1609495 (Refugee)

[2019] AATA 6010

1609495 (Refugee) [2019] AATA 6010 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609495

COUNTRY OF REFERENCE:                   China

MEMBER:Penelope Hunter

DATE:3 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 July 2019 at 9:13am

CATCHWORDS

REFUGEE – protection visa – China – imputed political opinion – local environmental protests – water pollution – detention – complaints to local authorities and media – physical assault – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 17 March 2015.

   CLAIMS AND INFORMATION BEFORE THE TRIBUNAL

3. The applicant is aged [age], and is from [his home village], [in County 1], Hebei Province, China. She is of Han ethnicity, and completed 12 years of education, to the high school level in China. She previously worked in retail and arrived in Australia [in] November 2014 on a [temporary] visa.

4. In a statement accompanying her visa application, the applicant set out the following information:

   i.She operated a [shop] in her village. There was a [factory] [a short distance] away from her home which was built in [year], with more than [number] employees. Waste water from the [factory] was discharged and this caused pollution and affected crop yields. Surrounding villagers were often sick, and although the issue was reported repeatedly it was not resolved.

   ii.In 2013, over 10 villagers went to the [factory] to complain about the issue. The boss of the [factory], [Mr A], refused to talk with the villagers and shouted abuse at them. A villager, [Villager A], blamed him for the problems and [Mr A] ordered him to be beaten. [Mr A] said “no matter where you lodge complaint against me, I will not be worried. I have backers to support me”.

   iii.In December 2013, five villagers and the applicant went to the township government. They asked the government to investigate the pollution caused by the [factory]. The government did not respond. They then went to the Environment Protection Administration of [County 1] to complain about the pollution. It sent people to investigate the [factory] but a report was not released.

   iv.They then contacted [named newspaper] and a journalist reported the pollution, although it did not have any effect. When they contacted him again, the journalist said that he could not report further due to pressure from the government.

   v.Due to their complaints, [Mr A] incited gangsters to retaliate against them. Some were threatened and beaten by strangers. Two rogues went to the applicant’s shop to make trouble. One day a rogue beat her and made her shop messy. Rogues came to make trouble repeatedly and in February 2014, the applicant was forced to close her shop.

   vi.In February 2014, [Villager A], [Villager B] and the applicant petitioned to the Environment Protection Administration in [a named town]. Because of their efforts [Mr A] colluded with the township officials and police and they detained them. [In] April 2014, they were imprisoned at the police station for [number] days on the charge of disrupting social order. [Mr A] threatened to punish them if they continued to petition.

   vii.The government openly assisted evil businessmen to oppress farmers and this made the applicant worried about her safety. Through an agent she paid [amount] Yuan to get a passport and then an agent helped her to apply for a visa to Australia.

5. The applicant attended a Protection visa interview with a delegate of the Minister on 13 May 2016. Following the interview the applicant also submitted to the delegate via email photographs that she had shown at interview on her phone.

   Tribunal application

6. The applicant applied to the Tribunal for a review of the decision of the delegate on 26 June 2016. She did not submit any further material in support of her application.

7. On 11 April 2019, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments in support of her case. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. The applicant produced some photographs on her mobile and also claimed to have a statement and other documents to support her claims. The applicant was invited to submit further documents supporting her claims to the Tribunal on or before 18 April 2019.

8. Following the hearing, on 16 April 2019, the Tribunal wrote to the applicant pursuant to the provisions of s.424A of the Act and invited her to make comment on certain information, including information provided to the delegate. The applicant was requested to respond on or before 30 May 2019. The Tribunal has received no response and no further submissions from the applicant in relation to her claims.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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 s.5J(2)–(6) and ss.5K–5LA, which are extracted in the attachment to this decision.

13. 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

14. 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

15. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

16. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70.)

17. The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in her evidence and other reasons detailed below.

18. The applicant’s claims may be summarised as follows: the applicant was an environmental campaigner and after she complained to a local factory owner about pollution she was harassed. Then when she took her complaints to various levels of government and the media, the harassment increased, she was subjected to physical violence and her business was forced to close. Upon making complaints to the Environment Protection Administration the township officials and police arrested and detained her. The applicant left China due to threats and fears for her safety. If she returns she believes that the factory owner will either arrange for her to be killed or severely beaten. The authorities have not offered her protection in the past and the government assists businessmen to suppress dissent.

19. Firstly, the Tribunal is not satisfied that the applicant has given consistent evidence about the first confrontation with [Mr A], the factory manager, in her village. In her evidence to the Tribunal the applicant said that the factory was built in [year], and a year after construction problems arose, there was a bad smell and they were polluting so much that the water in the village was not usable. The applicant said that she went to complain to the factory manager with others in her village in 2012; she claimed that she attended many times. The applicant claimed that she went with members of the families of [Villager A] and [Villager B] to see whether something could be done about treating the water. The applicant was vague on how many times she attended; she responded that she could not remember exactly, she did not keep a record and that there was a process of complaining. Due to the vagaries of the applicant’s evidence and her inability to answer questions directly put to her at the hearing, the Tribunal had doubts that she was describing events that actually occurred. This doubt was further cemented when the applicant told the Tribunal that [Mr A] originally listened to their complaints. The Tribunal considered that this evidence was inconsistent with her initial written claims that [Mr A] had refused to talk to the villagers and just shouted abuse at them.

20. In addition, there is information contained in the decision of the delegate, as set out to the applicant in writing following the hearing, pursuant to s.424A of the Act, that the applicant had given a different account that the first confrontation with [Mr A] occurred at another time. The delegate records in their decision that, at the applicant’s interview on 13 May 2016, she told the delegate her father had attended the factory in January or February 2013 with five other villagers and the factory security guards set upon the villagers beating them so that they required hospitalisation for their injuries.[1] The applicant further claimed that her father remained in hospital for a week due to being beaten with sticks. At the hearing the applicant did not give evidence of an event similar to this where harm occurred to her father or other villagers. Additionally, she did not set out any harm to her father in an event similar to this in her written claims. This further inconsistency about conflict with the factory owner, and harm to the applicant’s father, also indicates to the Tribunal that her claims are not credible.

    [1] Page 5 of the decision of the delegate, folio 66 Department file

21. The inconsistencies continued as the applicant proceeded to narrate her evidence that it was not until after about six months things turned physical with the factory manager. When asked by the Tribunal when this had occurred she claimed not to remember the year but it was in April. When the Tribunal asked what happened the applicant said that a physical fight occurred on the road in the village with factory security guards, she and three other villagers were outnumbered and they were beaten with metal sticks. She said that the event occurred during the day and there were many other villagers watching and being jostled by the security guards who outnumbered them significantly. The applicant claimed not to be able to estimate the number of security guards. She said that she ended up in hospital for over a month, she lost teeth, there was bruising and bleeding to her head and pain to her lower back. The applicant referred the Tribunal to photographs that she had submitted to the delegate as evidence of the injuries she sustained at the time. The applicant also suggested that she could provide to the Tribunal a hospital letter and was requested to submit a copy within 7 days of the hearing. As at the time of this decision the Tribunal has received no further documentation from the applicant. Of further concern for the Tribunal is the fact that in her written claims the applicant had not described an event similar to this, particularly one where she experienced such severe physical harm. The Tribunal questioned the applicant as to this omission. She responded that the statement supporting her application was only brief and that she had told the delegate about the event at her interview. The Tribunal is not satisfied by this response. The Tribunal considers that if the applicant had experienced harm to the extent that she had been badly beaten by many security guards and hospitalised for a month, she would have provided information about this event with her initial claims. The omission indicates to the Tribunal that the applicant was not being truthful in her evidence about events that actually occurred.

22. As the applicant suggested that she had told the delegate about the altercation on the road, the Tribunal then invited the applicant to comment on information recorded in the decision of the delegate pursuant to s.424AA of the Act that she sustained her injuries when she went to the factory and attended the manager’s office. It is recorded that she said that she got into a fight with [Mr A], his wife and his children,[2] and that as a consequence of this altercation she sustained the injuries for which the photographs were provided to the delegate. This was inconsistent with the evidence she had provided at the hearing. The applicant chose to respond immediately and claimed that the incident described for the delegate took place before Chinese New Year and the one she had described for the Tribunal took place in April on the road after Chinese New Year. She said they were two separate incidents. The Tribunal did not find the explanation of the applicant to be satisfactory, and discussed with the applicant that it appeared that she was describing how she sustained the same injuries in two separate ways. The applicant claimed that she was telling the truth, however overall the Tribunal is not satisfied that this was the case. She has omitted evidence of any claims of injuries requiring hospitalisation from her original claims, further she has provided different accounts of how she sustained those injuries to the delegate and then the Tribunal. When questioned on this inconsistency she claimed that both incidents occurred. Yet, earlier in the hearing when the Tribunal had attempted to clarify with the applicant the precise details of the timing of the beating that led to her hospitalisation she said that she could not remember precisely because there were many fights but that when she was beaten on the road this was the worst. She suggested that there had been around five smaller fights. The Tribunal had asked her for specific details of incidents and at this time the applicant was unable to elaborate other than they came to her house twice and she maybe went to them three times. This explanation does not account for why the description of the clash at the factory was omitted from her narrative of events that had occurred in her evidence before the Tribunal. These inconsistencies and omissions further demonstrate to the Tribunal that the applicant was not describing events which actually occurred.

    [2] Page 6 of the decision of the delegate, folio 65 Department file

23. The applicant also omitted from her initial evidence at the Tribunal hearing any reference to her written claim that she and two other villagers were imprisoned at the police station for [number] days [in] April 2014 for disrupting social order. When the Tribunal drew this omission to the attention of the applicant she responded that she did not mention it because the Tribunal had not asked her questions about detention and she said she thought she was required to only answer questions put to her. The Tribunal does not accept this explanation for the omission. The applicant was asked open questions to describe the events that had led her to depart China; she was also asked about reporting matters to the police. In her evidence regarding reports to the police she only said that the incident where she had been attacked on the road by the security guards had been reported, that the police had initially investigated and then they became silent. The Tribunal considered this a significant omission from her original claims, and it further demonstrated to the Tribunal the unreliability of the applicant’s claims.

24. When the Tribunal asked the applicant what happened after she had left hospital she claimed that hooligans employed by the factory manager came to her shop and they threw chairs around, pulled [items] on display down, pushed her around and made a mess. The Tribunal then clarified with the applicant her earlier evidence that her shop was located at her house, and she confirmed that this was correct. The Tribunal also attempted to clarify if the times that the applicant was claiming hooligans came to her shop were the same times that she had mentioned that they came to her house and fought earlier in her evidence. The applicant then appeared to revise her evidence and said that her shop had a different entrance to the house, and it was three extra times that they came to her shop. It appeared to the Tribunal that the applicant was manufacturing her evidence on the run. The Tribunal asked the applicant if she could recall the times that they came to her shop, and indicated that a reference to a particular year would be sufficient. The applicant responded that it seemed like whenever she had customers in they would just come in. The Tribunal then attempted to clarify with the applicant whether she was saying that she was harassed in her shop many times or three times. Again, the evidence of the applicant shifted and she said that the two or three times were when they were pushing [items] down and messing things up. The other times they would just stop customers from coming in. Further undermining the reliability of the applicant’s claims regarding her inability to operate her business, the delegate records in their decision that, at her interview on 13 May 2016, the applicant told the delegate that she had closed her shop because the landlord would not renew the lease.[3] The applicant did not respond to this information sent to her in a letter pursuant to s.424A of the Act dated 18 April 2019. If the applicant’s shop was located at her home as she claimed she would not need to lease the premises. Again the shifting nature of the applicant’s evidence and the inconsistency with her previous statements lead the Tribunal to conclude that her claims are not reliable.

    [3] Page 6 of the decision of the delegate, folio 65 Department file

1. When the Tribunal asked the applicant about her complaints to the Environmental Protection Administration, the applicant could not remember when this had taken place. Under further questioning from the Tribunal she suggested that it was after 2012, but before she was beaten on the road by the security guards. The Tribunal then asked the applicant to clarify where exactly she went and she was unable to provide details. She did not know the address, she claimed that she caught a bus from her village to the county centre and they just found the place. The Tribunal also found the applicant’s evidence as to the manner of her complaint lacking in credibility. She claimed that they were told to put documents together, but when the Tribunal asked about particulars of the complaint she suggested that the two other families that accompanied her had photographs and documents to show to the Bureau. But she just made a verbal request and when they filed their complaint they were not asked to write anything down. She was then told that they would look at it and to go home and trust them. Due to the vague nature of her evidence and the inability to provide contextual details in relation to these events again the Tribunal was not satisfied that they had occurred.

2. With respect to the claim that complaints were made to the newspaper about the factory the applicant gave further evidence which was considered inconsistent. At the Tribunal hearing the applicant said that she personally did not go to the newspaper. Her evidence at the hearing was that the report had come out about six months prior to her leaving China and at this time she had just wanted to hide herself away. The applicant claimed that it was the son of [Villager A] and the niece of [Villager B] that had contacted the newspaper. She also told the Tribunal that after the newspaper report the story became bigger and bigger, and they started investigating and after she came to Australia the factory had closed down. This is inconsistent with the evidence the delegate records in their decision that during her interview on 13 May 2016, the applicant told the delegate that she had spoken to a journalist about the factory pollution in 2013. She previously claimed she had been introduced to the journalist by her cousin when she had gone to the city to get [supplies] for her store and during the trip met with the journalist, named [name]. She had further said that the article had not been widespread, and when she returned to ask the journalist to investigate further, he told her that his superiors had instructed him not to report further on the issue.[4] The Tribunal wrote to the applicant regarding this inconsistency in its letter of 18 April 2019, pursuant to s.424A of the Act. The applicant has not provided any response or explanation. The Tribunal considers that the applicant’s inconsistent evidence about her role in reports to the newspaper about the factory and their response, further demonstrates that the applicant is not a witness of truth and that her claims to fear harm in China are not credible.

   [4] Page 9 of the decision of the delegate, folio 62 Department file

3. The delegate also records in their decision that, at her interview on 13 May 2016, the applicant told the delegate that the factory manager, [Mr A], had warned her not to let him see her and that her life would be in peril if she returned to China.[5] She further told the delegate that she did not know whether anyone else in her village had been threatened. The Tribunal considered that this information was also different to the evidence provided by the applicant at the Tribunal hearing. The applicant claimed at the hearing that since she departed China the factory manager had caused people to come to her house every couple of months, or three to four times a year, that they threaten her father asking for her to come back and sort things out, and that they dismantle and cause damage to their house. Again the applicant did not comment on the inconsistency when the information from the delegate’s interview was put to her for comment pursuant to s.424A of the Act in the Tribunal letter of 18 April 2019. The Tribunal considers that this further inconsistency demonstrates that the applicant is not a witness of truth and that the reasons she claims to fear harm in China are not credible.

   [5] Page 9 of the decision of the delegate, folio 62 Department file

4. Furthermore the applicant provided inconsistent evidence about the ongoing operation of the factory. At the hearing she said that the factory managed by [Mr A] had closed down. It closed down because of the newspaper reports, and other villagers complaining and government investigation. The applicant also told the Tribunal that there were lawsuits. The Tribunal asked the applicant when the factory had closed down and she claimed that it was a year after she had left in 2016. The Tribunal then suggested to the applicant that it would have been closed at the time of her interview with the delegate. The applicant responded in the negative and said that it was still open when she applied for her protection visa. The Tribunal reminded the applicant that although she had lodged her application in March 2015, she was not interviewed by the delegate until May 2016. The applicant then prevaricated in her evidence and she said that she was not sure; she remembered ringing her father at the time and him saying it was closed. She also suggested that after she left what had happened was that the factory had closed down and then re-opened, and this had occurred several times. Once more it appeared that the applicant was adapting her evidence on the run, in order to address issues raised by the Tribunal. Furthermore, as was put to the applicant in writing in the Tribunal letter of 18 April 2019, at her interview on 13 May 2016, the applicant is recorded by the delegate as providing information that the factory managed by [Mr A] had not closed down.[6] The Tribunal considered that this inconsistent evidence on the fate of the factory further reflected poorly on the credibility of the applicant.

   [6] Page 8 of the decision of the delegate, folio 63 Department file

5. As the applicant had not returned to China since 2014, and the factory had closed down in 2016, it did not make any sense to the Tribunal that [Mr A] would have any ongoing interest in the applicant. When this proposition was put to the applicant at the hearing she claimed that she was blamed for the factory closure because she started events by the complaint to the Environmental Protection Bureau and the newspaper. She said that [Mr A] thought that his family and hers had the biggest conflict. The Tribunal had difficulty with this explanation because, on her evidence, it was members of the families of [Villager A] and [Villager B] that had provided documents to the Environmental Protection Bureau and had gone to the newspaper. In response the applicant claimed that [Mr A] still blamed her and she was seen as the leader, the mastermind of the three family groups. The Tribunal queried whether the applicant would have this role; she was not a landholder or farmer in the village, she personally did not have any property interests or livelihood affected by the factory. The applicant said that as her father’s only child she managed his affairs for the family. The Tribunal still did not accept that as a young female the applicant would have taken this mantle. The applicant had earlier told the Tribunal that her father had [number] brothers in the village, and it was on the family communal land that the factory was built. It appeared to the Tribunal that the applicant was attempting to exaggerate her profile in order to assist her claim for protection. The applicant also said that the other families involved in protesting with her did not need protection as they had all left the village, and [Mr A] could not find them. The Tribunal found the applicant’s evidence that the families of [Villager A] and [Villager B] had to leave the village to avoid [Mr A], difficult to reconcile with the fact that her father and uncles had continued to remain in the village without harm. Also the applicant had said that lawsuits by other villagers had contributed to the closure of the factory; the applicant has not claimed to have been involved in legal proceedings. The Tribunal is not satisfied that the applicant has established a credible reason why [Mr A] would have any ongoing interest in her. This further undermined the plausibility of the applicant’s claims.

6. At the hearing the Tribunal raised with the applicant the reliability of her claims, particularly due to her inability to remember dates, sequences of events and critical matters raised in her written claims. The applicant responded that if she had wanted to make up her claims she would ensure that she got the date and sequence clear. The Tribunal was not persuaded by this response. The Tribunal has also considered the time which has elapsed since the applicant departed China and that the hearing process may have been stressful for the applicant. However, considering the evidence of the applicant overall, the Tribunal is not satisfied that the reasons that the applicant claims to need protection in China are factual. In making this finding the Tribunal has had regard to the photographic evidence submitted by the applicant to the delegate. The Tribunal is not satisfied that the swelling depicted to the applicant’s face is for the reasons that she has claimed. The photographs are undated and the Tribunal is not persuaded due to the concerns with the credibility of the applicant’s claims as set out above that any weight can be placed upon them to corroborate the matters raised by the applicant. With respect to the photographs alleged to be of the applicant’s home, the Tribunal is not satisfied that these corroborate damage to her home by supporters of the factory manager. The applicant showed the Tribunal similar images on her phone at the Tribunal hearing. When the Tribunal requested that she email a copy to the Tribunal registry at the hearing she claimed not to understand how to send an email. Yet she has consent to email communication in relation to her matter from the Tribunal, and was also able to access via email the hearing invitation during the hearing. The Tribunal raised with the applicant that the images she had on her phone and were claiming were pictures of damage that had occurred the week before the Tribunal hearing were extremely similar to those she had submitted to the delegate. The applicant conceded the similarity however responded that her home was an old house and her father would patch it with old materials and then the factory manager would have his supporters just tear it down again. The Tribunal does not accept this explanation, the relevant photographs were supposedly taken three years apart. It is considered that this was another example of the applicant manufacturing her claims. A finding that is further supported by the applicant’s decision not to submit these photographs despite the request to do so at the conclusion of the hearing.

7. The Tribunal does not accept that the applicant was an environmental campaigner over factory pollution in her village, that she complained to the factory manager, the police, the government Environmental Protection Bureau or the newspaper at any time. It does not accept that she suffered harm from the factory manager, his associates or employees or that she was detained by the police at any time. The Tribunal is not satisfied that the applicant suffered harm in China in the past for the reasons that she has claimed. It is also not satisfied that the applicant was forced to go into hiding or leave China due to threats to her safety. The multiple inconsistencies in the applicant’s evidence, the significant omissions in her evidence to the Tribunal and the implausibility of elements of her claims leaves the Tribunal with the conclusion that her claims to fear harm are not based on events that actually occurred. Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the reasons that she has claimed should she return to China, now or in the reasonably foreseeable future.

8. 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).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa). As stated above the Tribunal is not satisfied that the reasons that the applicant claims to fear harm in China are credible. The Tribunal is not satisfied that she is an environmental campaigner, that she was involved in making complaints to the factory manager, the police, the government and the newspaper. It is not satisfied that she was ever harmed in China as a result of this activity, arrested or detained or that she had left China and sought protection for these reasons. For the same reasons as set out above, the Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that she will suffer significant harm as a result of her environmental protest or for any other reason. Therefore, the Tribunal is not satisfied that the applicant will suffer significant harm, which includes arbitrary deprivation of her life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment, for any reason upon her return to China. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that she will suffer significant harm.

10. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

11. 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 criteria in s.36(2).

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Penelope Hunter
    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.

    ..

    36 Protection 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.

    …