1517962 (Refugee)

[2018] AATA 520

1517962 (Refugee) [2018] AATA 520 (12 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517962

COUNTRY OF REFERENCE:                  China

MEMBER:Tania Flood

DATE:12 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 February 2018 at 11:52am

CATCHWORD
Refugee – Protection visa – China – Social group – Deregistered medical staff – Detained for protest actions – Fear of harassment and harm by local authorities

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa [in] September 2014 and the delegate refused to grant the visa [in] November 2015.

3. The applicant appeared before the Tribunal on 29 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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, the applicant 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.

5. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. 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 a protection 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 the applicant 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.

9. The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to China for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China that there is a real risk he will suffer significant harm.

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

    PROTECTION CLAIMS OUTLINED IN WRITTEN STATEMENT DATED [IN] SEPTEMBER 2014

11. “I am a country doctor and working in the local village community health service station. I know acupuncture, massage, and orthopedic. So my income was good and my life was stable. These years the medical system is reformed in China. The primary hospitals were sold to individuals and became private hospitals. Some government officials were corrupted and sold the hospitals in low price. In order to earn more money, those bosses reduce the number of medical staff. Many hospitals shut down many departments, resulting in the increase of workload but low income. Only country doctors were left. In order to take care of the families and children, nearly all the country doctors are working in the nearest communities of remote rural areas, where the spending level is not too high. The requirements for incomes are not high as the full-time staff in hospitals.

    The bird flu broke out in 2013. The country doctors out of the system were allocated in the position whose prevention was weakest. This is different from SARS. When SARS happened, the government controlled the primary hospital strictly and effectively, we were on duty by turns and took turns to rest. The government paid attention to the protection measures and also gave all participants allowance. But this time, the hospitals were sold to individuals and the government doesn't appropriate funds for private hospitals. My hospital has been in poor management. The government allocated the tasks to the hospitals, which had risks but no allowance. The hospital president was against it and didn't pay attention to it. So we country doctors were allocated the tasks. But the protection measures were not good as the ones when SARS happened. The masks, which should be replaced once every two hours, were even not provided. We had to prepare ourselves.

    We were not allowed to rest but were asked to work all the time until the all-clear. In the beginning, we didn't realize the gravity. In the rural area, villagers were reluctant to kill and burn all the chickens, ducks and pigeons. They still raise and ate the chickens, ducks and pigeons. Besides, the rural area was wide, the volume of travel in the rural area was high, the behaviors were loose and protection awareness was week, which increased the difficulties to prevent and control the bird flu. Later the bird flu spread quickly. Some country doctors got fever. Then we received the notice that the doctor would be suspended or even convicted if his or her penitent was a potential avian flu virus carrier. We were afraid. Before we went to measure and record each person's temperature. If we found someone got fever, we would report. The government was responsible for sending the potential avian flu virus carrier to the superior hospital to isolate and check. However, the technicals were limited and only small numbers of us measured body temperatures. It was nearly impossible for us to stop the bird flu. We have been working hard. But more and more patients still got fever, which was a heavy blow to us. Our safeties were not guaranteed but we were asked to take such big responsibilities. On [date]/10/2013, we stroke.

    The next day, we received a surprise message. A colleague [was] taken away without any explanation when he had breakfast at home. His families later knew that he was treated as a suspected patient and isolated. But they didn't know where [the colleague] was and they were not allowed to [visit]. Then the village cadres took the staff in hospitals and health authorities to inform us to return to work one by one. Otherwise we would be punished according to the law. Being threatened, some colleagues were scared and returned to work. As my children were still young, I was afraid to be infected and was taken away as my colleague. I organised some colleagues with same thinkings to the hospital president to strongly urged to improve our protection measures and allocate us more staff to work by turns.

    But the president was very tough to ask us to Health Bureau. When we went to the Health Bureau, we were told to go directly to the local government, but the government said we were vexatious and asked us to return to work. On [date]/10/2013, we made some banners to government to protest. We opened the banners and shouted our slogan. Before long, a man claiming to be the [staff of a government official] came to us, saying that we didn't take on the job duties but made destabilizing factors to hinder the prevention and control of the bird flu. The government would immediately punish us severely. Finally, my colleague [and] I were treated as the leaders to make trouble. We were arrested in a small dark room. And no one sent us food and drink. The next day, someone asked us if we figured out. We insisted on our demands. Then we were brought to the detention centre by police on charges of "[criminal charge]." On [date]/10/2013, after my families paid the fines, we were released. Before being released, we signed the guarantee that we would not appeal again But my practicing certificate was canceled. I had to stop my favorite career and couldn't do the doctor again. If I still made trouble, I would be detained again. I also consulted lawyer, but lawyers didn't accept my case and asked me not to make trouble. I knew the law didn't dare to be against the government.

    Later, I learned from my friends that many people got the media attention and help as they speak the truth online. So I started to post online to expose the truth. I thought of getting media concern and help. But on [date]/11/2013, two police came to my home and took me away. They said I committed a [crime], which made adverse effects on society. I was detained. I heard that all my postings on the website were deleted. My family paid the fines again and I was released on [date]/12/2013. I was required to report regularly. I had nothing. Some [law enforcement representatives] came to my home to threaten the elders and my children. We were living in fears. I thought of going abroad.

    After the Spring Festival, I learnt from my relative that some people could help me applying for visa abroad. When I went [to] apply for the passport, I was told that I couldn't go out. But later my relative told me spending money could get passport. Then I spent money luckily I got visa in March 2014. After getting the passport, I found people help me applying for visa abroad. In May 2014 I got visa. But they monitored me strictly. I couldn't leave. I still reported regularly. They finally relaxed their vigilance. And I came to Australia on [date]/06/2014.

    After coming to Australia, I called my family. They told me that as I didn't report, the police came to my home and asked my family to told me to surrender myself as soon as possible. If I did that, my punishment would be reduced, which was lying. If I surrendered myself, they would not let me go. The police also tracked my family and the phone. The "[law enforcement agency]" even quarreled in front of our door and threw some stuff into my house at night. My wife had to take my children to the relatives. But the elders were left at home. I am very worried about them. I was persecuted in China. I hope the Australian government can protect me. I will be very grateful”.

    ORAL EVIDENCE PROVIDED TO THE DELEGATE

12. The applicant took part in a Protection visa interview [in] August. During the interview the applicant re-iterated the claims made in his written statement and further stated, as follows:

    ·the applicant was issued a previous passport about 2 weeks before his current passport which his child scribbled in and so he had to apply for a new one;

    ·he had not trouble obtaining either passport;

    ·his family, consisting of his parents and wife and two children are all in China and also [a] sister;

    ·he is afraid to return to China because he lives in the countryside and there was a health system reform and the pay is very low and they have to work a lot;

    ·he is a doctor in the countryside;

    ·he had qualifications but the government cancelled it (applicant showed a photo of his qualification on his mobile phone) it was confiscated and he is deregistered now;

    ·the certificate was issued by the health authority of [a] county [in] June, 2009 issued in the applicants name and date of birth;

    ·he attended [a] medical school as well as [the] county in acupuncture and massage;

    ·he attended about half a year of training learning about medicine;

    ·he also attended a training institute in [location] for three years where he studied Chinese medicine such as the fracture acupuncture and the Chinese medicine theories, which was not face to face study rather distance [education];

    ·in [the school] he learnt mainly about the medicine theories in 2006;

    ·in [the county] he attended the acupuncture and massage school for [several] [years];

    ·he has evidence of his training in China and he could get a picture;

    ·he is scared to return to China because the local police would detain him immediately and the hospital would report him;

    ·because of the healthcare reform the doctors are paid very low and they did not receive good treatment and so many doctors were against it and so they told them about their opinions;

    ·it was in 2013 that the bird flu broke out and the grassroots doctors were asked to do the screening and also the preventive jobs but this time it was different to when SARS broke out because that time it was controlled by the government and this time it was a private organisation;

    ·because the hospital was privatised they just wanted to make profits and they didn't care about them and they did not provide sufficient preventive equipment;

    ·and the countryside is a very large area and the awareness of the villagers is not very high so they did not want to kill their ducks and geese and chickens and people moved around a lot so it was very hard for just a few doctors to do the job;

    ·when SARS broke out the government took some preventive measures and also sent some equipment and assistance to their area so it was easier back then but because the hospitals were private now they did not want to spend money and did not want to provide equipment and it just depended on a few doctors so they thought that there was a lot of pressure on them and they did not get much pay;

    ·more and more people got a fever and a few doctors got infected as well;

    ·in this situation there was a lot pressure so they told them their opinions but the government did not do anything about it and the private owners of the hospital gave them a timeframe and if there was one infection in the village they would be responsible for that and they would be sentenced;

    ·they told them that they need to send more people to the area and provide some masks because when SARS broke out they had to change masks every two hours and so they had to buy the masks and thermometers themselves and so it was very hard for them;

    ·they said they would need to report the suspected cases but the area was very big and there were only a few doctors there so they could not take all the medications by themselves so they were very unhappy about it and told them and they held a strike in October, 2013;

    ·so they all went home and while one of his colleagues was having breakfast the next day he was taken away and nobody knew what had happened and his family asked around and they said he was taken away because he had a fever but he did not really have a fever they just wanted to threaten and scare him;

    ·he knew that because he worked with him every day and he didn't have a fever;

    ·he saw him after that and they protested together at the health authority;

    ·the pressured them by saying that if they did not return to work they would charge them with negligence and suspend their license but because he has children he was worried that if he went to work he could get infected;

    ·he did not know who took his friend as they did not have uniforms but he thought they were government;

    ·he was detained and they told people that he had a fever but they just wanted to threaten him;

    ·he was isolated in a government house for two or three days and later they went to protest together;

    ·some of his colleagues went back to work after his arrest so later he was released and after that they protested at the health authority and the hospital but they would not take any responsibility so they went to the government to protest;

    ·they went to the head of the hospital but he said it was not his responsibility and he said they had to go to the health bureau but they said it was the local governments authority that had to organise all the equipment and so they went there and were told that they should be working hard and not protesting and that if they did not return they would take measures and then he and his colleagues were detained by local government officials [in] October, 2013;

    ·he was held for seven days and he was released after his family paid some money through connections;

    ·another colleague and himself were then de-registered as they were considered to be the organisers;

    ·he was held in a room in the police station in his [town];

    ·they did not give them regular food and kept threatening him that if he did not listen to them they would be sentenced to prison because they violated the health regulations;

    ·the government are corrupted so they just suspended his license for violating the health regulations but there was no certificate or any evidence, they just told him orally;

    ·he lost his license so he just stayed at home and was very anxious and after a few days he heard that they could post some posts online to disclose what they did, ⁾so he went online and did the post and a couple of days later they came again and said he spread rumours;

    ·they detained him again and after three days his family paid some money through connections and got him released;

    ·his online posts were deleted and they came to his house and told him not to make trouble anymore;

    ·after he was released at he had to report to them and tell them what he was thinking and if he had made trouble again;

    ·and at night they would come and knock at his door and threw things and they were very scared and his child cried and his parents were worried and so he did not know what to do and he did not want to stay there anymore and if he went to a place nearby they would find him again and some friends told him that he could go abroad to hide for a while;

    ·he applied for a passport but when they saw his record they said he could not apply and so through his connections they bribed them with the money and he got a passport in his hometown in the police station where there is window but he did not know the whole name;

    ·he was refused a passport at first but through a connection they paid a bribe;

    ·he was scared to apply for a visa in his hometown so he went to Shanghai and got it through connections;

    ·they are very corrupted and if you pay them money there would be no problem;

    ·in Shanghai his friends introduced him to someone who always helped people to apply for visas and they changed his personal information and organised all the documents;

    ·in the documents they provided it said that he was [an occupation] in a [workplace] in Fuzhou and did not say anything about being a doctor in the village;

    ·his visa was issued in May;

    ·the agent organised the visa for him through the consulate;

    ·he left China about one month after he got his visa because he had to report to the police regularly and because he kept reporting they did not keep a close eye on him;

    ·after he arrived in Australia he called his family and they told him that those people still went to his house constantly to harass them and when they found out that he had left the country they told him to come home or they would issue an arrest warrant and they threatened his family and their phone was monitored and they went to their home at midnight and as his wife and children were threatened by them they are now living at a relative's home far away from his home;

    ·only his parents are home now and they are worried about him and his children cannot go back home;

    ·if he returns to China they will know immediately and detain him as the phones are monitored by them;

    ·he would be detained because they have accused him of violating the public health regulations and accused him of negligence and also because he spread rumours;

    ·his wife is very anxious and it is hard for his children to go to school;

    ·there were no other reasons he feared to return to China.

    FINDINGS AND REASONS

    Country of reference

1. When the applicant appeared before the Tribunal he produced a copy of his People’s Republic of China passport which verifies his claimed identify and nationality.  In the absence of any information to the contrary the Tribunal is satisfied the applicant is a national of China and has assessed his claims against China.

2. As can be seen above the applicant has outlined his claims for protection in considerable detail and in a largely consistent manner in his written evidence and in his oral evidence to the Department.  When the applicant appeared before the Tribunal on 29 January 2018 he again gave a consistent account of the abovementioned events with the exception of the circumstances in which he obtained a passport to depart China. 

3. Having considered all of the available evidence the Tribunal accepts the applicant was a qualified, rural medical practitioner.  The Tribunal accepts that he and other colleagues objected to the working conditions they were required to work under during the 2013 Bird Flu epidemic.  The Tribunal is also prepared to accept that his actions resulted in him and another colleague being detained for seven days in October 2013 on the accusation that they were endangering public health by their strike action.  The Tribunal accepts he was released on payment of a fine and a signed guarantee he would not appeal again.  Based on the applicants oral evidence the Tribunal accepts that no formal charges were laid that would result in any delayed or outstanding court action. 

4. Notwithstanding the above, the Tribunal has doubts that the applicant was detained a second time for posting critical online comments about the situation.  Having been subjected to the abovementioned detention, including being held in a dark room without food and drink for several days and having been advised by his lawyer that any continuation of his actions would only result in further problems, the Tribunal is not convinced the applicant would readily engage in further public criticism of the local authorities as claimed and so soon after his release from detention.    The Tribunal also finds it difficult to accept that the applicant would have been released after just two or three days in detention following a second incident in a matter of months for his outspoken criticism of the local authorities.  The Tribunal acknowledges the applicants claims that his family had to pay more money to secure his release and that he was required to report regularly thereafter but is not persuaded he would have been let off so lightly in the circumstances.  The Tribunal considers it far more likely he would have faced a tougher penalty for his actions, including a lengthy period of detention, on this second occasion.  The Tribunal is not satisfied that the applicant was detained a second time for posting online comments about the situation.  It follows the Tribunal does not accept the applicant was required to pay money to secure his release a second time or that he was required to report regularly to the authorities after his release.

5. The Tribunal also finds it difficult to accept that the applicant was “orally” deregistered as a medical practitioner.  The Tribunal is of the view that a more formal process would be required to strip a medical professional of their credentials and/or that the process would at least be documented in some manner.  However, as the Tribunal is prepared to accept his actions led to him being detained on one occasion and based on his consistent account of this situation the Tribunal has again given the applicant the benefit of the doubt in this respect and accepts he was deregistered as claimed.

6. In assessing whether there is a real chance the applicant will be at risk of any serious harm on return to China for reason of his protest actions the Tribunal has considered the manner in which he claims to have departed China.  In his written evidence and in his oral evidence to the Delegate the applicant claims that when he went [to] apply for a passport he was told that he couldn’t depart China and was refused a passport.  He claims that it was only later when a relative advised him to pay bribe money to the officials that he was able to obtain his passport. 

7. When the Tribunal discussed this matter with the applicant he stated that he obtained his passport in around [2014]. He said that he asked somebody to help him to get a passport and that this person accompanied him to the Public Security Bureau where he had to pay bribe money in order to get a passport. In the course of questioning he answered yes when asked if it was the case that he never went alone to the Public Security Bureau. The Tribunal notes the applicant also made no mention at hearing of the claim made to the Delegate that he was previously issued a passport two weeks before this because his child scribbled in the one which was issued.

8. The Tribunal put it to the applicant at hearing that he appeared to be changing his evidence in respect of how he was able to obtain a passport.  The applicant responded that his response to the Tribunal is the same as the evidence he previously gave.  He said that China is very corrupt and it is true that he was originally refused a passport because he was detained.

9. The Tribunal also asked the applicant whether he encountered any difficulties when passing through the airport on his departure and he said he did not.  When asked if he paid money to any officials to smooth the way for his departure he said he did not.  The Tribunal expressed surprise about this and discussed with the applicant DFAT’s[1] advice in respect of passports and entry and exit procedures.  Specifically the Tribunal noted the following excerpts from DFAT’s report:

   If a passport application is refused, reasons for the refusal are provided in writing and the applicant is informed of their right to apply for administrative reconsideration or to file an administrative lawsuit.   

   Chinese passports use sophisticated technology and Chinese authorities have a high surveillance capability, particularly at train stations, airports and ports.  A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau.  China’s major airports have a centralised system with name matching alert capabilities.  Facial recognition technology is also widely deployed at all international checkpoints.  Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks run by different agencies between arriving at the airport and boarding a flight.

   [1] DFAT Country Information Report, People’s Republic of China, 21 December 2017.

10. The applicant responded that he still doesn’t understand how he was able to depart China without being stopped.  He then said that the local authorities had fabricated the allegations against him and that nothing was officially recorded about the matter.

11. The Tribunal has considered the applicant’s responses but finds them contradictory.  On the one hand he claims he was refused a passport by the Public Security Bureau because they were informed about the fact he had been detained for his protest actions, and on the other hand he claims that the reason he could exit the airport without difficulty is because there is no official record of the fact he was previously detained.  This together with his differing account of the manner in which he obtained his passport causes the Tribunal to doubt that he was required to pay a bribe in order to obtain a passport.  The Tribunal does not accept the applicant’s evidence in this respect and finds he was able to obtain a passport in his own name and exit the airport without detection because despite the fact he may have been previously detained at the local level on one occasion for his role in protesting about working conditions, when he applied for the passport and left the country he was no longer a person of interest to the Chinese authorities. 

12. The Tribunal acknowledges the applicant claimed at hearing that people came to his house at night, knocked on his door and threw things at the house and that his wife and children were forced to move to his relatives’ home in [location] when he left China.  As noted the Tribunal does not accept the applicant posted critical comments online or that he was detained a second time for this.  Having paid a fine and signed a guarantee that he would not protest further the Tribunal can see no reason why such persons would continue to harass him and his family at their home.    When discussing these claims with the applicant at hearing the Tribunal asked about his parents’ whereabouts and the applicant said they continue living in the home they all shared prior to his departure from the country.  He said that the local authorities and/or their paid goons come to his house regularly to harass his parents about his situation and have threatened to issue an arrest warrant for him and to demolish their house.  He said the last time they came to the house was about one or two months ago.  The Tribunal expressed disbelief that the local authorities would be so motivated in the circumstances to continually harass and disturb his elderly parents over a period of four to five years.  The Tribunal also asked why in such extreme circumstances his parents also did not go to stay with relatives to avoid this continual harassment.  The applicant responded that his parents are old and it would be difficult for them to leave their house and to become a burden on their relatives.  The Tribunal is not convinced that the applicant’s parents would have endured this situation for such a lengthy period of time without at least attempting to seek some refuge from the situation.  The Tribunal is not satisfied that the local authorities or paid goons came to his home following his release from detention to harass him and his family or that they have continued to do so in the years which have followed.

13. The applicant has claimed throughout that the charges which were brought against him were verbal and not officially recorded.  Therefore the Tribunal does not accept there is any chance the local authorities will issue an arrest warrant for the applicant on his return to China.  In the Tribunal’s opinion the applicant was able to obtain an official passport in his own name and to depart China without any hindrance.  Based on the country information outlined above the Tribunal considers it likely that if the applicant was a person of interest to the authorities for his protest activities he would not so easily have obtained a passport or exited the country without a problem. 

14. Furthermore, as the Tribunal discussed with the applicant at hearing his protest activity was in connection with events which took place some four to five years ago.  If as claimed he is no longer able to work in the medical profession then it is unlikely the authorities will have cause to worry that he would again be vocal in criticising the operations of the local health system.  At the hearing the applicant confirmed that he has not continued to raise any issues publically about these events from the relative safety of Australia and there is nothing before the Tribunal to support that he will do so should he be required to return to China. 

15. The applicant’s involvement in protest action is limited to one issue which took place in 2013 and was over an issue which is no longer a cause for concern in China.  He has not shown any interest in pursuing any protest action against the Chinese authorities in the four or five years since he left the country in relation to these matters.  The Tribunal does not consider that this one involvement in a protest action four or five years ago affords him the profile of a political or social activist.

16. The Tribunal notes that DFAT reports an estimated 180,000 popular protests of more than ten people occurred in 2010.  Given the high prevalence of protest actions in China in recent years and the fact that the applicant has only been involved in one protest action which has since ceased to be of relevance in China, the Tribunal is not satisfied that the applicant’s past actions will cause him to be targeted as a person of adverse interest to the Chinese authorities.  The Tribunal is not satisfied that the applicant will be detained, monitored, harassed or seriously harmed for this reason if he returns to China now or in the reasonably foreseeable future.  Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China for reason of his protest action against local authorities.

17. The Tribunal acknowledges the claim made before the Delegate that the applicant is afraid to return to China because he lives in the countryside and there was a health system reform and the pay is very low and they have to work a lot.   As noted above the Tribunal has given the applicant the benefit of the doubt and accepts he was deregistered from this medical profession.  Given this, the Tribunal is of the view it is unlikely he will return to work in the rural health system or be subject to such poor working conditions now or in the reasonably foreseeable future.  The applicant claimed at hearing that he has been working in [a different] industry since coming to Australia and the Tribunal can see no reason why he could not continue to perform such work on return to China.  The Tribunal is not satisfied the applicant is at risk of any serious or significant harm on return to China for reason of the fact he lives in the countryside and health system reforms mean that pay is low and working hours are long.

18. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

19. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the same reasons already articulated, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk he will suffer significant harm. The applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Tania Flood
    Member