1621958 (Refugee)

1621958 (Refugee) [2021] AATA 1793 (22 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621958
COUNTRY OF REFERENCE:                   China
MEMBER:Gabrielle Cullen
DATE:22 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 April 2021 at 3:57pm
CATCHWORDS
REFUGEE – protection visa – China – reported corrupt officials – business subsequently closed – falsely accused of illegal business practice – breach of family planning laws – credibility – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 dependants.
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 and Border Protection on 8 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of China, claims to fear return from the government of China as he informed on corrupt officials including the local police and local authorities. He claims, as a result, his [business] was closed, he was charged with using [deleted] and he was detained for 5 months where he was interrogated, threatened, humiliated, mistreated, and tortured. He claims he was subsequently charged with being ‘anti-government’ and will be arrested by these local officials on return.
He arrived in Australia on a tourist visa [in] December 2015 valid to 1 March 2016. He applied for a protection visa, to which this decision relates, on 24 February 2016.
On 22 November 2016 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
The delegate refused to grant the visa on 8 December 2016. The delegate did not accept the applicant was credible as to his claims, including reporting corrupt practices to higher authorities which incurred the wrath of the local government officials and police. The delegate did not accept that he is or will be of any interest to the authorities on return.
The applicant applied for review of the Department decision and attached the decision of the Department.
The applicant appeared before the Tribunal on 24 March 2021 to give evidence and present arguments and, where relevant, the evidence from that hearing appears in this decision. The applicant was assisted by an interpreter in the Mandarin and English languages. His representative attended the hearing.
The issues to be considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act?
·Does he meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision (see Attachment A).
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s protection visa application dated 24 February 2016, identity documents and his claims for protection within the application and in an attached statement.
·Oral evidence provided at the Department interview on 22 November 2016 and Tribunal hearing held on 24 March 2021.
·A translation of a Notification of Detention dated [March] 2015 from [County 1] County Public Security Bureau. The notification states, ‘Pursuant to the Prescription of Section 80 in the Criminal Suit Procedures Law of the People’s Republic of China, we, the [County 1] County Public Security Bureau at 18:00 [in] March 2015 arrested [the applicant], who has now been placed under the criminal detention at [County 1] County Detention House, suspected to have involved in illegally operating business.’
·A copy of the applicant’s Chinese Occupational Qualification Certificate dated [November] 2007 confirming he is [an occupation].
·Department of Foreign Affairs and Trade (DFAT), Country Information Report, China, 3 October 2019.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
In his statement attached to his protection visa application dated 24 February 2016 the applicant claims that he was a [business] worker in [Town 1] Town for 12 and a half years from July 1995 to February 2008 where he became [an occupation]. He claims he then established his own [business] in [the] Village, which formally opened in January 2010, and he described this [business] as [‘small’].
He claims that after his second child was [born], he and his wife were regarded as having violated China’s ‘One Child’ policy. They were required to pay a fine of 50,000 RMB which was a considerable amount. He claims he was able to pay the fine because he had good [business].
He claims that from this time, local officials and the police started taking an interest in his [business]. He claims corrupt government officials from the industrial and commercial, taxation and tourism bureaus as well as the police considered his [business] a ‘money-spinner’ and extorted money from him and rarely paid for[services]. They requested the applicant put their bill on record for later payment and he claims that as at January 2015, the officials owed the applicant over 600,000 RMB.
He claims that in February 2015, 3 officials from the Communist Party of China Disciplinary Committee of Fuzhou City (Disciplinary Committee), also known as the Fuzhou Municipal Supervision Bureau, visited the applicant at his [business], showed their ID and investigated whether local officials had [used the business] during the Chinese Spring Festival. He notes this was a violation of regulations of the central government. He claims that the leader of the Disciplinary Committee, [the leader], encouraged the applicant to tell the truth and the applicant showed him the outstanding bills, expecting [the leader] to provide assistance.
However, he claims that [in] March 2015, the applicant’s [business] was raided by police from [County 1] County, supposedly after someone had reported the use of [deleted] in the [business]. The applicant claims he did not use this [deleted]. The applicant claims he was arrested, and the [business] was closed. He believes he was targeted by the local authorities because he had complained about them to [the leader]. He claims he was detained from [March] 2015 to [August] 2015 where he was interrogated, threatened, humiliated, mistreated, and tortured. He claims he was temporarily released [in] August 2015 on 2 conditions: firstly, that he report to the [County 1] Public Security Bureau every Friday; and secondly, that he did not reopen his [business] or work at any other [business]. His parents had to ‘bribe the police’ for his release.
He claims that on release he went to Fuzhou multiple times between August and October 2015 to try and meet with [the leader] or other officials for assistance but was always blocked by the guards and never heard from the Disciplinary Committee. In October 2015, he was threatened with arrest if he approached the Disciplinary Committee again.
He claims that in November 2015, his father heard from a ‘reliable friend’ that the officials were planning to arrest him. He claims his father and cousin organised his trip overseas to escape China [in] November 2015.
He claims his parents, wife and siblings have been threatened by Chinese authorities since he left China. He claims if he returns he will be imprisoned.
At the Department interview held on 22 November 2016 the applicant reiterated his claim to fear return as he complained about corrupt local officials and the police officers to the Disciplinary Committee. He said there were cases of unauthorised public dining by local officials and corrupt police officers at his [business], especially during the spring festival. He indicated that as a result 3 members of the Disciplinary Committee came to his [business] to investigate in February 2015, and while he initially did not say anything when the members of the Disciplinary Committee kept encouraging him, he then advised them of the corrupt officials. He said he told them that many of the local officials do not bother to pay when they [visit] his [business]. He said he did not give the names but showed them the bills they were supposed to pay. He then said he did tell the names of 3 or 4 people. He said the corrupt officials were members of the local government, including the bureau of taxation, bureau of tourism, bureau of industries and some of them were from the police force. He said some of them were leaders of offices, departments, or vice leaders of their section. He said the Disciplinary Committee went to other [businesses] as well to investigate and he said they told him that his was not the first [business] being investigated. He said they only came once and stayed about 15 minutes and he gave them the bills.
He said following this he was apprehended by the police [in] March 2015 on the basis that it was reported he was using [deleted] He said he was not using this [product] and was being framed because he tipped off the Disciplinary Committee and the local officials were angry. He said he was arrested and detained for 5 months. He said he was not charged but an arrest warrant was issued against him. He then said he was charged for using [product]. He confirmed he was charged before he left China.
As to why he was released after 5 months, he said his parents bribed him out. He said he was released on bail and his case was still being investigated. He said he was released on bail with 2 conditions: that he had to report to the PSB of [County 1] County every Friday and that he was banned from running his own [business] or working in a [business].
As to how he was able to exit the country when he had been charged with an offence, he said his father arranged it for him by asking a certain friend of his cousin. He said his cousin’s friend bribed certain members in Customs and that is how he was able to exit the country. He said it is this friend who prepared all his documents, including his passport, boarding pass, and ticket.
As to why he did not seek help from the Disciplinary Committee, he said he did seek help after he was released and travelled many times to the Disciplinary Committee in Fuzhou from August to October 2015. He said every time he tried he was denied access.
He confirmed he came to Australia to seek protection and fears the corrupt government officials and police officers on return.
At the Tribunal hearing held on 24 March 2021 the applicant reiterated his claim to fear return from local officials and police as he reported them for corrupt practices to officials from the Disciplinary Committee for dining in his [business] without paying. He said he will be arrested by these corrupt officials and the police on return to his local area. He said he would not be arrested at the border but when he returns to his local area.
The applicant said and confirmed that he lived at his home at [an address in] [Town 1] Town, [County 1] County, Fuzhou City from birth until his departure to Australia. He confirmed that he left that home to travel to Australia in December 2015. He said from the time his children started school in 2010 they moved with his parents, to the other house owned by his parents at [location], [County 1] County and stated that they continue to live there. He said his wife lived with him in [Town 1] Town until he departed and then she moved to live with their children in [location. He said they lived in [Town 1] Town as his [business] was only 10 minutes from that place. He said his parents currently live at the home in [Town 1] Town. He confirmed he had never lived at the house in [location].
He reiterated evidence as contained in his written statement as to what led to his arrest and detention in March 2015, and his visits to the Disciplinary Committee from August to October 2015 without being seen.
He was asked who he named as the corrupt officials to the 3 officials from the Disciplinary Committee when they visited his [business] and he gave 4 names. He said that these named corrupt officials also threatened him while he was in detention. He said these corrupt officials kept coming while he was in detention, about 8 or 9 times to threaten him. He said they threatened him on every occasion. He said sometimes they came together and sometimes separately. The Tribunal questioned why he had not provided this evidence to the Department in his statement or at the interview.
He said these corrupt officials still hold the same position and the Tribunal questioned why they would want to harm him when they had faced no difficulty as a result of him reporting them. He said they wanted to make an example of him so no one else informs on them.
He said he was released on bail and the Tribunal questioned whether he had ever gone before a Court regarding the bail or the charge against him. He said he had not.
He said that [in] November 2015, his father heard news via the son of a friend who was driving a car for an official that he was going to be arrested again and sent to jail. He then said and confirmed he was charged with being anti-government and the police came to his house [in] November 2015 but they could not find him as he had gone to his cousin’s place. He said he then fled China. He said the police came to arrest him because he kept trying to seek help from the Disciplinary Committee.
The Tribunal noted his evidence that he had been charged with 2 offences and asked if anything had happened with those charges without him being there and whether he had been convicted in absentia. He said he will be arrested and put in jail on return.
He said on important holidays the police and officials warn his family and make threats against them. They also ask where he is.
As to fearing return because he breached the family planning laws in 2012, he said that the issue is finished as he paid the fine.
The Tribunal raised with him concerns as to the credibility of his evidence, including inconsistencies and omissions in his evidence, which where relevant as outlined below. It referred to the Notice of Detention he had submitted and questioned why it refers to him being detained for illegally operating a business and it also raised with him the prevalence of document fraud in China. It raised with him independent information as to the ability or lack thereof of those to exit China when they have a criminal charge against them.
Assessment of claims
Is the applicant credible as to his claims?
On the basis of the applicant’s identity documents, including his passport and evidence provided at hearing, the Tribunal accepts that the applicant is a national of China. Therefore, for the purposes of s.36(2)(a) of the Act, the Tribunal accepts that China is the country of nationality and for the purposes of s.36(2)(aa) of the Act the Tribunal accepts that China is the receiving country.
As to the applicant fearing return for the reasons he claims, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness as to being arrested and detained in China or that he and his family faced the difficulties and threats he claims as he reported on corrupt officials in his local area who sought and are continuing to seek retribution. It finds the applicant’s testimony inconsistent and a fabrication for the reasons set out below. This leads the Tribunal to find that the applicant is not a witness of truth.
Corrupt officials
Central to the applicant’s claim as to why he fears return is the threats and difficulties he and his family faced from corrupt officials who he named to the Disciplinary Committee. However, at the Tribunal hearing the applicant provided inconsistent and confusing evidence as to these named officials who he claimed were the ones that threatened him, both separately and together, 8 or 9 times while he was in detention and are the ones who want to harm him on return.
When initially asked at the Tribunal hearing for the names of the officials he reported on who will harm him, he provided the following evidence:
·[Official 1], Industrial and Commercial Bureau.
·[Official 2], Director, Police.
·[Official 3], a low-ranking officer with the Industrial and Commercial bureau.
·Another official slightly higher than the last one who is from the Tourism bureau.
When asked later in the hearing for the officials he named to the Disciplinary Committee, he gave the following rather different response:
·[Official 1], Industrial and Commercial Bureau.
·[Official 3], Police.
·[Official 2], low ranking official.
·Slightly higher-ranking official from Tourism bureau.
When the Tribunal raised the inconsistency with the applicant, specifically with regard to the second and third person named, he questioned whether he had said it incorrectly. The Tribunal does not accept that this response explains the inconsistency. As the applicant has claimed that he knew these people from visiting his [business], that he named them to the Disciplinary Committee, that they threatened him together or separately on 8 or 9 occasions, that these are the people he fears will harm him on return and are why he fled China, the Tribunal is of the view he would be able to name them all consistently when asked on 2 occasions at the hearing. The Tribunal views the inconsistency as significant and it adds to the finding that he did not name these officials, nor face the difficulties as a result from them. It adds to the finding he is not a credible witness.
Further, despite claiming at the Department interview that the 3 or 4 officials named were from the above-mentioned departments plus the taxation bureau and saying earlier in the hearing he reported officials from the above mentioned bureaus as well as the taxation bureau to the Disciplinary committee, and saying the named officials are the ones who want to harm him, when asked on the first occasion who he named to the Disciplinary Committee, he did not refer to anyone from the taxation bureau. When the concern was raised at that point in the hearing as to why he had previously named an official from the taxation bureau as wanting to harm him but did not specifically name one, he said he forgot and the the third person named was from the taxation bureau. Similar to the above, as the applicant has claimed that he knew these people from visiting his [business], that he named them to the Disciplinary Committee, that they threatened him together or separately on 8 or 9 occasions, that these are the people he fears will harm him on return and are why he fled China, the Tribunal is of the view he would be able to name consistently which bureau they are from. It adds to the finding he did not name these officials, nor face the difficulties from them as a result. It adds to the finding he is not a credible witness.
Threats and difficulties faced from corrupt officials

Central to the applicant’s claim as to why he fears return is the threats and difficulties he and his family faced from corrupt officials who he reported to the Disciplinary Committee. However, for the reasons that follow, including his inconsistent evidence, and evidence lacking plausibility, the Tribunal does not accept that the applicant ever faced the difficulties he claims. This adds to the finding the applicant is not a credible witness.
Firstly, for the first time at the Tribunal hearing the applicant indicated that he was threatened by the 4 above-named officials on 8 or 9 occasions while he was held in detention. He said that while in detention, when they visited him, these 4 named officials always threatened him and they sometimes came separately and sometimes together. He said when he was initially detained, they all came together and said to him that they are master, he is the slave and as he has gone against them he will see death. He said they told him that if they want to have him arrested they can have him arrested. When the Tribunal raised with him its concern that he had not mentioned these threats previously, he responded that he had not been asked. The Tribunal does not accept this response and is of the view that, due to the significance of these threats, he would have referred to these numerous threats from the officials in his statutory declaration if true, and not just that the police threatened him. The Tribunal also notes that he was assisted by a representative to prepare his statutory declaration and his representative was present at the Department interview. It notes that at the end of the interview both he and his representative were asked whether he would like to consult with his advisor and whether there was anything to add. The Tribunal is of the view that, if true, he would have provided evidence as to these threats to the Department when he was given the opportunity to do so. The Tribunal therefore does not accept his explanation as to why he did not refer to these threats previously, particularly given their significance. It leads the Tribunal to find he was not threatened by these officials 8 or 9 times as claimed. It adds to the finding he is not a credible witness.
Further, the Tribunal views the applicant’s behaviour in living at his home in [Town 1] Town, [County 1] County, Fuzhou City until his departure to Australia, as he indicated he did at the Tribunal hearing, as undermining his claim that his father heard and informed him [in] November 2015 that officials were planning to arrest him. This is particularly so as he had a valid visa to depart China for Australia from [November] 2015 but did not depart until [later in] November 2015. When the concern was raised with him, he did not respond to the Tribunal’s concern; rather he referred to the 2 bail conditions issued against him of having to report to police and not opening a [business]. The Tribunal is of the view that if the applicant was informed he was going to be arrested [in] November 2015 and had a valid visa to depart China from [November] 2015 he would have both left his home and departed sooner, not waited until [later in] November 2015. His behaviour in living at his home until his departure, despite being in fear of arrest, and not departing sooner than nearly 2 weeks after he was able to when issued with a visa to travel to Australia, leads the Tribunal to find his father did not hear that he was going to be arrested on or around [early] November 2015 or at all. This adds to the finding he is not a credible witness.
Further, for the first time at the Tribunal hearing the applicant indicated that he was charged for being anti-government in November 2015. He said and confirmed that [in] November 2015 the police came to his home to charge and arrest him for being anti-government as a result of his repeated visits to the Disciplinary Committee. He said he escaped, went to his cousin’s house, and then fled China. When the Tribunal raised with him its concern that he had not mentioned this previously, he said he thought it was in his statement. However, the Tribunal does not accept this explanation as his statutory declaration does not refer to the police coming to his home [in] November 2015 to charge him with being anti-government, rather it only refers to his father learning they were trying to find an excuse to send him to jail so he fled. In addition, he does not refer to the police coming to his home in his statement. Similar to the above, the Tribunal does not accept this response and is of the view, due to its significance, that he would have referred to the police coming to his home and him being charged with being anti-government in his statutory declaration if true, not just that the police threatened him. The Tribunal also notes that he was assisted by a representative to prepare his statutory declaration and his representative was present at the Department interview. It notes that at the end of the interview both he and his representative were asked whether he would like to consult with his advisor and whether there was anything to add. The Tribunal is of the view that, if true, he would have provided evidence to the Department as to being charged when he was given the opportunity to do so. It leads the Tribunal to find he was not charged with being anti-government, that the police did not come to his home [in] November 2015 and that he did not flee China as a result. It adds to the finding he is not a credible witness.
Credibility summary
For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful, and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns, the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature of and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making these findings, the Tribunal accepts that some information has been consistent over time, particularly information as to: the authorities extorting money from him by not paying for their visits to his [business]; [the leader] and 2 others from the Disciplinary Committee coming to his [business] in February 2015 for 15 minutes and him disclosing this information; his [business] being raided by police [in] March 2015 and him being reported for using [deleted] and being detained from [March] 2015 to [August] 2017; his visit on his release to the Disciplinary Committee without being seen; and his father advising him he was going to be arrested. However, the Tribunal considers that these matters are relatively easy matters to recall, particularly as these matters are those that were in his statement and the Tribunal is of the view he memorised his written statement and was reciting much of it, not speaking from his lived experience. The Tribunal is of the view, therefore, that his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
In making this finding the Tribunal has considered the Notification on Detention from [County 1] County Public Security Bureau dated [March] 2015. Of concern is that while the applicant claims that when the police came [in] March 2015, he was arrested for using [deleted], the notice refers to him being detained as he is suspected of illegally operating a business. When the concern was raised with the applicant and the Tribunal noted the prevalence of document fraud in China,[1] he responded that it is a genuine document. On the basis of the applicant’s lack of credibility, the prevalence of document fraud in China and the inconsistencies on the face of the document with his evidence as raised with the applicant at hearing as to what he was charged with, the Tribunal places no weight on this document as evidence that the applicant was charged, detained or faced the difficulties he claims.
[1] DFAT Country Information Report, People’s Republic of China, 3 October 2019 at 5.62
As the Tribunal has found, on the basis of the cumulative evidence before it, that the applicant is not a witness of truth, it follows it does not accept that the applicant faced any of the difficulties he claims from any local officials, including those from the police, such as that they extorted money or [visited the business] without paying, to the value of 60,000RMB, or that he reported local corrupt officials to the Communist Party of China Disciplinary Committee of Fuzhou City, including [the leader], who were investigating corrupt officials. It follows it does not accept he named any corrupt officials to this Disciplinary Committee or [the leader]. It follows that it does not accept that [in] March 2015 his [business] was raided by the police who informed him that someone had reported him for using [deleted] or that he was set up by local officials or that he was suspected of running an illegal business.
Based on his lack of credibility, it follows that the Tribunal does not accept he was detained from [March] 2015 until [August] 2015 and while detained he was threatened, humiliated, mistreated and tortured by police or by the corrupt officials who visited and threatened him on 8 or 9 occasions or at all. It follows it does not accept he was not released as the police said they need more time to seek evidence against him.
It follows it does not accept he was ever charged with any crime, or released on bail as his parents spent a great deal of money, and that 2 bail conditions were placed on him, including reporting to the police and not owning or running a [business]. It follows it does not accept he ever went to Fuzhou and tried to speak to [the leader] and the Disciplinary Committee and other relevant officials from August to October 2015 or at all, or that he was always blocked by guards and on the last occasion in October 2015 he was threatened by the guards that he would be arrested and sent to jail if he continually approached the Disciplinary Committee. It follows that at no time in November 2015, including [early] November 2015, was his father informed that the applicant was to be arrested as he was a thorn in the side of the corrupt officials, or that he was going to be charged with being anti- government or that [in] November 2015 the police came to his home to arrest him as he had been charged with being anti-government but he had fled to his cousin’s house.
It follows it does not accept his wife, parents and siblings have been threatened, warned, and harassed by the PRC authorities or anyone else on account of his claims.
The Tribunal rejects the applicant’s claims of fear of harm in their entirety and does not accept at the time he departed China in November 2015 that he and his family were of interest to the police, corrupt officials, local authorities, or anyone else. It follows it does not accept he fears return for the difficulties he claims he faced.
Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act and meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the credibility findings above and as it does not accept the applicant or his family faced the harm or threats of harm he claims, it follows the Tribunal does not accept that were the applicant to return to China now or in the reasonably foreseeable future, he or his family would face any of the difficulties he claims for the reasons he claims due to any of the difficulties he faced in China prior to his departure. It follows it does not accept that were he to return he will be threatened, harassed, detained, arrested, harmed, tortured, have to report to local authorities or be unable to run his business or earn a livelihood for the reasons he claims.
It follows the Tribunal does not accept that the applicant or his family faces a real chance of persecution involving serious harm were he to return to China in the reasonably foreseeable future at the hands of the Chinese Government and its authorities, the police, local officials from any Department, including those named by the applicant or anyone else, as he reported on corrupt officials and continued to complain to the Disciplinary Committee about his treatment or for any of the reasons he claims, such as that he has been falsely charged with being anti-government or running an illegal business or using [deleted] or as he left the country while on bail or for any of the reasons he claims.
Similarly, based on my findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that he or his family will suffer significant harm on his return to China at the hands of the Chinese Government and its authorities, the police, local officials from any Department, including those named by the applicant or anyone else, as he reported on corrupt officials and continued to complain to the Disciplinary Committee about his treatment or for any of the reasons he claims, such as that he has been falsely charged with being anti-government or running an illegal business or using [deleted] or as he left the country while on bail or for any of the reasons he claims.
Notwithstanding the above credibility findings, the Tribunal accepts that in [year] the applicant and his wife breached the family planning regulations by having a second child and subsequently paid a fine. Based on his evidence at hearing that this issue is finished as he paid the fine, the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm were he to return to China in the reasonably foreseeable future as he and his wife previously breached China’s family planning regulations. Similarly, based on his evidence at hearing, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to China as he and his wife previously breached China’s family planning regulations.
Conclusions regarding the Refugees Convention
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in China in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.
Based on all the evidence before it, including the applicant’s claimed past circumstances and his current personal and family circumstances and profile in China, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to China in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
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 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 Attachment B.
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 Attachment B.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
ATTACHMENT B
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2021] AATA 1793

22 April 2021

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Immigration

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Jurisdiction

Natural Justice

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