1620417 (Refugee)

1620417 (Refugee) [2018] AATA 3096 (10 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1620417
COUNTRY OF REFERENCE: China
MEMBER:Louise Nicholls
DATE:10 July 2018
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 July 2018 at 2:05pm

CATCHWORDS
Refugee – Protection visa – China – Member of particular social group – Supporter of wife’s anti-government activities – Victim of unqualified persons conducting ligation – Victim of social compensation fees – Subject of detainment, harassment and extortion – Fear of harm by police – Inconsistent information – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 424A, 438
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims he is a citizen of the People’s Republic of China (China) and is now [age] years old. He claims he was born in Fujian Province, China. On 24 April 2016 he arrived in Australia travelling on a Chinese passport as the holder of a visit visa granted on 19 April 2016.
The applicant applied for a protection visa on 30 June 2016. He provided a number of documents with his application, including:
·His statutory declaration made on 30 June 2016.
·A photocopy of his Chinese passport issued [in] 2014 with Chinese departure stamps and an Australian arrival stamp.
The applicant attended an interview with the delegate of the Minister for Immigration on 8 November 2016.
On 11 November 2016 the delegate refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for the visa.
This is an application for review of that decision and it was lodged on 1 December 2016. The applicant provided a photocopy of the delegate’s decision record dated 11 November 2016.
There are no certificates issued pursuant to s.438 of the Act restricting disclosure of any material on Departmental files provided to the Tribunal.
The applicant and his wife both made separate applications for protection and their applications were refused by the delegate. The applicant and his wife were both represented by the same [representative].
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Invitation to hearing
On 30 March 2017 the applicant was first invited to attend a Tribunal hearing on 24 April 2017. His wife was invited to a hearing on the same date at an earlier time.
On 18 April 2017 the applicant’s representative sought a postponement of both hearings on the basis that the applicant’s wife was in poor health and had been hospitalised for three days and the applicant was required to care for her.
He provided a copy of ;
·A discharge document from [a local] Hospital dated [in] April which noted the applicant’s wife had been referred by her General Practitioner due to concerns of suicidal ideation. After examination and assessment she was diagnosed with mild/ moderate depression. The treating doctor noted she had no history of mental health problems, had increasing mood and sleep disturbance and that she was suffering stressors relating to separation from her family and unresolved grief following the death of a friend. He considered a visit with her family might improve her condition and he questioned whether the long term future plan to stay in Australia would be the most appropriate decision for her. He recommended that she be discharged, followed up with [a health centre] and followed up with her GP.
·A discharge document issued by [a second hospital] dated [in] April 2017 which noted that the applicant’s wife had been referred by [another] Hospital due to expressing self-harm ideas. At the consultation she raised her visa problems and admitted to sleep difficulties but denied suicidal thoughts. She stated she had gone to hospital to obtain sleeping medication. Following assessment she was discharged with the applicant.
As requested, the Tribunal postponed the hearing to the 12 May 2017.
On 5 May 2017 the applicant’s representative requested a further postponement for both the applicant and his wife and provided a medical certificate issued by [a doctor] from the [health centre]. [The doctor’s] certificate stated that the applicant and his wife would be unable to attend the Tribunal until 5 August 2017. The Tribunal asked the representative to provide further evidence as to why a lengthy postponement was necessary. No response was provided.
On 4 August 2017 the applicant’s representative requested a further postponement. On 18 August 2017 the Tribunal advised that it had granted the postponement but that if further postponements were sought, the applicant should provide medical or social welfare evidence as to why he could not attend the Tribunal for a period of 3-4 hours in view of the possible availability of respite care for his wife if this was necessary.
The hearing was postponed to 16 November 2017 and the applicant gave evidence on that date. The applicant was assisted by an interpreter of the English and Mandarin languages. His representative attended the hearing.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.
The relevant law is set out in Attachment A.
What is the country of reference?
The applicant claims he was born in [Village 1], Fuqing District, Fujian Province, China. He has provided a copy of his Chinese passport and presented this document at the Tribunal hearing. The passport provided to the Tribunal states that the passport was issued in China, whereas the passport used to support the application for a visit visa indicates it was issued in [City 1], [Country 1]. However, despite this anomaly, the Tribunal accepts that the applicant is a Chinese national. The applicant spoke Mandarin fluently and was familiar with the geography and culture of Fujian Province, China.
Taking into account the available evidence the Tribunal is satisfied that the applicant is a Chinese national and that China is the receiving country for the purpose of s. 36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in the statement accompanying his application for protection. His claims were further discussed with the delegate in an interview on 8 November 2016.
The applicant also gave oral evidence as to his claims at the Tribunal hearing held on 16 November 2017.
The applicant claims that he and his wife have three children. He claimed that their third child was born after a failed sterilisation procedure. They were required to pay social compensation fees for breaching relevant Chinese family planning regulations in relation to all three children. They borrowed money to pay for the social compensation fees and their second child’s unexpected medical expenses and were heavily in debt.
The applicant went to work in Shanghai in 2014 to earn money towards repaying their debt. Whilst he was in Shanghai he claimed his wife led protest activities against the local government officials in Fujian in December 2014 to complain about failed ligation procedures which had affected her and other women living in her village. In March 2015 the police went to arrest the applicant’s wife and she escaped to Shanghai where she hid until the applicant was able to organise her travel to Australia in May 2015.
The applicant claimed he returned to Fujian Province in May 2015 but did not return to his home village. He claimed that he learnt police went to Shanghai to look for his wife and found that she had escaped to Australia. He also stated police were looking for him to investigate whether he had supported his wife’s protest activities. The applicant claims he repaid most of the couple’s debts by December 2015 and consequently moved back to [Village 1] but was regularly harassed by local police from [the] Public Security Bureau PSB (police) until they detained him for 10 days in March 2016. He then fled his home and went to Shanghai where he arranged to depart China on 23 April 2016. He claims that he fears he will be seriously harmed by Chinese police if he returns to China.
In the applicant’s statutory declaration made on 30 June 2016 he stated:
·He was born in [date] in [Village 1] a rural village in Fujian province China. His parents were farmers and he has [siblings]. He left school at the end of primary school and had to start working [when] he was about [age] years of age.
·He did not have a fixed employer and did construction work for different contractors.
·In about 2000 he formed a relationship with his current wife however his parents did not support their relationship. During the following years he and his wife experienced many difficulties. They had to hide in a remote village for quite a long time. They have three children. Their first son was born [in date], their second son was born [in date] and their daughter was born [in date]. As the two sons were born out of wedlock and the daughter was born in violation of family planning regulations they were accused of breaching the Chinese family planning regulations. As a result they had to spend a lot of money to pay social compensation fees for the three children. If they had not done so, they would have been unable to obtain household registration for their children.
·Sometime after the birth of their second child the applicant’s wife was forced to have ligation performed by a medical official of [the local] government. He claimed the medical official was unqualified and owing to her mistake his wife became pregnant in 2005 and they eventually had their third child, a daughter. However they had to pay a huge fine for the daughter even though it was caused by the official’s mistake.
·He and his wife were subjected to serious financial hardship and they also had to pay expensive medical costs for the second son who had suffered from [a medical condition] in 2012. Even though the applicant worked very hard they continued to have significant debts.
·In September 2014 the applicant went to Shanghai because of the couple’s high level of indebtedness. He claimed that creditors took away all their valuable articles and beat up his wife. He stated police refused to give them protection.
·His wife protested against the Chinese government from December 2014 and widely contacted other victims of unqualified persons conducting ligation. He stated that she claimed she encouraged them to strive for the basic human rights and demanded that the government compensate them for its mistakes. He stated his wife was accused of planning anti-government protests and [in] March 2015 the police went to arrest his wife but she was not at home and escaped to Shanghai.
·He arranged to hide his wife at a friend’s home in Shanghai and claimed that at that time the police were looking for his wife everywhere. He claimed his family relatives and friends were questioned or investigated by the police. His friend’s wife had wide social contacts in Shanghai and organised his wife’s trip overseas. With her help his wife left China from Shanghai on 4 May 2015.
·The applicant did not remain in Shanghai and did not want to return to his home village where his three children were living with grandparents. He returned to Fujian province but he stayed at the home of a distant relative who lived in [a] village.
·He claimed that police went to Shanghai not long after he left and found that his wife had escaped from Shanghai. He also learnt from his friend that the police looked for the applicant in order to investigate whether he had supported his wife’s anti-government movement.
·The applicant worked hard and with the help of a distant relative he repaid his debts. As a result he moved back to his home in [Village 1] in December 2015.
·He claimed that after he moved back to his village he was regularly harassed by police from [the] PSB. Police told him he needed to cooperate with them to investigate his wife’s anti-government movement. They took him to the PSB office to interrogate him but also came to his home to question him. He believed their real purpose was to extort money from him because those police believed that he had spent many years outside the village and should have made a lot of money. They also thought his wife was able to earn money overseas. The village head hinted to him he could fix everything up for a bribe of [amount] RMB. The applicant did not have this amount of money to bribe police.
·In March 2016 when he was taken to [the] PSB to investigate recent contacts with his wife he blamed the police for using their power to extort money and stated he would report them to higher authorities. As a result he was subjected to severe punishment by police and was detained for 10 days and during that period was subjected to mistreatment. He finally agreed to give the police money but said he needed further time.
·He was released [in] March 2016 and was forced to sign a statement which he admitted he had supported his wife’s anti-government movement and obstructed police. Police threatened they would arrest him again if he broke his promise to them.
·After he was released he ran away and went to Shanghai and hid in the home of his friend. With the help of his friend’s wife, he escaped China on 23 April 2016. He claims he has been blacklisted by the PSB and would be arrested and suffer significant harm if he returned to China.
On 8 November 2016 the applicant attended an interview with the delegate and provided the following information:
·He stated he told his story to his agent who prepared the application for him. He claimed he earned over $100 per day for up to 4 days a week work and pays $260 per week rent together with his wife.
·The applicant has three children in China but has no photos of the children. The children live with his parents and are supported by the produce of their farm. He stated he does not send any money home. The applicant spoke to family two weeks ago and they are well.
·He left China through Shanghai airport and before he left he saw his family for 20 or 30 minutes at a place near Changle airport in Fujian. The applicant claimed he was driven by his friends from Shanghai to meet his children and then his friend drove him back to Shanghai. His children caught the bus to meet him and returned to their home by bus.
·The applicant lived in the Pudong district in Shanghai before he arrived in Australia and before that he lived in a small town far from his home village as he was hiding from the police. The applicant does not have his hukou with him. He claimed he lived in a small village from 2001 to 2003 and then from 2005 to 2012 and he grew vegetables.
·The applicant had a previous passport which was returned to authorities when he was issued with his new passport in 2014. He had intended to travel before he married but he did not travel.
·His friend helped him apply for his new passport in 2014 because if he was caught by police he would lose his life. He did not travel overseas in 2014 as his friend had not found the right means to travel. He obtained his passport by going to a police station and having his photograph and fingerprints taken and by paying a fee. He stated he had no difficulties when lodging his application for a passport.
·The applicant cannot return to China as he will be arrested by police because he owes them money. He stated he cannot afford the fines for his extra child as his family is poor. The delegate asked him to clarify this claim as he had stated in his written application that he paid his fines. He stated he paid all his debts and then later he was arrested and swore at police. They said he was anti-government and they were trying to arrest his wife but she was away from home in Shanghai. The applicant was at home. The police suggested the applicant was behind his wife’s activities and locked him up from [a date in] March 2016 until [later in] March 2016.
·The applicant said he was detained and his wife ran away to Shanghai. He then corrected this evidence and stated his wife was already in Australia at the time he was detained. He stated the government blamed him for his wife’s activities and said she was anti-government after their second child was born.
·The police came to his house to harass him and ask him about his wife’s whereabouts; they also harass harassed his family members and claimed that he supported his wife to run away. If the applicant returns to China he will be arrested by police because they told him to pay [amount] RMB. The applicant stated that the police did not pay the social compensation fees to the government but kept the funds for self. He has no evidence of this but this is what he thinks.
·The applicant gave details of torture he said police inflicted on him but had not told his agent about this torture because he was not asked. The applicant has told his agent he was arrested for 10 days. He has no other evidence that he was detained for 10 days. The applicant said he used his wife’s connection to come to Australia as she is [an occupation] in Shanghai. He had no problems when he was leaving the country and his passport was stamped by the customs officer. He said he could not pay his fine and would be arrested on his return to China.
·The applicant said police were able to arrest him because he was at home. Given his previous evidence, when he was asked to clarify he said that he had gone home for a while at the time he was arrested.
At the Tribunal Hearing 16 November 2017 the applicant gave further evidence about his claims for protection.
The applicant gave evidence he was born in [Village 1] in Fujian Province. His parents live in [Village 1] and they are contract rural workers. He has [siblings] and they also live in [Village 1] and are engaged in farming work.
He attended school in [Village 1] and left school when he was about [age/age] years old. When he finished school he did casual construction work with relatives who were involved in the building industry.
He arrived in Australia on 23 April 2016 travelling on his Chinese passport. He claimed that he travelled on his own from Changle airport in Fujian Province, then to Shanghai where he caught an international flight to Sydney. He was not sure of the airline he used to leave China. He claimed a childhood friend organised his visa and bought his airticket. The applicant claimed that his friend did not tell him the cost of the airticket and visa and the Tribunal noted that he still owed his friend the visa and travel expenses.
He claimed that his friend lodged the application for the visa after the applicant was released from detention in March 2016. The applicant claimed the police asked him for the sum of [amount] RMB and he could not pay this amount so his friend organised the visa.
The Tribunal asked the applicant what things he had to give to his friend to obtain the visa. He stated his friend applied for a passport then applied for his Australian visa. The Tribunal pointed out that his passport had been issued in 2014. He then stated that he had an older passport which expired before he got married then he applied for another passport and the authorities took back his old passport. He stated that his friend had not applied for his passport because the applicant already had a passport. The Tribunal put it to him that he had earlier stated that his friend obtained his passport but he stated this was not correct; his friend took his existing passport to lodge his application for a visa.

He stated he kept his passport at home in [Village 1] and his friend came to his home to collect the passport and took it from the applicant. The Tribunal put it to him that he must have been living in the village at this time. The applicant then changed his evidence and stated that his friend picked it up from the applicant’s parents at his family home but he was not living there at the time. The applicant stated he was not sure what happened to his passport after it was picked up. He stated his friend asked him if he wanted to survive and he agreed to help him get a visa to leave China. His friend lived in Shanghai and was operating a small construction project and the applicant thought that when he arrived in Australia he would work and earn enough money to pay his friend for the costs of his visa and travel. The applicant claimed he lived in Shanghai immediately before he left China.
He stated that before he was detained in March 2016 he was living in [Village 1]. He claimed [in] March 2016 that the police wanted to arrest his wife and needed him to come into the [police] station and be questioned about his wife’s whereabouts.
The Tribunal put it to the applicant that his wife was in Australia at the time he claims he was detained and the police would have been aware that his wife had left China. It put it to him that the Chinese government has a comprehensive border entry and exit database to which the Chinese police have access. In these circumstances it did not make sense for police to be asking him about his wife’s whereabouts. He stated his wife left but he was still in [Village 1] and they kept looking for him and he was not at home when they came to question him.
He stated that after his wife left the police called him, they brought him to the [police] station, detained him and then released him. He claimed that police believed he supported his wife’s anti-government movement.
The applicant told the Tribunal his wife left China on 3 May 2015. He claimed he was hiding in a relative’s home in [a] village, Fujian Province at that time. He stated he did not leave at that time because he had three children in Fujian Province. Further he stated that his wife had committed the “so called” crime.
When asked what his wife’s anti-government activity involved, he stated after they had their two sons his wife went through a sterilisation procedure by an unqualified official and the procedure was not performed properly causing his wife to fall pregnant a third time in 2005.
He stated that the applicant had gone to the government office and lodged a noisy complaint. There were about 20 people gathered in front of the office and they were told to move on. The applicant was regarded as the leader and the police wanted to arrest the applicant’s wife but she escaped before she could be arrested.
The Tribunal asked the applicant why his wife waited nine years after their daughter was born in 2005 to start a protest. He stated that they had to pay a large penalty and the protest slowly grew over the years.
The Tribunal put it to him that in his statement he claimed his wife started to protest in December 2014 but now he stated that she protested before 2014. He stated it was a long time ago and he could only remember the overall process.
The applicant’s friend in Shanghai who had organised his visa also made the arrangements for his wife’s departure.
The Tribunal asked the applicant why his wife would not give evidence in her own application and in his matter. He stated that once her application was refused by the delegate she was under a lot of pressure and became scared of strangers. He claimed that she had been seeing a doctor about her condition and was taking medication. He claimed that her medications had been prescribed by a psychologist and she had also seen [a doctor] at [the] Hospital.
The applicant and his wife met in 2000 when they worked together. He said they went to some places and fell in love. They did various chores and rural farming work such as picking vegetables. His wife came from [another] village which was a neighbouring village. They kept in touch with each other and after a while started living together. He claimed that in the rural areas there was no such thing as marriage and it was usual for couples to live together without being married. The applicant claimed they had a son in [year] and then corrected his evidence said his son was born [several years earlier]. The Tribunal accepts that this was an error on his part and that the applicant has consistently claimed his son was born in [year]. He claimed that his second son was born in [year].
He stated that he and his wife registered their marriage in 2005 in [Town]. The applicant told the Tribunal that his hukou (household registration) was left at his village home and he did not have a copy. The Tribunal told him it was surprising that he did not provide a copy of his hukou to the Department or the Tribunal as it would show evidence relating to the birth of the children. Further it pointed out that he had no photographs of the children. He stated it was too difficult to get a copy of his hukou. He claimed that his three children were aged [age] years, [age] years and [age] years. The two older children attend high school in the local town and his daughter attends elementary school in his home village.
The Tribunal asked the applicant what would happen if he returned to China and he stated he would face death. He stated that he owes [amount] RMB, he did not pay that money as requested by the chief of the village and he has now been put on a blacklist and police will arrest him if he returns. The Tribunal asked him what law he had breached and he stated that the police will demand the money through the chief of the village. He claimed that had been previously told that his wife’s anti-government protest could be solved by payment of the bribe. The village leader will have him arrested and he will die if he returns.
The Tribunal asked the applicant what he had done which caused him to be at risk of harm if he returned to China. He stated his wife had organised anti-government activity and he had then been arrested, beaten and he could not tolerate this treatment so he agreed to pay the bribe.
The Tribunal put it to him that a demand for a bribe would be an illegal activity on part of local police and officials. The Chinese government has mounted a strong campaign against corruption and bribery in China[1] and the applicant could legitimately make a complaint about the demand for the bribe. In response he stated that if he returned and his wife’s health condition did not improve he would not be able to support the expenses of his three children. Also his parents’ health was not good.
[1] DFAT Country Report on China Corruption 21 December 2017 p.2.22
The Tribunal put it to the applicant, and he agreed, that the reason he did not want to return to China was so that he could work in Australia and send money home to support his family. However, he claimed that if he earns enough money to resolve the debt to police he can return to China. He stated if he goes back in this way he will not be harmed by the government.
However, if he does not get protection now he will not survive. If he is arrested by police even though he may not be killed he may be beaten. Once he is arrested the punishment from police is very cruel.
The Tribunal asked him to confirm that the reason for his fear was that on his return to China police will ask him to pay a bribe of [amount] RMB. The applicant agreed that this was the reason he feared return.
The Tribunal put it to him that he could make a complaint about the demand for a bribe because, as discussed earlier, country information indicated there is a strong anti-corruption campaign in China. Further if he did not want to return to his village he could return to Shanghai where he had previously worked.
He stated if he displays his identity, police will arrest him. The Tribunal put it to him that if he was on a blacklist he would not have been able to leave China on his own passport. He claimed that he was put on the blacklist after he left China. He was asked how he knew this and he claimed police came to his friend’s home in [the] village in Fujian Province to look for him and told his friend he had been put on a blacklist.
He claimed after he was taken by police and beaten, he submitted to police and then lied to them to give him some time to get the money to pay the bribe. So this is why he was not on a blacklist when he left.
The Tribunal put it to him that police would not have needed to come to look for him at his friend’s house as they would have been able to find out he had left China. Police have access to a sophisticated computer system which recorded departures from China. He claimed they came to look for him and then they found he was not in China anymore. He claimed they went to harass his friend. His friend told him they wanted him to pay back the money as soon as possible and he is on blacklist and cannot do anything.
They applicant arrived in Australia in April 2016 and his wife and her friend came to pick him up from the airport. He only knows his wife’s friend as “[name]” which is not his real name.
He decided to apply for protection not long after he arrived in Australia. He went to see his agent and told him his problems. His statement setting out his claims is correct.
The Tribunal noted that there were some anomalies between his application for protection and his applicant for a visitor visa. It outlined those anomalies and told him why they might be relevant but explained that the Tribunal would be sending him a letter setting out the details and inviting him to comment on, or respond to, that information in writing once he had received that letter.
After referring to the documents provided with his visitor visa application and comparing those documents with documents provided with his protection visa application it noted country information that indicated it was relatively easy to obtain false documents in China.
The Tribunal put it to him that country information indicated it was very difficult to leave China if an individual was wanted and that China had sophisticated surveillance systems. He repeated his claim that when he left he had agreed to submit to police and to pay back [amount] RMB and then he was released. He was wanted after he arrived in Australia.
The Tribunal also put it to him that it found it difficult to accept that the sum of [amount] had been demanded by police as he could not give a satisfactory reason for the demand. He claimed his wife took part in a protest and he was told to pay back [amount] RMB. When he agreed he was released and a friend helped him come to Australia.
Invitation to Comment/Respond –s.424A of the Act.
The Tribunal obtained the Department’s file relating to the applicant’s application for a visit visa made on 7 April 2016 at the Australian High Commission, [Country 1]. It also had information regarding the applicant’s wife application for a [temporary] visa made in April 2015. The Tribunal invited the applicant to comment on, or respond to, information which would be the reason, or part of the reason for affirming the decision under review.
The invitation set out particulars of information and the relevance to the review as follows:
“Tourist Visa Application
You applied for an Australian tourist visa on 7 April 2016 and you were granted a tourist visa on 19 April 2016. Your visa application was made to the Consulate General in [Country 1].
In your tourist visa application you stated
·You had been born in Fujian Province.
·You were a permanent resident of [Country 1].
·That you had lived in [Country 1] from [date] November 2011 to [date] March 2016.
·That you were married with one son and your wife and child were living in Fujian Province.
·That you were [an occupation] for a [business] in [Country 1].
You provided copies of
·Your Household registration (hukou) showing you, your wife [Ms A] and [son].
·Your Chinese passport with the passport no.[number] “Place of issue [City 1, Country 1]” and issued by the “Consulate General of PR China in [City 1, Country 1]”.
·Your [Country 1] permanent resident card and Health Card with your photograph in your name.
·Your Social Insurance card in your name.
·A letter from [a company] certifying your occupation and employment ([date] March 2016).
·Rental Agreement for a property in [Country 1] in your name.
·A [Country 1] Bank statement in your name.
·A sightseeing itinerary for your Australian visit.
·Your Chinese identity card and translation.
At the Tribunal hearing held on 16 November 2017 you gave evidence that you are:
·Married to [Ms B] and you have 3 children living in China.
·You stated that, prior to your travel to Australia you have lived in a number of different locations in China and have never travelled outside China.
·You did not have your household registration document in your possession.
·The passport you provided to the Department of Immigration and to the Tribunal shows that your passport no [number] was issued in Fujian Province by MPS Exit and Entry Administration.
Marriage Certificate
In your application you stated that you and your wife [Ms B] married [in] January 2005. In [Ms B’s] application for protection she provided a copy of your marriage registration dated [in] January 2005 with a photograph of husband and wife.
In [Ms B’s] application for a [temporary] visa she provided a copy of a marriage registration dated [in] January 2006 with the same photograph of husband and wife. The January 2006 registration has been completed in typescript and the January 2005 marriage registration is mostly handwritten.
The information is relevant because
1. The details on passport [number] provided to the Tribunal are not consistent with the details on passport [number] provided to the Australian Consulate General in [Country 1].
2. The information in your tourist application is not consistent with evidence you gave to the Tribunal regarding your personal circumstances. The information in your tourist application and accompanying passport suggests that you have not provided truthful information to the Department and Tribunal about your personal circumstances.
3. The marriage registration documents provided by [Ms B] in her applications for a visitor visa and protection visa are not consistent. This might suggest the documents are false and that you were not married to [Ms B] in January 2005 as claimed.
If the Tribunal considers you have not given the Tribunal accurate and truthful information it might not accept you are a credible witness and it may not accept all or part of your claims for protection.”
Response to Invitation to Comment/Respond
On 15 February 2018 the applicant responded to the invitation by way of statutory declaration.
In relation to the anomalies in the visitor visa application he stated that he accepted the information in the visitor visa application was not consistent with evidence in his protection visa application.
He stated that he and his wife have repeatedly stated to the Department and the Tribunal that the visitor visa application was prepared and submitted by [Ms C], an acquaintance in China and an employee of a travel agency.
The applicant stated the reason why information in his tourist visa application and his wife’s previous application for a [temporary] visa were falsified by [Ms C] was explained in his current protection visa application.
He stated the situation for his family was very tense as they were hiding from police who were searching everywhere for his wife. They had no choice but to hide at his friend’s home in Shanghai and even there they were not completely safe. He was afraid for his wife’s future and pleaded with [Ms C] to help get his wife out of the country in any way she could.
After his wife left China, the police started harassing him to get his wife and he was mistreated and extorted and eventually knew he had also to leave China. To leave China he asked [Ms C] for her help. [Ms C] helped the applicant’s wife and the applicant leave China. She told him she would handle everything and only requested passports and some photos. After they gave [Ms C] their passports and photos they did not discuss the matter any further and waited for her news. Neither he nor his wife knew what she did or how she was able to help them but they did not care because they only cared about leaving China.
He acknowledged that the inconsistencies between the information submitted by [Ms C] and the information submitted by the applicant has caused confusion for the Tribunal. He stated all the information submitted by him in his application for a protection visa including information he presented during the hearing is correct. All other information submitted in his wife’s application for a [temporary] visa and in his tourist visa application is not true and was falsified by [Ms C] as she was trying to help them escape China.
Assessment of Claims
What is the applicant’s identity and profile?
The applicant arrived in Australia as the holder of a tourist visa issued by the High Commission of [Country 1] on 19 April 2016. As set out in the Tribunal’s.424A invitation to comment/respond, the details provided to support the application for a tourist visa differ significantly from the details provided by the applicant to support his protection visa application.
In his response to the s.424A invitation, he stated that the details submitted with his tourist visa application were incorrect. The details he provided to support his protection visa application were accurate. He stated that [Ms C], an acquaintance in China, falsified his details to enable him to obtain an Australian visa.
The applicant’s tourist visa application was submitted in [Country 1] and it portrayed the applicant as a permanent resident of [Country 1]. A number of supporting documents were provided to support the application and the visa was granted in [Country 1]. However, the evidence indicates that the applicant travelled from Fujian Province, through Shanghai and then on to Australia using the passport he provided to the Department and the Tribunal in connection with his protection visa application.
It appears that the electronic entry systems in Australia did not pick up any inconsistencies between the passport submitted with the tourist visa application and the passport used to enter Australia. The tourist visa application was granted on the basis of a set of falsified documents including, a household registration document, a [Country 1] permanent residence card, a [Country 1] social insurance card, a [Country 1] health card, a Chinese identity card and a [Country 1] bank statement.
The applicant claims he took no part in providing false materials however, the Tribunal does not accept this evidence. The applicant provided his photographs, his passport and other personal details to obtain a visa. His own evidence indicates that he asked [Ms C] to do everything to assist him to travel outside China. He claims that once his visa was granted he did not further discuss the visa but the Tribunal considers that this is implausible and it considers that the applicant was aware of and complicit in providing false details to obtain the visa.
Notwithstanding the identity issues raised by the inconsistent documents, the Tribunal accepts that; the applicant was born in [Village 1], Fujian Province, that he attended school in his village, that he left school at about the age of [age] years and worked as a rural worker then a construction worker for a number of years before he left China. It accepts that he married [Ms B] and that the couple have three children who are all living in Fujian province with the applicant’s parents. The applicant has provided a statutory declaration, has attended an interview, given evidence at a Tribunal hearing and provided a response to an invitation to comment/respond all of which are consistent with this history. The Tribunal accepts that the applicant was never a permanent resident of [Country 1] and that the [Country 1] documents have been falsified to obtain a tourist visa.

Although false materials were used to gain a visa for Australia, the Tribunal accepts the applicant’s own passport was used to depart China on 23 April 2016 and the Tribunal accepts that the passport is a genuine document issued to the applicant with the correct name and birth details.
The applicant’s personal history
The Tribunal accepts the evidence that the applicant met his wife around 2000 and they live together as a couple from about that time. It accepts that they have three children; two sons and one daughter living in Fujian with his parents. He gave evidence which the Tribunal accepts that his two sons are attending school in a town near his parents’ home and his daughter is attending school in the village.
The Tribunal accepts that the couple’s sons were born in [year] and [year] and their daughter was born in [year]. The Tribunal accepts that the applicants were required to pay social compensation fees having children “out of plan” firstly for having their sons before they were married in 2005 and also for having more than one child. The applicant claimed the couple were required to pay [amount] RMB ($ [amount] AUD) in 2005 for their sons.
The Tribunal accepts that the applicant’s wife underwent a ligation procedure to prevent further pregnancies sometime after the birth of her second son and that despite that procedure she became pregnant with her third child in [year].
The Tribunal accepts that in 2012 as a result of interaction with local authorities to manage their son’s [medical condition] they were required to pay a further [amount] RMB ($[amount] AUD) for their daughter. These amounts appear to be consistent with the Fujian family planning regulations as they were at that time.
The Tribunal accepts that the applicant’s second son became ill with [a medical condition] and the couple had further medical costs associated with his treatment. The Tribunal accepts the evidence that the applicant and his wife worked in a rural area and had to borrow money to pay the social compensation fees and medical expenses and that these debts caused them some financial hardship.
As a result the applicant found work in the construction industry in Shanghai and moved there to work in January 2014. The applicant’s evidence is that he worked very hard to repay their debts but it was difficult to make enough money to satisfy the creditors.
Was the applicant harassed and subject to harassment and extortion due to his wife’s claimed anti government activities?
The applicant claimed that his wife was harassed by creditors after he left for Shanghai in January 2014 and the Tribunal accepts that creditors may have sought repayment from the applicant’s wife and engaged in some harassment.
The applicant claimed his wife started an anti-government movement or protest in Fujian Province because, as a result of the failed ligation procedure in 2005, the family owed a large amount of money. She blamed the local government for their hardship. The applicant stated in writing that his wife commenced this activity from December 2014 and that police tried to arrest her [in] March 2015. He claimed that he then arranged for her to hide in Shanghai until his friend’s wife, [Ms C], arranged for his wife’s trip overseas.
The applicant’s wife did not give evidence at the Tribunal hearing. The applicant’s wife attended her own hearing earlier on the date scheduled for the applicant’s hearing but she would not give evidence on her own behalf. Her circumstances are set out more fully in the decision record relating to her protection visa application but the applicant’s wife did not seek to give further evidence in her own matter and the applicant did not apply for her to give evidence in his hearing at that time or any time thereafter.
In these circumstances the Tribunal has considered the applicant’s claims on the basis of his own written and oral evidence, without hearing any oral evidence from the wife on her claims that she started an anti-government activity or protest in Fujian Province arising from a failed ligation procedure. The Tribunal notes that the husband’s evidence is not based on his own observation or involvement in such activity as he was working and living in Shanghai during the time of the claimed protest activity. Thus, it is clear that the applicant’s own knowledge of the claimed events has come from information provided by other persons.
The Tribunal does not accept that the applicant’s wife was involved in an anti-government activity in Fujian Province before she departed China in May 2015. It has little evidence to support such a claim. Further the applicant stated in writing that his wife commenced her protest activities in December 2014, however at the Tribunal he stated that the protest grew slowly over the years.
The Tribunal does not accept that when the applicant’s wife left Fujian Province, that she was wanted by police and that she hid in Shanghai for two months before she left China in May 2015. Whilst the Tribunal accepts that the applicant’s wife may have left China due to the family debt situation and that she was assisted by the wife of a friend in obtaining a visa it does not accept that she would have been able to leave China after two months of being in hiding if she had been wanted by police. The country information on monitoring at airports indicates that persons wanted by police would not be given permission to leave.[2] In 2015 DFAT provided comment on Public Security Bureau monitoring at airports:
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. Security monitoring capabilities at major airports are comprehensive.[3]
[2] DFAT 2006 Country Information Report No.06/65 –China Passport and exit arrangements China November; DFAT 2010 Country Information Report No10/6 –CRS Request No. CHN10037: Uighur Political Profile 2 February
[3] DFAT 2015, DFAT Country Report; People's Republic of China, 3 March,p.20
The Tribunal does not accept the applicant’s claim that some nine to ten months after his wife left China that in March 2016 he was detained and mistreated by police [in] Fujian Province. It also does not accept that police attempted to extort the sum of [amount] RMB from him to fix his wife’s situation and that he will face serious harm from police for this reason if he returns to China now or in the foreseeable future.
In coming to this conclusion the Tribunal has taken into account the different accounts of events he has given in writing, at the delegate’s interview and at the Tribunal hearing. It has also considered country information on departure from China. The applicant’s evidence has been confused, inconsistent and lacking in plausible detail and leads the Tribunal to the conclusion that he has fabricated his claims that he was mistreated by police in China, that he is wanted by police or that he will face serious harm if he returns to China.
In his written claims the applicant stated police were questioning relatives and friends about his wife’s whereabouts before she departed China but they did not speak to the applicant.
He stated he left Shanghai in May 2015, returned to Fujian Province but did not return to his home village and stayed with a relative in [another] village. He claimed police went to Shanghai and found out his wife had left China and then started looking for him. He finished paying off his debts in December 2015 and moved back to [Village 1]. He claimed he was regularly harassed by police investigating his wife’s anti-government movement and that they attempted to extort the sum of [amount] RMB from him. As a result of this demand and his objections to payment he was detained and mistreated for 10 days in March 2016 until he agreed to pay and was released. After his release he returned to Shanghai and arranged to depart China in April 2016 through his contact, [Ms C].
However, in his interview he stated that he lived in Shanghai before he departed China but before that he lived in a small town far from his home as he was in hiding from the police. He claimed he did not have his hukou because he did not return to his home before he came to Australia.
He stated that he applied for a replacement passport in 2014 because if he was caught by police he would lose his life. The applicant applied for the passport by going to a passport office and providing photographs and fingerprints.
He told the delegate he will be arrested by police if he returns because he owes money and that he cannot afford the fees for his extra child as the family is poor. When it was put to him that he claimed that he had paid the all the social compensation fees he stated he had paid his debts but was arrested by police because he was anti-government.
The applicant stated that they were trying to arrest his wife but she was in Shanghai and he was at home. The delegate pointed out that he claimed he had not gone home but he stated that he had gone home for a while at the time he was arrested. Police suggested he was behind his wife’s activities. He was detained and his wife ran away to Shanghai. The delegate pointed out that his wife was in Australia at that time and he agreed. He claimed police harassed him, asked him the whereabouts of his wife and accused him of supporting his wife’s departure. He claimed police would arrest him if he returned because he had not paid the [amount] RMB. He gave details of his mistreatment and told the delegate he had not told his agent about the mistreatment because he was not asked.
He stated that at the time he left China he travelled to and from Changle airport by car from Shanghai to see his children, then left Shanghai for Australia through the international airport.
At the Tribunal hearing he stated that he was arrested, detained and mistreated by police because he would not pay them the sum of [amount] RMB. He claimed he would be killed or mistreated in detention if he returned and did not pay the sum demanded by police. However, he claimed that if he earnt enough money to resolve that matter he could return to China. He stated if he goes back in this way he will not be harmed by the government.
He stated that the reason he did not want to return was because he wanted to work in Australia and to send money home to support his children and help his parents. He referred to his wife’s anti-government activities but explained that he could not provide detailed evidence on this matter.
The applicant stated that the basis of the applicant’s claimed fear is his failure to pay [amount] RMB to local police. He claimed that they sought to extort this money from him because of his wife’s activities. He had also claimed that local police and officials perceived that he had a large amount of money to pay the sum demanded because he had been working outside the village and his wife had been working abroad.
He stated that when he left China he took a flight from Changle airport in Fujian Province to Shanghai, then left China for Australia through Shanghai.
The applicant gave inconsistent evidence on how and when he obtained a passport, when he returned to Fujian Province after his wife left China in May 2015, where he lived in Fujian after he left Shanghai, when he returned to Shanghai from Fujian if at all, whether he lived at home in [Village 1] after his wife left China, whether he had repaid all his debts by December 2015, whether he was arrested and taken to [the] Police Station or whether he attended after being asked to report there and how he left China.
He did not explain why police were searching for his wife for such a long time when they would have had information on her departure from China, he did not explain how they managed to speak to friends and relatives but did not speak to him until he returned to Fujian and could not explain why local police would still be seeking to extort the sum of [amount] RMB from the applicant on his return in the face of a serious anti-corruption campaign by government.
Significantly the applicant was not able to plausibly explain why, at least six weeks after his release from detention, he would be able to depart China without restriction on his own passport if he was wanted by police for investigation in his wife’s claimed anti-government activities or alternatively if he owed a debt to police, whether legitimate or not.
The Tribunal does not accept his explanation for the ease of his departure. It does not accept that he became wanted after he left China and that police went to his friend’s home in [a] village and advised his friend the applicant was on the “black list”. He could give no plausible reason for police attending his friend’s village when they had not done so in the past, why they would do so when they had access to departure information or why they would tell his friend that the applicant was on the black list.
Taking all the evidence into account, the Tribunal does not accept that the applicant was sought by police after his wife left China and does not accept that police suspected he was behind her claimed anti-government activities and that he helped her leave China in face of their investigation. The Tribunal does not accept friends or relatives were harassed by police as to the applicant or his wife’s whereabouts. The Tribunal also does not accept that the applicant was regularly harassed by police or that he was detained and mistreated for about 10 days by police [in] March 2016 because they suspected him of being involved in his wife’s claimed anti-government activities. The Tribunal does not accept that the police demanded that he pay a bribe of [amount] RMB and that he departed China to avoid further extortion attempts.
The Tribunal does not accept that the applicant fears returning to China because he is afraid that police have put him on a blacklist or that he will be mistreated if he does not pay police the sum of [amount] RMB.
The Tribunal considers that the applicant is reluctant to return to China because he wishes to improve his economic situation and that of his family. The applicant claims that he was required to pay social compensation fees and his son’s medical expenses and he eventually repaid debts relating to these costs in December 2015. However, he also stated that a friend paid for the expenses of obtaining a visa and his air tickets and he would repay his friend for these expenses when he earned enough money in Australia.
After hearing the applicant give evidence, the Tribunal considers that the applicant does not fear returning to China because he fears further extortion from police. It considers he does not wish to return to China for the reason he stated at the hearing. That is, he did not want to return because he needed further time to pay some or all of his debts and also to provide financial support for his three children and to help his parents in China. The applicant and his wife have limited education and were rural and construction workers in China. It is understandable that the income they would earn in China would be quite low compared to the income they could earn in Australia.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above, the Tribunal does not accept there is real chance that the applicant will face harm for reasons of imputed political opinion if he returns to China now or in the foreseeable future.
The Tribunal does not accept the applicant’s wife was involved in anti-government activity. Thus as it does not accept that his wife was involved, it also does not accept that that the applicant was suspected of involvement in such an activity. It does not accept that the applicant was detained and mistreated as claimed and does not accept that if he returned to China he would be subject to further extortion by police for this reason.
The Tribunal accepts that the applicant and his wife were required to pay social compensation fees for their three children as they were born outside the family planning regulations applicable in Fujian Province. However the evidence indicates that these fees have been paid and the children have obtained household registration. The evidence is that they are all attending school in Fujian Province and are living with the applicant’s parents.
The Tribunal does not accept that the applicant owes the sum of [amount] RMB to police in Fujian Province. The Tribunal does not accept that the applicant will be forced to pay a bribe if he returns.
The Tribunal accepts that the applicant’s family have suffered financial stress and this has motivated the applicant and his wife to seek work outside China. However, the Tribunal finds that the financial stress faced by the applicant and his wife and his reluctance to return to China does not arise for reasons of the applicant’s race, religion, nationality, membership of a particular social group or political opinion.
Based on the evidence before it and having considered the claims, singularly and on a cumulative basis that Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future he faces a real chance of persecution for reasons of imputed anti-government political opinion or any of the other reasons set out in s.5J of the Act.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s.5J of the Act.
Does the applicant meet the complementary protection criterion?
The Tribunal has considered whether on the evidence before it there is real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
The Tribunal has found, for reasons set out above, that the applicant was not engaged in any anti-government activity, was not detained or mistreated and not subject to extortion and does not consider the applicant will face significant harm for these reasons if he returns to China.
The Tribunal has found that the applicant and his wife have breached the family planning regulations applicable when their children were born, but accepts the evidence that the couple have paid the social compensation fees and the children have obtained household registration. The applicant will not face significant harm for reasons of any past violations of the family planning regulations.
As set out above, the Tribunal accepts that the applicant and his family have faced financial stress in the past and will continue to face the stress of financially supporting their children and aged parents. However, there is no evidence the applicant would suffer significant harm for this reason if he returns to China. If he returns he may face continued pressure to pay any outstanding debts and to support his family but the Tribunal finds that this does not amount to significant harm in that it finds he will not face the death penalty, arbitrary deprivation of his life, torture, or cruel or inhuman treatment or punishment or degrading treatment or punishment for reasons of his economic circumstances.
Having considered the applicant’s circumstances singularly, and on a cumulative basis, and for all the reasons set out above the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk he will be arbitrarily deprived of his life or will suffer the death penalty, or be subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
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.
Louise Nicholls
Senior Member

ATTACHMENT A
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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.
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.
…
Louise Nicholls
Senior Member

[2018] AATA 3096

10 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice