1511319 (Refugee)

1511319 (Refugee) [2017] AATA 1352 (27 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511319
COUNTRY OF REFERENCE:                  China
MEMBER:Alison Murphy
DATE:27 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 27 July 2017 at 9:43am
CATCHWORDS
Refugee – Protection visa – China – Imputed political opinion – Previous harm during Cultural Revolution – Fear of future harm – Serious medical conditions – Referral to Minister for consideration
LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169-70

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first applicant is an [age] man from Xi’an in Shannxi province, China (the applicant husband) and he makes his own claims for protection. The second applicant is his [age] wife (the applicant wife). She does not make her own claims for protection but seeks to be recognised as a member of her husband’s family unit. They applied for the visas [in] January 2015.
[In] July 2015, a delegate of the Minister for Immigration made a decision to refuse to grant the applicants protection visas, not being satisfied that they were persons to whom Australia owed protection.
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 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
THE TRIBUNAL HEARING
The applicants are each [ages] and suffering a range of mental and physical health issues.
On 25 January 2017 the Tribunal wrote to the applicants inviting them to appear before the Tribunal to give evidence and present arguments at a hearing scheduled for 23 March 2017. On 3 March 2017 their daughter and representative [wrote] to the Tribunal seeking an adjournment of that hearing on medical grounds, stating that [Applicant 1] suffered from medical conditions including [conditions] and a range of physical health issues. A medical certificate from [a doctor] of [name] Health Centre dated [in] February 2017 confirmed [Applicant 1] suffered from a number of medical conditions including [conditions] which would prevent him from attending the scheduled hearing on 23 March 2017.
Their representative stated [Applicant 1] had been referred to a geriatric specialist [Dr A] and an appointment scheduled for early May 2017. It was requested that the hearing on 23 March 2017 be rescheduled until after that appointment with [Dr A]. The Tribunal agreed to postpone the hearing on 7 March 2017 and reschedule to a later date.
On 4 May 2017 the Tribunal wrote to the applicants advising of the rescheduled hearing date of 8 June 2017. On 16 May 2017 their daughter and representative wrote to the Tribunal advising that notwithstanding numerous attempts to have [Applicant 1] see [Dr A], [Dr A] had been unable to see him. She requested that the hearing be further adjourned until [Applicant 1]’s assessment had been carried out by [Dr A], stating it was not known when this would occur except that it was unlikely to be in the near future.
On 29 May 2017 the Tribunal wrote to the applicant, making note of the medical evidence provided to the Tribunal above as well as other medical evidence contained on the departmental file, being:
·A medical certificate from [a doctor] of [name] Health Centre dated [in] April 2014 which stated that [Applicant 1] suffered from suspected [condition], among other medical conditions. It stated the daily impact of [Applicant 1]’s medical conditions include that he is [symptoms];
·An Overseas Visitors Medical Report dated [in] October 2013 which stated that [Applicant 2] suffers from [conditions]. It stated the daily impact of [Applicant 2]’s medical conditions include that she is [symptoms] and requires daily care and attention.
The Tribunal noted the medical information suggested that both [Applicant 1 and Applicant 2] would be unfit to participate in a Tribunal hearing in the foreseeable future and that in such circumstances it was under a statutory obligation to complete the review.
The Tribunal advised that it was able to take evidence from any available witnesses, including the applicants’ daughter, and could also make arrangements to take evidence from [Applicant 1 and Applicant 2] by telephone if that assisted the applicants to give evidence in relation to their review. It advised that if the applicants were unable to give evidence by telephone or there were no witnesses available, the Tribunal may have to determine the review on the basis of whatever evidence is available, including the documents on the files and the Tribunal’s own research.
The Tribunal invited the applicants’ comment on its proposal to proceed with the scheduled hearing on 8 June 2017 or shortly afterwards and take evidence at that hearing from any available witnesses by videolink and/ or by phone. The Tribunal advised it would allow the applicants and their representative further time after the hearing to make any further submissions or produce any further documents in relation to the review.
On 31 May 2017 the applicants’ daughter and representative wrote to the Tribunal confirming that her father suffered from [condition] and a range of physical health issues and did not have the capacity to give evidence in his review application. She asked that the hearing scheduled for 8 June 2017 be postponed for a short period to allow the applicants to obtain legal advice as to how to proceed. She attached a letter from [Dr A] dated [in] May 2017 which advised, among other things, that [Applicant 1] had a progressive [illness] which is very advanced, that he could no longer communicate verbally or in writing in Chinese or English and he would be unable to attend the Tribunal hearing and lacked the capacity to give evidence in either written or verbal form. On 1 June 2017 the Tribunal wrote to the applicants advising that it had agreed to postpone the scheduled hearing until 13 July 2017.
On 20 June 2017 the applicants appointed a new representative and authorised recipient in the review. On 5 July 2017 the authorised recipient advised that the applicants would not attend the scheduled hearing because of their significant health issues but that he would attend as their representative as would their [daughter]. A request was made that if the Tribunal was unable to remit the matter back to the delegate, it be referred to the Minister for Immigration for his personal consideration and favourable intervention.
The hearing on 13 July 2017 was attended by the applicants’ representative in [city] and [their daughter] by videolink to [city].
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether either or both of the applicants is 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 . For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant[1].
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The Tribunal has been mindful of the particular difficulties that the applicants in this case face in supplying information about their claims, given their lack of capacity to give evidence in support of their claims. However for the reasons set out below and on the material that has been produced to the Tribunal, the Tribunal does not accept all aspects of their claims.
Country of Nationality
The Tribunal accepts that each of the applicants is a Chinese national on the basis of the certified copies of their passports contained on the departmental file. The Tribunal finds that the applicants are citizens of China and has considered their claims against that country.
The applicants’ migration history
The applicant’s migration history is set out in the decision of the delegate dated [in] July 2015, a copy of which was provided to the Tribunal by the applicants.
The applicant wife first came to Australia in August 2000 on a [temporary] visa, remaining until May 2001. In October 2004 both applicants came to Australia as the holders of [temporary] visas, remaining until April 2005. In November 2007 they returned to Australia on [temporary] visas, departing in April 2008. In September 2009 they returned to Australia again on [temporary] visas, departing in August 2010. In June 2013 the applicants returned to Australia as the holders of [temporary] visas and have not departed Australia since that time. They applied for the visas [in] January 2015.
The applicants’ professional background
The applicant husband states in his visa application that he is an [occupation] who worked at [an organisation] in Xi’an as [occupation] between 1958 and 1991 as well as [another organisation] in Henan between 1953 and 1956 and [a third organisation] between 1956 and 1958. In a later written response to questions posed by the delegate, the applicant husband stated he ceased employment with the Chinese government in 1991 and continued to work in private enterprise until he retired in 2005.
The applicant wife states in her visa application that she is a retired [occupation]. In a later written response to questions posed by the delegate, the applicant husband stated the applicant wife retired in 1989.
The Tribunal accepts the applicants’ account of their professional backgrounds to be true and finds accordingly.
The applicant husband’s claims of past harm during the Cultural Revolution
In his protection visa application, the applicant husband claims that he has in the past experienced harm in China as a result of his father being falsely accused by the Communist Party of being a nationalist spy and publicly executed. He claims that he has been mistreated and oppressed for most of his life, especially during the Cultural Revolution when he was forced to constantly attend Struggle Sessions where he was verbally and physically abused. He states that Struggle Sessions were a form of public humiliation used by the Communist Party of China in Mao’s era to humiliate and persecute enemies of the state.
He claims he was forced to confess to numerous made-up crimes before crowds of people and had to escape with his family to rural areas and hide in order to avoid being the target of public humiliation. He claims throughout his career he was mistreated, publicly humiliated and given minimal opportunities and as a result, he had to undergo treatment for mental illness.
In a written statement dated [in] May 2015, the applicant husband elaborated on his claims as follows:
Throughout my career and whilst employed with the government I was regularly subjected to threats of harm, physically abused and public humiliation. In the latter years of my employment with the government I was physically assaulted and sustained severe head injuries and subsequently admitted to a mental hospital for a period of approximately 12 months. It was feared I may have suffered brain damage as a result of the attack. When discharged from hospital I undertook convalescence for approximately 2 years. I recovered prior to reaching retirement and began employment with a private company.
In a statutory declaration made [in] July 2017, the applicant’s [daughter] provided the following additional information about her father’s protection claims:
My father has in the past related to me instances that during the Communist period he observed his father being ‘rounded-up’ and shot. He and his [relative] were present to witness the execution and the event had caused him enormous grief and emotional stress. Other members of the family have had their property confiscated. Both of my parents told me that during the Cultural Revolution my father was subjected to mistreatment, public humiliation and was physically assaulted resulting in being admitted to a mental hospital for a period of one year and two years convalescence. I am informed and verily believe that on his return to China in 2010 government authorities and individuals had begun to intensify contact with my father subjecting him to threats of harm, abuse and intimidation in recent times.
China’s Cultural Revolution commenced in 1966 and is generally regarded as having ended with the death of Chairman Mao in 1976, although it only officially ended in 1981. During the period of the Cultural Revolution an intense factional struggle occurred within the Chinese Communist Party:
Red Guards, who followed the fanatical 'cult of Mao' and were given an open hand to smash the "four olds" (old ideas, old customs, old culture, old habits), were responsible for widespread anarchy and violence against the civilian population[2].
[2] UK Home Office, 2002, China Country Assessment October 2002
DFAT reports that the Cultural Revolution was a phenomenon that impacted on the whole of China and directly affected millions of Chinese citizens. Millions of people were unfairly and brutally victimised, with 40 to 50 million people exiled to the country to work on farms[3]. The Red Guards reportedly targeted the authorities on campuses, then party officials and “class enemies” in society at large. They reportedly carried out mass killings in Beijing and other cities as violence swept the country and the military joined the conflict, adding to the factional violence and killing of civilians:
The exact number of dead is not known, but a figure of one million or more is most commonly cited. Estimates range from 500,000 to eight million dead, according to a 2011 paper by Song Yongyi, a scholar of the Cultural Revolution. The number of people persecuted is usually estimated in the tens of millions[4].
[3] DFAT, 1994, Country Profile: China, June pp.28-9
[4] Ramzy A 2016 China’s Cultural Revolution Explained New York Times 14 May at
In such circumstances I accept the applicant husband suffered harm during the Cultural Revolution as claimed. I accept his father was executed and the applicant husband was forced to attend Struggle Sessions where he was verbally and physically abused. I accept during the period of the Cultural Revolution he was mistreated, publicly humiliated and given minimal opportunities. I accept that members of the applicant husband’s family had their property confiscated during this period, noting DFAT’s report that tens of millions of Chinese citizens were mistreated during this time.
I accept the applicant husband was forced to confess to made-up crimes and move with his family to rural areas and at some point during the years of the Cultural Revolution he suffered a head injury and was admitted to a psychiatric hospital, requiring two years of convalescence. Although the applicant husband has not stated exactly when this occurred, he states it was during the years of his employment with the government (between 1953 and 1991) and that he recovered from his injury and illness prior to his retirement from his employment with the Chinese government in 1991. In the absence of any other evidence about the timing of these events and given such events are reported to have occurred on a widespread basis during the Cultural Revolution, I find that all of these things occurred during the Cultural Revolution, that is between 1966 and 1981. I do not accept on the evidence before me that any mistreatment of the applicant husband, in his professional or personal capacity, continued after that time.
The applicant husband’s claims of past harm on return to China in 2010

The applicant husband claims to have suffered from the adverse attention of the Chinese authorities following his return from Australia to China in 2010. He states that at this time the Chinese government authorities began to intensify their contact with him, subjecting him to threats of harm, abuse and intimidation and humiliating him in public. He states the authorities and/or individuals have no scruples as they have the protection of the state.
In a statutory declaration made [July] 2017, the applicant’s [daughter] provided the following information about her father’s protection claims:
I am informed and verily believe that on his return to China in 2010 government authorities and individuals had begun to intensify contact with my father subjecting him to threats of harm, abuse and intimidation in recent times.
At hearing [the applicants’ daughter] told the Tribunal that her father told her on the telephone that when he returned to China in 2010, he was intimidated at home and humiliated in public. When asked to elaborate, she stated that he told her that local police went to his home and talked to him, causing him to be very frightened. She said that conversation had been some time ago and she was unable to remember more. She stated her father told her he had been called names but by whom or how she did not really know, other than that her father appeared to have lost face.
She stated that because of her father’s past experiences during the Cultural Revolution, he was still treated in this way. She stated her father also had [medical condition] and remembers the past very clearly, as if he was watching it on a movie screen and because of his past he was very fearful. She said her father repeatedly mentioned his past experiences and that was why he didn’t want to return to China. When asked when her father had developed [medical condition] [the applicants’ daughter] said she wasn’t sure about his health while in China, although he and her mother lived independently up until the time they last travelled to Australia in June 2013 and had been able to move around and take exercise when they arrived in Australia.
At hearing the Tribunal discussed with [the applicants’ daughter] DFAT’s advice that millions of people were affected by the Cultural Revolution in the manner described by her father. [The applicants’ daughter] stated she understood that, but the extent was different from family to family and her own family were treated very differently. She stated her father had developed [medical conditions] as a result of his experiences. When asked if there was any reason she was aware of why her father would come to the adverse attention to the Chinese authorities in 2010, [the applicants’ daughter] stated she didn’t know what the Chinese government was thinking but she wondered if it had to do with the fact her father had applied for a permit to visit [Country 1] to collect information about her grandparents. She was not able to tell the Tribunal when he applied for this permit, but stated that [Country 1] was quite open now and many people travelled there quite freely so she was only guessing this may have had something to do with it.
The Tribunal has carefully considered the available evidence about the applicant husband’s claims as to events that occurred on his return to China in 2010. However on the evidence before it, the Tribunal does not accept the applicant husband was subjected to harm or increased scrutiny or the adverse attention of the Chinese authorities in 2010 as claimed. In particular I do not accept on the evidence before me that the applicant husband was visited by the local police at that time, given that such a claim was not made in the visa application where the applicant husband gave details of his claims. In making this assessment I have considered [the applicants’ daughter]’s evidence that her father told her he was visited by local police at that time, but she was unable to provide any further detail. There is no information before the Tribunal as to what was discussed during that visit nor its ramifications, if any. Nor is there any information before the Tribunal as to the circumstances in which the applicant husband is said to have been publicly humiliated in 2010, nor by whom.
It is not suggested that the applicant husband was of adverse interest to the Chinese authorities between his retirement from government employment in 1991and his return to China in 2010. Rather in his written statement dated [in] May 2015 the applicant husband states he had little contact with the Chinese authorities up until approximately 2004. He does not indicate what contact he had with the Chinese authorities after 2004 or otherwise suggest that he was subjected to any harm or adverse attention until his return to China in 2010.
There is no information before the Tribunal as to when the applicant husband sought permission to travel to [Country 1] and the Tribunal does not accept on the evidence before it that such a request caused him to become of adverse interest to the Chinese authorities in 2010, noting [the applicants’ daughter]’s evidence that people now travel quite freely to [Country 1]. The Tribunal considers it significant that the applicant husband was permitted to travel freely into and out of China on his own passport on multiple occasions between 2004 and 2013.
The applicant husband suffers from [medical condition] and a medical certificate dated [in] April 2014 from [a doctor] indicates that at that time he suffered from [medical conditions]. [The applicants’ daughter] told the Tribunal that she didn’t know whether her father suffered from [medical condition] while in China, but that he was very fearful because of his past experiences with the Chinese authorities during the Cultural Revolution. She stated he relived his past traumatic experiences in China during the Cultural Revolution as if he was seeing them on a movie screen and this caused him to be very frightened. While the Tribunal accepts the applicant husband is genuinely fearful of returning to China, on the evidence before it the Tribunal does not accept the applicant was intimidated or publicly humiliated or otherwise harmed or mistreated or scrutinised by the Chinese authorities in 2010 as claimed.
The applicant husband’s claims of future harm on return to China
The applicant husband claims that if he returns to China, he fears there is a strong likelihood that what happened in the past would happen again and that his family and assets would again be confiscated. He states that local officials of the Chinese Communist Party would harm or mistreat him because he has been critical of the previous regime, particularly what happened to his father and himself. He claims to fear that his expression of adverse and disapproving comments and attitudes would cause harm, stress and suffering to himself and his family. He claims that he will not be protected by the Chinese authorities because they were the ones that inflicted the harm and mistreatment and may continue to do so.
In a written statement dated [in] May 2015, the applicant husband elaborated as follows:
There is absolutely nothing inconsistent with being highly regarded privately by the Chinese government as they were simply in need of my services, expertise and skill but this did not stop authorities throughout my career subjecting me to continued threats of harm, intimidation and physical assaults. I have endeavoured to outline in my application for the granting of a protection visa some of the experiences of harm that I’ve encountered in China. I hold genuinely founded fears that what happened in the past is likely to happen to me again should I return and in addition to threats of confiscation of family assets.
However as discussed with [the applicants’ daughter] at hearing, DFAT has consistently reported over a long period of time that this unhappy phase of Chinese history officially came to an end in the late 1970s and the fact that a person suffered persecution during the Cultural Revolution or is related to a person who suffered persecution during that time would not be relevant to his or her treatment by the PRC authorities now.
In 1990 DFAT provided the following advice on claims for refugee status based on the Cultural Revolution:
…As already indicated a number of times in this cable, a great number of people were affected by the confusion and struggle that occurred during the Cultural Revolution. Her circumstance during that period should not be relevant to her current claim for refugee status[5].
[5] Department of Foreign Affairs and Trade 1990, Cable BJ 44445 – DORS applications, 7 December
In 1992 DFAT stated:
It may well be true that he and his family suffered in the Cultural Revolution, as did many Chinese including most of the present senior Chinese leadership. The fact that he had such difficulties would not of itself be relevant in the 1990s. Unless there is some other evidence, say of a major political feud in which he was involved which led to enduring local hatreds, his cultural revolution experiences including his unexceptional participation in the June 1968 anti-government demonstration are irrelevant to his treatment by the PRC authorities if he were returned to China[6].
[6] Department of Foreign Affairs and Trade, 1992, Cable O.BJ51078, 6 July CX435
Similarly in 1995 DFAT stated:
The circumstances described by the applicant – public humiliation, detention and exile to the countryside were not isolated instances but affected millions of people from 1966 to 1976.
Persons who had been sent to the countryside were allowed to return. Depending on the influence of their relatives and the severity of the charges against them individuals began returning to their usual/former place of residence from 1972. Most had returned and had been cleared of all charges against them by 1978/79[7].
[7] Department of Foreign Affairs and Trade 1995, Re: China: Return from countryside after the Cultural Revolution, 16 February
In 1997 DFAT stated:
Being related to persons persecuted during the Anti-Rightists Campaign and Cultural Revolution no longer carries any great stigma in China. This would be particularly so for those whose relatives had been rehabilitated[8].
[8] DIMIA Country Information Service 1997, Country Information Report No. 195/97 – China: PSB and Cultural Revolution – CIS Information Request No. CHN3996 (sourced from DFAT advice dated 30 March 1997), 7 May
At hearing [the applicants’ daughter] responded to that information by stating that she understood many people in China were treated badly at that time but the extent was different from family to family. She said that because of her family background, her family were treated very badly and her father suffered [conditions] as a result. She stated that when her father returned to China in 2010, he was then harassed. However for the reasons set out above the Tribunal has not accepted on the evidence before it that the applicant father was of adverse interest to the Chinese authorities in 2010 as suggested.
Further there are a number of other issues that in the Tribunal’s view tend to indicate that the Chinese authorities have no ongoing interest in the applicant husband:
·The applicant husband travelled between Australia and China using his own passport without apparent difficulty on four occasions between 2004 and 2013. The Tribunal considers that the Chinese authorities had multiple opportunities to intercept him had he been of any adverse interest to them during this period;
·The applicants did not claim protection until [January] 2015, more than 10 years after the applicant husband’s initial arrival in October 2004 and 18 months after their most recent arrival to Australia in June 2013. During the period 2004 to 2013 the applicants departed China for Australia on four occasions and returned to China on three. The Tribunal considers their delay in claiming protection and repeated returns to China to be inconsistent with the claim the applicant husband is of ongoing adverse interest to the Chinese authorities and is at risk of serious harm in that country;
·The applicant husband has by his own statements had a long and distinguished career as [occupation] in China, both in government employment between 1953 and 1991 and in the private sector between 1991 and 2005. The delegate’s decision sets out the details of correspondence between the applicants and the Department in respect of their [temporary] visas and a copy of that decision was provided to the Tribunal by the applicant. That correspondence indicates that in April 2014 the applicants sought a waiver of condition 8503 that was applied to their [temporary] visas, advising the department that the applicant husband was a retired [occupation] who is highly regarded by the Chinese government. The delegate noted that applicants’ daughter at the time told the department that the applicant was ranked among the top 100 [occupation] in China and received an award from the Chinese government for his work;
·In correspondence with the department and again at the Tribunal hearing [the applicants’ daughter] denied stating the award was given by the Chinese government, stating it arose out of her father’s work in the private sector and her father had not been recognised or awarded by the Chinese government. The Tribunal accepts that may be the case, noting that the applicant husband had been working in the private sector for some 18 years by the time the book recognising the top 100 [occupation] was published in 2009. The Tribunal has also considered the written statement of the applicant husband to the effect it is not inconsistent to be highly regarded privately by the Chinese government who were in need of his services, expertise and skill and to also be subjected throughout his career to continued threats of harm, intimidation and physical assaults. However the Tribunal does not accept that to be the case. Rather the Tribunal considers the length and breadth of his career in both the government and private sectors, particularly during the decades since the end of the Cultural Revolution, indicates he was not of ongoing adverse interest to the Chinese authorities after the Cultural Revolution ended in 1981;
·The applicant husband receives ongoing financial payments from the Chinese government. At hearing [the applicants’ daughter] described these payments as superannuation benefits rather than a pension and in a written statement made by the applicant husband [in] May 2015 he stated it is compulsory for private enterprise to pay to the government superannuation fund for individuals and on retirement the government will then pay superannuation benefit which he receives regularly. However the Tribunal notes that the applicant husband by his own statements worked for the Chinese government for almost forty years before entering the private sector. The Tribunal considers that his regular payments from the Chinese government must relate at least in part to his government employment. The Tribunal considers the continuation of these payments tends to indicate he is not of adverse interest to the Chinese authorities.
For the above reasons the Tribunal does not accept there to be a real chance the applicant husband will be subjected to harm if he returns to China for any reason relating to his own or his family’s political opinion or their experiences during or since the Cultural Revolution, his professional background or the fact he sought permission to travel to [Country 1]. It follows that the Tribunal does not accept that the applicant husband has a well-founded fear of persecution for any of these reasons, if he returns to China now or in the reasonably foreseeable future.
As set out above, the applicant wife has not made her own claims for protection. I have however considered where any such claims arise on the material before me, given her close relationship with the applicant husband. However as I have found the applicant husband does not have a well-founded fear of persecution for any of these reasons claimed, it follows that I do not accept the applicant wife has a well-founded fear of persecution for any reason relating to her husband.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
In this case, the Tribunal has found that the applicant is a national of China and the Tribunal therefore finds that China is the ‘receiving country’ for the purposes of s.5(1).
Assessment of risk
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant husband will be subjected to harm if he returns to China for any reason relating to his own or his family’s political opinion or their experiences during or since the Cultural Revolution, his professional background or the fact he sought permission to travel to [Country 1].
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[9] For the same reasons the Tribunal does not accept there is a real risk the applicant husband or the applicant wife will suffer significant harm for any of these reasons as a necessary and foreseeable consequence of being removed from Australia to China. Therefore neither of the applicants satisfy the criterion set out in s.36(2)(aa).
[9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
Ministerial Intervention
Having regard to the circumstances of the applicant and having considered the Ministerial guidelines relating to the Minister’s discretionary power under section 351 set out in PAM3 “Minister’s guidelines on ministerial powers (sections 351, 417, and 501J)” the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention on the basis that it appears to raise circumstances of a kind the Minister has indicated should be brought to his attention in those Guidelines.
In Part 4 of those Guidelines, the Minister states that the following cases should be brought to his attention:
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
- strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
- compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
Extensive medical evidence produced to the Tribunal indicates the applicant husband has suffered from a [medical condition] since at least 2014 and most likely significantly earlier. That illness is now very [advanced]. He is [symptoms]. Medical evidence from [Dr A] dated [in] May 2017 indicates he also suffers from [other conditions] and that the combination of his [medical condition], physical needs and [other conditions] cause him to be unfit to travel outside Australia. [Dr A]’s medical opinion is that the applicant husband requires 24-hour supervision and the only realistic way of providing this is via his family in Australia.

Other medical evidence before the Tribunal indicates the applicant wife has suffered from [medical conditions] from at least October 2013. The daily impact of her medical conditions include that she is [symptoms] and requires daily care and attention.
The applicants have two [children who] both resident in Australia. [The applicants’ daughter] is an Australian citizen who first arrived in Australia in 1997. [The other child] is a permanent resident of Australia who first arrived in 2007. They both live in [city] where the applicants currently live with [the applicants’ daughter]. [The applicants’ daughter] provides daily care for the applicants who are in their [ages]. The applicants have no other children. While they have elderly siblings remaining in China, the evidence before the Tribunal indicates there is nobody remaining in that country who could provide them with the level of care they will need in coming months or years.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant husband is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant husband does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicants do 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 either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that either of the applicants satisfy s.36(2)(b) or (c) 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, they do not satisfy the criterion in s.36(2).
Therefore the applicants do not satisfy the criterion set out in s.36(2) for a protection visa and it follows that they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Alison Murphy
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 1352

27 July 2017

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