1600846 (Refugee)

1600846 (Refugee) [2018] AATA 3379 (9 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1600846
COUNTRY OF REFERENCE:                  China
MEMBER:Mr S Norman
DATE:9 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 August 2018 at 10:40am
CATCHWORDS
Refugee – Protection visa – China – Social group – Failed asylum seeker – Claimed youth indiscretion – Fear of Chinese authorities – Fear of harm for making complaint against Chinese official – Delay in lodging visa application – Mistreatment at college – Possible relocation – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CATCHWORDS
MIAC v SZQRB [2013] FCAFC 33
MZYXS v MIAC [2013] FCA 614
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 4 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who claims to be a citizen of China, applied for the visa on 6 February 2015.
The Department delegate’s decision was lodged with the Tribunal. The applicant attended a hearing with the Tribunal on 3 August 2018.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the applicant fears harm in China (principally) for reason of making a complaint about a corrupt Chinese official (the PSB officer). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Delay in lodging a Protection visa:
The ethnic Han[1] (now [age] year old) applicant said he lawfully departed China on 9 July 2009; and he arrived in Australia on a Student visa on 10 July 2009.[2] His migration agent said the applicant’s Student visa was valid until 15 March 2013[3].
[1] Department – folio 38.
[2] Department – folio 33.
[3] Department – folio 14.
The agent also said the applicant travelled to and entered Australia on his Chinese passport. However, he had subsequently “lost his passport and all other personal documents including his driver’s licence during work sometime in or around May 2014”.[4] Later advice included that the applicant had recovered his passport.[5]
[4] Department – folio 3.
[5] Department – folio 51.
At hearing, the applicant conceded he had previously said he had fled China ‘like a refugee’ due to complaining about the corrupt practises of a PSB officer (discussed below). However, the applicant also conceded he ceased his studies in December 2012, and had remained unlawfully in Australia until 6 February 2015 (at which time he had lodged his Protection visa – the PV).
The applicant said he had resided in [City 1] upon arriving in mid-2009 and later moved to [City 2] in February 2013. In March 2014 the applicant returned [City 1]. He said he was then “overly tired with this kind of black citizen life and was scared to see police and was scared to be asked by people about his visa”. He was also worried he would be deported to China. He then decided to “face the reality and got his courage to reveal the shameful background”. He then went to ‘make some inquiries’ about how to apply for a PV.
At hearing, and when asked why he had not lodged a PV application sooner, if he fled China ‘like a refugee’ for the reasons he claimed (discussed below), he said he did not know he could apply for protection in Australia. The Tribunal put to him it understood he had the capacity to obtain a Student visa to Australia, that Chinese citizens still may constitute the largest cohort of PV applicant’s in Australia, and that he could have accessed the knowledge within the ex-patriate Chinese community (or elsewhere) in Australia. He still claimed that from the time of his arrival in Australia (July 2009) and up to shortly prior to lodging his PV (February 2009), he was not aware he could apply for protection in Australia. Further, that (words to the effect) he only understood he may obtain protection when a (prior) migration agent spoke to the applicant (shortly prior to lodging his PV) and advised him he may be owed protection.
After considering all the evidence, the Tribunal is not satisfied it is plausible the applicant would not know about seeking protection in Australia sooner than he claimed. Given he conceded the main reason he ‘fled China like a refugee’ was due to the below discussed incidents, the Tribunal is satisfied he would have sought protection sooner than he claimed if his material claims were true. This is one reason that ultimately satisfied the Tribunal the applicant was not generally credible.
Miscellaneous:
At the end of the hearing, the applicant’s (new) migration agent said he may lodge further submissions. When asked to discuss what submissions, the agent said (words to the effect) he would only lodge further submissions if something comes to mind. In the circumstances, and as advised at hearing, the Tribunal did not propose to delay making its decision. Also no further submissions were lodged at the time of the decision.
The Tribunal makes the following preliminary findings:
· The Tribunal has seen a photocopy of the face-page of the applicant’s passport (expiry date [in] 2019[6]) on the Department file and I accept he is a citizen of China as claimed. I therefore accept that China is the applicant’s receiving country for the purposes of assessing refugee protection claims and complementary protection claims.
· Based on the evidence presently before me, I am not satisfied the applicant has statutory effective protection in any safe third country (pursuant to subsections 36(3)-(5A) of the Act).
[6] Department – folio 46.
REFUGEE PROTECTION
In order to satisfy the criteria in subsection s.36(2)(a) of the Act, an applicant must be determined inter alia to have a real chance of persecution for at least one of the prescribed grounds in the Act. The Tribunal notes this is a forward looking test.
The applicant’s fear of the Chinese authorities:
In his PV form, the applicant said that in China he was severely persecuted by “the government official and the system of the society”. He fears if he returns to China he would be imprisoned for “any untrue reason made up by the authority”. He fears that he will “commit suicide if he returned to China when the situation reaches its breaking point”. In the statement attached to the PV form, the applicant said he could not survive in a society ruled by “a man and with the collective and systemic corruption and he had only one road which leads to death”.
When discussed at hearing, the applicant also said it was feared he may complain again (principally about corruption), should he return to China (this claim is discussed below). However, when then asked, he did not claim to belong to any clubs, organisations or groups in Australia. Neither did he claim to have belonged to any group in China or Australia that may give rise to an actual or imputed political opinion. The only harm he claimed to fear in China was that which is discussed herein.
Based on the country information in the sources set out herein, and after discussing the applicant’s claims at hearing, the Tribunal is not satisfied the applicant has a real chance of suffering serious harm in China, for reason that may include (ie) being imprisoned for “any untrue reason” or for residing in a country ruled by “a man and with the collective and systemic corruption” or for reason of any possible further complaints or petitioning on the applicant’s part.
The Tribunal is not satisfied the applicant has a real chance of suffering serious (or any) harm in China, for any reason discussed under the above sub-heading.
The applicant’s parents claimed lifestyle:
In the statement attached to his PV form, the applicant said he was “born into a family full of warmth and affection yet with multiple calamities and disaster” (at hearing he also said he was an only child). He said his father was an [Occupation 1] (who earned a living selling [items]) but he was looked down upon by people. Some thought he was ‘crazy’. His mother was pretty and her thinking was advanced and contemporary’. She did not “stick to trifles and liked to defy trivial convention”. The mother and father shared similar personalities but were always the subject of gossip. They would make friends drink wine and enjoyed Western culture.
In his PV form, the applicant said he can contact his relatives in China “by phone only if necessary”.[7] At hearing, he said he speaks with his mother or father around 4 -5 times per month (and the last contact was the week before the Tribunal hearing). When asked what was discussed in the prior two years, after saying the family’s health, he said they spoke about the investigation and/or prosecution of the aforementioned PSB officer in or around 2016/2017. This had allegedly arisen due to the applicant making a complaint about this PSB officer’s corruption in either 2008 or early 2009 (discussed below). The applicant also said his father ([age] years old) still works as an [Occupation 1], and his mother ([age] years old) sells [goods] from a shop she owns and operates in Huaian City (Jiangu province). However, the applicant did not refer to any harm, harassment or even questioning of his father or mother at any time since or even before, the applicant departed China in 2009. Therefore, as the parents do not suffer any harm, the Tribunal is not satisfied the applicant would have a real chance of suffering any harm in China, for reason of his parents and their lifestyle.
[7] Department – folio 34.
The Tribunal is not satisfied the applicant has a real chance of suffering serious harm in China, for any reason discussed under the above sub-heading.
The applicant’s claimed mistreatment at the College:
The applicant said that when he was ‘small he was ignorant’. However, after he commenced to attend high school he was mocked and insulted about his parents and when he argued with such persons he was hit. He said he was “always ridiculed and scorned by other children because of his parents especially his mother”. His teachers always blamed him and he was yelled at and punished. He no longer sought the protection of his school. He was sometimes forced to say disrespectful things about his mother. When he refused he was beaten. He occasionally ran to a police station however the police ‘locked him up instead of arresting’ the other persons. He was also hit by the police. After a few days his mother had him released. He was then told not to cause further problems.
When discussed at hearing, the applicant conceded these insults and difficulties occurred when he was in primary school (which ceased [date]) and secondary school (which ceased in [date][8] – and at which time he was around [age] years old).
[8] Department file – folio 24.
After finishing secondary school, the applicant then sat for a selection exam for [a] College (some 2-3 hours by bus from the applicant’s home). He gained admission and subsequently boarded at this College. When the Tribunal put to him it appeared he may be privileged, he did not agree as he said his parents paid for his education. However, he then went on to explain that around 1200 students sat the entrance exam for the College and only around 200 (+) students were then selected to attend the College. It was at this College that the applicant was able to pursue his ‘love of [sports]’ (something he enjoyed from [age] years of age). From 2007, the applicant said he resided at a local “sportsman training school” (the aforementioned College); and he lived in the College dormitory and was happy.
Therefore, even if the applicant suffered some mistreatment in primary and secondary school, based on his own evidence, the Tribunal is not satisfied he was prevented from gaining entrance to the College (after passing a selection exam), or that he was mistreated there. More importantly, based on the accepted evidence, the Tribunal is not satisfied the applicant has a real chance of suffering any harm on return to China, due to any mistreatment to which he may have been subject during his time at primary or secondary school.
Further, and after discussing same with the applicant at hearing, neither am I satisfied the applicant’s parents were harmed, harassed or even questioned after his departure from China. Accordingly, I am not satisfied he now has a real chance of suffering harm in China for any reason related to his parents’ claimed lifestyle.
The Tribunal is not satisfied the applicant has a real chance of suffering serious harm in China, for any reason discussed under the above sub-heading.
The 2008 incident and the Public Security officer:
As noted above, when the applicant was [age] years old, he “fell in love with [sports]”. He wanted to play in America. In 2007, at which time he was [age] years old, his mother sent him to a local “sportsman training school” (the College). He lived in the College dormitory and was happy.
However, in the middle of 2008 (at which time he was [age] years old) and due to illness, the applicant left the College dormitory and returned to his home (at hearing, he said his family home was around 2-3 hours by bus from the College). After arriving home he found his father had ‘gone to another place’. He waited for his mother to return. His mother later returned home with another man. Both his mother and the man were ‘drunk’. The man then ‘attempted to use violence’[9] against the applicant’s mother and he pushed her. The applicant then shouted loudly telling them to stop but this did not happen. The man then called the applicant’s father a derogatory name. The applicant was also sworn at. The applicant became angry. The applicant then rushed into the kitchen (as the man was bigger than him) and “took out a chopper to scare him off”. The man then left.
[9] Department – folio 43.
The following day the mother told the applicant the man was from the Public Security Office (at hearing the applicant said this man had around 15-20 years of service with the PSB and he was words to the effect a ‘powerful man’). Also this man (hereafter the PSB officer) assisted the applicant’s father sell many of his [items]. The mother also told the applicant not to tell his father (and the applicant did not tell his father). The Tribunal understood the applicant’s mother and PSB officer were having an affair.
However, the then [age] year old applicant was angry and rushed to a police station, and when there he was detained. His mother arranged for his release ‘a few days later’ (with the assistance of the PSB officer). The mother then told the applicant the PSB officer said not to cause further trouble or he would be arrested. The applicant was frightened and did not cause further trouble; though when he returned to his College he ‘could not settle down’. The applicant then later went to the police but again he was detained and beaten and his knee was damaged. His mother then again had him released (possibly with the assistance of the PSB officer). When the applicant had then returned to the College, the College doctor told him it would be “hard for him to play [sport] in future” (due to his knee injury). The applicant’s heart was “totally broken into pieces”.
It was also claimed that as the PSB officer was concerned the applicant would continue to cause trouble, it was decided the applicant should leave China. His parents then sent him to Australia where he had a distant family relative. In July 2009 he said he had “fled to Australia like a refugee”. The country information stated:
3.75 An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. ….
…..
3.77 China’s Constitution and State Compensation Law enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low … The Chinese government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness.
3.78 In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise.[10]
[10] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017

At hearing, the applicant also explained that for the last three years he had owned and operated a [business] in Australia (though there was some dispute as to the exact dates,[11] he had also been engaged in this work prior to commencing his own business). He also said he had sought medical assistance in Australia but he was advised he needed surgery on his knee.
[11] Department – folio 25.
Be that as it may, while in China, the applicant continued at the College from the time of the mid 2008 incident until May [2009]; and he then returned to reside at his family home until he departed China on 9 July 2009. He also departed China lawfully and (at hearing) conceded he had no trouble departing. The Tribunal also understands the applicant conceded he had no further trouble from shortly after the mid-2008 incident. Given the applicant’s lawful departure from China without problem, and given the lack of any claimed problem for him from shortly after mid-2008, and given his parents were not apparently subject to any harm, harassment or even questioning in China, then this is one reason that satisfied the Tribunal - that even if the applicant did see his mother with the PSB officer in the family home in mid-2008 and he shortly thereafter attended the police and his knee was damaged - then this matter has been finally resolved. This is one reason that satisfied the Tribunal the applicant does not have a real chance of suffering serious harm in China, for any reason related to the mid-2008 incident.
Next, in his PV statement[12], the applicant said inter alia the PSB officer was worried the applicant may continue to cause trouble and the applicant must leave China. He said the police had told his mother he was a troublemaker and this would be recorded in his personal file forever. He also said that the local government authorities would have access to his personal file from his hometown and he would be traced. The applicant had also referred to being detained twice[13] by the police when he went to expose the conduct of the [PSB officer with] his mother”. Due to his claimed mistreatment, he did not seek further police assistance. He also believes he has been labelled and [would be] targeted by the police’.
[12] Department – folio 43.
[13] Department – folio 21.
However, the Tribunal is satisfied the applicant did not suffer any further harm shortly after the mid-2008 incident, and given the Tribunal was not satisfied the applicant was generally credible, even if his knee was damaged around the time of the mid-2008 incident, the applicant suffered no further harm in China and was allowed to depart lawfully. Also, given the mid-2008 incident occurred some ten years prior to the Tribunal hearing, and his parents have not been harmed, harassed or even questioned since that time, I am not satisfied there is a real chance the applicant would (again) be ‘labelled and targeted by the police’ on return to China. I am not satisfied there is a real chance there would be any ongoing adverse interest in the applicant upon his return to China.
Next, at the Department interview the applicant is recorded as claiming he feared returning to China as he had also reported the above-mentioned PSB officer’s corrupt activities to the ICCA (which he said was an anti-corruption bureau in China). The delegate noted the applicant had made no reference to this in his written claims (even though he had the assistance of a registered migration agent[14] who was assisted by an interpreter[15]). When discussed with the Department delegate, the applicant said possibly this ‘paragraph was left out by the translator’. However, the delegate noted the applicant had declared in his PV form that his written statement had been read back to him.[16] In a statutory declaration dated 24 January 2016,[17] the applicant said the delegate noted he had his claims read to him. The applicant did not agree with this comment (about the claims being read back to him). He then said “he believed this may possibly be due to his nervousness and incorrect interpreting of the questions during interview”. The delegate did not accept the claim was credible.
[14] Department – folio 6.
[15] Department – folio 7.
[16] Department – folio 7.
[17] Tribunal – folio 7.
As stated above, in his PV statement[18] the applicant said inter alia the PSB man was worried he may continue to cause trouble and the applicant must leave China. However, the applicant did not claim in his written PV statement or on the PV form that he had reported any corrupt practises of the aforementioned PSB officer (including to the ICCA) prior to the applicant departing China in mid-2009. At hearing, the applicant said he did make such a complaint (in 2008 or 2009), but due to the fact the anti-corruption campaigns in China only commenced more recently, the PSB officer was only investigated and subject to prosecution in 2016 or 2017. The PSB officer was later released and found to be innocent (though the applicant was uncertain what the PSB officer was charged with and was unsure if he was subject to charges for offences not arising out of the applicant’s alleged complaint). The applicant is now concerned that his own complaint to a Chinese anti-corruption agency (in 2008 or 2009), was possibly the or a main reason the PSB officer was prosecuted and as the PSB officer was found innocent, he may harm the applicant should he return to China (in an attempt to avoid any further corruption complaint). At hearing, the applicant also said he had told his (prior) migration agent on more than one occasion, and he was (words to the effect) assured that this new evidence would be included in his written PV statement.
[18] Department – folio 43.
However, after considering all the evidence, including that the applicant did not include this evidence in his written statement (even though at hearing he said this was the main reason he fled China); and given he was assisted by a migration agent and interpreter when preparing his written PV claims; and given (as stated at hearing) it did not appear plausible the applicant’s complaint about the PSB officer’s conduct which was made in 2008/2009, would cause the PSB officer to be prosecuted in 2016/2017 (particularly as the alleged principal complainant – the applicant – had not been in China since 2009); then whatever reason the PSB officer was prosecuted in China in 2016/2017 (and the Tribunal proposes to accept the prosecution took place), it has no material relevance to the applicant or his family, and would not cause the applicant to have a real chance of suffering any harm on return to China. The Tribunal has also rejected the applicant’s claim that in 2008/2009 he reported the PSB officer’s corrupt activities to an anti-corruption bureau in China as false.
The Tribunal is not satisfied the applicant has a real chance of suffering serious harm in China, for any reason discussed under the above sub-heading.
The applicant’s lawful departure from China:
As noted above, the applicant said he lawfully departed China on 9 July 2009; and he arrived in Australia on a Student visa on 10 July 2009.[19] The country information stated:
5.26 According to the Passport Law of the People’s Republic of China (2006), ordinary passport applicants must apply in person to the Entry-Exit Control Department of the Ministry of Public Security or the authorised county-level bureau where their hukou is registered. Applicants must provide their RIC, hukou, recent photos, and documents substantiating the reasons for their application. Once approved, a passport is generally issued within 30 days. 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. Costs of passports vary according to location but are considered affordable.
and:
5.30 DFAT assesses it would be difficult to depart China on a forged passport. Chinese passports use sophisticated technology and Chinese authorities have a high surveillance capability, particularly at train stations, airports and ports...[20]
[19] Department – folio 33.
[20] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017
The above country information indicated it would be difficult (though not impossible) for a citizen to unlawfully depart China if they were of adverse interest to the Chinese authorities (and the applicant’s passport was issued on ‘[2009]’). For the reasons set out herein, the Tribunal is not satisfied the applicant was of any adverse interest to the Chinese authorities. More importantly, and for the reasons set out above, I am not satisfied he continues to be of any adverse interest to the PSB officer.
The Tribunal is not satisfied the applicant has a real chance of suffering serious harm in China, for any reason discussed under the above sub-heading.
After arriving in Australia:
The applicant said that at the end of 2012 (over three years after he arrived in Australia on a Student visa), he needed to pay upcoming school fees. He explained that a distant family relative in Australia had said his parents had not remitted any money to him at that time (though the applicant said his parents had previously sent this distant relative money for his school fees). As the applicant was not given any money, he ceased studying in Australia in December 2012 (as confirmed at hearing). The applicant telephoned his mother who said she had sent the money to the distant relative. Later, the distant relative had said he had lost the money gambling. However the distant relative asked the parents to send more money. The distant relative kept contacting the applicant’s parents asking for more money. He also threatened them that if no money was sent he would report the applicant to the ‘Australian immigration’.
Though the applicant did not reside with the distant relative, and as he had to stop studying and his visa had ceased, he feared he would be arrested in Australia and deported to China. The applicant then had moved to [City 2] in February 2013, in order to avoid the distant relative. However, in March 2014 the applicant returned [City 1] (and he said he no longer knows the whereabouts of the distant relative). He then said he was worried he would be deported to China. He then went out to “make some inquiries about how to apply for a Protection visa”. However, and though the applicant was ‘scared’ after returning to {City 1] in March 2014, he did not lodge the PV until February 2015.
At hearing, the Tribunal put to the applicant it may not appear plausible his parents would not send him the money (directly) for his education in Australia. He said he was too young and he trusted the distant relative. However, he was [age] years old when he travelled to Australia, and he was [age] years old when he ceased studying. His parents apparently trusted him to travel to Australia on his own, reside on his own, study on his own, and without any close family in Australia. The applicant said the distant relative paid the school in Australia, and there was ‘evidence’ of this. However, it subsequently became apparent the school (in Australia) was paid by an education agent who allegedly received money from the distant relative. When then asked whether it was the applicant who may have somehow lost his parents’ money (which had been sent for his education in Australia), he denied this was correct.
Be that as it may, and irrespective of why he ceased studying in Australia, the Tribunal is not satisfied the applicant has a real chance of suffering serious harm in China, for any reason discussed under the above sub-heading.
Relocation:
Given the above findings, the Tribunal acknowledges the following discussion may be redundant. However, at hearing, the Tribunal put to him it would consider whether he could safely and reasonably relocate within China.
Therefore, and for the purposes of this part of the Tribunal decision only, I will accept the applicant will be of adverse interest to the PSB officer should the applicant return to his family home in Huaian City. At hearing the applicant said the PSB officer had a family and may not wish the applicant to cause trouble for him and his family (due to the apparent affair he was having with the applicant’s mother in 2008). However, the applicant had not told his father about the claimed incident (at the request of his mother), and the Tribunal is satisfied the applicant would not wish to make further complaint about the mid-2008 incident, if only to protect his mother. Further, given the applicant’s hukou was registered in Huanian city, and that his family home and his former College (some 2 – 3 hours apart by bus), were also in the same hukou registration zone, it may appear he could simply and safely live away from his family home within Huanian city on return to China.
In his PV form and when asked why he did not relocate within China the applicant said that “in the past he was too young. He did not have the means to move. Now also he cannot move because he knows that in China every person has a personal file kept by the authority. In fact the police had told his mother that he was a troublemaker and this would be recorded in his file forever”. He also said he could not relocate due to the hukou system. In his statement attached to the PV form,[21] the applicant was apparently even more certain he could not relocate within China due to the “tight household registration … and personal file system”. He also said he did not have any money (though he had money to establish a business in, and reside in, Australia) and neither did he possess skills (though he is self-employed in Australia). He then said relocating to a place where he was not registered would make it difficult for him to find work. He said living, medical and other expenses would be higher.
[21] Department – from folio 44.
Regarding whether it is safe to relocate, the applicant had said that all local government authorities would have access to his personal file from his hometown; and that he had been labelled a trouble maker. At hearing, the applicant also accepted that when he was referring to his ‘personal file’ he meant his ‘National Identity Card’. The country information said:
National Identity Cards
5.22 Citizens over the age of 16 are required to apply for identification cards while those under 16 years can voluntarily apply with the assistance of a guardian. The Public Security Bureau issues and manages ID cards according to the 2003 Law on Resident Identity Cards. Cards are valid for five years for children under 16, ten years for individuals aged between 16 and 25 years, twenty years for individuals between 26 and 45 years and permanently for individuals aged 46 years or older.
5.23 Use of China’s latest (second generation) resident identity cards (RICs) became mandatory in 2013. RICs include the cardholder's name, sex (male or female), ethnicity, date of birth, residential address, a unique 18-digit ID number and coloured photograph. Embedded digital microchips in each card contain the same identifying information as well as work history, educational background, religion, police record, medical insurance status, landlord’s telephone number, and reproductive history. …
5.24 Applicants must complete a Registration Form of Application for Resident Identity Card and present their hukou for examination by public security authorities. Costs of new or renewed cards vary according to location and the circumstances of the applicant. For example, the law exempts payment for urban residents on subsistence allowances and rural residents who live in ‘specially straitened’ circumstances. Breaches of the law can lead to disciplinary warnings, fines (ranging from RMB 200 to 1,000– approximately AUD 40 to 200) and up to ten days detention. Forgery of cards is a criminal offence.
5.25 … Valid ID cards are required for hukou, employment, opening bank accounts, obtaining passports and driver licenses, applications for tertiary study, travel by plane or train, marriages and legal cases. Internet cafes and some shops also require proof of identity.[22]
[22] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017
Based on the accepted evidence and findings herein, even if the PSB officer is concerned the applicant could cause him personal trouble on return to Huaian city (due to the affair with the applicant’s mother), some ten years after the mid-2008 incident, the Tribunal is not satisfied there exists a real chance the PSB officer (or anyone else) would wish to trace the applicant should he relocate within China. Further relevant country information stated:
5.12 There are many opportunities for internal relocation in China and movement of people is fundamental to China’s push for continued economic growth and urbanisation. While there are no legal impediments to internal migration, the hukou system presents the biggest administrative impediment to freedom of internal movement.
5.13 Linguistic and cultural barriers are not an inhibiting factor for ethnically Han Chinese to move away from their place of hukou registration. Ethnic minorities may face varying degrees of difficulty or discrimination, depending on their ethnicity and their destination…
5.14 DFAT assesses that internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level … People subject to adverse attention from authorities are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability…[23]
and regarding hukous:
5.15 The hukou system ties access to government services, such as education above a certain level and health, to a citizen’s place of birth, or even their parents' place of birth, rather than their place of residence. Only an estimated 35 per cent of urban residents have an urban hukou. Chinese migrant workers (estimated at 282 million) who move away from rural areas for better employment opportunities, are unable to access key services and in some cases face institutionalised discrimination. An estimated 60 to 100 million children have been ‘left behind’, either in their grandparents' care or alone, while their parents work in cities. The government is committed to reforming the hukou system, including extending urban residency permits to migrant workers. The Ministry of Public Security reported 28.9 million new urban residency permits issued in 2016, mostly in third or fourth tier cities. The local governments of the largest cities, including Beijing, Shanghai, Guangzhou, Shenzhen, Chengdu, Wuhan and Xi’an, have tough restrictions on granting new hukou permits given the already high populations and overburdened infrastructure in these cities. Lower-tier cities (with fewer than 3 million permanent residents in downtown areas) are more willing to issue hukou, in line with government’s aim to drive economic growth in less developed and less populated regions.[24]
[23] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017
[24] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017
Based on the country information, the Tribunal is satisfied the ethnic Han applicant could safely and legally relocate within China, and away from Huaian city (where his hukou is registered). I am not satisfied that some ten years after the 2009 incident, there will be any reason for the applicant to be traced. Also, based on the country information considered, neither am I satisfied that any claimed youthful indiscretion, will be used against him, should he relocate within China. Further, after considering the country information in the sources cited herein, I am not satisfied there is any other reason the applicant would have a real chance of suffering serious harm, should he relocate within China.

For the above reasons, the Tribunal is satisfied the applicant can safely relocate within China. Therefore, the Tribunal, finds the applicant does not satisfy s.5J(1)(c) of the Act, because the real chance of persecution does not relate to all areas of China.
Failed asylum seeker:
At hearing, the Tribunal put to the applicant it would consider whether he may be harmed on return to China for having lodged a PV in Australia. The country information stated:
5.18 DFAT is not able to verify the treatment of failed asylum seekers returned to China. DFAT has no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention. DFAT is unable to verify whether having sought asylum abroad would worsen the situation of individuals attracting adverse attention from authorities for other reasons. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China … Party members or public officials who return to China to face corruption offences are subject to Party disciplinary and potentially criminal prosecution…[25]
[25] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017
Further, in May 2015 the Department of Foreign Affairs and Trade (DFAT) provided the following comments in response to the question ‘Can post comment on the likely treatment of failed asylum seekers who return to China?’:
R.1. As advised in reftels, it is not possible to comment definitively on how Chinese authorities would treat returnees to China who were failed asylum seekers, or if Chinese authorities would be aware of the return of a failed asylum seeker. The treatment would differ depending on local authorities' previous knowledge of the individual, the point of entry and whether the Bureau of Exit and Entry Administration had maintained a "flag" against the individual's name. Local-level Public Security Bureau officials also monitor exit and entry procedures, and have broad administrative detention powers, as well as significant levels of discretion in detaining individuals without formal arrest or charge.[26]
[26] Department of Foreign Affairs and Trade (DFAT) 2015, China - Country Information Request CI150402160444876 - Treatment of Returned Failed Asylum Seekers, 18 May, R.1. <CXBD6A0DE6523>
The Tribunal put the gist of the country information to the applicant. When then asked, the applicant said that in Australia he did not belong to any clubs, organisations or groups of people. He worked full time in his own [business]. Based on all the accepted evidence in this decision record, the Tribunal is not satisfied the applicant has a profile (including one that may arise from his lengthy stay in Australia) that would give rise to a real chance he would suffer any harm on return to China, and including for reason of having lodged a PV application.
The Tribunal is not satisfied the applicant has a real chance of suffering serious harm in China, for any reason discussed under the above sub-heading.
Conclusion:
Finally, even after considering those of the applicant’s claims that I have accepted cumulatively, I remain satisfied he does not have a real chance of suffering persecution for a prescribed ground in China. Neither is there anything raised by the evidence if not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering persecution in China.
For the reasons given above, the Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Act. The applicant does not satisfy the criterion set out in s.36(2)(a) or (b) of the Migration Act.
COMPLEMENTARY PROTECTION
If an applicant is not found to be a person in respect of whom Australia has refugee protection obligations under the Act, they may nonetheless be owed complementary protection pursuant to 36(2)(aa) of the Act. That subsection provides that the ‘decision maker’ must be satisfied that Australia has protection obligations to a non-citizen in Australia because the ‘decision maker’ has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen (the applicant) will suffer significant harm. Subsection 36(2A) of the Migration Act defines significant harm as:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(a)the death penalty will be carried out on the non-citizen; or
(b)the non-citizen will be subjected to torture; or
(c)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(d)the non-citizen will be subjected to degrading treatment or punishment.
Subsection 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant’s] removal, there is a real risk that [the applicant] will suffer significant harm if returned to the receiving country.’ In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part):
In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … is there a real chance that SZQRB will suffer significant harm… were he to return to [the receiving country]. [246]
Relocation:
Subsection 36(2B)(a) of the Act, provides there is not a real risk that a person will suffer significant harm in their receiving country, if the decision maker is satisfied ‘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’.
Based on the reasons provided above, I am not satisfied the applicant has a real chance of suffering serious harm for reason of any claim I have accepted, should he relocate within China. For the same reasons, I am not satisfied he has a real risk of suffering significant harm for reason of any claim I have accepted, should he relocate within China. Further, and though I understand I need not make an applicant’s case for them, after having considered the country information, neither am I satisfied he has a real risk of suffering significant harm for any other reason, should he relocate within China.
Regarding whether it is reasonable for the applicant to relocate, the Federal Court in MZYXS[27] has accepted the ‘issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context.’[28] That said, the Tribunal understands each case still needs to be considered according to its merits.
[27] MZYXS v MIAC [2013] FCA 614 (21 June 2013), Marshall J.
[28] MZYXS [37].
As noted above, in his PV form when asked why he did not relocate within China the applicant said that ‘in the past he was too young’. He also said he did not have the ‘means to move’ in China. He also said he could not relocate due to the hukou system. In his statement attached to the PV form,[29] the applicant was even more certain he could not relocate within China due to the “tight household registration … and personal file system”. He also said he did not have any money (though he now owns and operates a business, and resides, in Australia) and neither did he possess skills (though he now has undertaken education and gained business skills in Australia). He said relocating to a place where he was not registered would make it difficult for him to find work. He said living, medical and other expenses would be higher.
[29] Department – from folio 44.
However, and as noted above the country information indicated there were no legal impediments to relocation within China and in fact, it was ‘fundamental to China’s push for continued economic growth and urbanisation.’ It was noted that the hukou system presents the biggest administrative impediment to freedom of internal movement.” However, and notwithstanding this, an estimated at 282 million persons have moved away from rural areas (and away from their hukou registration area) for better employment opportunities.[30]
[30] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017, see [5.15].
At hearing, the applicant said he could not access ‘medicare’ (health services), work and his (possible future) children could not attend school if he relocated within China. After putting to him it may appear he was suggesting he would be ‘better off’ in Australia, the Tribunal noted the country information it had seen may satisfy it he could access all services available to citizens of China, and that same would not make it unreasonable for him to relocate within China. The country information stated:
2.6 China is the world’s second-largest economy (after the United States), the largest exporter of goods, second-largest importer of goods, the third-largest exporter of services and second-largest importer of services. China’s economy averaged real annual GDP growth of 9.4 per cent between 1978 and the onset of the global financial crisis in 2008. Since then, economic growth has slowed with slowing capital and labour productivity. According to China's National Bureau of Statistics, China’s GDP grew 6.7 per cent in 2016.
2.7 The Asian Development Bank ranks China as an upper middle-income country. China’s major cities have per-capita income levels equal to those of the poorest OECD member countries, and around three times those of rural areas. China is among the 25 per cent least equal countries in the world, despite strong income growth amongst its poor.
2.8 China was the first developing country to meet the UN Millennium Development Goal of halving the number of people living in poverty before 2015. By the end of 2016, however, 43.35 million people (about 3 per cent of the population) were still living below the government's decreed annual poverty line of 2,300 RMB (approximately AUD 400). Severe, entrenched poverty remains, particularly in remote areas in China’s western and central provinces, with poor infrastructure, education and health services. Poverty is more pronounced among ethnic minorities.
2.9 China’s 13th Five Year Plan (2016-2020), the first plan released under President Xi Jinping’s leadership, set an annual growth target of 6.5 per cent. The Plan outlined measures to rebalance the economy away from resource-intensive, fixed-asset investment and export-driven growth towards domestic consumption and environmentally sustainable services-led growth. President Xi has made eliminating poverty by 2020 one of the government’s top priorities. Persistent rural poverty is a challenge to the CCP’s main political goal of doubling China’s 2010 per capita income by 2020 to become an ‘all-round moderately prosperous society’ by the centenary of the founding of the CCP in 2021.
2.10 China is the world’s largest energy consumer, accounting for half of global coal consumption. A key focus of economic reform measures is to improve the quality of the living environment. Air pollution continues to reach hazardous levels, particularly in the north-eastern provinces that are the location for heavy-polluting iron, steel and cement-producing industries.
2.11 China’s society is ageing rapidly owing to significant advances in the quality of and access to healthcare combined with decades of low fertility rates, due in part to family planning policies. China’s fertility rate of 1.6 births per woman is below the replacement level of 2.1. The traditional preference in Chinese society for boys, combined with decades of the one-child policy, have contributed to a sex ratio of 1.16 male births to every one female birth (compared with a natural rate of 1.05:1). The government changed its family planning policies in 2016 to allow all families to have more than one child …
2.12 China’s demographic challenges, combined with high levels of income inequality, rapid urbanisation, challenges to environmental sustainability, as well as risks posed by a declining property market and significant levels of debt (particularly at the provincial level), pose challenges to future growth.
Health
2.13 China ranks 90 out of 188 countries listed on the UNDP’s 2015 Human Development Index. Average life expectancy at birth in China is 74.83 years with geographical variations, particularly between urban and rural areas. Health care varies significantly between urban and rural areas. High quality public health care is available in the main urban centres, but only those with the relevant urban hukou (household registration) have access … Health care in rural areas is of a lower standard, and public provision is patchy. China’s unusually high household savings rate partly reflects the need for families without urban hukou (including migrant workers in cities) to save for future health costs.
Education
2.14 Despite a nine-year compulsory education policy, children in China attend school for 7.6 years on average, although the figure varies according to location. China’s adult literacy rate is 96.4 per cent. Education standards vary considerably across the country. Schools in the high-income regions of Beijing, Shanghai, Jiangsu and Guangzhou perform well against international benchmarks such as the OECD’s Programme for International Student Assessment (PISA); schools in rural areas are under-resourced and must often not only educate, but also accommodate and feed students who live in remote areas. Many children in rural areas are left alone, or in the care of grandparents, while their parents seek employment in urban centres (see Hukou (household registration) system), leading to high rates of malnutrition, mental health issues and delinquency.
Employment
2.15 China’s reported unemployment rate has been consistently around 4.1 per cent since 2011. This rate counts only registered workers with an urban household registration … and does not include urban workers holding a rural registration, nor workers in rural areas. The official retirement age is 60 years for men and 55 or 50 years for women.
2.16 Since 2013, reforms to state-owned enterprises and market developments in the coal and steel sector have led to pockets of underemployment and effective unemployment in coal- and steel-producing provinces, notably Liaoning, Heilongjiang, Shenyang and Shanxi. In March 2017, the government announced it would lay off 1.8 million workers in the coal and steel industries as part of efforts of reduce industrial over-capacity. While the government has committed to re-deploying all workers, anecdotal evidence suggests many laid-off workers are returning to subsistence lifestyles in rural areas, working for significantly less or not finding work. At the same time, wages in manufacturing have been rising and now exceed those in much of southeast Asia. The service sector in China continues to grow, with rising wages.
2.17 DFAT assesses that employment conditions and economic opportunity are a significant driver of internal migration within China, particularly from rural to urban areas. DFAT finds little evidence to suggest these factors are significant drivers of emigration from China.[31]
[31] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017
After putting the gist of the country information to the applicant at hearing, the Tribunal noted the applicant could seek work commensurate with his business and other skills in China, that he could access the high quality public health care that would be available in Huaian city (either by returning there from another location – or by living in Huaian city some 2-3 hours away from his parents’ home – as he safely did while attending his former College), and that there appeared to be no reason his (possible future) children would not access school in China. The applicant did not agree. However, and after considering the country information, and based on the findings herein, the Tribunal is not satisfied it would be unreasonable for the applicant to relocate within China for any reason he claimed.
The Tribunal also noted that China’s reported unemployment rate has been consistently around 4.1 per cent since 2011 – compared to the unemployment rate in Australia of 5.5%.[32] Therefore, and taken into account with the applicant’s work skills, and the education and health services available to citizens of China, the Tribunal put to him it may be reasonable for him to relocate. The applicant did not agree.
[32] For instance, see 6202.0 - Labour Force, Australia, Jun 2018, Australian Bureau of Statistics, Latest ISSUE Released at 11:30 AM (CANBERRA TIME) 19/07/2018, accessed 3 August 2018 (though that referred to a 5.4% unemployment rate).
At hearing, the applicant also felt it was unreasonable for him to relocate within China as he had lived in Australia since 2009 and he had worked here (unlawfully for approximately two years), and he had married an Australian citizen (no children were claimed to have arisen from this or any other union). The Tribunal then put to him that it may be that his wife could choose to return to China to reside with him. Further, that based on the country and other information before it, the Tribunal may not think she would be materially disadvantaged should she choose to return to China. The applicant did not meaningfully comment.
Regarding the length of time the applicant resided and or worked in Australia, I note he resided in China for the first two thirds of his life (and therefore may have greater connection to China where his parents still reside) and he could also work in China (using the education and or skills he obtained in Australia). The Tribunal is not satisfied this would make it unreasonable for him to relocate.
No evidence was provided that there were concerns with respect to language in China upon relocation, and neither did the country information considered in this decision support a finding that relocation on this ground would be unreasonable for this applicant.
After considering all the evidence the Tribunal was satisfied it is safe and reasonable for the applicant to relocate within China.
Further findings:
Based on those of the applicant’s claims that I have accepted, and the country information in the sources cited herein, I do not accept the applicant has a real risk of suffering the death penalty in China. The following findings are based on the applicant relocating within China. Based on the accepted facts and the country information in the sources cited herein, the Tribunal is also not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, in China. Next, based on the country information and accepted facts, I am not satisfied the applicant has a real risk of suffering harm that is intentionally inflicted on him (cruel or inhuman treatment or punishment); and for the same reasons, I am not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on him (torture) in China. Further, and again for the same reasons, the Tribunal is not satisfied the applicant has a real risk of suffering arbitrary deprivation of life in China.
Conclusion:
Finally, even considering those of the applicant’s claims that I have accepted cumulatively, I do not accept he has a real risk of suffering significant harm in China. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real risk of suffering significant harm in China. Accordingly, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that he will suffer significant harm if returned to China.

Having previously concluded the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal considered the alternative criterion in s.36(2)(aa). For the reasons stated above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Mr S Norman
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 3379

9 August 2018

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