidence before the Tribunal that the applicant has a right to enter and reside in a country apart from Australia, the Tribunal finds that s 36(3) of the Act does not apply to her.
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 6 May 2025
Representative: Ms Lucinda Daisy Kate Kateros
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.
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