1700349 (Refugee)

[2022] AATA 2422

1700349 (Refugee) [2022] AATA 2422 (26 May 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1700349

COUNTRY OF REFERENCE:             China

MEMBER:Dr Jason Harkess

DATE:26 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the Applicant a Permanent Protection (Class XA) (Subclass 866) visa

Statement made on 26 May 2022 at 11:22am

CATCHWORDS

REFUGEE – Protection visa – China – applicant fears harm from agents of his father’s employer – compensation claim – Tribunal is not satisfied that the applicant is at risk of serious harm – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 438, 499

Migration Regulations 1994

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

INTRODUCTION AND OVERVIEW

Application for Review – Refusal of Protection Visa

1. The Applicant is a citizen of China. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refusing to grant him a protection visa. The Applicant is [age] years of age and is presently residing in Australia.

2. The Applicant originally applied for the protection visa on 23 March 2016. The visa was refused on 14 December 2016. The Applicant lodged his review application with the Tribunal on 8 January 2017. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicant her visa.[1]

   [1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Division 2 of Part 7 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements not being met in this case.

Type of Visa

1. The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia, and either:

   (a)they are a ‘refugee’ (‘the refugee criterion’);[3]

   (b)they otherwise qualify for complementary protection (‘the complementary protection criterion’);[4] or

   (c)they are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

2. A person is a ‘refugee’, and therefore meets the refugee criterion, if the person ‘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.’[6]

   [6] Migration Act 1994 (Cth), s 5H(1)(a). Because the Tribunal is satisfied that the Applicant is a citizen of China, the s 5H(1)(b) definition of ‘refugee’ (which applies only to ‘stateless’ applicants) is not applicable in this case.

3. A person meets the complementary protection criterion if there are ‘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.’[7]

   [7] Migration Act 1994 (Cth), s 36(2)(aa).

Delegate's Reasons for Visa Refusal

1. In his original application form lodged with the Department of Immigration and Border Protection (‘the Department’), the Applicant sought a protection visa claiming that he met the refugee criterion or the complementary protection criterion. The delegate was not satisfied that he met either. The Applicant did not claim to meet the family member criterion. The delegate therefore refused the visa application.

2. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicant when he was notified of the delegate’s decision. That notification prompted the Applicant to lodge the present review application. The Applicant also provided a copy of the delegate’s decision record to the Tribunal following lodgement of the review application.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the present review application:

   (a)whether the Applicant meets the refugee criterion;

   (b)whether the Applicant alternatively meets the complementary protection criterion.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application on 11 January 2021 by telephone. The Applicant participated at the hearing before the Tribunal by phone and gave evidence and presented arguments.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to refuse the Applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the Applicant's original written visa application;

   (b)the delegate’s decision record;

   (c)the written material filed by the Applicant in relation to his case;

   (d)the oral evidence and arguments presented at the hearing;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[8]

   (f)country information assessments relating to China that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[9]

   [8] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [9] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be material to the determination of the issues in the case.[10]

CONSIDERATION OF APPLICANT’S CASE

[10] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Original Protection Visa Application

1. The Applicant was obliged to complete a form when he lodged his protection visa application. The form requested that he provide details about his personal background, his circumstances leading up to his arrival in Australia, and his reasons for applying for a protection visa. He included a statutory declaration setting out his protection claims attached to the form. In summary, those documents disclosed the following claims:

General Background

(a)The Applicant was born on [date] in Fuqing, Fujian Province, China.

(b)The Applicant stated he is a citizen of China by birth and that both his mother and father are Chinese citizens. He stated that he does not hold and has never held, or been entitled to, citizenship or residence in any other country. The Applicant provided the Department with a copy of his Chinese passport, issued in Fujian [in] 2015, in support of his claim to Chinese citizenship.

(c)The Applicant indicated he can speak, read, and write ‘Chinese’ (most likely Mandarin). The applicant specified Han Chinese as his ethnicity but did not specify a religion.

(d)The Applicant is married with two young children. However, the Applicant the sole visa applicant in the application. He indicated he has a wife, [name deleted], is currently residing in China with their two sons.

Arrival in Australia

(e)The Applicant first arrived in Australia alone on a FA-600 Tourist visa [in] January 2016.

(f)On 23 March 2016, the Applicant applied for a protection visa. He has not left Australia since his arrival

Protection Claims

(g)The Applicant fears harm from agents of his father’s employer, who pursued him after he protested for fairer compensation when his father died in a workplace incident.

(h)The Applicant stated his father was employed [by] [Company 1]. ([Company 1] Company), which was located in his home town of [Village 1] which had a bad reputation for bullying and oppressing locals.

(i)The boss of the company, [name deleted], had close contacts in the [township] and Fuqing municipal governments, and the Company was close with military officials. The Applicant claims [the boss] colluded with corrupt officials and the army to forcibly occupy land in the town in 2007.

(j)The Applicant’s father was killed in a serious accident at [Company 1] on [date] November 2010 due to a broken [equipment], which his father had warned the company about many times but was ignored.

(k)The Company only compensated the Applicant’s mother ¥50,000 and stated this was because his father was only a temporary employee who had worked there less than three years. According to regulations, the pension for his death should have been at least ¥384,000.

(l)The Applicant spent five years from November 2010 to 2015 seeking reasonable compensation, approaching the company, various government agencies and the police, and seeking legal assistance, but he did receive anything.

(m)On many occasions the Applicant was warned, threatened and even beaten up by [the boss] and his men from [Company 1]. He reported this to police but was not offered protection.

(n)On 6 November 2015, the Applicant held a protest with his family and around 100 locals outside [Company 1] urging a reasonable pension for the death. He was then accused of illegally gathering people together and seriously harming social security by Chinese authorities. He was arrested by [police] and over 10 of the protestors, including his bother and mother, and they were assaulted by police with batons.

(o)The Applicant was detained for three weeks, firstly in a cell at the [police] station and then a detention centre in Fuqing. Police tortured him there.

(p)On 27 November 2015, he was released on bail after his wife bribed the police. He was still required to report to the [police] station every Friday. His wife asked her relative [to] secretly organise his trip overseas and he left on [date] January 2016.

(q)On 8 January 2016, police went to his [Village 1] home to arrest him for failing to report on time. Police subjected his wife, mother, brother and relatives or friends to investigation following this.

(r)He fears being arrested by police if he returns to China, where he will be sent to jail and suffer inhuman torture.

1. At the hearing before the Tribunal, the Applicant gave oral evidence concerning his claims for protection that was, to some extent, consistent with his original claims. It is summarised as follows:

   (a)The Applicant stated that, when he left China, his wife was pregnant with their second child. He confirmed that he has not been back to China to see his second son. He said that he is afraid to go back. He is also afraid to contact his wife in China because he believes somebody will monitor the call. He therefore waits for his wife to contact him, which he said she does regularly.

   (b)The Applicant confirmed the basis of his protection claim arose from his family being inadequately compensated for his father’s death at [Company 1] in 2010. He said that he and the family tried to pursue the company for compensation unsuccessfully for fives years. He said police warned him and his family not to pursue the compensation claim.

   (c)The Applicant confirmed that he attended a protest on 6 November 2015 outside [Company 1] demanding compensation for his father’s death. He said that he was the ‘leader’ of the group and that he was assaulted by police. This was the only physical encounter with police that he had ever had in China. The police claim that the Applicant blocked the factory and this was the reason for him being arrested. The Applicant also stated that his mother and older brother had also been beaten and received no compensation.

   (d)The Applicant initially said he was detained for three months. But then he said that he was detained for three weeks. The Applicant said that his wife bribed a police officer, by paying the officer ¥13,000, to secure his release on bail.

   (e)After police attempted to arrest the Applicant at his home on 8 January 2016, and discovered that he was not there, police continued to attend his home every two to three months to check whether he had returned. The Applicant believes that if he is forced to return to China, he would be arrested and sent to jail and that it is likely that he would be killed in custody.

   (f)When the Tribunal suggested to the Applicant that he might be regarded as a relatively low-level criminal, based on what he had described, he expressed disagreement with the Tribunal. He emphasised that he was ‘wanted’ in China and that the police had a good relationship with the boss of [Company 1]. The Applicant repeated several times that he believed he would be killed. He said that he was treated inhumanely while in detention in China previously, including other prisoners beating him and hitting him with a hammer.

   (g)The Tribunal inquired of the Applicant as to whether he had any official documentation to support his claims that he had been in custody. The Tribunal pointed out that, because he had been granted bail, he would have received some kind of official documentation upon his release pending determination of the charges against him. He said that he was obliged to report to police every Friday but did not receive any such documentation. He said that he was never lawfully detained and therefore had no documentation. He suggested that his reporting obligations after his release were unofficial because of the fact that his wife had bribed a police officer. The Applicant also suggested that official documentation was not provided to him because of the good relationship the local police had with the boss of [Company 1].

   (h)Pursuant to s 424AA of the Act, the Tribunal orally communicated particulars of information that was on the Department file that could potentially be a reason, or a part of the reason, for affirming the decision under review. That information was contained in a document that appears to have come from an unknown database and related to the Applicant’s attendance at a [Country 1] consulate in China in Guangzhou on [date] June 2015.[11] The Tribunal explained to the Applicant that the document indicated that he was fingerprinted at the [Country 1] consulate for a reason that may have had to do with the Applicant applying for a visa at that time to enter [Country 1]. However, the Tribunal also pointed out that the document did not disclose the precise reason for the fingerprinting because it stated ‘information restricted’. Nevertheless, the Tribunal made it clear to the Applicant that, if he had been seeking to leave China in June 2015, before he was detained in November later that year, there is a concern the Tribunal has with respect to his claimed reason for wanting to leave China. Although the Tribunal informed the Applicant that he could seek additional time before he responded to this information, he said that he wished to respond immediately. He told the Tribunal that he did not know why he had gone to the [Country 1] consulate in Guangzhou. He said that this is something that his wife had arranged for him to do. He said that he did not want to go to [Country 1]. He said that it was one of his relatives that had then subsequently arranged for him to come to Australia.

   [11] The Tribunal notes that this document was subject to a certificate issued under s 438 of the Act. However, the Tribunal found this certificate to be invalid as it did not outline a sufficient basis for non-disclosure. Accordingly, the pertinent information contained in the document was communicated to the Applicant in the course of the hearing.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about China on 22 December 2021 (‘the DFAT report’).[12] The Tribunal notes the following information:

   (a)Gatherings of more than 200 people must obtain approval from public security authorities. The Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges. Public demonstrations are rarely approved. Spontaneous protests sometimes occur.[13] DFAT assesses that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.[14]

   (b)China’s criminal justice system is different to Australia’s.[15] Police open a case when the prosecutor is confident there is a high chance of conviction. Police are under pressure to obtain confessions prior to trial, but the use of torture to extract confessions is banned and interrogations in major criminal cases must be audio and video recorded. Lower-level courts can be subject to interference by government officials. Interference especially happens when a case is sensitive or important.

   (c)Arbitrary arrest and detention is commonly reported, especially in cases of political sensitivity and to exercise political leverage.[16]

   (d)Prison conditions vary significantly in different parts of the country. They can be harsh and often life threatening or degrading in some circumstances. Prisoners are generally required to work.[17]

   [12] Department of Foreign Affairs and Trade, DFAT Country Information Report: People’s Republic of China (22 December 2021). The content of this report updates the information that was contained in the DFAT report concerning China that was current at the time of the hearing in relation to the present review application in December 2020. The Tribunal notes that there is no new information contained in the more recent report that is material to the Tribunal’s determination now.

   [13] See the DFAT report at [3.86].

   [14] See the DFAT report at [3.96].

   [15] See the DFAT report at [4.15]-[4.21]; [5.7]-[5.9].

   [16] See the DFAT report at [4.8]-[4.14].

   [17] See the DFAT report at [5.13]-[5.16].

Analysis of Evidence and Factual Findings

Assessing Credibility of Claims – General Principles

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[18]

   [18] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].

1. The Tribunal also recognises that applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions. The nature of their claims, if genuine, may cause them some consternation in expressing their fears. Allowing for such considerations, if the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt if they are unable to fully substantiate all of their claims.[19]

   [19] Ibid [15.4].

2. However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[20] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[21] While there is no legal concept of ‘onus of proof’ that is to be applied by the Tribunal, in the same way that such a concept is routinely applied in courts of law,[22] the Tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an applicant’s claims. If there is no such foundation, the Tribunal is obliged to reject those claims.

   [20] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [21] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

   [22] Sun v MIBP [2016] FCAFC 52

3. Ultimately, it is for the applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[23] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[24]

Credibility of Applicant’s Claims in this Case

[23] MIEA v Guo (1997) 191 CLR 559, 596’ Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

[24] Migration Act 1958 (Cth), s 5AAA(2).

1. In this case, the Tribunal has significant doubts as to the veracity of the Applicant’s essential claims which might substantiate a protection visa application. In particular, the Tribunal notes the following:

   (a)Beyond the Applicant’s own testimony, there is nothing to corroborate the Applicant’s claims as to pursuing a family compensation claim, being physically assaulted as a result of protesting, and being held in detention unlawfully by authorities before being released as a result of his wife bribing a police officer.

   (b)Although it is certainly open to the Tribunal to accept an Applicant’s claims based on their testimony alone (without corroborating evidence), in this case there are matters that tend to undermine the credibility of the Applicant’s specific claims. These matters include the following:

   (i)The Applicant’s narration of his fears in the course of the hearing had virtually no focus on his time allegedly spent in custody. He briefly alluded to being attacked by prisoners with a hammer, but mentioned nothing beyond that. There was no description of his pain, suffering, injuries, and anxiety and fears as a result of that incident or the ongoing mental trauma that was likely to have resulted from that incident. There was no information volunteered by the Applicant of his personal suffering while being unjustifiably detained for three weeks (or three months, as the case may be).

   (ii)The absence of any kind of documentation is very concerning in this case, particularly when the Applicant stated that he was released on bail with regular reporting conditions. He could not produce any charges, nor did he attempt to particular what exactly he had been charged with. His explanation that his bail was informal or unofficial, and therefore was given no documentation for that reason, was implausible.

   (iii)The Applicant’s evidence that he did not know why he went to [Country 1] consulate in 2015, where he was fingerprinted, and that he never wanted to go to [Country 1] was not remotely believable.

   (iv)The Applicant initially said he was detained for three months in the course of the hearing. He then said he was detained for only three weeks. It is a significant discrepancy. Having regard to other issues with respect to the credibility of the Applicant’s claims, the Tribunal is not prepared to accept this to be a simple mistake. Any person who has spent time in custody, for reasons that they believe to be unjust, is unlikely to forget the amount of time that they spent in custody.

2. For the above reasons, the Tribunal is unable to accept that the Applicant is a witness of truth. This finding significantly colours all of his evidence. The Tribunal is not prepared to accept any of it.

Does the Applicant Meet the Refugee Criterion?

General Principles

1. Section 5H of the Act defines a refugee as a person who, in the case of a person who 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 return to avail himself or herself of the protection of that country.’[25]

   [25] Migration Act 1958 (Cth), s 5H(1)(a).

2. The term ‘persecution’ is not expressly defined in the Act. However, it is commonly understood as referring to ‘an injurious act’ and ‘[a] particular course or period of systematic violent oppression, esp. one directed against the members of a particular religious or political group, race, etc.’[26] Within the context of Australia’s relevant migration and refugee laws, the concept of persecution is limited by the operation of a number of statutory provisions found in the Act. These provisions essentially prescribe the approach that the Tribunal must take when considering whether an applicant has a ‘well-founded fear of persecution’ when assessing their claim of being a refugee. This includes a requirement that persecution must involve ‘serious harm’ to the person who is seeking protection.[27]

   [26] ‘persecution, n.’, OED Online (Oxford University Press, March 2021, Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: (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 likelihood of any kind, where the denial threatens the person’s capacity to subsist.

Determining whether a person has a well-founded fear of persecution involves making a risk assessment as to what is likely to happen in the future.[28] In this regard, conclusions about what has happened in the past may provide some assistance in working out what is likely to happen in the future.[29] In many cases, an applicant will be relying on their own past experiences as founding their claim for a protection visa. The logical starting point for the Tribunal in such cases is to determine whether the events happened as claimed and, if so, whether they constituted persecution.[30]

Applicant Not a Refugee

[28] MIEA v Guo (1997) 191 CLR 559, 574.

[29] Ibid, 574-5: ‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’

[30] See Abebe v The Commonwealth (1999) 197 CLR 510, [82] (per Gleeson CJ and McHugh J), [192] (per Gummow and Hayne JJ): ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’.

1. The Tribunal is not satisfied that the Applicant has a well-founded fear of persecution because none of the Applicant’s evidence, relating to his essential claims for protection, is accepted.

Does the Applicant Meet the Complementary Protection Criterion?

General Principles

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal 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 [they] will suffer significant harm’.[31]

   [31] Migration Act 1958 (Cth), s 36(2)(aa).

2. Section 36(2A) provides that a person will suffer ‘significant harm’ if:

   (a)they will be arbitrarily deprived of their life;[32] or

   (b)the death penalty will be carried out on them;[33] or

   (c)they will be subjected to torture;[34] or

   (d)they will be subjected to cruel or inhuman treatment or punishment;[35] or

   (e)they will be subjected to degrading treatment or punishment.[36]

   [32] Migration Act 1958 (Cth), s 36(2A)(a).

   [33] Migration Act 1958 (Cth), s 36(2A)(b).

   [34] Migration Act 1958 (Cth), s 36(2A)(c). Torture is defined in s 5(1) as meaning 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 International Covenant on Civil and Political Rights (‘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.

   [35] Migration Act 1958 (Cth), s 36(2A)(d). Cruel or inhuman treatment or punishment is defined in s 5(1) as meaning 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. It 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.

   [36] Migration Act 1958 (Cth), s 36(2A)(e). Degrading treatment of punishment is defined in s 5(1) as meaning an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission.

3. A ‘real risk’ of significant harm otherwise involves the application of the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ when considering the refugee criterion.[37]

No Real Risk of Significant Harm

[37] Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33.

1. The Tribunal finds that the Applicant does not meet the complementary protection criterion for the same reasons as contained in paragraph 26 above.

Summary

1. The Tribunal is not satisfied that the Applicant meets either the refugee criterion or the complementary protection criterion. There is no material before the Tribunal to suggest that the Applicant meets the family member criterion. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the Applicant a Permanent Protection (Class XA) (Subclass 866) visa.

Dr Jason Harkess

Member