1704016 (Refugee)

1704016 (Refugee) [2021] AATA 219 (15 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704016
COUNTRY OF REFERENCE:                   China
MEMBER:David Barker
DATE:15 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 January 2021 at 2:30pm
CATCHWORDS
REFUGEE – protection visa – China – laid off by state-owned enterprise employer – inadequacy of redundancy payments – organised protest activity at the workplace – petitioned to local district government – credibility concerns – inconsistencies between written statement and evidence at hearing – delay in seeking protection – mental health issues – economic hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 19 July 2016. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations.
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) of the Act. 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) of the Act, 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-5LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted in China for one or more of the five reasons set out in s.5J of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that they will suffer significant harm.
The Tribunal , in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China, including that referred to by the delegate in the decision record, a copy of which was provided with the review application.
With respect to country information, the Tribunal accepts that the Chinese authorities have pursued an extensive anticorruption campaign since 2012, according to Freedom House, this has resulted in a chilling effect among officials and reduced ostentatious displays of wealth. Nonetheless corruption is believed to remain extensive at all levels of government. Authorities have failed to adopt basic reforms that would address corruption more comprehensively, such as requiring officials to publicly disclose their assets, creating genuinely independent oversight bodies, and allowing independent media, courts, and civic activists to function as watchdogs[1].
[1] >
The US Congressional Executive Commission’s China annual report of October 2017 noted that:
Local-level corruption reportedly remains common in rural China. Local officials reportedly engaged in embezzlement, land expropriation, and forced demolition of homes. Some officials reportedly had ties to criminal syndicates that used intimidation and violence to extort money from villagers. In January 2017, at separate high-level meetings for their respective agencies, Wang Qishan, the Secretary of the CCDI, and Cao Jianming, the Procurator-General of the Supreme People’s Procuratorate (SPP), acknowledged problems of village-level corruption and indicated plans to tackle corruption among village officials and related criminal activities. The SPP subsequently issued an official directive instructing lower-level prosecutors to work with other government agencies and Party organizations to target ‘‘village tyrants,’’ a term that the SPP used to describe officials who are involved in corruption and violence against villagers[2].
[2] Congressional-Executive Commission on China, ‘Congressional-Executive Commission on China
The Tribunal accepts that significant protests and petitioning takes place in China. According to DFAT:
Protests and petitions occur regularly across China. An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. China Labour Bulletin (CLB) obtained details of 1,287 protests in 2017, and 1,318 protests between January and October 2018, but it estimates this only reflects one tenth of protests that occurred. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal
processes. While construction issues account for around 40 per cent of labour issues, in line with changing patterns of migrant work (see Employment), NGOs working on labour issues claim an increasing trend towards protests over service sector work (more than 20 per cent), rather than industry and factory work.
China’s Constitution and State Compensation Law (1994; amended 2010) enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. Sources report that local
[3] DFAT Country Information Report People’s Republic of China 3 October 2019.
officials are encouraged to ensure protests do not reach Beijing. The SCS [Social Credit System] can be used to restrict movement of people to prevent them from travelling to Beijing to petition the government In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise.[3]
In relation to the monitoring of the general population in China, recent DFAT references note:
Security personnel and surveillance technology are ubiquitous throughout China. Increased artificial intelligence (AI) capabilities serve China’s economic and military modernisation interests, while simultaneously enhancing Party stability through increased power to surveil and control the population.
Some reports estimate 170 million surveillance cameras have been installed in cities and towns across the country in the past decade. Everyday street crime and violence in China’s major cities is generally low. Sensitive social groups, including religious organisations, Uighur and Tibetan ethnic groups, Falun Gong practitioners and human rights activists, have alleged that the government uses a range of surveillance methods to monitor their activities. Since 2016, media have reported that Chinese police and security agencies have begun combining photo databases, artificial intelligence and facial recognition technology installed in surveillance cameras to track down criminal suspects and ‘destabilising agents’ in society.[4]
[4] DFAT Country Information Report People’s Republic of China 3 October 2019.
In relation to arrest and detention in China, recent DFAT references note:
Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. Police can hold individuals for up to 30 days in criminal detention before deciding whether to pass the case to prosecutors, and for an additional seven days prior to formal arrest. Police detention beyond 37 days requires prosecutorial approval of a formal arrest and notification of family members within 24 hours of detention. The law permits officials not to provide notification if doing so would ‘hinder the investigation’ or for cases pertaining to ‘national security, terrorism, and major bribery’. During periods and anniversaries considered politically sensitive,
authorities often detain activists without charge for the full 37-day period.
Administrative detention is regulated under the law on Penalties for Administration of Public Security (2006). Administrative detention is imposed for crimes of a minor nature, and which are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law. It is imposed by public security organs at the local (county) government level. While there are various forms of administrative detention in China with different procedures and time-limits, the maximum period of administrative detention for any one act is 15 days, and where multiple periods of administrative detention are imposed concurrently for several acts, the maximum period of detention is 20 days.
Under the Criminal Procedure Law, police may also detain individuals in ‘residential surveillance at a designated location’ (RSDL) away from their home for up to six months before formal arrest or release. RSDL can be used to detain individuals suspected of crimes endangering national security, involving terrorist activity, or involving serious corruption (see Corruption), or where the suspect or defendant does not have a fixed residence. Authorities must notify relatives of individuals placed under formal arrest or residential surveillance in a designated location within 24 hours, unless notification is impossible.
Locations used to enforce RSDL are often referred to as ‘black jail,’ however the term ‘black jail’ more correctly describes short-term detention in rented/owned, run down hotel rooms or similar, often used for petitioners, criminals and those under suspicion of less sensitive allegations, as a coercive measure. The primary distinction between RSDL and ‘black jail’ is that RSDL is a formal feature of the Chinese legal system. RSDL also reportedly often entails treatment more severe than in ‘black jails,’ and occurs in government-run, custom fit for purpose facilities, whereas black jails are quasi-administrative holding centres for petitioners
[5] DFAT Country Information Report People’s Republic of China 3 October 2019.
and criminals[5].
In relation to relocation options in China, recent DFAT references note:
DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score. People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel.[6]
[6] DFAT Country Information Report People’s Republic of China 3 October 2019.
In relation to the issuing of passports and exit and entry procedures in China, recent DFAT references note:
According to the Passport Law (2006), ordinary passport applicants must apply in person to the Entry- Exit Control Department of the Ministry of Public Security or the authorised county-level bureau where their hukou is registered. Applicants must provide their RIC, hukou, recent photos, and documents substantiating the reasons for their application. Once approved, a passport is generally issued within 30 days. If a passport application is refused, reasons for the refusal are provided in writing and the applicant is informed of their right to apply for administrative reconsideration or to file an administrative lawsuit. Costs of passports vary according to location but are considered affordable.
Under the Passport Law, authorities can refuse passports to people who ‘will undermine national security or cause major losses to the interests of the State’. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uighurs and Tibetans
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 airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.[7]
[7] DFAT Country Information Report People’s Republic of China 3 October 2019.
In relation to exit procedures in place around the time of the applicant’s departure from China, DFAT references indicate:
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[8].
Applicant’s claims
Personal statement provided with visa application
[8] DFAT Country Information Report People’s Republic of China 3 March 2015.
In the written statement provided to the Department with his application for protection, lodged on 19 July 2016, the applicant has made the following claims:
·The applicant was employed in [Company 1], a state-owned enterprise, [from] 1980 to January 2014;
·In January 2014 he was, along with other employees, laid off as part of a restructure of the [business]. Compensation of between RMB30,000 and RMB50,000 was payable to eligible employees, without any provision for an ongoing pension. He considered these redundancy arrangements to be illegal and harmful to the legitimate rights and interests of affected employees;
- [In] February 2014 the laid-off employees gathered in the [workplace], demanded a rise in the level of compensation and a resolution to the issue of ‘the retirement problem’;
- The applicant organised a petition and delegation of eight employee representatives to complain to the [District 1] government. All involved subsequently received threatening phone calls from strangers advising that they would be killed if they continued with the petition;
- The applicant was not deterred and sought, through bringing the situation to the attention of the Beijing Municipal government, to involve higher levels of government in solving the problem. He was prevented from doing this and arrested by police from [District 2] and detained in a ‘dark prison’ in [District 1] for three days before being transferred to [District 1] Branch of Public Security, where he was handcuffed from behind and had his head pressed into a large bowl filled with water;
- The applicant was detained until he had signed a statement to say he would no longer petition.
Departmental interview
The applicant attended an interview with the Department on 25 January 2017. Information provided in this interview, where relevant, is discussed below.
The delegate’s decision record
Information referred to in the delegate’s decision record, a copy of which was provided with the review application, is discussed where relevant below.
The initial teleconference hearing
The applicant appeared before the Tribunal to give oral evidence and present arguments by teleconference on 4 November 2020. The applicant was offered participation by videoconference through MS Teams but declined this opportunity, indicating he lacked the technical capacity. The Tribunal then determined it was reasonable to hold a hearing through a teleconference in the context of the current coronavirus pandemic, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal was mindful of the need to minimise health risks to the parties and Tribunal staff that could arise at the present time in an in-person hearing. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by electronic means. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

The applicant told the Tribunal that he has a current passport, issued to him by the Chinese authorities. In response to a question from the Tribunal he indicated that he had no difficulties getting the passport. The Departmental file has a copy of the biodata page from the applicant ’s passport, which indicates it was issued to him [in] 2013.
The applicant gave evidence at hearing that he had assistance from a travel agency to apply for the tourist visa on which he travelled to Australia in 2014. He indicated that notwithstanding this, all information provided in association with the tourist visa application was true and correct. He said that he had assistance from a migration agent to prepare the protection visa application and that he provided the information to prepare the written statement provided in association with the protection visa application. He said the information in the written statement was true and correct, but that he was unsure of the accuracy of responses provided in the protection visa application forms. He said that this was due to his not understanding the English language. He contended that this was why the form indicated that no one assisted him to prepare the application, when this was not actually the case.
In relation to his circumstances in Australia, the applicant provided the following information:
·He came to Australia in 2014 on a visitor visa. The purpose of this trip was to have a change of environment from the circumstances causing him to feel anxious and depressed in China, namely redundancy from his long term employment in [Company 1] and divorce following the breakdown of his marital relationship. His father advised him that he may feel refreshed if he went and worked from a distance, in another country, within sight of the ocean;
·After he came to Australia the applicant had difficulty finding work in Sydney. He linked with an employer through a Chinese newspaper, who took him to a regional area to work;
·He moved to his current residence in [Suburb 1], which he shares with a few other people, around four or five years ago;
·He has worked in a range of casual jobs for various [employers];
·He has no relatives in Australia and his social network consists of work related friendships.
As to the circumstances of his immediate family in China, the applicant provided the following information:
·His ex-wife is retired and lives with his daughter in [District 3], Beijing City;
·His daughter is married and has one child. She works for a major Chinese [company], having been offered work there [after] her graduation from university with a [specified] degree;
·His father passed away two years ago. His mother is supported by the applicant’s younger brother, who is married and works as a [Occupation 1]. His mother has health problems, which are managed through treatment at a hospital near to where she lives.
With regard to his employment history in China, the applicant gave evidence at hearing that he worked for many years at a [company undertaking specified tasks] which produced [specified products]. He said that he was made redundant from this workplace in 2013, prior to traveling to Europe and that after he returned to China he could only find casual work periodically [undertaking specified tasks] for different employers in different [companies].
The applicant gave evidence at hearing that the loss of regular employment and divorce from his wife caused him to get depressed. He said the need to financially support his daughter during her tertiary studies at university compounded his troubles and contributed to his feeling unsettled about what he and other laid off workers perceived to be inadequate financial payments following their redundancy from the [company]. The applicant said that he organised other laid off workers to protest the redundancy compensation issue at the [company]. He said that there were two gatherings at the [company], with many laid off workers becoming dispirited and losing interest after a lack of response from [the] management following the initial gathering. The applicant gave evidence at hearing that he organised a subsequent gathering at the [company] involving seven other laid off employees. The applicant said that he and the other seven laid off employees talked to representatives of [the] management who said they would solve the problem later. He said that after a month passed with no resolution of the laid off employee’s concerns, he became very dispirited and disappointed.
The Tribunal asked the applicant why his claimed loss of employment and subsequent unsuccessful protest activities, which occurred around six years ago, made him fear that he would be harmed if he was to now return to China. In response the applicant claimed that the events back then had a great impact on his mental health, which continues to affect him. The Tribunal acknowledged that stressors such as the loss of employment and marital breakdown can have an impact on a person’s mental state and wellbeing but asked for clarification why that made the applicant fear that he would be harmed if he returned to China. In response the applicant claimed that people from his old employer and the local [District 1] government may take revenge on him. He said this was because he was the main organizer of protests and that he wrote a letter and reported the behaviour of his supervisor and old employer.
The Tribunal summarised the applicant’s evidence at hearing as to the reasons he has a fear he will be harmed if he returned to China and he confirmed those reasons were that he organised protest activity at the [workplace] and wrote a letter to his local government and that neither of these actions resulted in improved redundancy payments. The Tribunal sought clarification if there were any other experiences or incidents that had contributed to his fear that he would be harmed if he returned to China. In response the applicant said that he organised protests on three occasions and that none of them were successful and that is why he felt very disappointed.
The Tribunal asked the applicant when he had decided it was not safe for him to return to China. In response the applicant said he got the idea that he did not want to go back to China after he had been in Australia for around a year. The Tribunal noted that the applicant was an unlawful non-citizen in Australia for a considerable period of time before he applied for protection and brought to his attention that this was a factor that was of concern to the Tribunal . He responded by claiming that he did not keep track of his visa status after going to the regional area to work and that quite a while passed before he thought about his visa status and found out he could apply for a protection visa. He explained that when he first came to Australia, he was just trying to find work and did not give much thought to his visa status.
As to whether the applicant could relocate to another part of China where he would not face the risks he is worried about, the applicant said that he could live in other areas of China but that he would be monitored by the government in other regions and therefore he would not be safe. The Tribunal acknowledged that the available country information indicates the Chinese authorities have effective systems in place to monitor Chinese nationals throughout China, but asked the applicant why this would make him unsafe, given his claim he was only at risk of harm from people connected to his old employer or some people from the [District 1] government. In response the applicant said it was because of the connection between different levels of government and that the internet ensures all parts of China are connected and monitored.
The applicant claimed at hearing that he would be unsafe because his name was put on a list. In response to a question as to when he was placed on a list of people that was of concern to the authorities in China, the applicant said that this would have occurred at the time he wrote a letter to the [District 1] government in February 2014. The Tribunal noted that available country information indicates that departure points from China are closely monitored and controlled by the Chinese authorities and that persons who are identified as of concern to the authorities can be prevented from leaving China. The Tribunal noted that country information about the situation in China indicated that lists of names of persons of concern to the authorities may well be kept at airports and that the applicant’s departure from China in 2014 would appear to indicate he was not a person of concern to the authorities. The Tribunal noted that it was still not apparent why he would be unsafe if he was monitored in parts of China apart from his home region. In response the applicant suggested that there would have been a delay from his name being placed on a list in his local area and that list being passed onto to higher authorities in China, and that was why he departed from China when he did, before that list would have been widely available.
The Tribunal asked the applicant if there was any other reason, or basis on which he feared he would be at risk of harm if he was to return to China. In response the applicant claimed that a third incident occurred in which he and other laid off employees were gathering, in which military type authorities arrived and threatened to harm him and the other laid off workers if they did not cease their protest activity. The applicant said this scared him and that it was the final incident which contributed to the basis of his fear that he would be harmed if he returned to China.
The Tribunal gave the applicant the opportunity to respond to some concerns it had regarding evidence he had provided during the hearing. The Tribunal summarised these concerns as follows:
·The applicant’s initial stated reason for coming to Australia was to have a change of atmosphere after he was made redundant and he divorced his wife, whereas at a further point he claimed he came to Australia because he wanted to leave China before government officials in his local area identified him to higher government authorities as a person of concern;
·In his evidence at hearing the applicant made a number of references to seeking employment in Australia, which gives rise to concern this was his actual motivation to come to Australia;
·The applicant did not apply for protection until two years after he had arrived in Australia;
·The applicant’s oral evidence at hearing was not consistent with a number of claims in the written statement provided at the time he applied for protection;
·The applicant’s oral evidence at hearing failed to mention incidents reported in his written statement, such as where he was arrested, his detainment in a police station, his detainment in a dark prison, or that whilst detained in a district branch of the public security apparatus he was subjected to physical mistreatment.
In response the applicant contended he was instructed by the interpreter to speak slowly and therefore had not had the opportunity to fully explain himself and his circumstances. The Tribunal noted that the interpreter indicated he gave no instruction to the applicant to talk slowly. The Tribunal also noted that it had asked the applicant to bring up during the hearing any difficulties he experienced with the interpreting and that he had not previously mentioned any difficulties during the hearing. The applicant then claimed that on the last occasion the police had come to his home in China, they arrested him and took him to a place which was very dark and scary. He said that he was beaten on the back. The Tribunal indicated that it would consider this further information but noted that it remained inconsistent with the claims made in his written statement about his arrest and detention experiences.
In response to a question from the Tribunal as to whether there was anything further the applicant wanted the Tribunal to understand about his circumstances and protection claims. The applicant indicated that there was nothing further that he wished to add.
The second teleconference hearing
The applicant participated in a second hearing by teleconference on 15 January 2021, which the Tribunal called in order to ask the applicant some further questions regarding claims he had paid in relation to feelings of depression and anxiety experienced prior to his arrival in Australia and in relation to his concern as to his economic circumstances should he be required to return to China.
In relation to the former issue, the Tribunal told the applicant that it had noted that he reported feeling anxious and depressed following his divorce from his wife and redundancy from his employment at [Company 1] that is wish for a change of atmosphere to somewhere he could get refreshed contributed to his decision to come to Australia. The Tribunal asked the applicant what happened to the feelings of anxiety and depression after it came to Australia. In response the applicant said depression was caused by the long-term persecution which harmed him psychologically and physically. He said he still feels the shadow of the harm. In response to a question as to what you meant by the shadow of the harm the applicant said it will go with impact in for the rest of his life and that it will not be alleviated as it has harmed his mind. The Tribunal asked the applicant what sort of impact the shadow of the harm had upon him and he said that sometimes because of the depression he feels annoyed. He said that this occurs irregularly and that is why he needs a protection visa.
The Tribunal asked the applicant if he ever sought professional assistance because of the anxiety or depression. In response the applicant said sometimes if he feels uncomfortable, he will seek out communicate with friends in order to relieve the depression. The Tribunal asked him if that response was effective in the applicant said that it will be alleviated a bit but unlike a physical injury it will go with him the rest of his life.
Tribunal asked the applicant if at any stage she had been formally diagnosed or treated for an actual mental health condition in either Australia or China. He said that he but the treatment was not so good. He said the treatment did not do much for a psychological issues. When asked for more specific detail as to what sort of consultation and what was the proposed treatment the applicant said he consulted a doctor in China because of the depression but that the doctor told him that only he could adjust to his psychological condition which would never be resolved he said he needed to assist himself.
Tribunal asked why the applicant could not, in the event he returned to China get further support from friends or see a doctor as required for treatment advice, in relation to the psychological issue. In response the applicant said with regard to this sort of business only at the person himself knows what happened. He said in China personal affairs like this are not talked about between people. He said you don’t talk about your problems with other people.
The Tribunal put to the applicant that given he cannot communicate in English language it would appear reasonable to assume the friends he approached to communicate with when he wanted support for the psychological issues were Chinese speaking and if that were the case why could he not communicate with these or other Chinese speaking friends in the event he had returned to China and felt affected by the psychological issues. In response the applicant conceded that he could only communicate with Chinese speaking people but did not make further comment regarding this issue.
The Tribunal invited the applicant to comment on country information which indicates that whilst there are some public health challenges in relation to mental health services in China, there has in recent times been increased investment in mental health services which has improved access to mental health services, including by people who may hold rural hukou registration. In response the applicant said in relation to people with a psychological sickness, in the past there were less services for people with these problems and that the services that are currently available have just started.
In relation to the applicant’s fear about the economic sent circumstances he would face if he was to return to China, he said that he is concerned that he would it will be difficult for him to survive. In response to a question as to why it would be difficult for him to survive the applicant gave the example of the difficulty faced by a person may be redundant from work who had a child at school. He said there will be a need to pay for their utility expenses for the child and this would be difficult for a redundant worker.
The Tribunal asked the applicant why, in the event he returned to China, a person with his range of skills and work experience would be unable to get work, either in their home region or some other part of China. In response the applicant said if he was to go back the employment, he may be to get may not be that good. He said he would employ someone of his age and even if he tried to get workers are security guard no one would want to give him that sort of job. The Tribunal asked the applicant why, in the event he returned to China, why could he not, if required, seek support from his daughter or other relatives. In response the applicant said his father has passed away and that his daughter cannot help him because she lives with his former wife. The Tribunal acknowledged this may preclude the applicant staying with his daughter but given she is a university graduate with a job in a Chinese [company] why would she not provide him with other forms of support given children taking responsibility for supporting their parents is a important feature of Chinese culture. The Tribunal asked why his particular circumstances would be different, to the extent that these cultural responsibilities would not apply and his child would not provide him with necessary support. In response the applicant said to obey parents is a must in Chinese culture, but that with the education his wife gave to his daughter she is very rebellious and she does not recognise the applicant. He said he does not recognise his daughter and that he feels angry and sad when he thinks about his daughter. The applicant then said, in the context of circumstance of if he were to return to China, he does not need his daughter to look after him as he can look after himself.
The Tribunal indicated to the applicant that it had no further questions and asked him if he wished to bring anything further that he would wish considered in relation to his protection claims to the attention of the Tribunal. In response the applicant indicated he had nothing further that he wished to say.
Receiving country
The applicant claims to be a citizen of China and has provided a copy of his Chinese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China and that he is outside his country of nationality. The Tribunal finds that China is his receiving country for the purpose of assessing his claims for protection.
Third country protection
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Assessment of claims
Credibility
Notwithstanding his assurances to the contrary, the Tribunal has formed the view that the information provided in support of the applicant’s protection claims is not reliable. In reaching this view, Tribunal has had regard to the differences between claims made in the personal statement provided in association with the visa application lodged in July 2016 and the evidence provided by the applicant at hearing. The Tribunal does not consider that things like minor changes in dates, minor details omitted from claims in the written application, or mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds these things together take on more significance and so have been given weight.

In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by them, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[9] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[10]
[9] MIMA v Rajalingam (1999) 93 FCR 220.
[10] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicant’s case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[11] There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[12]
[11] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at [169-170].)
[12] Sun v MIBP [2016] FCAFC 52 at [69].
The applicant’s evidence at hearing was not persuasive. It was at times vague and lacking the degree of specificity that would have engendered more weight being ascribed to it. It was also in parts confusing, illogical and internally inconsistent. When asked at hearing to respond to some concerns held by the Tribunal in relation to evidence, he had provided in support of his protection claims, the applicant responded by claiming he had taken instruction from the interpreter to speak slowly, which limited his opportunity to fully explain himself in circumstances. The Tribunal was not persuaded by this explanation, given the interpreter denied giving the applicant any such instruction and because the applicant, when given further opportunity to explain himself and put any further matters before the Tribunal in relation to his protection claims, indicated he had nothing further that he wished to say to the Tribunal. The Tribunal considers that the concern raised by the applicant, as to constraints on his ability to explain himself during the hearing because of instructions received from the interpreter, was an attempt to rationalise perceived shortcomings in his evidence at hearing.
A comment from the applicant in response to the Tribunal ’s summary of some concerns about his evidence at hearing, namely that during the third and final incident contributing to his fear to return to China he was taken by the police to a dark and scary place contributed to concerns as to the weight which should be accorded to his protection claims. The applicant made this comment after the Tribunal noted that whilst he had claimed to be detained in a dark prison in [District 1] in the written statement provided at the time of application he had failed to mention this when asked to detail experiences in China that contributed to his fear to return there. Country information available to the Tribunal indicates a ‘black jail’ is a term associated with residential surveillance of detained Chinese nationals at designated locations. The Tribunal is satisfied the term dark prison referred to in the written statement provided at the time of application is a reference to this sort of detention facility and that the applicant’s description of being taken to a dark and scary place was an attempt to respond to the Tribunal ’s comment in a manner which displayed the applicant’s lack of familiarity with the contents of the written statement. The applicant’s evidence at hearing also claimed he taken by the police to the dark and scary place from his home, which is not consistent with the written statement, where he claimed he was taken to the dark prison as part of a sequence of sequences of detentions and mistreatment which occurred when he tried to travel to Beijing and take his concerns to the municipal government there.
With respect to his claim at hearing that he was made redundant from his job at [Company 1] in 2013 before his trip to Europe, the Tribunal noted that in his written statement the applicant made reference to being employed at the [company] until January 2014. In response to this apparent inconsistency, the applicant stated that this could be explained by his not speaking English. The applicant inferred that his lack of proficiency in English accounted for aspects of his written statement that were not consistent with his evidence at hearing. The Tribunal pointed out that he had attested at hearing to the accuracy of the information in his written statement, notwithstanding it being typed in the English language. In response the applicant contended that the inconsistency may be able to be explained by the [company] hiring back laid off workers on a casual basis due to their experience in [specified work] at the [workplace]. The inconsistency apparent in the applicant’s evidence with regard to this factor is even more evident when compared to responses he gave when interviewed by Departmental officers in January 2017. The delegate’s decision record, a copy of which was provided with the review application, indicates that at that time the applicant stated that he worked at the [company] for over six months after the end of 2013, which the Tribunal has taken to be until June 2014.
As to the claim at hearing that the applicant organised an initial gathering of laid off employees at the [workplace], the Tribunal put to the applicant at hearing that in his written statement he had referred to ‘laid off employees’ having ‘spontaneously gathered in the [workplace]’ (emphasis added). In response the applicant reiterated that there were two gatherings at the [workplace] and that the second gathering involved the seven other laid off workers that he had organised to attend. The Tribunal pointed out that this claim remained inconsistent with his written statement, which claimed that he wrote a ‘petition letter and organized eight employee representatives to complain in [District 1] government’. In response the applicant contended that because it all happened a long time ago the information in the written statement may not be accurate. With respect to this contention, the Tribunal put to the applicant that the written statement was produced significantly closer in time to the events in question and asked him why it should regard, as more reliable, oral evidence he gave at the present time. In response the applicant claimed that he both appealed to his old employer at the [company] and also wrote a letter to the [District 1] government. He contended that there were two different appeals and that there was also a connection between people at the [company] and the [District 1] government. The Tribunal finds this explanation unconvincing and considers it a further example of the applicant adapting his evidence in an ad hoc manner in an inadequate attempt to reconcile inconsistency in the evidence he has provided in support of his claims.
An inconsistency exists in relation to who assisted the applicant prepare his protection visa application. He gave evidence at hearing that he was assisted by a migration agent, whereas, as discussed in the delegate’s decision record the applicant conceded that he found someone to help him, by the name of [Mr A]. He explicitly stated that [Mr A] was not a migration agent and that he was not paid for the assistance he provided to the applicant. As identified by the delegate, there is a further inconsistency in the response on the protection visa application, where it is claimed that the applicant prepared the application without assistance. The applicant’s explanation for this latter inconsistency was the same at hearing as that which he had previously provided to the delegate, namely that his lack of proficiency in English meant that he required assistance with the protection visa application from someone who could write in English. The Tribunal acknowledges that the requirement visa application forms be completed in English can pose challenges to applicants without proficiency in this language. There is however no requirement that documents produced in support of an application, such as written statements, be prepared in English rather than the language in which an applicant is proficient. It is not unusual or inappropriate for statements and other written documents to be presented in their original form, with a translation into English by an appropriate accredited translator. The Tribunal accepts the applicant may not have been familiar with all responses given on his behalf on his application for a protection visa but considers this a further indication that information provided in association with the protection visa application is not reliable and does not reflect the true circumstances of the applicant.
Each of the aforementioned inconsistencies is of concern when looked at individually. When considered cumulatively they raise very substantial doubts about the credibility of the applicant’s claims, and I am not satisfied any of his evidence in support of his claims can be relied upon. Having considered all the applicant’s claims and all the evidence, the Tribunal finds aspects of the applicant’s evidence to be inconsistent, contradictory, unpersuasive and unconvincing. The Tribunal finds that the applicant is not a witness of truth. Given these concerns, I find that I do not accept the claims of the applicant and find that he is not credible in his claims.
Findings
Does the applicant have a well-founded fear of persecution if he returns to China?
When asked during his interview with Departmental officers in January 2017 why he came to Australia, the applicant emphasised his loss of employment in China meant he had no income there and no way to make a living. When asked why he applied for a protection visa the applicant indicated he did not really understand what the requirements for a protection visa were, but that he understood a protection visa would provide a legal way to remain in Australia. When asked during his interview with the Department why he had not returned to China, the applicant again emphasised economic factors, in that he said that he would have no job and no income if was to return to China. In relation to these responses given by the applicant to the Department, as discussed in the delegate’s decision, the Tribunal notes they are essentially consistent with evidence he gave at hearing as to why he came to Australia in 2014. At hearing he gave evidence that at the time he decided to come to Australia he was depressed and anxious following the breakdown of his marriage and his loss of employment. He told the Tribunal that his father advised him to seek work in another country, that upon arrival in Australia he sought paid employment and that working was his focus for the first few years of his stay in Australia. When discussing with the Tribunal why he had delayed applying for a protection visa the applicant again emphasised that when he came to Australia, he was trying to find work and did not give much thought to his visa status.
Taking these responses at face value it is apparent the applicant came to Australia, at least motivated in part, to seek employment and to improve his economic circumstances. This would appear consistent with choices he made to seek employment after his arrival in Australia, despite being on a type of visa that did not provide him permission to work in Australia. He then remained working in Australia as an unlawful noncitizen after his visitor visa ceased. The Tribunal acknowledges the aforementioned motivations and migration history do not preclude an applicant having a well-founded fear that they will face serious harm in their home country, but is not persuaded that in the particular circumstances of this case there is a real chance that the applicant will, at the present time or in the foreseeable future, face serious harm if he returns to China.
Informing this view the Tribunal has considered evidence provided in support of the applicant’s claims at the time of application, during interactions he subsequently had with the Department and in his evidence at hearing.
The Tribunal accepts the applicant became unemployed when made redundant from a job he had held for a number of years. The Tribunal does not however accept that the applicant organised a petition protesting the redundancy arrangements offered to laid-off employees of the [workplace] where he used to work, or a delegation of eight employee representatives who had an intention to appeal to local government authorities in [District 1] for their intervention to persuade the erstwhile employer to offer improved redundancy arrangements. The Tribunal makes these findings as it is not satisfied the applicant’s evidence in support of these claims is reliable. The applicant was unable to adequately explain why his oral evidence, in relation to when he ceased employment, the circumstances of the claimed petitioning and the delegation he claims he organised, is inconsistent with claims made at the time of his visa application. The Tribunal is not satisfied that information provided in relation to these factors, either at the time of application or the time of hearing, accurately reflect the applicant’s experiences or circumstances.
Further to this, the Tribunal does not accept the applicant and any delegation he organised received phone calls threatening their death if they continued with petitioning activity, or that the applicant was arrested by police from [District 2] whilst trying to bring concerns he held about the inadequate redundancy arrangements to the attention of the Beijing Municipal government. The Tribunal does not accept that the applicant was detained in a ‘dark prison’ in [District 1] for three days and does not accept he was then transferred to a PSB facility in [District 1], or that whilst in any such facility he was handcuffed from behind and had his head pressed into a large bowl filled with water. Tribunal does not accept the applicant was detained until he signed a statement indicating he would no longer petition. The Tribunal does not accept that at any stage the applicant was taken from his home to a prison that was dark and scary. The Tribunal does not accept these claims as it is not satisfied the applicant’s evidence in support of these claims is reliable and the Tribunal has placed no weight on this evidence, or these claims.
The applicant has made no claim to have taken any further petitioning or protest activity in relation to his alleged concern about the inadequacy of the redundancy arrangements accepted by him and other affected employees since his arrival in Australia in mid-2014. In the view of the Tribunal , he provided no plausible explanation as to why, given over five and a half years have now passed and given none of his previous claimed petitioning activity met with any success, there is a real chance of him facing serious harm if he were to return to China now or in the foreseeable future. In the view of the Tribunal the applicant failed to demonstrate that there was any credible link between his past employer at [Company 1] and the local government authorities in [District 1]. In the view of the Tribunal there is no credible evidence to demonstrate why government authorities, whether at the local or more central levels in China, would identify the applicant as a person of concern.
The Tribunal is satisfied that the ease in which the applicant departed from China in June 2014 is an indication that he is not identified as a person of concern to the PSB or other government authorities responsible for monitoring and surveilling Chinese nationals seeking to depart from China. In relation to this factor, the Tribunal was not persuaded by the applicant’s claim that his name is on a government blacklist but was not prevented from departing from China because the list had yet to be sent to airport. Country information available to the Tribunal indicates that there is cooperation between government authorities responsible for internal security in China, whether this be at the local or more central levels and that in this day and age communication between such authorities occurs electronically. The Tribunal considers the explanation put forward by applicant with regard to this factor to be a further example of his somewhat ad hoc endeavour to reconcile evidentiary concerns that would otherwise not support his claims.
The delay of approximately two years in the applicant seeking protection from when he first arrived in Australia in the view of the Tribunal further supports the view that his protection concerns are not legitimate and that his motivation for applying for a protection visa was more or less what he told Departmental officials in January 2017, that is, a step he took because he thought it would provide a pathway to legitimise his unlawful visa status.
The Tribunal has considered the applicant’s reference to feelings of anxiety and depression contributing to his decision to come to Australia in search of different circumstances to assist him feel refreshed. The Tribunal has considered this could amount to a claim regarding his mental health. In relation to any such claim, the Tribunal is not satisfied the psychological issues described by the applicant amount to a mental health condition that he would be unable to effectively manage in his home country. He has not sought assistance from medical or related health professionals for an acute mental health condition whilst in Australia since 2016 and when asked to detail the symptoms he associates with his psychological difficulty the applicant described feeling annoyed but not on a regular basis. When asked if he needed to seek professional assistance for these feelings, he said they can be alleviated by communicating with friends who speak his language, namely Mandarin. He said that when he did discuss his psychological issues with a doctor in China following his divorce and loss of employment at the [company] the doctor told him he had adjustment difficulty and that he could rely on himself to deal with them, presumably in lieu of pharmacological or other treatment regimes.
On considering the available evidence regarding the psychological issues described by the applicant, the Tribunal finds there is no real chance of him suffering from serious harm as a consequence of an inability to effectively manage his emotional and mental wellbeing in China.
The Tribunal considered whether or not the applicant has a well-founded fear of serious harm on the basis of any economic hardship he might experience on return to China. The Tribunal has accepted the applicant lost his job in China prior to coming to Australia in 2014. It has considered whether his being affected by what the Tribunal finds to be loss of employment through an employer’s decision to make a proportion of their employees redundant and offer redundancy conditions that the employer considers appropriate, constitutes circumstances where the applicant could be regarded as a person who has a well-founded fear of persecution for reasons of membership of a particular social group. In considering this the Tribunal acknowledges that the applicant expressed concern about his economic circumstances China as they were prior to coming to Australia in 2014 and as they would be should he return to China. He contends both in a retrospective and prospective sense that he had no job and would have no job or income in China.

The applicant gave evidence at hearing that he considered the redundancy arrangements offered by his erstwhile employer to be inadequate. There is no indication he did not accept these redundancy arrangements and thereby it would be apparent at the time he ceased employment he received a redundancy payment of between RMB30,000 and RMB50,000. The applicant has given evidence that he was successful in gaining periodic casual employment following the loss of his job at the [company] in early 2014 and therefore had access to this income stream in the period before he travelled to Australia in mid-2014. The applicant had sufficient funds to pay for his visitor visa application and air fares enabling him to travel to Australia. In discussion of whether he would face economic hardship if he were to return to China the applicant described the impact that redundancy could have upon a parent’s ability to pay utility expenses for a child at school. Whilst accepting this may be the case, the Tribunal was not persuaded as to the relevance of this information, given the applicant’s child is an adult university graduate in stable employment.
The applicant’s evidence at hearing is that he has found work in a variety of vocational arenas during his time in Australia, which, given this has included periods in which he has been an unlawful noncitizen, in the view of the Tribunal speaks to his resourcefulness and adaptability in relation to finding paid employment. The Tribunal was not persuaded the applicant would be unable to find employment if he were to return to China. His comment regarding this age contended his age would eb a factor which would work against him and that whilst the Tribunal acknowledges this is a factor potential employers may take into account, it would eb balanced by his experience and skills. The applicant gave evidence that any job he may get may not be a good job. The Tribunal does not consider the appropriate test to eb whether the applicant secures a good job in his home country, it is whether he has a well-founded fear of serious harm on the basis of any economic hardship which may affect him on return to China. The applicant contended difficulty he may get finding employment as [a particular op in China, however the Tribunal questions the relevance of this claim, as his evidence regarding work he has done in the past, either in Australia or his home country did not include work in the vocational sector.
In relation to whether support may be available to the applicant from his daughter, given she has secure employment in a Chinese [company] and a child taking responsibility for looking after their parents is a feature of Chinese culture, the Tribunal accepts the applicant’s evidence that he and his daughter are estranged. The Tribunal also accepts the applicant ’s claim that he would not seek any support from his daughter if he were to return to China as he would be able to look after himself without help from her.
The Tribunal was not persuaded by the applicant’s contention as to why he could not seek work through relocating to other regions in China, other than where he claimed he faced persecution and the risk of revenge from his ex-employer and local government authorities in [District 1]. This is because the Tribunal does not accept the applicant is identified as a person of concern by the PSB or other government authorities in China, such that he would not have the option of internal migration to authorised areas within China.
On considering the evidence regarding the applicant’s work experience, the Tribunal finds there is no real chance of him suffering from serious harm basis of any economic hardship he might experience on return to China. This is because that whilst the Tribunal acknowledges the applicant may face some adjustment difficulties and challenges, it is not convinced the severity of any such difficulties and challenges would amount to economic hardship.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if he returned to China now or in the reasonably foreseeable future.
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).
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
In MIAC v SZQRB[13] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear in the Refugee Convention definition.
[13] MIAC v SZQRB [2013] FCAFC 33 (Landeer, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act.
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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David Barker
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…

Annual Report 2017’, 5 October 2017,

Key Legal Topics

Areas of Law

Immigration
Administrative Law
Statutory Interpretation

Legal Concepts

Judicial Review
Jurisdiction
Procedural Fairness
Natural Justice

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Citations

1704016 (Refugee) [2021] AATA 219

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Sun v MIBP [2016] FCAFC 52

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

Plaintiff M196 of 2015 v Minister for Immigration and Border Protection [2015] HCATrans 240

[2021] AATA 219

15 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice