1517736 (Refugee)

1517736 (Refugee) [2018] AATA 4869 (19 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517736
COUNTRY OF REFERENCE:                  China
MEMBER:Mireya Hyland
DATE:19 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 19 October 2018 at 7:00pm
CATCHWORDS
REFUGEE – Protection visa – China – victim of physical attack – tortured by authority – subjected to inhumane treatment – fear of son of a powerful politician and head of underground society – owes compensation to customer – child’s best interest – credibility concerns – Ministerial intervention referred – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 91R, 425, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Sun v MIBP [2016] FCAFC 52
VSAI v MIMIA [2004] FCA 1602
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 on 14 December 2015 to refuse to grant the applicants, [the first named applicant] and his wife, [the second named applicant], protection visas under s.65 of the Migration Act 1958 (the Act). [The applicants] applied for the visas on 7 January 2015.The delegate refused to grant the visas on the basis that he was not satisfied that ‘there is a Refugee Convention ground for the harm feared as required by subsection 91R(1)(a)’ of the Act and ‘protection from an authority’ could be relied upon therefore, pursuant to s.36(2B)(b), there is no real risk of significant harm. That decision was provided to the Tribunal with the review application.
The issue in this case is whether [the applicant’s] claims are credible and, if so, whether there is a real chance of serious or significant harm in the foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
An applicant for a protection visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act, that is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ or ‘complementary protection’ criteria, or is a member of the same family unit as such a person who holds a protection visa of the same class. In the case of persons who have a nationality, the refugee criterion is that they are outside their country of 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). If a person does not meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if he or she is entitled to complementary protection. The complementary protection criterion requires that 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). Additional requirements relating to the criteria are extracted at the end of this decision.
Member of the Same Family Unit
Subsections 36(2)(b) and (c) specify alternative criteria for non-citizens in Australia who are members of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also stipulates that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations) for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse. The Tribunal is satisfied that [the applicants] are spouses.
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 - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, Country Information Report – China dated 21 December 2017, to the extent that it is relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
[The applicants] arrived in Australia as the holders of Subclass 600 Visitor visas. [The first named applicant] arrived [in] October 2014 followed by his wife [in] November 2014. The purpose of their visit was the murder of their son, [Mr A], [in] September 2014. [Mr A] is survived by his wife, [Ms B], and his now [age] year old daughter, [Miss C]. In his protection visa application [the first named applicant] claims that if he goes back to China he will be subjected to persecution and significant harm and his wife ‘will be implicated by my case’. They are represented by a registered migration agent.
Nationality
On the basis of the evidence before it the Tribunal finds that [both applicants] are citizens of China, that China is their receiving country for the purposes of both the refugee and complementary protection criteria, and that they are outside their country of nationality for the purposes of s.5H(1)(a) of the Act. There is no evidence before the Tribunal to suggest that either [applicants] have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Claims and Evidence
[The first named applicant] lodged a Part C protection visa application form for applicants who wish to submit their own claims for protection. [The second named applicant] lodged a Part D protection visa application form for a member of the family unit of a person submitting protection claims. She did not lodge a Part C application form. However, [the first named applicant] made clear claims on [the second named applicant’s] behalf that she will suffer, and fears she will suffer, serious or significant harm if returned to China. Therefore, the Tribunal has made findings on whether [the second named applicant] meets the criteria for s.36(2)(a) and (aa) as well as s.36(2)(b) and (c).
[Both applicants’] protection claims are contained in Question 44 to Question 49 of [the first named applicant’s] protection visa application form. On 7 December 2015 [the first named applicant] attended an interview with the delegate (the interview). [Both applicants] came to a hearing with the Tribunal on 19 March 2018 to give evidence and present arguments (the hearing). They were assisted at the interview and hearing by an interpreter in the Chinese (Mandarin) and English languages. Where relevant the evidence from the interview and hearing appears in this decision. It does not necessarily appear in the order in which it was given.
On 19 April 2018 the Tribunal wrote to [both applicants] under s.424A of the Act inviting them to comment on or respond to certain information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review. On 30 April 2018 [the first named applicant] sent the Tribunal a statutory declaration in response to its s.424A letter (s.424A response). [The first named applicant’s] comments and response are included below.
In making its decision the Tribunal has considered all the information in both the Department of Immigration (the Department) and the Tribunal files. [The applicants] also provided the following documents to the Tribunal: a statutory declaration made by [the first named applicant] dated 12 March 2018; the birth certificate of [Miss C]; the death certificate for [Mr A]; [a bank’s] outward remittances from [the first named applicant] to [Mr A] and [Ms B] totaling AUD[amount] dated [in] November 2013 and various other [banking] transaction documents, some in Chinese, that [the first named applicant] claims show he is in debt; a title search for the property at Lot [number] in [a location] with tenants in common [Tenant one] (25/100), [Tenant two] (25/100) and [Ms B] (50/100) (the Australian property); a CT report relating to [the second named applicant’s] [dated] [in] September 2016 that includes a diagnosis of [a medical condition]; a referral from [a medical centre] for [the second named applicant] to obtain an opinion and management of her depression dated [in] March 2018; [a] form for five visits to psychologist [indicating] [the second named applicant] has poor sleep and low motivation due to depression from her son’s death, but no tendency towards suicide, self-harm, or harm to others; and an appointment card from [a] registered psychologist, for [a date in] May 2018 at [time].
[The second named applicant]
Although [the second named applicant] attended the hearing, [the first named applicant] and their agent indicated that she could not give evidence because of her mental health. [The first named applicant] told the Tribunal that [the second named applicant] is confused. Since [Mr A’s] murder she does not respond when spoken to and forgets anything people say to her. The Tribunal explained that it is required to give [the second named applicant] a meaningful hearing in her own right, providing her with an opportunity to give evidence and make arguments to support any claim she has to be owed protection in Australia. It attempted to talk to [the second named applicant] about giving evidence, but she was unresponsive, appearing only to stare into space. She did confirm by nodding and shaking her head that she does not have her own protection claims and she is relying on her husband’s protection claims. She also nodded that she does not fear any harm if she goes back to China. Otherwise, [the second named applicant] was completely uncommunicative during the hearing.
The Tribunal asked that [the first named applicant] and [the second named applicant] provide medical evidence about [the second named applicant’s] mental health. However, the documents provided after the hearing only indicate that she was referred to one psychologist and obtained an appointment with another. Other than the [form], neither [the first named applicant] nor [the second named applicant], or their agent, gave the Tribunal a medical report or any other evidence about [the second named applicant’s] mental health or confirmed that she even attended the appointment [in] May 2018. No post-hearing submissions were made addressing [the second named applicant’s] mental health, her capacity to give evidence, or particularising any claims for protection related to her mental health.
The Tribunal gave [the second named applicant’s] time to provide evidence by written submissions in light of the claim that she was unable to give oral evidence at the hearing. No post-hearing submissions were received from [the first named applicant] or [the second named applicant], either directly or through their agent, containing evidence from, or on behalf of, [the second named applicant] regarding her or her husband’s protection claims.
The Tribunal acknowledges that at the hearing [the second named applicant] was generally unresponsive to questions. There is a notation in the [form] by her general practitioner that [the second named applicant] has poor sleep with low motivation from depression due to her son’s death and was referred to a psychologist. However, this is the limit of the medical evidence before the Tribunal. [Mr A’s] death certificate lists the cause of death as ‘[deleted]’. He was [age] years old. In these circumstances depression is certainly plausible, but information on its effects on [the second named applicant], any extent to which it might debilitate her, or her prognosis is not provided. [The first named applicant] gave evidence about her symptoms, but for the reasons set out below the Tribunal does not consider his evidence to be reliable.
Symptoms of self-reported poor sleep and low motivation give the Tribunal little assistance and [the second named applicant] clearly, if non-verbally, indicated she has no claims but relies on her husband’s claims and evidence, and she has no fear of returning to China. Nonetheless, the Tribunal grants that [the second named applicant] did not give any more substantive oral testimony and [the first named applicant] has made claims on her behalf. For that reason the Tribunal has considered whether Australia owes [the second named applicant] protection obligations on the basis of the claims specified by [the first named applicant]. While it has no way to determine the extent of any issues with [the second named applicant’s] mental health, given the nature of her son’s death the Tribunal has taken a cautious approach and not formed any adverse view of the inconsistency between her and her husband’s evidence about the nature of her claims.
Otherwise, since she had the help of a registered migration agent and her husband and was given significant time to provide written submissions with their assistance but did not, the Tribunal finds that it has fulfilled its obligation under s.425 of the Act to provide [the second named applicant] with a meaningful opportunity to be heard. The Tribunal also finds that, other than the claim relating to [Miss C] addressed below, [the second named applicant] has not made any claims for protection, or had any claims made on her behalf, relating to her mental health, its treatment, or the effects of the death of her son.
The Tribunal notes that a CT report has been provided indicating that [the second named applicant] has [medical condition], however, no submissions were made in relation to the report except to state that [the second named applicant] has [pain]. The Tribunal accepts that [the second named applicant] suffers from [pain] associated with [the medical condition]. But there is no indication in the application or in any other evidence before it that [the first named applicant] or [the second named applicant] are claiming this is the basis for any fear of serious or significant harm as a result of systematic or discriminatory conduct if they return to China or that they are owed protection for that or any associated reason.
Protection Visa Application
[The first named applicant] and [the second named applicant] are from [a village in] [Town 1] Town in Fuqing City, Fujian. [The first named applicant] was a farmer who also ran a shop [in] an old house left to him by his grandfather (the [village] house). In April 2008, when he discovered that many families sent their children to study overseas, he organised for [Mr A] to study in Australia.
In August 2008 the [house] was demolished for the expansion of [a road] which runs through [the] Village and he only received RMB[amount] as compensation. Over the following months he made many demands to the [Town 1] government for reasonable compensation with others who had lost property, but the government refused and accused them of disturbing the social order. Their protests were quickly suppressed by police from the Fuqing Public Security Bureau (PBS) and [Town 1] police. More than 10 protesters, including [another man] and [the first named applicant], were arrested. [The other man] was sentenced to six months ‘re-education through labour’ and [the first named applicant] and others were detained at the Fuqing Detention Centre for one month. During his detention the police tortured him many times with police batons, electricity, or water; he was subjected to inhuman treatment.
In January 2009 [the first named applicant] was released after paying a RMB[amount] fine. His lowered income without the [house] meant that he was no longer able to provide support for [Mr A] in Australia, but he did not tell his son what happened because he did not want him to worry. Since [Mr A] could not support his schooling without [the first named applicant’s] assistance he was forced to stop studying. Although it was for reasons beyond [the first named applicant’s] control he always felt guilty that he could not continue to provide money for his son’s studies.
While in the detention centre [the first named applicant] got to know [Mr D] who specialises in building [structures]. [Mr D] was released not long after [the first named applicant] and from 2009 he worked both on his farmland (the Fujian land) and with [Mr D] building or renovating [structures] for other farmers.
In 2011 [Mr A] developed a relationship with [Ms B] in Australia, they got married, and [Miss C] was born in [date]. In 2013 [Mr A] asked [the first named applicant] to lend him some money because he was under pressure from [Ms B] to purchase a property in Australia. He told [the first named applicant] that [Ms B] might not help him apply for permanent residency if he did not purchase the Australian property. [The first named applicant] was not in a good financial position, but he felt guilty over his failure to support his son’s study so he agreed. After borrowing money from friends and relatives he sent [Mr A] AUD[amount] to purchase the Australian property.
After that [the first named applicant] had to work very hard to repay the debts to relatives and friends as early as possible. In May 2014 [Mr E], the son of the Communist Party Secretary in [the] Village, asked [the first named applicant] to build a [structure]. Many people including [the second named applicant] warned him not to deal with [Mr E] because he was a notorious bully and a head of ‘the black society’. However, not only did [the first named applicant] really need the money, but he was afraid it would cause trouble if he refused the job.
From May to July 2014 both [Mr D] and [the first named applicant], together with labourers [the first named applicant] hired, built the [structure]. But when it was completed [Mr E] refused to pay for the work. [The first named applicant] had to pay [Mr D] and the other labourers, and he needed the money himself, so he approached [Mr E] many times asking for the payment. He also contacted [Mr E’s] father, the Communist Party Secretary, urging him to help get the payment, but [Mr E] would not pay. On the last occasion that [Mr D] and [the first named applicant] went to [Mr E’s] home they were beaten up by [Mr E] and his men, who threatened that they would ‘disable’ them if they dared to make trouble again.
[The first named applicant] went to the [Town 1] police for help. However, [Mr E] thought that [the first named applicant] had damaged his, his father’s, and their family’s reputation and demanded he pay them RMB[amount] in compensation. Although [the first named applicant] repeatedly told [Mr E] he did not have that much money, [Mr E] insisted he did because he had helped [Mr A] purchase the Australian property. After that [Mr E] and his men from ‘the black society’ regularly came seeking money from [the first named applicant].
[The first named applicant] did not receive any help from the police, who said he was a troublemaker because he was previously detained and had a bad record with the authorities. Instead the police colluded with [Mr E] and his father.

It was around this time that [the first named applicant] left China because of [Mr A’s] death. Otherwise he would have been unable to survive in China. Since leaving China the police, as well as [Mr E] and his family, have threatened many times that they would ‘not let me off’ if they could locate him.
Interview
At the interview [the first named applicant] told the delegate that he did not have any fear of returning to China because of the circumstances surrounding the demolition of the [house] or the consequences of his protesting his compensation, including his detention. This was only relevant to explain why he had no income after the [house] was demolished. He confirmed that his only fears related to the building of the [structure] for [Mr E], his failure to pay, and the requirement that [the first named applicant] pay RMB[amount] in compensation because of [Mr E’s] influential background and connection to ‘the underground society’.
[The first named applicant] told the delegate that he had to spend RMB[amount] to get out of China. He gave the money to a relative of his relative to buy his way through customs at the airport. He had to pay the bribe because he had a bad record.
When asked by the delegate what will happen if he returns to China he said that he will lose his life. When asked who will take his life he said ‘the village leader’. [The first named applicant] claimed that every official in China is corrupt so he would never get protection from the authorities, who would never arrest [Mr E], his men, or his family.
[The first named applicant] said that the criminals harassed [the first named applicant] and [the second named applicant] every day, but he escaped to Australia because of his son’s death. Otherwise he would be finished. Even before 2008 [Mr E’s] family were powerful and they can do whatever they want so you have to show them respect. He told the delegate that in 2014 they asked him to do work for them. His family did not agree, but [the first named applicant] had to support [Mr A’s] study in Australia. He confirmed to the delegate that he feared [Mr E] who is involved with a criminal element, they made threats against him, and if he returns he fears for his safety and his wife’s safety.
[The first named applicant] also told the delegate that he has a granddaughter, [Miss C], in Australia and wishes to stay because otherwise he will lose everything.
Hearing
[The first named applicant] told the Tribunal that to add to his income from farming the Fujian land, between May and July 2014 he subcontracted to do [a] job for the son of the Village Committee Leader. He does not know about building [structures] so he asked [Mr D] if it was worth doing for RMB[amount]. [Mr D] said that it was, so [the first named applicant] took the contract and paid [Mr D] and five labourers every day to complete the work. He said he worked under [Mr D’s] instruction, but he was the boss. When asked why [Mr E] hired him instead of [Mr D] directly he said because [Mr D] lived in another village, and [Mr E] wanted to set [the first named applicant] up by subcontracting the project to him. That is why his family did not want him to take the job. He believes [Mr E] thought that [the first named applicant’s] family would be easy to cheat and he never intended to pay [the first named applicant] the money for building the [structure]. He said, ‘perhaps a kind person will be bullied more easily.’
At the end of July 2014 when the work was finished [the first named applicant] went to [Mr E’s] house and asked him for the RMB[amount] owing, but he did not pay. Instead he beat [the first named applicant] on the back which was very painful. [Mr E] said that if [the first named applicant] returned to the house to ‘mess up things’ he would beat him ‘into disability’. [The first named applicant] did not go back to the house because he was afraid.
Instead [the first named applicant] lodged a petition with the [Town 1] government, but they did not do anything because the officials protect each other and [Mr E’s] father has connections with the Fuqing and [Town 1] governments. The officials in the [Town 1] government told [the first named applicant] he had slandered [Mr E] and had to pay RMB[amount]. They said he should not pursue the RMB[amount] owed and if he defamed [Mr E] he would be arrested.
In September 2014 [the first named applicant] heard the [Town 1] and Fuqing police wanted to arrest him because they said he had disturbed the social order and defamed [Mr E’s] family. When the Tribunal asked [the first named applicant] if he was convicted of these crimes he said the police did not have any official order. [Mr E] connived with the police to arrest him illegally because he was trying to locate [the first named applicant] to beat him. [The first named applicant] told the Tribunal that the police listened to [Mr E’s] family. They went to his house to arrest him, but they did not arrest him. They gave him a limited time to pay the RMB[amount], but if he did not they said they would arrest him. However, they then stopped approaching him until he left for Australia because of the death of his son.
[The first named applicant] said although he is in Australia they are trying to contact him and if they arrest him he will be in ‘big trouble’. His sister told him in 2015 and 2016 the police were still checking where he was and they continue to look for him. She first told him this in 2015 soon after he arrived. [The first named applicant] claimed that if he returned to China he would continue to petition for the money. [Mr E] is afraid [the first named applicant] will petition to the Provincial Committee or at the national level and is worried he will be arrested.
Findings and Reasons
[The first named applicant] confirmed to both the delegate and the Tribunal that the information about the demolition of the [house] and his subsequent detention was provided solely for background purposes. [Both applicants] do not have any protection claims based on the events before 2014. The only reason that they fear returning to China relates to the RMB[amount] owed to [the first named applicant] by [Mr E] and the RMB[amount] in compensation [Mr E] is requiring [the first named applicant] to pay for defamation. As such the Tribunal has not considered whether the information about the demolition of the [house] and its aftermath are true since, for the reasons below, it is not relevant to its decision.
In considering [both applicant’s] claims about whether they have a real chance of harm from [Mr E], any criminal element, or the police in China because of the events stemming from the [work], the Tribunal has found it has serious concerns about whether [the first named applicant] has been a truthful witness in his evidence on those matters.
Credibility
In determining whether an applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of [the first named applicant’s] claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by [the first named applicant] but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1] 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.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to ‘significant harm’. It remains for [the first named applicant] to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is [both applicant’s] responsibility to specify all particulars of their claim to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist an applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, a claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden on it to make out a case that an applicant has failed to adequately advance.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
[4] Sun v MIBP [2016] FCAFC 52 at [69].
At the end of the hearing when discussing discrepancies in his evidence that appear adverse to his credibility [the first named applicant] claimed that over the past three or four years his brain has not been ‘working well’. This was not raised previously, either in his application, at the interview, or earlier in the hearing, for instance when discussing whether [the second named applicant] was competent to give evidence. The Tribunal gave [the first named applicant] time to provide medical or other evidence to more clearly particularise and substantiate this claim. But neither [the first named applicant] nor his agent expanded on or explained what this meant in post-hearing submissions. Despite having a registered migration agent to assist him, and providing some medical information relating to [the second named applicant], no evidence, medical or otherwise, of any difficulties with ‘his brain’ or mental health issues were provided in relation to [the first named applicant]. It is not for the Tribunal to either assist [the first named applicant] in specifying the particulars of his claim or in providing evidence to establish a particular of that claim. It finds [the first named applicant’s] claim that his ‘brain has not been working well’ is not sufficiently specified or supported by evidence for it to be satisfied that the claim is true.
The Tribunal often found [the first named applicant’s] evidence at the hearing evasive or vague, particularly when the Tribunal asked questions about things not covered in, or out of the order set out in, his application. For instance, as examples, when the Tribunal went directly to asking about what happened after he completed the [works], which appears well into the statement in his application, [the first named applicant] instead referred to the events in the beginning of the application saying ‘another person [whose] repair shop was also demolished.’ When the Tribunal asked how much he owed [Mr D], which does not appear in the application, he said ‘they asked me to pay RMB[amount] to redeem their fame’, information that does appear in the application, but does not answer the question. However, the Tribunal’s biggest concern is the sheer number of inconsistencies in [the first named applicant’s] evidence, particular in relation to the actual harm he claims he suffered from [Mr E] and the police. Below are examples of the inconsistencies and omissions that the Tribunal believes so significantly undermine [the first named applicant’s] credibility that it has come to the conclusion he is not a truthful witness and his evidence cannot be believed.
Meeting at [Mr E’s] House and the Beating
[The first named applicant] gave inconsistent evidence about how often he went to [Mr E’s] house and the circumstances of the beating that undermine his credibility generally. In his application [the first named applicant] said that he went to see [Mr E] ‘many times’ to ask for payment and when he went ‘for the last time’ with [Mr D] they were assaulted. However, at the hearing he told the Tribunal that he only went to [Mr E’s] home once and it was during that first and only visit that he was assaulted. He said he did not go back to [Mr E’s] home because he was afraid and instead went to the town government to complain.
Also, at his interview [the first named applicant] did not mention that [Mr E] beat him during the meeting at his home or at all. He only referred to being threatened. He also did not mention anything about [Mr D] accompanying him to [Mr E’s] house and being beaten. When this was put to [the first named applicant] he said that he had told the Tribunal he had been to [Mr E’s] house many times and the last time he was beaten. The Tribunal has listened to the tape of the hearing and [the first named applicant] told the Tribunal that he was beaten the first time he went to the house and he did not go back because he was scared. Further, he initially told the Tribunal that he went to see [Mr E] in July, but then changed his evidence and claimed that it was in August.
The RMB[amount]
A number of aspects of [the first named applicant] evidence about the RMB[amount] are inconsistent. This is central to the claim for protection and the Tribunal would expect [the first named applicant’s] evidence to be consistent if he were being truthful.
First, [the first named applicant] told the Tribunal that in August [Mr E] said to him ‘you don’t slander me or I will beat you to death’. He asked for RMB[amount] or he would beat [the first named applicant] to death or to ‘a disability.’ However, he also told the Tribunal the threat was made at [Mr E’s] home and he only went to the house once, in July to request payment after the [work] was finished. When this was put to [the first named applicant] he said ‘No, May to July we worked then in August I asked for the money.’ This does not explain that he also told the Tribunal he went to the house and asked for the money in July.
Second, in his application [the first named applicant] claimed that [Mr E] asked him for the RMB[amount] after he went to report the withholding of payment to the [Town 1] PSB. However, he told the Tribunal that it was before he went to the [Town 1] government, when he went to [Mr E’s] house. When this was put to [the first named applicant] he said that he had been to [Mr E’s] house many times and the last time he went [Mr E] asked him for the money and beat him. When he went to the town government they also told him he had to pay the money. This does not explain the inconsistency about when [the first named applicant] was first asked for the money.
Third, [the first named applicant] also told the Tribunal that it was the police, not [Mr E], that told him that he had to pay the RMB[amount], although they were doing it on [Mr E’s] family’s behalf. Further, there was confusion about whether this was when he went to complain or when police came to his house to demand the money and/or arrest him.
The Police
[The first named applicant] evidence about his encounters with police is inconsistent and involves omissions. These concerns are numerous enough to undermine the claim that [Mr E] has connived with police to have him arrested, as well as his credibility generally.
First, at the beginning of the hearing [the first named applicant] said the police had arrested him because he could not pay the RMB[amount]. He then said that they demanded the money but did not come back to the house to arrest him because of the death of his son. When the inconsistency about whether he was arrested was put to him he said only that his son’s death was in 2014 and he was arrested in 2008 or 2009 because the [house] was demolished.
Second, initially [the first named applicant] told the Tribunal only that the police came to arrest him over the defamation and money in September. Later he added that the police first came in late August to demand the money, but not to arrest him. However, he also stated that the police told him in August that he had a month to get the money, but then [Mr A] died in September so they did not come back before he left for Australia. He then told the Tribunal that the police actually came to arrest him at the end of August, not in September.
Third, [the first named applicant] told the Tribunal that the police came to his house in September to arrest him and the first he knew about them wanting to arrest him was when they came to his door. But he also told the Tribunal both that in September he ‘heard’ the police were going to arrest him and that he knew he would be arrested when he went to [Mr E’s] home in July or August, as well as saying that the police threatened to arrest him when he went to them for help.
Fourth, [the first named applicant] told the Tribunal that [Mr E] connived with police to have him arrested illegally so he could find him and beat him. But this is inconsistent with his evidence that police came to his house to give him a month to pay and not to arrest him. When asked he said ‘how they connect with each other I have no idea’ which seems at odds with his claim that the Party Secretary’s position and connections were the reason [Mr E] had influence with officials and police.
Fifth, the application states that [the first named applicant] went to the [Town 1] police for help to recover the RMB[amount], but they would not help him because they said he was a troublemaker. However, he did not mention this to the Tribunal despite being given several opportunities. He told the Tribunal he lodged a petition with the [Town 1] government but they did not do anything because officials protect each other and [Mr E’s] father has connections. Instead they told him he would be arrested if he made trouble. When this discrepancy was put to [the first named applicant] he said he should have mentioned that the police refused to help because they knew his record and said he was a troublemaker, but forgot.
Sixth, the application does not mention police threatening to arrest [the first named applicant], police coming to his house, or that police continue to look for him to arrest him. Nor were these claims mentioned at the interview. When this was put to [the first named applicant] at the hearing he only said that they wanted to arrest him unless he pays the RMB[amount] to ‘redeem [Mr E’s] fame’. He said these were important claims he would definitely have mentioned. However, they are not in his application and the Tribunal has listened to the recording of the interview and he did not raise them with the delegate. In his s.424A response he stated that the delegate’s questions were vague and while the responses he gave at the interview and hearing differ in detail they are not inconsistent. The Tribunal believes omitting a detail like threats of arrest by police is extremely problematic. These claims are significant examples of harm. Even [the first named applicant] referred to them at the hearing as important. If true, they would have been raised at the earliest opportunity, regardless of how vague or open the delegate’s questions may have been. The Tribunal also notes this response is inconsistent with [the first named applicant] evidence to the Tribunal that he did raise the claims with the delegate.
At the hearing [the first named applicant] said that the police from [Town 1] and Fuqing wanted to arrest him for disturbing the social order and defaming [Mr E], they came to his house both to arrest him and demand RMB[amount], and they were ‘conniving’ with [Mr E] who arranged for [the first named applicant] to be arrest illegally. At the interview [the first named applicant] did not mention anything about police wanting to arrest him because he asked for payment or because [Mr E] wanted RMB[amount]. Also, although the application claims that he could not get police protection from [Mr E] (or his men from the black society) because of police collusion, it does not include that police came to his house to arrest him illegally or demand RMB[amount]. As [the first named applicant] himself noted, these are important claims and if they were true the Tribunal would expect that he would not have forgotten to mention them.
[The first named applicant’s] Sister and the Claim Police are Still Looking for Him

At no time before the hearing did [the first named applicant] claim that his sister told him the police are still looking for him. This is key evidence for one of his primary claims of future harm. At the hearing [the first named applicant] said that not long after he arrived in Australia in October 2014, and continuing through 2015, 2016 and until the hearing, his sister has been telling him that the police continue to look for him to arrest him. When it was raised with him that there is nothing about this in his application, he said he lodged his application in 2014 and he did not call her until 2015. However, he told the Tribunal he got in touch with her just after he arrived [in] October 2014. Further, [the first named applicant] signed his application on 7 January 2015 and, although it mentions police threating to ‘not let [him] off’ if they locate him, there is nothing them actively looking or about his sister. At the interview in December 2015 [the first named applicant] did not mention that his sister told him that the police are still looking for him or mention anything about the police pursing him at all.
It is of concern to the Tribunal that although he was in touch with his sister before the application and interview this was only first raised at the hearing. In explaining why he did not mention these conversations earlier [the first named applicant] again stated that the interview questions were of a vagueness that he ‘did not perceive required much information’ and he was never specifically asked to talk about his sister’s warnings which he thought were ‘too irrelevant to bring up’. This seems nonsensical to the Tribunal. The delegate’s questions related to what harm he feared in the future, one that obviously required as much information as possible given it is the basis for the visa he is requesting. That police continue to pursue him to arrest him is clearly information relevant to both the question and his case generally. And, if true, how he acquired that information would seem to naturally flow from that answer. That [the first named applicant] considered it too irrelevant to mention to the delegate not only what his sister said, but the very claim police were still looking for him, is not a persuasive explanation.
The Black Society
[The first named applicant] omitted to mention anything about a black society or criminal element to the Tribunal until this was raised with him. These claims are significant, particularly since [the first named applicant] and [the second named applicant] were harassed by these criminals every day. The Tribunal would have expected that this element of the claims would have been raised with it if true.
In the application [the first named applicant] refers to [Mr E] as being the head of a ‘black society’. He also mentioned this in passing to the delegate, although he did not refer to it when asked what he fears if he returns to China. At the interview [the first named applicant] said [Mr E] is part of an ‘underground society’ and involved with ‘criminal elements’. More importantly he said there were threats and ‘every day there was harassment’ from him and ‘his men’. However, as well as not mentioning he is a member of an underground or black society at the hearing, [the first named applicant] also did not mention that there was harassment from criminal elements every day. This was the single detail of past harm to [the second named applicant] raised so it might be expected to be at the forefront of [the first named applicant’s] mind when discussing harm suffered in China with the Tribunal.
When this was put to [the first named applicant] he did not address the omission. He said only that when he intended to take the [job] [the second named applicant] and his family said [Mr E] belongs to a black society and he should not accept the work, but he was just as scared that they would do something if he did not accept the job. In the s.424A response he stated he forgot to mention this during the hearing because he assumed the Tribunal already knew, since he had mentioned it countless times in the application and interview. The Tribunal does not think this addresses its concern about the omission of not only a major characteristic of the primary persecutor, but a significant claim of past harm. In its opinion there is a considerable difference between an adversary who is the son of a powerful politician wielding corruption within the system and the head of a criminal underworld society.
The Tribunal also notes that there is a clear inconsistency in [the first named applicant’s] evidence that, on the one hand, [Mr E] had the police go to his house to arrest him illegally to find him and beat him and, on the other, that [Mr E] and his men came and harassed [the first named applicant] and [the second named applicant] every day.
Communist Party Secretary
In his application, [the first named applicant] stated that he went to talk to [Mr E’s] father who is the Communist Party Secretary in [the] Village. However, when the Tribunal asked what he had done to retrieve the RMB[amount] from [Mr E] he did not mention asking the Party Secretary to help him get the money from his son. When this was put to [the first named applicant] he said that the father was standing beside [Mr E] at the house. He was ‘behind him in order to support his son and he didn’t talk.’ When asked if he had talked to the father, as claimed in the application, he said he seldom spoke to [Mr E’s] father. This inconsistency undermines both the claim that there was money owing to [the first named applicant] that he was working to recover and his credibility generally.
At the interview when asked what he feared would happen if returned to China, [the first named applicant] said he would lose his life and when asked who would take his life he did not respond [Mr E] or the police, he said ‘the village leader’. The application does not mention any fear of harm from the Party Secretary or ‘village leader’. At the hearing, while there was limited reference to the power of [Mr E’s] family, [the first named applicant] said that he feared harm from police and [Mr E], who is the son of the Communist Party Secretary and not the village leader himself. In response to its concerns [the first named applicant] stated only that [Mr E] is the son of the village leader and ‘they are allied under the same reasons for causing me harm’. Since their familial ties make them obvious accomplices he thought of them as part of the same entity that is trying to cause him harm and he assumed the Tribunal understood who he was talking about. But when it looks at this together with the other issues referred to above, the Tribunal finds that it is, in fact, an inconsistency about the position held by his claimed persecutor and not some ‘shorthand’ amalgamation of father and son as claimed.
[Mr D] and the Laborers
Initially when asked about the structure of the [job], [the first named applicant] told the Tribunal that while [Mr D] had the expertise, he was the boss; for instance, he paid [Mr D] and the workers every day. That he paid them every day appears inconsistent with his claims that he took the job against his family’s advice because he had no money and he had received no money from [Mr E]. However, when discussing his interactions with [Mr E], [the first named applicant] then told the Tribunal that he did not pay [Mr D] or the labourers every day because [Mr E] would not pay him so he did not have any money. When this inconsistency was put to him [the first named applicant] said he had told the Tribunal how much he should have paid [Mr D] because he could not pay him anything since he could not collect the money. When discussing how much of the RMB[amount] [Mr D] was to get [the first named applicant] did tell the Tribunal that he owed [Mr D] RMB[amount] and did not pay [Mr D] or the workers every day. But initially when talking about who was the boss he told the Tribunal he did pay [Mr D] and the workers every day which is an inconsistency that has not been explained.
Departure from China
[The first named applicant] gave inconsistent evidence about how he left China. At the interview [the first named applicant] said he bribed the relative of a relative RMB[amount] to buy his way through customs at [an] airport in order to leave China. At the hearing he first said that he left China legally. He then said he paid RMB[amount] to someone to leave China, but he did not know what arrangements that person made. In response to its concerns about this inconsistency [the first named applicant] explained that he gave RMB[amount] to a relative of his relative and RMB[amount] of that was paid as a bribe so he could get past customs. The Tribunal does not accept that his two statements, to the delegate and Tribunal, can be interpreted that way.
When all the inconsistencies and omissions above are viewed cumulatively, the Tribunal finds that [the first named applicant’s] credibility is so undermined that it is clear he has not been truthful and has mislead the Tribunal.
Findings of Fact on Relevant Matters
Based on all the above evidence, the Tribunal finds [the first named applicant] is not a reliable witness and rejects the majority of his evidence. As such it rejects all the claims related to the building of the [structure] and all the claims of harm that flow from that claim. It does not accept [the first named applicant’s] claims, including those made on [the second named applicant’s] behalf, that they have suffered harm in the past and they fear harm from [Mr E], his father, his criminal organisation, or the police in the future.
The Tribunal found it highly implausible that [the first named applicant] was hired to be in charge of [certain] works when he did not even know enough about [the structures] to know if the price being offered was sufficient for the job. Its concern about this claim was supported by the confusion about whether [Mr D] had been paid weekly.
But, even if the Tribunal were to accept for the sake of this decision that [the first named applicant] builds and repairs [structures], or even that he worked on a [project] before leaving China for which he did not get paid, it rejects that there was ever any harm that resulted from that situation. The majority of the difficulties with [the first named applicant’s] evidence relate to his claims of harm from [Mr E] and his ‘black’ or criminal society, the Village Committee leader, and the police either before he left China or if he returns. As such, whatever [both applicant’s] employment circumstances may have been in China, in light of its adverse credibility finding, the Tribunal rejects that [the first named applicant’s] pursued money from [Mr E] or anyone else or that he was beaten and threatened as a result. It rejects that he went to the police or government to complain about a non-payment of a contract or wages of any description.
Therefore, the Tribunal rejects all the claims of past and future harm that flows from those claims, including that [Mr E] and his family insisted [the first named applicant] pay RMB[amount] for defamation or any other reason, police came to his house to collect money, arrest him or for any other reason, that [Mr E] or the police are still looking for him or might hurt him in any of the ways claimed if he returns to China, or that [the second named applicant] will suffer any harm as a result of [the first named applicant’s] circumstances.
The Tribunal finds neither [the first named applicant] nor [the second named applicant] will suffer any harm, let alone serious or significant harm, for those reasons in the foreseeable future if returned to China.
Debt
Despite its concerns about his credibility, the Tribunal is willing to give [the first named applicant] the benefit of the doubt about some of his claims where they are supported by independent information or country information. For instance, the Department records confirm [Mr A] entered Australian as a student. Also, based on independent information it is not completely unlikely the [house] was expropriated and demolished by the government for development purposes. It is also possible that some of the people in the village petitioned against the resumption of the land and/or the compensation paid.[5] Without making any definitive findings on these questions the Tribunal accepts that, for whatever reason, [the first named applicant] did not actually have the funds to continue [Mr A’s] education. Further, based on the [bank’s] documents the Tribunal accepts that [the first named applicant] and [the second named applicant] remitted approximately AUD[amount] to their son to buy the Australian property. However, they did not acquire any ownership rights in that property according to the certificate of title.
[5] According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes over expropriated land and property demolitions occur every year: DFAT, Country Information Report – China, 21 December 2017, 3.75-3.78; Chuang, Julia, ‘China’s Rural Land Politics: Bureaucratic Absorption and the Muting of Rightful Resistance’, The China Quarterly, Vol. 219, September 2014, pp. 649-650, 666-667.
[The first named applicant] claims that he has nothing in China and is in significant debt to his friends and relatives. The Tribunal finds that [the first named applicant] and [the second named applicant] still have the Fujian land and none of the documentation provided shows they are in debt. The [bank’s] documents show only that money was withdrawn from [the first named applicant’s] account and remitted to [Mr A] and [Ms B]. That being said, even if [the first named applicant] does have debts in China he told the Tribunal they are to family and friends. He did not make any claims that he or [the second named applicant] would suffer any harm because of any possible non-payment of those debts.
Given [the first named applicant’s] complete lack of credibility, the Tribunal has grave doubts that he is, in fact, in debt and that the money did not come from his and [the second named applicant’s] savings or even from compensation for the [house]. However, even if it were to give them the benefit of the doubt and accept that claim, it finds that they will not, nor did they claim they would, suffer any harm at all as a result of those debts. The Tribunal finds that in this case debt alone, without more, is not serious or significant harm. [The first named applicant] earned a living, including by farming the Fujian land and subcontracting farmland from others, before coming to Australia, even after the loss of the [house] in 2008 and transfer of AUD[amount] to [Mr A] in 2013. The Tribunal finds that he will be able to do so again if returned to China. The Tribunal notes that [the first named applicant] claimed that when he came to Australia he was working to pay off the debt as quickly as possible indicating he was able to pay his friends and relatives.
[Both applicants] will not suffer any harm, let alone serious or significant harm, for any reason related to the money sent to [Mr A] and [Ms B] for the purchase of the Australian property or any claimed debt in the foreseeable future in China.
[Miss C], The Australian Property, and Surviving in China
[The first named applicant] told the delegate that he has a granddaughter in Australia and wishes to stay because otherwise he will lose everything. [The first named applicant] told the Tribunal that he has lost his son and his granddaughter is in Australia, and if his wife sees his granddaughter her condition improves. When asked by the Tribunal when he decided to apply for protection [the first named applicant] said he decided to apply in December 2014. Initially he was given three months to make arrangements for [Mr A] and for the court proceedings related to his death. A friend he knew in China told him that if he did not apply for a protection visa his visa would run out and he would become unlawful. He further stated he decided to apply because he likes it in Australia. The Tribunal accepts these reasons which it believes are true. As well as referring to the Australian property and debts in China, [the first named applicant] also said if he goes back to China he cannot survive; he has nothing.
Based on the death certificate, the Tribunal accepts that [Mr A] was killed [in] September 2014 and his sudden and violent death would have had a devastating effect on his family, particularly his parents who lost their only child. Based on her birth certificate the Tribunal accepts that [Miss C] is [the applicants’] only grandchild and she is an Australian citizen living in Australia with her mother, [Ms B].
Considering the accepted reasons given for applying for protection above, the Tribunal does not believe [the applicants] have a genuine fear they will be harmed in China. The Tribunal can appreciate that [the applicants] might genuinely feel that returning to China and being separated from their granddaughter after losing their son is like ‘losing everything’. They understandably wish to stay in Australia to be with [Miss C]. Further, if the majority, or possibly all, of their savings are tied up in the Australian property, when they return to China they could well have more limited resources than they were used to before 2013. But given [the first named applicant’s] lack of credibility, the Tribunal rejects that [both applicants] have nothing if they go back to China, at least in a material sense. For one thing they still own the Fujian land and [the first named applicant] earned a living after transferring the AUD[amount] before coming to Australia and will no doubt be able to do so again.
Unfortunately, the fact that [the first named applicant] likes Australia, that he and [the second named applicant] were significant contributors to the purchase of the Australian property, that they wish to stay with [Miss C] who is an Australian citizen, or all these things together do not raise any chance they will suffer serious or significant harm in China in the foreseeable future. The fact that they may reasonably feel they have nothing left in China does not, in and of itself, meet the criteria for a protection visa.
[The second named applicant’s] Mental Health and [Miss C]
[The first named applicant] claims that they want to stay in Australia because [the second named applicant’s] condition improves when she sees [Miss C].
As noted above, the Tribunal has not received any medical evidence attesting to [the second named applicant’s] mental state except the [form] indicating she has poor sleep and low motivation due to depression, but no tendency towards suicide, self-harm, or harm to others. She had an appointment with a psychologist [in] May 2018, but no further information was provided. Also, the information provided relates to [the second named applicant’s] mental health during a period when she has access to [Miss C]. There was no evidence at all proffered regarding her prognosis should she be separated from her granddaughter. Neither [the first named applicant] nor [the second named applicant], or their agent, clearly specified any particulars of this claim or provided evidence other than [the first named applicant’s] mere assertions; [the first named applicant] has shown himself not to be a truthful witness to the Tribunal. The claim was not adequately advanced through sufficient evidence or argument for the Tribunal to be satisfied that it is true or that any harm caused by the separation would reach the level of serious or significant harm.
However, even if the Tribunal accepted for the purposes of this decision that [the second named applicant] does benefit from her contact with [Miss C], which in the circumstances is entirely plausible, this does not raise a successful claim for protection. Any harm that [the second named applicant] might suffer from being separated from [Miss C] will not be the result of intentional or discriminatory conduct so it cannot constitute persecution or significant harm.

[The applicant’s] will not suffer any persecution or significant harm for any reason in the foreseeable future if returned to China.
Refugee Criteria
Under s.5J(1) of the Act, a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 is taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA of the Act.
In determining whether an asylum seeker has a ‘well-founded fear of persecution’ s.5J(1)(a) contains a subjective requirement that an applicant, in fact, holds a fear of being persecuted. Further, s.5J(1)(b) imposes an objective standard that there be a real chance the applicant will be persecuted if returned to his or her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well-founded fear of persecution even if the possibility of the persecution occurring is well below 50 per cent.[6]
[6] Chan Yee Kin v MIEA (1989) 169 CLR 379.
In light of the accepted reasons given by [the first named applicant] for applying for protection, the Tribunal has found that he and [the second named applicant] do not have a genuine fear of being persecuted in China. On that basis it finds that they do not have the subjective fear of being harmed in the foreseeable future contemplated in s.5J(1)(a) of the Act.
Further, on the basis of the findings of fact above, the Tribunal finds [the applicants] do not have a real chance of suffering any harm, let alone serious harm, for the reasons claimed if returned to China as required by s.5J(1)(b) of the Act.
In relation to claims that [the second named applicant] will suffer psychological harm if separated from [Miss C] and any feelings the couple may have that they have nothing left in China, for the purposes of s.5J(4), s.5J(5) of the Act provides that the following types of harm constitute serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment; (c) significant physical ill-treatment; (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. Further, s.5J(4)(c) requires that for a fear to be well-founded the persecution must involve conduct which is systematic, in the sense of being deliberate and premeditated,[7] and discriminatory, in the sense that it would be directed at an applicant personally.
[7] See VSAI v MIMIA [2004] FCA 1602.
The Tribunal has found it is not satisfied on the evidence that [the second named applicant] will suffer serious harm, in the nature of that found in s.5J(5). Nor is it satisfied any feelings [that the applicants] may have that they ‘will lose everything’ constitute serious harm. Nonetheless, even if the Tribunal is wrong about whether they will suffer serious harm for one of these reasons, regrettably, it will not be the result of systematic and discriminatory conduct so will not meet the requirements in s.5J(4)(c). Therefore, there is no real chance that, if they returned to China, they would be persecuted for those reasons as required by s.5J(1)(b) of the Act.
[The applicants] do not meet s.5J(1) and so do not have a well-founded fear of persecution as defined in s.5J of the Act. Therefore, they do not meet the meaning of ‘refugee’ set out in s.5H of the Act.
Complementary Protection Criteria
Section 36(2)(aa) requires an applicant to have a ‘real risk’ of suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] The meaning of significant harm, and the circumstances in which a person is taken not to face a real risk of significant harm are set out in ss.36(2A) and (2B) of the Act.
[8] MIAC v SZQRB [2013] FCAFC 33.
In relation to the Tribunal’s findings above on claims where it has found that [the first named applicant] and [the second named applicant] do not have a real chance of suffering any harm, it finds they do not have a real risk of significant harm in China in the foreseeable future.
‘Significant harm’ is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life, the death penalty will be carried out, or the person will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’ are further defined in s.5(1) of the Act. They include an act or omission that is intended to cause severe physical or mental pain or suffering or extreme humiliation.
With regard to the claim that [the second named applicant] will suffer psychological harm if separated from her granddaughter or any feelings the couple may have that they ‘will lose everything’ if returned to China, based on the evidence before it the Tribunal is not satisfied that any harm suffered will be severe pain or suffering or extreme humiliation. In any event, it would not be the result of an act or omission of anyone intending to cause [the second named applicant] or [the first named applicant] that harm.
For the reasons above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk he will suffer significant harm.
Conclusions
For the reasons given above, the Tribunal is not satisfied that either [the first named applicant] or [the second named applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that [the first named applicant] and [the second named applicant] 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 [the first named applicant] or [the second named applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
It follows that [the applicants] are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
Ministerial Referral
Having regard to [the applicants’] circumstances, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417 of the Act set out in PAM3: Minister’s guidelines on ministerial powers (s351, s417 and s501J) (the Guidelines), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
The Tribunal believes this case involves a unique or exceptional circumstance, such as those described in Section 4 of Guidelines, and so should be referred to the Minister for possible consideration of the use of his intervention powers. There are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm to an Australian citizen or an Australian family unit. While these compassionate circumstances do not bring Australia’s obligations under the Convention on the Rights of the Child into direct consideration, the Tribunal would request that the Minister nonetheless consider the best interests of the [age] year old child, [Miss C].
[The applicants’] only child, an Australian permanent resident, was brutally murdered in Australia and his only child, an Australian citizen living in Australia with her Australian mother, is their only grandchild. Their son’s death has understandably had a devastating effect on [the applicants] and they obviously find relief from their grief with [Miss C]. However, more importantly, despite her young age there is no doubt that the violent death of her father will also have a difficult and longstanding effect on [Miss C]. Having a strong and supportive family unit is an essential part of a child’s development. The Tribunal has no reason to doubt that [Miss C] will receive this from her mother, but strong familial bonds to both parents are important to long term well-being. [The applicants] are now [Miss C’s] only significant connection to her father, particularly since his early death means her parent’s marriage was comparatively short. Their removal from Australia may mean that she is separated from them, and any significant connection to her father or his family, permanently. The Tribunal believes that continued access to her paternal grandparents as she gets older is in [Miss C’s] best interest. It asks that the Minister consider maintaining this family unit to provide [Miss C] with the opportunity to include in her stable, nurturing environment at least some relationship with her father through his parents going forward into the future.
The Tribunal knows of no circumstances in this case that would fall within Section 7 of Guidelines relating to the types of circumstances which do not meet the guidelines for referral and are inappropriate for ministerial consideration.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Mireya Hyland
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.
…

[2018] AATA 4869

19 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction