1602611 (Refugee)

1602611 (Refugee) [2019] AATA 1411 (26 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602611
COUNTRY OF REFERENCE:                  China
MEMBER:Denise Connolly
DATE:26 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 March 2019 at 3:34pm
CATCHWORDS
REFUGEE – protection visa – China – resumption and demolition of family home – political protest – fear of harm – fear of persecution – fear of discrimination – relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(H), 5(J), 5K-LA, 36, 65, 437, 438, 499
Migration Regulation 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 1 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, born [date], who claims to be a citizen of China, applied for the visa on 19 February 2015. The delegate refused to grant the visa on the basis that the applicant was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
There is a s.438 certificate on the Department’s file certifying that folios 47 and 73 should not be disclosed because it would be contrary to the public interest as the folios contain “information relating to an internal working document and business affairs”. Folio 47 contains information about the evidence used to establish the applicant’s identity, which is not in dispute. Folio 73 is a template entitled Disclosure decision checklist which records there are no s.437, or s.438(1)(a) or (b) documents on the file. There is nothing adverse in the information contained in those documents. Having considered the certificate and the material the Tribunal finds the reasons given do not properly identify a basis for public interest immunity. There is no suggestion that the documents or their content would harm the nation or public interest by disclosure of the material. The Tribunal finds the certificate is not valid. As the Tribunal has found the certificate is invalid and the documents referred to do not contain any adverse information it was unnecessary to advise the applicant of its existence.
CLAIMS AND EVIDENCE
Evidence provided to the Department
The applicant provided the following information with her visa application. She was born in Shenyang, Liaoning Province, China. She is a citizen of China. She does not have the right to reside in any other country. She does not have a religion. She divorced in December 2009. Her mother is deceased. Her father, step-mother and brother live in Liaoning Province. She departed China legally. Prior to travelling to Australia she worked [in] Hainan Province. She travelled to Australia as the holder of a tourist visa issued on 10 December 2014. She has previously travelled to [another country] but could not remember when. She lived in Hainan from March 2010 to December 2014 before coming to Australia. She provided a copy of her Chinese passport issued [in] 2014.
The applicant made the following written claims. In 2007 the Shenyang City Government decided a building would be positioned where her parents lived in Heping District, Shenyang. The government issued a demolition agreement. The plan was that the applicant’s parents and other residents would move within [months] and the government would give them [compensation]. A lot of the residents believed the compensation was too low and would not sign the agreement. It was decided that a few representatives would talk to the government. Her parents did not have much income and wished to remain in their own home. They were concerned about homelessness. The applicant was concerned for them and volunteered to be one of the representatives to talk to the government. When they approached the government offices they were driven away. The applicant and others decided to demonstrate in front of the government office to let the government know that they did not agree with the demolition. There were [people] holding banners stating “[banner title deleted]” and they marched to the city government square. They attracted a lot of attention and the traffic was affected. Soon after they arrived [police] persuaded them to go home. They told the police about the situation but the police advised that without approval to demonstrate they were breaking the law. The group continued to demonstrate and the police became physical. They took away a few of the leaders, including the applicant, and threatened others. She was taken to the police station where her name, date of birth and address was recorded. She was warned that she would be convicted if she did it again. The leaders were dismissed and decided to present their complaint to the provincial government. The city government however found out and appointed officers to approach the applicant and others to warm them not to do “silly things” or there would be consequences. There was no response from the provincial government about the complaint. They planned to send their complaint to Beijing but by this time the government officers had visited their workplaces and told employers what had happened. As a consequence the applicant lost her job in December 2007. However she continued to deal with the government over the next one or 2 years in an attempt to protect her parents’ home from demolition. She tried to find another job but was advised she had discipline problems. This badly affected her marriage which ultimately ended in divorce in December 2009.
The applicant claims that [in] June 2009 [demolition workers] armed with axes and wooden sticks arrived with an excavator and a forklift. They demolished her parents’ building and forced the eviction of [households].
The applicant claims she was eventually able to secure employment in another province and in June 2010 started working [in] Hainan Province. The company promoted and sold [produce] from north-east China. After working there for about 4 years the owner wanted to explore potential sales of local [produce]. The applicant was appointed to find out how the local peasants planted [produce], its quality and price. She went to villages in [Longhua District], Haikou and talked to peasants from the local committee. The peasants told her about their worries as they had received notice from the government that they would receive a 15 kg bag of relief food for their household but when they received the [produce] some got only 14 kg or 12.5 kg. To show her sympathy she helped them write a complaint and presented it to the Longhua District Government. Soon government officers came to see her and warned her not to help the peasants. However she continued to encourage the peasants to send their complaints to higher authorities. The District Government became very angry with her and contacted her employer requesting that they fire her. Her boss suggested she go overseas and stay away for a while. She was told that when she returned from overseas she could work for the company, so long as she no longer had anything to do with the government. She then made arrangements to travel overseas. Soon after she arrived in Australia the boss told her not to rush back because the case about the peasants complaining was still in the limelight. The District Government thought that she was the one who had been helping the peasants and the officers came to look for her at the company. She was planning to go home but there was no confirmation from the company that she could. When she left China the agent who helped her apply for the tourist visa said it was a 3 month visa. However she found out that it was only one month so she decided to seek protection in Australia.
The applicant could not predict what harm or mistreatment the government would inflict if she returned to China but believed she will be harmed because the peasants were still complaining. She had tried to relocate in China but there was still government corruption.
Evidence to the Tribunal
The applicant provided the Tribunal a statement signed on March 2019 however it is the same statement as that provided to the Department with her visa application.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records information provided by the applicant at an interview held on 25 January 2016. The Tribunal has listened to the recording of the interview and, while the delegate’s decision record is not a transcript of the information given at the interview, the Tribunal is of the view it essentially represents her oral evidence to the delegate.
The delegate has recorded that the applicant believes she cannot return to live in Shenyang where her parents reside because of the housing protest she took part in in 2007. She moved to Hainan Island, about 4½ hours away by plane and, with the help of a distant relative, was able to get a job. She worked for a company importing [produce] from the north. Her boss had her liaise with local [farmers] to see if the northern style [produce] could be grown in Hainan. The local [growers] were partially subsidised by the local government and received an allowance of imported [produce]. There were discrepancies in the quantities of [produce]. Because she had a friendly relationship with the mostly illiterate farmers she agreed in November 2014 to handwrite a letter from the local association addressed to the Longhua District government asking that this be addressed. That month she was threatened with unspecified consequences by the government if she continued to help the farmers. The government pressured her employer to fire her and as a result she was asked to take leave. She went to a tourist office and, after overhearing a conversation about Australia, decided to come here on holiday. Soon after she arrived here her employer advised that the government had asked about her and he told them she was no longer with the company. She is unable to return to work there.
The delegate put to the applicant that if she considered she could not return to Hainan or Shenyang she could relocate in China. She indicated the governments stick together and pass on information. She claimed that if the government wanted to arrest her they could locate her anywhere in China. The delegate questioned whether she was a person of national or high interest who could not relocate anywhere in China. She said that she could be imprisoned if the Longhua District government decided to have her arrested. She claimed that her fear is that she might be pursued nationally and charged because of her actions in assisting local farmers in Hainan.
The delegate was not satisfied that the applicant’s actions would be regarded as a political matter by the national or provincial authorities. The delegate formed the view that the applicant could relocate in China if she considered it necessary. He noted her family still reside in their former city and he doubted that it was necessary for the applicant to avoid Shenyang. He was not satisfied that the applicant would suffer harm if she returned to China. He was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 19 March 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. The following is a summary of the evidence given at the hearing.
The applicant explained to the Tribunal that her birth mother passed away when she was an infant. Her father remarried and he and her [family live] in [Shenyang].
The Tribunal asked the applicant why she fears returning to China. The applicant indicated that she was worried about the situation for farmers and in November 2014 decided to assist them by writing a letter. In mid-2016, when she last called her boss to ask whether things were getting better, he advised her that the situation had not improved. He indicated that a lawyer became involved and things ‘got bigger’. She could not remember the lawyer’s name. The Tribunal asked why she would be of interest to the authorities if the situation had changed after she departed China. She indicated it was because she wrote a letter. She believes the authorities will think that this was a big offence as it was aimed at overturning the government. The Tribunal questioned whether the authorities would associate the applicant with attempts to overturn the government. She indicated that the government is of the opinion that she initiated the idea and incited the farmers to take action. The Tribunal questioned whether her involvement would still be an issue given that 4 years have passed since she was involved. She fears the government will still consider her to have been involved. She indicated that since then the lawyer has been detained. She indicated that the government uses advanced computer systems to keep records and that she is on a blacklist. The Tribunal questioned whether the applicant would have been able to depart China without any difficulty, using her own identity, if it was the case that she was on a blacklist. She indicated that the lawyer became involved later in 2016 after she departed China. The Tribunal questioned why the lawyer’s involvement would be associated with her given she had not been in the country since December 2014. She believes that the government would remember her because in the beginning they asked her boss to fire her.
The Tribunal asked if the applicant has ever been arrested or convicted by the authorities. She confirmed that she has not been arrested or convicted. She indicated that she had already left China when she found out that the matter had gotten bigger. The Tribunal asked what she thinks the authorities will do if she returns to China. She did not know but she felt fearful. She thought they might detain her or charge her with ‘whatever offence’. She indicated that if she is detained she will not be able to fight against the detention. She indicated that the last time she called her boss they said she was disrupting society.
The Tribunal noted from information recorded in the delegate’s decision record, provided by the applicant, she had indicated she decided to come here for a holiday after she went to a tourist office and overheard a conversation about Australia. The applicant confirmed that this was the case. She indicated that when she was leaving China she was just thinking about going overseas to relax. She had saved money from her employment in Hainan. The Tribunal indicated that this does not suggest that she was fearful when she left China. She indicated that she was thinking about avoiding the issue by going on holiday because her boss had been asked to sack her. She indicated that her boss was honest with her as he is her distant relative. He suggested she go overseas to avoid the situation and then she could return. She booked a return ticket but decided not to go back because she called her boss and he advised her not to return. The Tribunal asked when she made this call. She indicated it was about 2 or 3 weeks after she arrived in Australia. She then found out that she only had a one-month visa when she approached a migration agent to apply for a protection visa.
The Tribunal noted that the applicant did not have any difficulty departing China. It gave her an opportunity to comment on the preliminary view that her ability to leave China lawfully indicates that she is not of adverse interest to the authorities. She confirmed that she obtained her passport lawfully when she was living in Haikou. She had to leave Shenyang previously because she fought for her parents and she could not get work there. She got her passport in Shenyang and left China lawfully. The Tribunal indicated that this might suggest she is not of adverse interest in Shenyang. The applicant indicated that currently she is not worried about Shenyang. She is worried about returning to Haikou.
The Tribunal noted that the applicant had been able to relocate in China when she moved from Shenyang to Haikou. It asked why, if she wished to avoid the authorities in Haikou, she could not return to Shenyang or relocate somewhere else as she had done previously. The applicant indicated that the authorities have a computer system and she will not be able to find a job in Shenyang. The Tribunal questioned whether the applicant is on any computer system or blacklist because she was able to exit China using her own genuine passport. She indicated that when she left Shenyang she did so because she had fought for her parents and lost her job. The Tribunal noted that this was now 10 years ago. The applicant indicated that, because of her age, if she looks for a job she will be asked why she does not have a work history. The Tribunal noted that the applicant has been in Australia since 2014 and asked whether she would need to provide information of a recent work history in China. She indicated that prospective employers will say that there is a government record about her. If she could have found a job in Shenyang, she would not have got divorced.
The Tribunal noted that the delegate, having considered country information, had formed the view that the applicant would be able to relocate in China. It asked the applicant if she had any other evidence to give as to why she would not be able to relocate if she returned to China. She indicated that she had tried to relocate when she moved from Shenyang to Haikou where she secured a job because she was introduced by a relative. When she was leaving Haikou the situation was not serious. But now the government thinks that she started it. She encouraged the farmers and signed the letter so the authorities will blame her as they think she encouraged the farmers to get the lawyer. The Tribunal asked how she knows what the authorities think. She indicated that when she called her boss in 2016 he told her that they were blaming her.
The Tribunal asked the applicant if she knew anyone when she came to Australia. She indicated she did not know one person in Australia when she came here. The applicant confirmed that she has been able to find accommodation and employment in [Australia]. The Tribunal indicated that this suggests she is quite independent and capable of relocating even if she does not have support. The applicant indicated that she does not believe she can relocate in China. She lost a job in Shenyang and then she lost a job in Haikou. She has lost her confidence. If a prospective employer calls her former boss he will say that there were discipline issues. The Tribunal asked whether her distant relative boss who supported her employment in Haikou would say that there were discipline issues. The applicant indicated that the issue is now not just about discipline; it is much bigger as a lawyer has been detained. She believes she will be detained if she returns to China. She indicated that the authorities can arrest her for no reason, with no evidence.
The Tribunal asked the applicant if she had any other evidence to give as to why she fears returning to China. She repeated that she cannot go back as she will be arrested because of the farmer issue. She had no other evidence to give.
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
Nationality
The Tribunal finds that the applicant is a citizen of China, based on her Chinese passport, and will assess her claims on this basis. The Tribunal finds that she is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.
Does the applicant have a well-founded fear of persecution?
The applicant claims that she fears she will be arrested and detained if she returns to China because she wrote a letter to the Longhua District Government on behalf of peasant farmers who had not received their correct quota of [produce]. She claims she was then warned not help the peasants but continued to encourage the peasants to send their complaints to higher authorities. She claims the District Government contacted her employer requesting that they fire her. She claims her boss suggested she go overseas for a while but could later return to work for the company, so long as she no longer had anything to do with the government. She claims that since being in Australia, when she last called her boss in mid-2016, he advised her that a lawyer had got involved and that he had been detained. She fears the authorities will consider she has committed an offence aimed at overturning the government. She fears the government is of the opinion that she initiated the idea and incited the farmers to take action. She fears she could be imprisoned if the Longhua District government decided to have her arrested. She fears she might be pursued nationally and charged because of her actions in assisting the farmers. She believes she is on a blacklist. She also believes she cannot return to Shenyang because she will not be able to secure employment. She believes she will not be able to secure employment anywhere in China because employers will ask about her work history and prospective employers will say that there is a government record about her. She believes the government has a record of her on its national computer system. She believes she will be detained if she returns to China. She believes the authorities can arrest her for no reason, with no evidence.
The applicant is originally from Shenyang, Liaoning Province, China. The Tribunal notes her passport was issued from this province and in her visa application she indicated she applied for her passport in Shenyang. This is where her family continue to reside.
The Tribunal notes that the applicant has been consistent in her evidence regarding her involvement in in 2007 in protesting against the demolition of her parents’ home in Shenyang. Accordingly, having regard to the country information on property issues and land appropriation, the Tribunal accepts that the applicant’s description of events in 2007 is consistent with records of disputes over appropriated land and property demolitions. The Tribunal notes that there have been recent reforms to improve legal protections for property ownership however those reforms were not in place in 2007. Accordingly, the Tribunal accepts that in 2007 the applicant was involved in protesting on behalf of her parents in relation to the government’s decision to demolish her parents’ home for redevelopment. It accepts that she was involved in a protest which was broken up by the police. It also accepts that she was taken to the police station and warned not to participate in demonstrations that had not been approved. She has indicated that the situation went on for a year and the group complained to the provisional government but this was unanswered. She has stated that the group intended to complain to Beijing but by this time the group’s workplaces had been visited by government offices and as a consequence she lost her job in December 2007. She has stated that she was unable to secure other employment in Shenyang because of discipline problems and this badly affected her marriage would ultimately ended in divorce in 2009. The applicant has stated that in June 2009 her parents’ building was demolished and the authorities forced eviction of [households]. Having considered country information about property issues, developments and forced demolitions in China, the Tribunal is of the view the applicant’s evidence is not inconsistent with that information. As she has been consistent in her evidence on this issue, the Tribunal accepts that these events occurred and that she lost her job in December 2007. This is supported by her evidence that she relocated and secured new employment in June 2010 [in] Hainan Province.
The Tribunal also accepts that in November 2014 the applicant assisted peasant farmers to raise their concerns about discrepancies in the quantities of [produce] they had received by handwriting a letter from the association to the Longhua District government asking that the issue be addressed. The applicant claims that she was threatened with unspecified consequences by the government if she continued to help the farmers. The applicant claims that her employer, a distant relative, asked her to leave and indicated she could return in the future so long as she no longer had anything to do with the government. The Tribunal notes that the applicant then departed China and arrived in Australia [in] December 2014, about a month after she claimed she wrote the letter. The applicant has told the Tribunal that she was not arrested or convicted in China. She was able to depart China lawfully using her own lawfully issued passport. In these circumstances, while it accepts that the applicant assisted the farmers by writing a letter in November 2014 and then departing for Australia in December 2014, it is of the view the applicant was not of adverse interest to the authorities because she wrote a letter in November 2014. It is not satisfied that the authorities continued to associate the applicant with any actions taken by the farmers after she departed China in December 2014. The applicant claims that a lawyer became involved and he was subsequently detained. She has not provided any supporting evidence of this claim. In any case, the Tribunal is not satisfied that the authorities would associate the applicant with the farmers’ decision to engage a lawyer over a year after she left China just because she assisted them to write a letter in November 2014 and encouraged them to approach higher authorities.
The applicant has expressed fear, based on a conversation she had with her former employer in mid-2016, nearly 3 years ago, that the authorities in Hainan continue to associate her with the farmers’ actions. She has expressed fear that the authorities associate her with attempts to overturn the government. The Tribunal accepts that the applicant might be fearful however it is not satisfied that her assistance to the farmers, by writing one letter to the authorities in November 2014 and encouraging them to approach higher authorities, would result in the authorities associating her with attempts to overturn the government. The Tribunal notes that the applicant departed China using her own passport without any difficulty. Accordingly it is not satisfied that in December 2014 the applicant was of adverse interest to the authorities. It is not satisfied that she has been placed on a blacklist merely because of her assistance to the farmers as she has described. The Tribunal is not satisfied the applicant would be of national interest to the Chinese government and charged because of her actions in November/December 2014 if she were to return to China. It does not accept that she will be arrested and detained if she returns to China because of those actions.
The applicant has submitted that she cannot return to live in Shenyang, her home province where her parents reside, because of her participation in the protest in 2007. She believes that the authorities will have an adverse record of her on its computer system and she will not be able to find employment in Shenyang. She believes that she is on a blacklist. The Tribunal does not accept that the applicant is of adverse interest to the authorities because of any protest she participated in in the period 2007 to June 2009 before her parents’ building was to be demolished. While it accepts that her protest may have impacted on her employment in 2007, the Tribunal is not satisfied that action which she took over 10 years ago resulted in her currently being of adverse interest to the authorities. The Tribunal is not satisfied that the applicant cannot return to live in Shenyang where her parents reside because of the protest. The Tribunal is of the view that if the authorities were so concerned about the applicant’s actions in the period 2007 to June 2009 she would have had difficulties obtaining a valid passport and departing China in 2014. As the applicant was able to obtain from Liaoning Province a valid passport and depart China lawfully in 2014, the Tribunal is satisfied she is not of adverse interest to the authorities in that province or nationally. Therefore it is not satisfied she will come to the attention of the authorities if she returns to live in Shenyang because of her involvement in protests in the period 2007 to June 2009.
The applicant has indicated that if she returns to China she will not be able to secure employment because she will have records indicating that there were discipline problems. While the Tribunal accepts her oral and written evidence that her involvement in protests in 2007 impacted on her employment in 2007, the Tribunal is not satisfied on the information before it that the applicant will not be able to secure employment if she returns to China in the foreseeable future. The Tribunal notes that at the end of 2014 her employer suggested that she go on leave but that she could return to her employment in Hainan so long as she was no longer involved with the government. She has not indicated that she intends to participate in any further protests on behalf of the farmers. The applicant claimed that soon after she arrived in Australia her employer advised her that the government had asked about her and that he had told them that she was no longer with the company. There is no evidence to indicate that her employer in Hainan in fact fired her. Her own evidence indicates that he merely encouraged her to go on leave. She has claimed that in mid-2016 her employer said that she could not go back because the situation had not improved. On the basis of this evidence the Tribunal is not satisfied that there would be any adverse record about her employment history in Hainan. The Tribunal accepts that the applicant fears she may have difficulty securing employment in China however on the basis of the applicant’s evidence the Tribunal is not satisfied that, because of the applicant’s past history, she will not be able to secure employment if she returns to China. She has not been arrested or convicted in China. Her employment in 2007 may have been affected by her actions in 2007 however the Tribunal is not satisfied that those actions would result in records being kept about the applicant such that she would not be able to secure employment in China in the foreseeable future. Having considered the applicant’s evidence overall, the Tribunal is not satisfied the applicant will not be able to secure employment in China if she returns in the reasonably foreseeable future.
The Tribunal accepts that the applicant has expressed fears about being arrested and detained if she returns to China. She also fears that she will be unable to secure employment if she returns in reasonably foreseeable future. However the Tribunal must consider whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation. The applicant has a well-founded fear of persecution if there is a real chance she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.
On the basis of its findings the Tribunal is not satisfied that there is a real chance the applicant will be arrested and detained if she returns to China. Nor is it satisfied that there is a real chance she will be unable to secure employment if she returns to China. The applicant has not suggested that she will participate in any activities which will attract the adverse attention of the authorities if she returns to China. Accordingly, while the Tribunal accepts that the applicant has expressed fear about returning to China, it is not satisfied there is a real chance of serious harm if the applicant were to return to China in the reasonably foreseeable future. In light of these findings the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation. It is not satisfied there is a real chance she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of China. Therefore, she does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection. A person meets the complementary protection criteria if there are 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.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). The Tribunal accepts that the applicant’s employment in 2007 was affected by her protests in relation to the demolition of her parents’ building. However it notes that she was subsequently able to secure employment in 2010. She claims that her employment history will be affected by her actions in November 2014. However there is no suggestion that her employer fired her in 2014; he merely suggested that she go on leave and he told the authorities that she was no longer with the company. The Tribunal is not satisfied there are records which will result in the applicant being unable to secure employment in China. It is not satisfied there is evidence to suggest that there is a real risk that the applicant may suffer significant harm in the future in relation to any past conduct. The Tribunal is not satisfied the applicant will participate in any conduct in future which would attract the adverse attention of the authorities. Therefore the Tribunal is not satisfied there is a real risk that she would suffer significant harm if removed from Australia to China.
The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of significant harm.
Conclusion
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 s.36(2)(a). 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).]
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denise Connolly
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.
…

[2019] AATA 1411

26 March 2019

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

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Appeal