1616607 (Refugee)

1616607 (Refugee) [2019] AATA 6562 (14 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616607
COUNTRY OF REFERENCE:                   China
MEMBER:Catherine Carney-Orsborn
DATE:14 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 August 2019 at 3:49pm
CATCHWORDS
REFUGEE – protection visa – China – dispute with town government over compensation for acquisition of house and land for development – harassment and threats by police – credibility – inconsistent and implausible evidence – left China on own passport – no harm to wife and child in China – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
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 7 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, arrived in Australia [in] February 2015 as the holder of a [temporary] visa.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 19 May 2015. The applicant did not attend an interview with the Department. On 7 September 2016, the delegate refused to grant the visa on the basis that the applicant’s written claims did not provide a sufficient basis to find that the applicant is of adverse interest to the authorities. The applicant applied to the Tribunal for review of the decision on 7 October 2016.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
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 themselves 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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The applicant’s application for a protection visa is on the Department file. The applicant also provided a written statement setting out his claims for protection.
The applicant claims that he will be persecuted if he returns to China due to his resistance against the forced eviction from, and subsequent demolition of, the applicant’s home.
The following information is provided by the applicant in his application for protection and the statement he provided.
The applicant was born on [date] in Haian, Jiangsu, China. The applicant’s mother and father are both alive and living in China. The applicant married [in] February 1998, and his wife and [child] still live in China.
The applicant completed secondary school at the [Secondary School] in 1989. The applicant states that he lived in [Village], [Town], Haian, Jiangsu, China from birth till his departure from China in 2015. However, the applicant states that he worked as [an occupation] in Zhenzhou City from 1990 to 1997, and then in Shanghai from 1997 to 2015.
In July 2014, the town government issued a notice to the applicant that they would be acquiring the house and land, in order to sell the land and build [buildings 1]. At the time, the applicant was unemployed and only engaging in casual jobs, so he accepted an offer to live in a new house when the old home was demolished.
[In] September 2014, a government official came to the house and informed the applicant that he should vacate the house by [October] 2014. However, the compensation offered was insufficient to obtain new accommodation. When the applicant and his neighbour refused to move, the official stated that if they do not move, they will face the consequences.
On [a date in] October 2014, people came to demolish the houses forcibly. In the process, an old woman was almost buried, but was rescued. The applicant and his wife were forced to move in with the applicant’s parents.
The applicant and his neighbours went to petition the county government. There, an official told them “no demolishment, no new city.” The official said the compensation offered was reasonable, and threatened to imprison them if they continued to petition. The applicant swore that he would seek justice for himself and his parents.
[In] December 2014, police came to the applicant’s home. They questioned the applicant about why he had petitioned the government. The police threatened to detain the applicant if he continued to petition. The applicant’s parents were afraid, and out of consideration for them and their age, the applicant left home to live with a friend.
In January 2015, the applicant wrote to the Department of Letters and Visits, but received no response. On [a date in] January 2015, while the applicant was visiting his parents, police entered the home. They pushed the applicant’s father to the ground and made his mother stand in the corner. The police took the applicant to the police station, and stated that the applicant was organising a petition by contacting other people whose houses had been demolished. The police showed the applicant the letter he had sent to the Department of Letters and Visits. The police threatened to detain the applicant if he continued to petition, and that his family would be implicated.
The police requested that the applicant write a letter guaranteeing that he will not petition anymore. Fearing torture or worry for his parents, the applicant wrote the letter. The applicant was detained for a day to “examine” himself. The applicant moved to live with a relative. The applicant’s parents informed him that the police were still looking for him, and had asked for his address. The applicant then escaped to Australia.
The applicant provided a copy of his passport to the Department.
On 27 May 2019 the applicant attended a hearing at the Tribunal with an authorised Tribunal Officer. The Tribunal has a recording of the evidence provided and issues discussed and will consider that evidence along with all other evidence provided by the applicant.
On 31 July 2019 the applicant attended a further hearing before the Tribunal member to discuss the claims and present any concerns or further evidence.
A summary of the oral evidence is as follows.
The Tribunal went through the introductions and explained the process. The Tribunal explained that the Tribunal would consider the evidence before it and apply the same law that the Department applied however was not bound by their decision and would make a fresh decision. The Tribunal explained that it had before it the evidence and statements he had provided to the Department and the Tribunal including the oral evidence he earlier provided to the Tribunal.
The applicant indicated he had no problem understanding the interpreter.
The applicant confirmed his full name and date of birth. He said he was born at [address] [Village], [Town]. The Tribunal asked if that was the same home that he claims was demolished. He replied it was.
The Tribunal clarified that it was his parent’s home. The Tribunal said this was the same address as the home he claimed was demolished and was his home. The Tribunal pointed out that in his written statement he had referred to the house at that address that was demolished as his house. He confirmed that it was in fact his parents’ home.
He said he has his parents and [a sibling] living in China. He also has his wife and [child]. He said his wife is living at his [sibling]’s place. His parents are living at their old place where they have erected a small shed. The Tribunal asked him to clarify that his wife and [child] do not live with his parents but with his [sibling]. He confirmed that they live with his [sibling] and his parents live in a shed on the original property that was demolished.
He said he came to Australia [in] February 2015 and he has been living here ever since. He has been working in Australia on renovations. He works between [Town] and the Gold Coast. He explained that it is a long way away. He said his friend bought him to Sydney for the hearing.
The Tribunal asked the applicant why he could not return to China. He responded that in March 2014 the house was demolished and the compensation offered was unreasonably low. He claims he had an argument and was arrested.
The Tribunal asked if he could provide more detail. He claimed he was arrested in March/April 2014 and locked up for 18 hours. He said he had returned from Harbin city as his mother did not want the authorities to demolish the house however they compulsorily demolished it. He tried to step in to try to stop them.
He said he was detained and beaten and the police locked him up for 18 hours. He claims they then let him go. The Tribunal asked why they let him go. He responded that they did not have any evidence against him.
The Tribunal asked what amount of compensation was offered. He said they were offered [amount] Yuan however he thinks it may not be in his parent’s account because he left China.
The Tribunal asked how many houses were demolished. He replied that the whole village was demolished. He said there were [number] houses. The Tribunal asked what was built on the site. He responded they built [buildings 2].
The Tribunal asked about how he left China. He claims that the police told him he can’t leave the house or the country. They also told him he could not work. He claims he left secretly.
The Tribunal pointed out that it appeared he left on his own passport that had been issued by the authorities in [2014]. The Tribunal discussed country information which indicates if he was wanted by authorities he could not leave the country. He responded that his friend helped him get a passport.
The Tribunal pointed out that at the earlier hearing he had given a number of different addresses for where he lived however he now says there was only one address.
He replied that before March 2014 they were all living together. He said that in August 2014 his wife and child moved to live with his [sibling]. He said his parents continued to live at the original house in a small shed they built. The Tribunal pointed out that earlier he had said that the house was demolished and there was [buildings 2] built there. He responded that they built a small shed in front of the [building 2]. The Tribunal asked him to explain where they were living. He responded that they had two small pieces of land and they built a small shed on the small piece and were still living at the original address.
The Tribunal asked the applicant to clarify that his parents’ home was demolished and a [building 2] was built and his parents then built a small shed in front of the [building 2] in 2014 in which they still reside. He responded that this was correct.
The Tribunal said it appears the authorities have not moved them on as it is now 2019 and according to him his parents are continuing to live in a shed they built in front of the [building 2].
The Tribunal noted that it appeared the authorities were not harassing them. He responded that the authorities cannot drive them out from the shed because they did not help them settle elsewhere and it would be illegal. The Tribunal responded that it appeared from his evidence that the police were acting within the law and were not acting illegally.
He responded that they were acting illegally. He said he may have to pay a fine because he ran away to Australia.
The Tribunal asked if he was saying he was on a watch list. He said yes he was.
The Tribunal asked him to clarify that he was saying that after he was detained for 18 hours and beaten he was released and put on a watch list. He said it was 48 hours that he was detained, beaten and yes he was put on a watch list.
The Tribunal said it was finding it difficult to understand why his parents had been allowed to live in a small shed for five years on the original property and a [building 2] had been built around them. The Tribunal also pointed out again the previous discussion about country information which indicated that if he was on a watch list he could not have exited China. He responded that his friend helped him leave. He claimed it was a second passport. The Tribunal asked if it was a passport in his name issued by the appropriate authorities in china. He confirmed that it was.
The Tribunal again queried why the authorities would have issued him with a passport if he was on a watch list or of any interest to them. He responded that he had not committed any serious crime so they issued a passport. He had not hurt anyone or broken any law.
The Tribunal then asked how many houses his parents owned. He replied only the one house that was demolished.
He said they have never lived anywhere else as they have a deep connection to the place. The Tribunal pointed out that in his written statement of claim he had said his place was demolished and he had fled to live with his parents. He responded that this was because he had two sets of parents.
He said in his written statement that he left to live with his parents; he claimed that police came to his parents’ home and threatened them and as he was concerned about his parents and did not want to worry them he left to live with a friend.
He responded that he left to live with his [sibling]. The Tribunal asked if he could explain the inconsistencies between his written statement and oral evidence. He said he made a mistake and his parents only had one place. The Tribunal pointed out other inconsistencies for his comment. He had told the Tribunal that the house was demolished in March 2014 and he was arrested. In his oral evidence he stated that his wife and [child] moved in with his [sibling] in August 2014. However his written statement said the house was demolished [in] October 2014 and the police came to his parents’ home in January 2015 after he wrote letters to the “Department of letters and Visits”. In his written statement he claimed he was detained by the police in January 2015. He was asked to write a letter of guarantee. He claimed he wrote the letter of guarantee and was released after one day.
The Tribunal said there were significant differences in his story. He responded that he was arrested in March 2014 and the house was demolished in April 2014.
He responded that his responses were different as the questions had been mixed up. He said he was asked where he had worked and he gave those addresses.
The Tribunal asked if there was anything further he wanted to add. He responded that he had a problem with his [child] going to school. He said it will be difficult for [her/him] to find a job. The Tribunal asked if [s/he] had finished [her/his] schooling.
He responded that [s/he] had finished [her/his] schooling; [s/he] was [age] years of age and was currently in [subject] school. He claimed [s/he] will have problems due to him. In his oral evidence given on 27 May he said his wife and [child] want to come to Australia. When he was asked if there was anything he had done in Australia which might cause him problems if he returned to China he responded “no”.
The Tribunal noted that in his written application for protection he had his [child] and wife as residing at the address he claims his parents have built a shed and reside. He responded that the whole family uses that address.
The hearing then ended.
COUNTRY INFORMATION
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.
The Department Foreign Affairs and Trade (DFAT) Country Information Report: People’s Republic of China, dated 21 December 2017 provides the following information:
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight.[1]
[1] DFAT, Country Information Report – People’s Republic of China 2017, 21 December 2017, p. 40, para 5.20.

The Tribunal notes that the US Department of State reported that the government permitted legal emigration and foreign travel for most citizens. Government employees and retirees, especially from the military, continued to face foreign travel restrictions. The government expanded the use of exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents and persons employed in government posts. Border officials and police cited threats to “national security” as the reason for refusing permission to leave the country. Authorities stopped most such persons at the airport at the time of their attempted travel.[2]
[2] US Department of State, Country Reports on Human Rights Practices 2018 – China, 2018, p. 41, (accessed 30 May 2019).
The Canadian Immigration and Refugee Board also wrote a research report dated 6 March 2014 on exit procedures in China. The report stated that airport officials have access to the Public Security Bureau of China’s online database of citizens who have been convicted of crimes or are wanted by authorities, and that officials would often confiscate passports held by individuals deemed unsuitable for foreign travel.[3] The Board produced another report on 22 September 2015, which noted that a person may be requested to produce their passport up to four times at the airport, and will be scanned at the airline check-in and the departure counter.[4]
[3] Immigration and Refugee Board of Canada, China: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports¸6 March 2014, CHN104761.E (accessed 10 May 2019).
[4] Immigration and Refugee Board of Canada, China: Information on electronic/biometric passports, including security features, Radio Frequency ID (RFID) technology and wireless tracking capacity; exit procedures at international airports, including e-passport verification, security checkpoints, and the use of facial recognition technology, 22 September 2015, CHN105049.E, (accessed 10 May 2019).
In relation to protests, the DFAT report provides the following information on protestors and petitioners in China:
An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. Duihua’s Mass Incidents Database records 13,305 incidents involving 3,396 arrests in 2017 to 31 May.
Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT considers credible reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.
China’s Constitution and State Compensation Law enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness.
In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise. A series of protests in 2011 in Wukan, a village of 20,000 people in Guangdong province, over land appropriation led to the resignation of local officials and direct elections of village office-holders. While hailed at the time as a sign of greater openness to democratization, in 2016 provincial authorities arrested the popularly elected local chief, sparking further protests. In contrast to 2011, authorities violently suppressed the 2016 protests and excluded foreign media (including from Hong Kong), some of whom claimed themselves to be victims of police violence while attempting to cover the event. Police blockaded the village, preventing access to goods and services, and local leaders received lengthy sentences (up to ten years in prison) for their role. As of November 2017, the village remained under lock-down.[5]
[5] DFAT, Country Information Report – People’s Republic of China 2017, 21 December 2017, p. 24, paras [3.75] – [3.78].
The US Department of State provided the following reports on the treatment of petitioners and property disputes:
The law provides for the right of an individual to petition the government for resolution of grievances. Most petitions address grievances about land, housing, entitlements, the environment, or corruption, and most petitioners sought to present their complaints at local “letters and visits” offices. The government reported approximately six million petitions were submitted every year; however, persons petitioning the government continued to face restrictions on their rights to assemble and raise grievances.
Despite attempts at improving the petitioning system, progress was unsteady. While the central government reiterated prohibitions against blocking or restricting “normal petitioning” and against unlawfully detaining petitioners, official retaliation against petitioners continued. Regulations encourage all litigation-related petitions be handled at the local level through local or provincial courts, reinforcing a system of incentives for local officials to prevent petitioners from raising complaints to higher levels. Local officials sent security personnel to Beijing to force petitioners to return to their home provinces to prevent them from filing complaints against local officials with the central government. Such detentions often went unrecorded and often resulted in brief periods of incarceration in extralegal “black jails.”
On June 3, police in Guangzhou, Guangdong, detained Yang Suyuan, an activist who petitioned for employment severance benefits for staff dismissed from big state-owned banks. The police interrogated Yang, collected her fingerprints, took a DNA blood sample and facial record, and transferred her to a police station in her hometown in Qingyuan, Guangdong, for further questioning.
In June the Beijing Number 2 Intermediate People’s Court tried 12 suspects accused of illegally detaining, tying up, and beating a petitioner from Jiangxi Province in June 2017. The petitioner, Chen Yuxian from Shangyou, died in Beijing eight hours after the suspects took him away. The 12 suspects were reportedly from an illegal crime group under the guise of a car rental company that had close connections to local government officials, who had demanded the petition be intercepted. The Beijing court had not issued a verdict as of year’s end.[6]
…
Forced relocation because of urban development continued in some locations. Protests over relocation terms or compensation were common, and authorities prosecuted some protest leaders. In rural areas infrastructure and commercial development projects resulted in the forced relocation of thousands of persons.
Property-related disputes between citizens and government authorities sometimes turned violent. These disputes frequently stemmed from local officials’ collusion with property developers to pay little or no compensation to displaced residents, combined with a lack of effective government oversight or media scrutiny of local officials’ involvement in property transactions, as well as a lack of legal remedies or other dispute resolution mechanisms for displaced residents. The problem persisted despite central government claims it had imposed stronger controls over illegal land seizures and taken steps to standardize compensation.[7]
FINDINGS AND REASONS
[6] US Department of State, Country Reports on Human Rights Practices 2018 – China, 2018, pp. 18 – 19, (accessed 31 May 2019).
[7] US Department of State, Country Reports on Human Rights Practices 2018 – China, 2018, p. 20, (accessed 31 May 2019)/
Nationality
The applicant travelled to Australia on a valid Chinese passport and claims to be a national of the People’s Republic of China. The Tribunal accepts that the applicant is a national of China and has assessed his claims against China as his country of nationality.
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The Tribunal found the applicant to be a witness who lacked credibility. The Tribunal found the applicant to be inconsistent and implausible. The Tribunal has the following concerns about the applicant’s evidence which cause the Tribunal to question its veracity:-
The applicant was asked to address and discuss the reasons why he could not return to China. The applicant was told that the Tribunal had the written statement and his application for protection before it. The applicant gave a different version of his fears to the Tribunal than he had listed on his written statement of claim.
In the claim he stated that in July 2014 he received a notice that the government was acquiring his land and that new [buildings 1] would be built. He claims he agreed as he was unemployed however the compensation was not enough. He claims the government then demolished his house in [October] 2014. In his application for protection he claimed he was unemployed.
At the oral hearings he gave evidence that he had consistently been working in construction. He worked in China as [an occupation] and had travelled to [Country 1], [Country 2] and other cities in China for work. He has been working in Australia since he arrived in 2015.
In his oral evidence on 27 May 2019 he stated that the house was demolished in March 2014. In his oral evidence on 31 July 2019 he stated that he was given notice in March 2014 and the house was demolished in April 2014. He claimed [buildings 2] were built on the site.
In his written claims he claimed he was detained in January 2015 while at his parents’ home. He claimed he was kept for one day and made to write a letter of guarantee.
At hearing he stated he was arrested in March 2014, he was beaten and detained for 48 hours. He claims he was told he could not work or go out when he was released.
At the hearing the applicant provided to the Tribunal his passport, which indicates that it was issued in the applicant’s own name. The applicant was able to depart the country holding a passport in his own name. The applicant stated in evidence at the hearing that he was able to depart as he had a friend who helped to issue him with a passport. At hearing the applicant at first said he had committed no crime. Later when queried about why he could no return he stated he was on a watch list and was put on the list after he was detained by the local police. The Tribunal does not accept his explanation that a friend helped him get a passport and this allowed him to leave the country. The applicant has given evidence of traumatic experiences including detention periods of 1 day or 48 hours. His evidence is that he was beaten and threatened that he could not leave or work. The Tribunal has found the applicant not to be a witness of credit and does not accept those claims. The Tribunal considers the applicant’s ability to depart the country on his own passport to be inconsistent with the applicant’s claimed fear of persecution from higher authorities and fear that he will be arrested if he re-enters China. The Tribunal does not accept that he is at any risk from continued threats and harassment that is condoned or uncontrolled by those higher authorities.
The applicant was not able to adequately explain how his parents could continue to live in a shed they have built on land in front of the [building 2]. He could not explain why the authorities would tolerate this behaviour except to say the police could not touch them as it would be illegal. This was after he gave evidence of the police’s illegal behaviour towards him and his parents.
For these reasons, and the Tribunal’s finding about the applicant’s general lack of credibility apparent from the applicant’s lack of detail, inconsistency and ineffective response to the Tribunal’s concerns and questions, the Tribunal finds that the applicant has been untruthful in his claims to the Tribunal. The Tribunal rejects that the applicant had been involved in the reporting of corruption, the writing of letters or the complaining about the local town or government authorities. The Tribunal rejects the claim that the applicant referred the matter to the higher authorities. The Tribunal rejects the applicant’s claim that he spoke to people about his complaints, the corruption and the injustices and that he participated in demonstrations and was a petitioner. The Tribunal rejects the applicant’s claim that he was detained, harassed and beaten. After considering all the evidence Tribunal finds that the applicant will not pursue the problem in relation to lack of compensation or any other appeal against the authorities if he returns to China.
The applicant claims that his [child] will have difficulties with finding a job due to his actions. His [child] has completed [her/his] schooling and is currently in [subject] school. No evidence was given of [her/his] being affected other than the applicant’s assertion. However the Tribunal has considered the implied claim that his [child] will suffer persecution due to the applicant’s actions. The Tribunal has above outlined the applicant’s inconsistencies in relation to the incidents in which he claims he was involved. Due to those inconsistencies and his lack of credibility the Tribunal rejects his claim that his [child] may be subjected to any persecution because of [her/his] connection, real or implied, with [her/his] father.
The Tribunal rejects the applicant’s claim that the local and town government through corrupt police intended to harass, kill or detain the applicant. The Tribunal rejects the applicant’s claim that the applicant was of any interest to the authorities, the police or criminal elements influenced by the local government which was ultimately controlled by the Chinese government.
After considering the applicant's claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to China now or in the reasonably foreseeable future, there is no real chance that he will be persecuted for the reason of his political opinion, membership of a particular social group or for any other Convention reason.
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.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
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 is not satisfied 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 he will suffer significant harm. He therefore does not satisfy s.36(2)(aa).
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.
Catherine Carney-Orsborn
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 6562

14 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction