1704922 (Refugee)

1704922 (Refugee) [2021] AATA 1795 (17 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704922
COUNTRY OF REFERENCE:                   China
MEMBER:Frank Russo
DATE:17 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 March 2021 at 3:10pm

CATCHWORDS
REFUGEE – protection visa – China – victim of unreasonable and onerous fines – detained by police – accused of defamation and disrupting government services – second applicant departed Australia – failure to seek protection or asylum in third country – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 15 February 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of China, applied for the visas on 23 February 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants are persons in respect of whom Australia has protection obligations.
On 22 January 2021, in accordance with measures introduced in response to the COVID-19 pandemic, the Tribunal invited the applicants to attend a telephone hearing on 19 February 2021.
The primary applicant (the applicant) appeared before the Tribunal by telephone on 19 October 2020.
According to movement records on the Tribunal file, the second-named applicant departed Australia [in] August 2020[1]. The second-named applicant did not attend the hearing.
[1] This was put to the applicants in writing pursuant to s.424A of the Act, discussed further below.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the primary applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to China, there is a real risk that he will suffer significant harm, and whether the secondary applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) and who holds a protection visa.
The applicants provided with their application for review and a copy of the first page of the notice of the delegate’s decision from the Department. The Tribunal notes that the delegate’s decision record does not contain a summary of any additional claims or testimony from the applicant, other than the applicant’s responses to two concerns which were put to him by the delegate regarding his written claims. The Tribunal put these concerns to the applicant again at the hearing and does not consider his responses to these two concerns were inconsistent, nor does it rely on the applicant’s responses at the interview to these two concerns in making its decision. The Tribunal has not relied on any adverse information contained in this decision record and notes that it has therefore not had to put the information in this document to the applicants.
The applicants did not provide any other relevant documents in support of their claims, however the Tribunal notes that they provided a statement dated 21 March 2017 about the filing of a duplicate application for review in relation to the same decision of the delegate, as well as seven Medicare letter requests.
The Tribunal also notes that it has received at least 11 email messages from the applicants’ email address, all of which are in Chinese characters, and all of which appear to be in identical terms and to be automated responses from the applicants’ email account. Each was received shortly after an email sent by the Tribunal to the applicants. On 24 March 2017 the Tribunal wrote to the applicants and advised that, for it to consider the contents of this email, first received by the Tribunal on 23 March 2017, the contents must be translated into English. No English translation of the emails has been provided by the applicants and the Tribunal has therefore not had regard to the contents of these emails.
The Tribunal also has a copy of the Department file and has had regard to the documents on that file.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicants provided copies of their Chinese passports to the Department. On the basis of this information and without any information to the contrary, the Tribunal accepts that the applicants are who they claim to be, that they are nationals of China, which is also their receiving country.
The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. There is no evidence to suggest that the secondary applicant may have a right to enter or reside in any third country. On the basis of the information before the Tribunal, I accept this and find that the applicants do not have a right to enter and reside in any third country.
Claims
Claims made with visa application
The primary applicant is a [age]-year-old Chinese national. The second-named applicant is the applicant’s wife, a [age]-year-old Chinese national.
In their Protection visa application provided to the Department, the applicant answered yes to the first question at Question 86 (‘Have you been found guilty or convicted of any offence in any country?’) The details of the crime or offence were listed as ‘defamation of government’ (9 February 2015) and ‘disturbing government service and causing troubles’ (11 May 2015). At question 89 of the application form, the applicant states that he was mistreated by the government in China and refers to his written statement accompanying the application.
At question 87 of her visa application form, the second-named applicant states that she is not making her own claims for protection. This is also confirmed in the ‘Details of persons included in this application’ section of the visa application, where ‘No’ is ticked in relation to the second-named applicant for the question ‘Applicant raising their own claims for protection?’
In a written statement attached to their visa applications, the applicant makes the following claims:
a.That his wife and he ran a [Product 1] factory in [County 1], Jiangsu Province from 2004, that employed over [number] employees, at which he served as general manager. He claims that the factory was set up legally and that the equipment for fire protection and the evacuation plan were approved by the Fire Department, however when the Fire Department performed reviews each quarter, they would find excuses to issue infringement notices of [Amount 1] RMB. He claims that they felt this was unfair, but they did not complain because their business was doing fine at the time;
b.That in January 2015 the Fire Department did an inspection and issued a [Amount 2] RMB fine. He claims that at this time his business was not doing well and he was unable to pay the fine. He claims that he tried to argue with the Fire Department, but this did not work, so he went to the [County 1] Public Security Bureau (PSB) to lodge complaints about the unreasonable fines. He claims that the PSB supported the original fines. He claims that he then went to Nantong City Complaints Bureau to report the unreasonable fines, however [County 1] PSB was informed, and as a result he was detained [in] February for three days by the PSB and was accused of defaming the government;
c.Not long after he was set free, some officers from the ‘Business Sector’ inspected the products at the factory and issued an [Amount 3] RMB fine for the use of poor quality [materials] and for deceiving customers. One month later he received a [Amount 4] RMB fine from the local tax office, which claimed he had evaded tax. He claims that the reason why these things happened was because he reported the Fire Department and offended the government;
d.In April 2015 the applicant went to the Complaints Bureau in Nanjing with a petition letter. The Complaints Bureau told the applicant that the complaint had been passed on to the [County 1] government;
e.The applicant claims that to safeguard his rights, he organised a protest of over 10 employees, who got together in front of the government building [in] May. He claims that he did not do anything unreasonable, but the police detained him for 10 days and accused him of disturbing government service and causing troubles. He claims that the police also threatened that if he continued to make reports, they would make him ‘have no way to run the business’;
f.The applicant claims that what happened to him is very common, especially in counties like [County 1], and that his factory could not continue to operate and his security was not guaranteed. He claims that he cannot live in such a corrupt country anymore, and hopes to live a life of freedom and equality in Australia.
Departmental interview
The applicant attended an interview with the Department on 7 December 2016. The delegate’s decision record does not contain any details of testimony provided by the applicant to the Department, other than the applicant’s responses to two concerns that were put to him.
The delegate found that, having regard to the evidence as a whole, she was not satisfied the applicant’s claims were credible or that he left China for reasons of fear of persecution or that he holds a genuine fear of persecution upon return to China. In reaching this conclusion, the delegate noted the applicant was able to leave China on his own passport, despite his claim to have been detained by the police. When this was put to the applicant at the interview, he stated that he was able to leave because he had a Tourist visa to Australia.
The delegate noted the applicant and his wife travelled to [Country 1] in August 2015, and then funded their trip to Australia in November 2015, and found that this was not commensurate with someone who is in financial trouble as a result of a number of government fines being issued. When this was put to the applicant, he stated that he had put money away for overseas trips.
The delegate noted the applicant had not provided any written evidence of the existence of the business or of the fines issued.
Evidence at the hearing regarding preparation and contents of application
At the hearing the applicant gave evidence that he remembered making his Protection visa application, that he made the application with the assistance of a [housemate].
He confirmed that he was aware of the contents of the application and statement attached to the application, and that the contents of these documents were read back to him and their contents are true and correct. He confirmed that he did not wish to make any changes to his application form or add to the claims which he had made.
The Tribunal notes that at Question 6 of the visa application form, the applicant stated that he had no assistance with the completing of the application, and he did not list the details of his [housemate], however the Tribunal does not make any adverse findings regarding this statement, given the applicant may have interpreted this question to be asking whether he had received any assistance from a professional, such as a registered migration agent.
Evidence regarding the applicant’s background
The applicant gave evidence that immediately before coming to Australia he lived at an address in [a named village in County 1], Nantong, Jiangsu Province, that this was his hukou and he had lived there since he was born. He confirmed that he had not lived at any other addresses in China.
The applicant gave evidence that his wife, who is the second-named applicant, was in China at the time of the hearing, and that she was staying at her mother’s home in [County 1], Nantong, Jiangsu Province. He gave evidence that he and the second-named applicant also have a daughter, who is married and lives in Nantong City.
When asked about his employment in China, the applicant stated that he was the general manager and owner of a [Product 1] factory, and that he and his wife were the joint owners. He stated that the factory was set up in April 2004 and by April 2015 the factory was closed. He stated that the factory was closed because large ‘fines’ were imposed by the fire department and the tax office, which they could not afford to pay. He stated that the factory’s operations were ceased in April 2015 and that by October 2015 they had wrapped up the fines with the government authorities and finalised those issues.
The applicant gave evidence that he and his wife arrived in Australia [in] November 2015, travelling to Australia via Shanghai Airport. He confirmed that he travelled to Australia using his own passport and entered Australia holding a Visitor visa, which he stated he had applied for himself.
The applicant was asked whether he had visited any other countries besides Australia, to which he responded that he had not.
When asked why he came to Australia, the applicant stated that his factory had stopped operations in April 2015 and closed in October 2015, that debts had started to accumulate, and he had heard from a friend that Australia is a democracy. He gave evidence that at the time of the hearing he was undertaking casual work in Australia in the construction industry.
Applicant’s claims for protection
The Tribunal noted that the applicant’s claims in his application form were that he had made complaints to government agencies in China regarding the issuing of unreasonable fines by the Fire Department and other agencies, and that he had organised a protest of employees, that he was detained and threatened, and he had been accused of defaming the government and disturbing government service and causing troubles. In addition, he claims that he could not operate his business or live in a corrupt country. The applicant confirmed this was correct and that he had no additional claims for protection.
The applicant gave evidence that he was the owner and general manager of a [Product 1] business in China that made [products] for supply to [other] manufacturers. He stated that he commenced the business in 2004 and that from 2005 he started to receive fines from the local Fire Department. He stated that initially these fines were 2,000 to 3,000 RMB, which he considered little, and so he paid the fines. He stated however that by 2015 the business was not as lucrative and the fines had gone up to [Amount 1] RMB a quarter and he could not afford to pay them.
When questioned whether the fire department had provided any reasons for the issuing of the fines or whether there was any remedial action which he had to undertake, he stated that at the very early stages he was told what had to be rectified and he followed these instructions and rectified the issues. He stated that the Fire Department issued a permit to keep the factory operative, but later they came up with other excuses to continue to obtain fines from him. He stated that this was despite him having followed all the proper processes in setting up the factory and ensuring it operated lawfully.
The applicant gave evidence that the problems started to occur in January 2015 when the Fire Department performed a routine inspection and issued him with a fine of [Amount 2] RMB. He stated that at the time the factory was barely making a profit and he was unable to afford such a significant fine. He stated that he tried to complain to the Fire Department, but it was no use, so he went to the local county PSB and told them the Fire Department was abusing its authority, but the PSB took the side of the Fire Department. He stated that he considered the Fire Department did not do the right thing, so he then went to an ‘office of appeal’ (as translated) in Nantong City. He stated however that appeals were sent from there back to the local office, and so his complaint made its way back to the [County 1] PSB. He stated that this is when he was accused of disturbing local government authorities and he was placed in custody for three days in February 2015. When asked where he was held, he stated that he was held in a cell next to the PSB office.

When asked whether he was given a reason for being detained, he stated that he was told it was because he kept making trouble for the PSB and appealing to a higher level of government. He later stated that the reason for detention was he was accused of making false accusations about the local government. The applicant gave evidence that other than being held in detention he was not mistreated on this occasion, besides being deprived of one meal a day. He stated that he was only given two meals a day and these consisted of water and cookies. When asked again whether he received any other mistreatment, he stated that he was verbally threatened. When asked how he was threatened, he stated he was told not to report the problem to a higher level of government and to stop visiting the office of appeal. When asked whether he was charged with anything, he stated that he was not, and that he was simply threatened.
When asked why he was released, the applicant stated that in detention he was told to behave himself and that the fine which had been imposed should be paid and he should not keep attending the government office. He was told that if he promised to pay the fine and stop attending the government office then he would be released. He gave evidence that this was a verbal agreement and he was not made to sign anything.
When asked what happened after he was placed in custody, the applicant stated that a few days after returning to the factory the ‘industrial regulation department’ sent someone to do an inspection of the factory’s products. He was told that his products were defective and was accused of being deceitful to the general public by selling defective products. He was issued with an [Amount 3] RMB fine. He stated that subsequently the tax office issued him with a further fine of [Amount 4] RMB for tax evasion. He told the Tribunal that he got the impression that he had wronged the local government and they had united together to impose fines on him.
The applicant gave evidence that following this he went to Nanjing City to complain to the office of appeals there. He stated that three months later he was told that all of the documents relating to his appeal were with the [County 1] government, which had the responsibility for the appeal. He stated that the [County 1] government kept postponing the processing of his appeal. He stated that he then organised ten of his employees to sit in front of the [County 1] government office to protest, the purpose of which was so the county government would waive the fines. He stated that this occurred in May 2015. He stated that the local police attended and accused him of threatening the local government. He gave evidence that he told the police that he would keep protesting and maybe go to a higher level of government. He was accused by the police of disturbing the local government and he was detained for 10 days.
The applicant stated that the protesters were intercepted by the security personnel at the entrance to the building and the government office was informed and he believes the government officials called the police. The applicant stated that the police attended and they were taken away straight away, although only he was detained. He stated that he was first taken to the PSB office and then to the detention centre. He stated that he was not charged and that he was warned or threatened that if he continued to complain about these issues then he would only continue with his business in his dreams. He confirmed that on neither occasion that he was detained, was he charged or convicted of any offences.
When asked whether he received any mistreatment during his second detention, the applicant stated that he was brainwashed and forced to learn the rules of the Communist Party and did forced labour. He stated that he was released after 10 days because there was a legal limit to the length of time he could be held without being charged. When asked whether any conditions were placed on him, he stated that he was warned that he was forbidden from going to Nanjing or Beijing to complain, and that if he wanted to keep doing his business, he could do so, but if he did not wish to continue with it then that was his problem.
When asked whether anything occurred after this, the applicant stated that he realised the government was so corrupted and his personal safety could not be protected in such an environment, so he decided he did not want to live there anymore. He confirmed that no other events occurred after May 2015 and there was nothing else that happened to him while he was in China.
When asked what he did from his release from the second detention in May 2015 until he left China in November 2015, the applicant stated that during that period he was simply using his time to wrap up his business, including wrapping up the debts he owed to others and collecting what was owed to him. He stated that in the end he owed money to other people.
When asked what he believes would happen to him if he returns to China, the applicant stated that the Chinese government would create some trouble for him. When asked why he believed that would be the case, he stated it is because he hasn’t paid many of the fines which were imposed, including those of the fire department and the tax office. When asked whether there are any other reasons why he does not wish to return to China, he stated that he is too afraid to go back and that this fear is based on the periods of detention that he experienced in China. He stated that it is the local government who he fears would be responsible for the harm if he returns to China.
As to whether he had considered if he could relocate to another part of China, the applicant stated that he had thought about it, but he did not think it would be an option for him as he would not be able to relocate without the consent of the local government.
When asked whether there were any other relevant matters, the applicant stated that he heard that Australia is a democratic country and he should go to Australia rather than any other countries, as if he went to other countries he might be extradited back to China.
The applicant confirmed at the end of the hearing that there was no other reason or basis on which he believes he would be harmed if he returns to China. He confirmed that there were no further documents which he wished to submit.
Further relevant evidence is set out below in my findings, particularly the applicant’s comments and responses to potential concerns which were put to him about his claims and evidence.
Country information
At the hearing, the Tribunal discussed with the applicant relevant information from the most recent DFAT Country Information Report for China[2], in particular that regarding corruption:
[2] DFAT Country Information Report People’s Republic of China 3 October 2019.
Corruption
2.40 China ranked 87 out of 180 countries and territories measured on Transparency International’s 2018 Corruption Perceptions Index. The most prevalent forms of corruption in China are bribery, diversion of public funds, and favouritism by government officials. Bribery, political interference and facilitation payments are common when acquiring public services and dealing with the judicial system.
2.41 Of Chinese companies surveyed in 2015, 35 per cent had paid bribes to government officials, and the 2017 Global Corruption Barometer found 26 percent of respondents in China had paid bribes when accessing public services, including education, health care, and the criminal justice system. The common practice of guanxi, a custom for building connections and relationships based on gifts, banqueting or small favours (see Guanxi), can also be considered bribery by foreign companies and by national and international anti-corruption laws.
2.42 On taking office in 2013, President Xi launched a nation-wide anti-corruption campaign promising to catch officials of both high and low rank. Authorities conducted 172,000 anti-corruption investigations in 2013, 330,000 in 2015, 527,000 in 2017, and 302,000 in the first half of 2018. By mid-2017, the crackdown had caught over 1,800 officials, including 182 officials ranked at or above the deputy provincial or deputy ministerial level. It had led to the arrest, expulsion from the Party or conviction for corruption of 1,130 officials (including 139 senior officials). Ousted senior officials include provincial Party secretaries, former generals, and former Politburo Standing Committee member Zhou Yongkang. Targets include heads of state-owned enterprise and officials who have fled China with large sums of public money.
2.43 The campaign has led to a decline in some corruption-related activities. The 2017 – 2018 Global Competitiveness Index ranked China 49th out of 137 countries for frequency of irregular payments and bribes, and 20th for favouritism by government officials, compared to 67th for irregular payments and bribes and 34th for favouritism by government officials in 2012. Nevertheless, corruption remains widespread in China. The government and Party did not implement the law consistently or transparently and court judgements were not uniformly enforced against Party members, the military, government departments or state owned enterprises.
2.44 In March 2018, the NPC adopted the Supervision Law (2018) and established a new National Supervision Commission (NSC), with subordinate Supervision Commissions at the province, city and country level. The NSC is the supreme supervisory organ of the state responsible for investigating corruption within the Party; People’s Courts and Procuratorates; the People’s Congress, their standing committees and subordinate organs; China’s eight ‘democratic parties’; managers of state-owned enterprises, public universities, public research institutes, public hospitals and sports units; and anyone performing ‘public duties.’
2.45 Upon its creation, the NSC absorbed the investigative function of the People’s Procuratorate and the entirety of the Ministry of Supervision (which no longer exists), effectively merging with the Central Commission for Discipline and Inspection (CCDI) (the Communist Party’s internal corruption body). The NSC, in conjunction with the CCDI, is thus responsible for conducting graft and ideological investigations against all Party members and public officials. The NSC has the power to detain people under the liuzhi system in residential surveillance at a designated location (RSDL) for up to six months (an initial period of three months, extendable by a further three months), at undisclosed locations without access to a lawyer (see Arbitrary Arrest and Detention and Detention). Conviction rates for corruption cases, as with all criminal cases, are close to 100 per cent (see Judiciary).
2.46 … International observers report the government and Party have not implemented the PRC Supervision Law consistently or transparently; however, DFAT notes the law was only passed in March 2018. Likewise, court judgements have not been uniformly enforced against Party members, the military, government departments or state owned enterprises.
2.47 Prior to the Supervision Law (2018), anti-corruption confessions were obtained under the ‘shuanggui’ system, a detention system outside of the formal legal system. The ‘liuzhi’ system, a system of extra-legal detention not only for Party members but also for public servants investigated for misconduct (see Glossary), replaced the shuanggui system under the PRC Supervision Law (2018) (for comparison and recent cases see Treatment of Party and public officials).
In response to this country information the applicant indicated that the report could reflect what is happening in China regarding the corruption within government, but the percentages are not accurate, as they are much higher than 35%, particularly regarding favouritism and paying bribes.
Overall, the Tribunal formed the view that the applicant is aware of these general issues in China, but has not indicated concern about them other than in the context of his claimed complaints to higher-level government agencies. While the Tribunal accepts that the applicant recognises these issues, it is not satisfied that he has any ‘political opinion’ relating to corruption or anti-corruption policies, that has motivated him, or would motivate him, to engage in relevant conduct in the future.
The Tribunal also discussed the section of the DFAT Country Information Report relating to protesters and petitioners:
Protesters/petitioners
3.134   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.
…
3.136   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 officials are encouraged to ensure protests do not reach Beijing. The SCS can be used to restrict movement of people to prevent them from travelling to Beijing to petition the government (see The Social Credit System).
3.137   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 …
The Tribunal indicated that this information might lead it to conclude that protests occur regularly across China, and concern a range of matters, including government corruption, and that there are systems in place for Chinese citizens to submit complaints through websites and local petitioning offices, although sources report that local officials are encouraged to ensure protests do not reach Beijing, and it is difficult to generalise as the treatment of individual cases depends heavily on the attitude of local officials to individuals and the circumstances in question.
In response, the applicant stated that he understood the information from the report and it was evident that the Chinese government is very corrupted, which is why he does not wish to return to China.
Assessment of claims
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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 him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal put to the applicant concerns and inconsistencies which it considered undermine his credibility and his claims about his circumstances and fears if he returns to China. The concerns are set out below.
The applicant claims that he was the joint-owner of a [Product 1] business with his wife, which they ran from 2004 to 2015, and that from 2015 he was subjected to fines from the fire department, despite the fire department having approved the factory’s fire protection documents. He claims that the fines commenced at 2,000 to 3,000 RMB and by 2014 had reached [Amount 1] RMB per quarter. He claims that in January 2015 the fire department issued a fine of [Amount 2] RMB, which he was unable to pay because business was not going well. He claims that he complained to the [County 1] PBS, which supported the original fine, and then to the Nantong City Complaints Bureau. He claims that [County 1] PBS was informed of his complaint, as a result of which he was detained [in] February 2015 for three days, accused of defaming the government. He claims that following his release, officials from a department responsible for business affairs issued him with a fine of [Amount 3] RMB, which was for the production and sale of defective products. He claims that one month later he received a fine of [Amount 4] RMB from the tax office for tax evasion. He claims that in April 2015 he went to the Complaints Bureau in Nanjing with a petition letter, but was told the matter had been passed to the [County 1] government. He claims that he organised a protest of over 10 of his employees out the front of the County government building [in] May 2015, and that he was detained by police for 10 days and accused of disturbing government services and causing trouble. He claims that he was threatened that if he continued to report complaints, he would be unable to run his business. He claims that he could not continue to operate his business because he had offended government officers and his security could not be guaranteed. He claims that the business ceased operating in May 2015 and from this time until November 2015 he wrapped up the debts and affairs of the company.
The Tribunal put to the applicant that despite his claim that he was the owner of the [Product 1] business, he had not provided any evidence in support of the existence of the business and of his claims regarding the issuing of fines. The applicant responded that he has a licence for the operation of the business, which he had submitted to the Tribunal. The Tribunal indicated that it did not have a copy of such a licence on file and questioned the applicant as to when he believes he provided it. The applicant responded that at the interview with the Department, he showed it to the Department officer but did not submit a copy. The Tribunal questioned the applicant as to why no documents in support of his claims had been submitted, to which he responded that he left China in a very rushed manner. The Tribunal questioned the applicant as to whether his intention upon leaving China was to claim protection in Australia. The applicant stated that on arrival in Australia he was not quite familiar with the regulations, and he had just heard that you could stay in Australia. The Tribunal put to the applicant that his claim was that he was released from a second period of detention in May 2015, and he departed China [in] November 2015, which is a period of approximately six months. The Tribunal put to the applicant that his departure from China did not appear to have been particularly rushed. The applicant responded that from May to October 2015 he wrapped things up with his business, including paying off his debts and collecting money owed to him. He stated that he only lodged his visa application to Australia in November 2015 and a week later it was granted. He stated that this only gave him a week to prepare, so he did not even think about collecting documents to support his current claim.

The Tribunal noted that the applicant had provided the Department with a copy of his current Chinese passport and questioned whether he had held a passport before this. The applicant confirmed that this was his first passport. The Tribunal noted the passport was issued in April 2015, and put to the applicant that this may suggest the applicant was planning overseas travel at that time, including his travel to Australia, and this may also suggest that he had time to prepare for his travel. The applicant responded that it is correct that his passport was issued then, but stated that at the time he was not sure whether he would be granted a visa to Australia, but once his visa was lodged, it was granted, which is why he came to Australia.
The Tribunal put to the applicant that in his evidence about background matters, he told the Tribunal that he has not travelled to any other countries besides Australia. The Tribunal questioned whether this was correct. The applicant responded that he had a visit to [Country 1], because a friend of his proposed conducting a business with him in [Country 1], however the applicant stated that he realised that he did not have the capital needed for that business. The applicant confirmed that his travel to [Country 1] was in July 2015 and that after this he returned to China.
The Tribunal questioned the applicant as to any reasons why he had not sought protection or asylum in [Country 1] or another [nearby] country following his arrival in [Country 1]. The applicant responded it was because he went to [Country 1] to conduct business with a friend. The Tribunal put to the applicant that he travelled to [Country 1] for approximately 10 days in July 2015, and then returned to China, and that this was not behaviour consistent with someone who genuinely fears persecution in China. The applicant provided an unsatisfactory response to this concern, stating that the Tribunal had this concern because it did not believe him, but what he has stated at the hearing reflects what he is truly thinking and reflects the state of his mind. The applicant was asked whether he had any further comments or response to this concern, to which he indicated that he did not.
The Tribunal indicated that there may be inconsistencies in some of the evidence the applicant had provided with the claims contained in his written application, in particular whether he had been arrested or charged with anything or was merely detained. In addition the Tribunal raised concern about the applicant’s inconsistent claims at the hearing about whether he had travelled to any countries other than Australia. The applicant indicated he had no response to these concerns.
The Tribunal put to the applicant concern that he claimed he had been accused of defaming the government and disturbing government services and causing trouble, and put to the applicant that he was able to leave China using his own passport. The Tribunal put to the applicant that the independent country information indicates that the security and identity checks at China’s airports are comprehensive, and his ability to leave China through a large airport without incident, may indicate that he was of no interest to Chinese authorities, and raised doubts about his claims that he was charged with offences. The applicant responded by stating that if he was a person of interest he would not have been able to leave China from a major airport, but he had simply been placed in detention for 10 days and told to stop making trouble with the upper levels of government, and that if he did so then nothing would happen to him. The applicant stated that he therefore didn’t think the allegation had been recorded or ‘put into place’.
The Tribunal put to the applicant that his claims regarding what harm he believes will come to him if he returns to China are vague and the Tribunal may not be satisfied on his evidence that his claims would be sufficient to meet the definition of a refugee or to meet the complementary protection requirements. The Tribunal also noted the statement tht applicant had just mde, that he was told by authorities that if he stopped making trouble with upper levels of government, nothing would happen to him. The Tribunal also noted that the applicant had given evidence that his business ceased operating in April 2015, and therefore it was unclear how this would be a source of future harm in China. The applicant responded that his concern is that he still has not paid the fines which were imposed and they are hundreds of thousands of RMB. When questioned as to what harm he believes he would come to as a result of his non-payment of fines, the applicant stated that he will be forced to make payments towards the fines.
The Tribunal put to the applicant that he claims he was in financial trouble, which is why he could not pay the fire department’s fines like he normally did, but he was able to travel to [Country 1] in July 2015 and then to Australia in November 2015, which may not support his claims that he was experiencing financial trouble and this may case further doubt on the credibility of his claims. The applicant responded that he refused to pay the fines which were imposed on him, and that it’s understandable that he would reserve some money for himself as he did not want to keep living in China.
The Tribunal put to the applicant that he remained in China for over six months after the detention he claims he experienced in May 2015, and he gave no evidence that he went into hiding. The Tribunal noted that on his evidence, the applicant did not pay these fines during this five to six month period, and this may be inconsistent with his claims regarding the requirement to pay these fines. The Tribunal also noted that the applicant remaining in China may also not be consistent with the behaviour of someone who genuinely fears persecution in China, particularly given his travel to [Country 1] during this period, following which he returned to China.
The applicant responded that during this period (from May to November 2015), the government was pursuing the fines and he was trying to appear agreeable to their requests, but he was delaying the payments. The Tribunal questioned the applicant as to why he did not provide this information earlier in his evidence, to which he responded that he was not asked about it. The Tribunal put to the applicant that it had asked him whether anything else had happened after May 2015, and separately asked whether anything else happened to him while he was in China, to which the applicant responded no to both questions. The Tribunal put to the applicant that earlier in the hearing he indicated that after May 2015 he was wrapping up the business and nothing else happened. The applicant then stated that he forgot to mention the government pursuing the fines.
The Tribunal notes that overall there was a degree of consistency between the applicant’s evidence at the hearing and the claims made in his statement accompanying the visa application. As noted earlier in this decision, the delegate’s reasons for decision do not record any additional claims made by the applicant at the Department interview, and there is no record of additional testimony, other than the applicant’s responses to two concerns put by the delegate, which the Tribunal has also put separately to the applicant. The Tribunal does not consider that the delegate’s reasons for decision contain any inconsistent claims or other adverse information.
The Tribunal notes that there were some differences between the applicant’s evidence at the hearing and that contained in his written statement, such as his claim at the hearing that the initial amount of the fines issued by the Fire Department was 2,000 to 3,000 RMB, and this went up to [Amount 1] RMB per quarter, as opposed to the amount of only [Amount 1] RMB mentioned in his written statement. Similarly, at the hearing the applicant gave evidence that at the time of his first detention in February 2015, he was accused of disrupting local government authorities, whereas in his written statement and his application he was accused of this in May 2015. There is also some difference in the applicant’s explanations of the time that lapsed between his complaint to the Nanjing City Complaints Bureau and the referral of this complaint to the [County 1] government. At the hearing he stated that three months passed, as opposed to the half a month referred to in his written statement. The Tribunal does not however consider these differences on their own undermine the applicant’s credibility. The Tribunal does not consider that things like minor changes in dates, 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. The Tribunal has also noted the relative consistency in the claims made at the hearing with those in the applicant’s written statement, including the order of events.
Of potentially greater concern however, is the apparent inconsistency in the applicant’s claims regarding whether he was arrested or convicted of an offence in China, as opposed to only being detained on accusation of such offences. At Question 86 of his visa application, the applicant answered yes to the question ‘Have you been found guilty or convicted of any offence in any country?’ The details of the crime or offence were listed as ‘defamation of government’ ([date] February 2015) and ‘disturbing government service and causing troubles’ ([date] May 2015). Whereas at the hearing, the applicant confirmed that he was not arrested or charged with either offence, although he claimed that he was accused of each offence. The Tribunal put this potential concern to the applicant, but he stated that he had no response to it.
Similarly, at the commencement of the hearing the applicant told the Tribunal that he had not travelled to any other countries besides Australia. Whereas when the Tribunal later questioned the Tribunal about this, he stated that he had travelled to [Country 1] in July 2015.
The Tribunal also notes the applicant’s differing evidence at the hearing regarding any contact from local government agencies after May 2015. As noted above, the applicant indicated that nothing else happened after May 2015, but when the Tribunal questioned whether this meant there was no requirement to pay the imposed fines, the applicant stated that the government continued to pursue the fines and he was trying to appear agreeable and delay the payments. The Tribunal does not accept the applicant’s claims that he was not asked about this and that he simply forgot to mention it. The Tribunal notes that it asked the applicant twice whether anything happened after May 2015, to which he stated no. The Tribunal does not accept the applicant’s claim that he was pursued for the payment of the fines and considers that the applicant’s evidence in this regard was provided for the purpose of strengthening his claims to protection, following the Tribunal having put a number of concerns to the applicant about the strength of his claims about the fear of persecution.
As noted above, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is the Tribunal required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. The Tribunal did not find the applicant’s accounts of his payment of fines or of his detention on two occasions to be compelling. The Tribunal is prepared to accept that the applicant may have owned and operated a [Product 1] business. Based on the country information, which indicates that corruption remains widespread in China despite recent reforms and a decline in corruption since the launch of President Xi’s anti-corruption campaign, the Tribunal is also prepared to accept that the applicant may have paid fines or bribes to certain government services.
The Tribunal does not however consider to be convincing the applicant’s account of the sudden raising of the fines by 400% in January 2015, and of how this coincided with financial difficulties, which meant that he was unable to pay the fine. The applicant was unable to provide a convincing level of detail as to why the fine was raised, nor of the fire safety issues which were raised by the Fire Department, other than vague evidence that the Fire Department was finding excuses. The Tribunal notes the overseas travel of the applicant and his wife to [Country 1] in July 2015, and then to Australia in November 2015. The Tribunal does not consider this to be consistent with the applicant’s evidence that he had been issued with a number of fines by different government agencies, and could therefore no longer afford to operate his business which had been running since 2004.
While the Tribunal accepts that the applicant may have paid fines or bribes in connection with his business, and that this is consistent with the independent country information, it does not consider the country information supports his claim that a number of government agencies, including the police, the ‘Business sector’ and the tax office were complicit with illegal fines being issued by the Fire Department. The Tribunal questioned the applicant about his claims that such fines were issued unlawfully, and the applicant insisted that the government agencies made up issues so they could find excuses to fine him. He claims that he complied with all requirements in setting up his business, however the applicant has not provided any documents in relation to his business or in relation to the fines.
The Tribunal considers it of concern that the applicant has provided no supporting evidence of his claims despite claiming to have owned and operated his business from 2004 to April 2015. Similarly, he has provided no supporting evidence of the fines that he was required to pay, of his complaints to government agencies or of his two detentions. This is despite his claim that he received quarterly fines from the Fire Department from 2005 to January 2015, and received one-off fines from the ‘Business Sector’ and the tax office for tax evasion, and made complaints at several levels of government, including a petition letter to Complaints Bureau in Nanjing. The Tribunal does not find the applicant’s claim that he left China in a rushed manner to be a sufficient explanation for the absence of any supporting documents. While the Tribunal accepts that the applicant’s Visitor visa was granted on 19 November 2015 and he arrived in Australia [in] November 2015, it notes that the applicant claimed he was detained in February 2015 and May 2015. The Tribunal considers the applicant had sufficient time following his release from detention in May 2015 to prepare for overseas travel, and notes that during the period from May 2015 to October 2015 he claims he was settling his business affairs, including settling debts, which would indicate he had ready access to documents relating to his business, including financial information.
Also of concern is the applicant’s confirmation that his passport, granted in April 2015, was his first Chinese passport. The Tribunal put to the applicant that this suggested that he was planning to travel overseas at least as early as April 2015. The applicant responded that his passport was issued then, but he was unsure whether he could be granted a visa to Australia. The Tribunal does not consider the applicant’s response to be convincing, nor does it consider his response to the question of whether he intended to claim protection in Australia to be convincing.
The Tribunal also finds that the independent country information regarding entry and exit procedures in China casts doubt on the applicant’s claims that he was accused of offences against the government, including defamation and disrupting government services. Independent information indicates that China’s major airports have a system for monitoring exits and entries. According to the most recent DFAT Report (3 October 2019), to which the Tribunal is to have regard to pursuant to Ministerial Direction No.84, security monitoring capabilities at China’s major 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. According to this report the Chinese government maintains an immigration exit control list.
A similar state of affairs is recorded in the earlier DFAT country information reports, issued on 21 December 2017 and 3 March 2015. According to the 2015 report, China’s major airports have a centralised system with name matching alert capabilities and security monitoring capabilities at major airports are comprehensive. The Tribunal considers the applicant’s ability to depart China both in July 2015 and in November 2015 lends support for a finding that the applicant was of no interest to authorities in China. In response the applicant stated that he had been accused of an offence and detained, but he did not think it was recorded or ‘put in place’. The Tribunal considers the applicant’s response to this concern supports a finding that the applicant is of no interest to authorities in China.
At the hearing, the applicant claimed that the Chinese government will create trouble for him as he has not paid the outstanding fines which were imposed on him from January 2015 onwards. He claimed that this fear is based on his past detention on two occasions. The Tribunal notes however that when asked whether any incidents occurred in China after his release from detention in May 2015, the applicant stated that there were none. The Tribunal also notes that the applicant claims he closed the operation of his business from May to November 2015, and therefore the source of his claimed conflict with the Fire Department no longer exists. The Tribunal notes that when this was put to the applicant, and he was again asked what harm he believes will come to him as a result of the non-payment of the existing fines, he stated that he believes he will be forced to make payments towards those fines. He confirmed that he does not fear anything else.
Section 424A letter to second-named applicant
The Tribunal wrote to the applicants on 23 February 2021 pursuant to s. 424A of the Act, noting that according to the second-named applicant’s movement record, she had not been in Australia since [August] 2020, and that if the Tribunal relied upon this information, then, having regard to s.36(2) of the Act, which requires an applicant for a protection visa to be a non-citizen in Australia, the application for review would have to be affirmed in relation to the second-named applicant because she is not in Australia. Any comment and/or response was due on 9 March 2021. The second-named applicant did not respond to this letter.
The Tribunal notes that it had also raised this concern with the applicant at the hearing, to which the applicant stated that he hoped his wife would be able to rejoin him in Australia.
The Tribunal finds that the second applicant is not in Australia and it finds that she does not satisfy s.36(2) of the Act, and thus it affirms the decision under review in respect of the second applicant.
Does the applicant have a well-founded fear of persecution if he returns to China?
The Tribunal is required to determine whether the applicant faces a real chance of serious harm amounting to persecution, for one or more of the reasons set out in s.5J(1). The Tribunal takes into account the findings above, its assessment of his future conduct in China and relevant country information.
While the Tribunal considers that there was a degree of consistency in the applicant’s evidence with that contained in his written statement. The Tribunal notes inconsistency in the applicant’s claims regarded whether he was found guilty or convicted of defamation and causing disruption to a government agency. The applicant did not respond to this concern. The Tribunal also notes the applicant’s inconsistent evidence as to whether any events or incidents occurred after May 2015, and considers that the applicant showed a propensity to alter some of his evidence in order to strengthen his claims to protection.

These inconsistencies on their own appear relatively minor, however when considered with the applicant’s lack of response or his unconvincing explanation, the Tribunal is not satisfied that the applicant has been truthful in his claims to fear the authorities in China.
The Tribunal found the applicant’s evidence of the sudden increase of the fine from the Fire Department and his financial inability to pay the fine to be unconvincing, particularly having regard to the overseas travel which the applicant and his wife undertook for the first time in July 2015, and then their travel to Australia in November 2015.
The Tribunal asked the applicant what he feared would happen if he were returned to China. The applicant stated that he feared the government would create trouble for him as he had not paid fine. When pressed as to what he feared would happen, he stated that he feared he would be forced to make payments towards the fines. When prompted further, the applicant confirmed that he did not fear anything else.
The Tribunal therefore finds there is no real chance of the local authorities in Jiangsu Province targeting the applicant on his return to China, in relation to any outstanding fines imposed in the first half of 2015 or any related complaints or protest activities, and inflicting serious harm amounting to persecution.
The applicant’s travel to [Country 1] in July 2015, and his failure to seek protection or asylum there, and his subsequent return to China in August 2015, lends further support for the finding that the applicant has no genuine or well-founded fear of persecution relating to these claims. The Tribunal also notes that the applicant’s Chinese passport was obtained in April 2015, and the applicant confirmed this was his first passport. The passport was obtained after he claims he was first detained by local police in [County 1]. The applicant was able to depart China in July 2015 and again in November 2015 using his own passport. The applicant’s passport is stamped with arrival and departure stamps from [an airport] in [Country 1]. The Tribunal considers the applicant’s ability to depart China on his own passport on two occasions since his claimed periods of detention, to be inconsistent with his claimed fear of persecution from higher authorities and fear that he will be persecuted if he re-enters China. The Tribunal does not accept that he is at any risk from continued threats and harassment by those authorities. The delay of almost three months in claiming protection after his arrival in Australia, also supports such a finding.

100. For these reasons, and the Tribunal’s concerns regarding certain inconsistencies in the applicant’s evidence regarding key aspects of his claims, and the unconvincing nature of some of his evidence, the Tribunal finds that the applicant has been untruthful in his claims.
101. In relation to this and other claims made by the applicant in support of his protection visa application, the Tribunal makes the following findings.
102. The Tribunal accepts that the applicant was born and lived in Jiangsu Province, China. The Tribunal is willing to accept that the applicant was the owner of a [Product 1] business from April 2004 to May 2015. The Tribunal is also prepared to accept, on the basis of the independent country information, that the applicant may have paid bribes to government officials in connection with his business and government services during the course of the operation of this business.
103. The Tribunal does not however accept the applicant’s claims that the Fire Department suddenly increased the amount of the bribe or ‘fine’ payable by the applicant by 400% in January 2015, or that the applicant was financial unable to pay this fine. The Tribunal does not accept that the applicant made complaints about such a fine to local police and higher authorities, and the Tribunal does not accept that other government agencies colluded with the Fire Department to also impose large fines on the applicant because he had offended the government. The Tribunal finds that even if such fines were imposed by the Business Sector and the tax office, the applicant has provided no convincing evidence to support a claim that such fines were not validly imposed because of breaches of legal obligations (such as the obligation to pay tax).
104. The Tribunal does not accept that the applicant was accused of defaming the government or disrupting government services and causing trouble. The Tribunal does not accept that the applicant protested against government. The Tribunal does not accept that the applicant was detained on two occasions in 2015. The Tribunal does not accept that the applicant was warned to stop making complaints to higher levels of government.
105. The Tribunal finds that the applicant travelled to [Country 1] in July 2015 on his own passport and remained there for approximately ten days before returning to China. The Tribunal accepts that the applicant left China using his own passport [in] November 2015, and departed China from Shanghai Airport.
106. The Tribunal does not accept that the applicant was contacted by government agencies after May 2015 to arrange payments of alleged bribes or ‘fines’. The Tribunal does not accept that the applicant’s safety is at risk as a result of any outstanding fines. On the applicant’s own evidence, he ceased operating his [Product 1] business in April 2015, and the Tribunal considers that the source of his claimed harassment or persecution has now ceased. After considering all the evidence, the Tribunal does not consider that the applicant would pursue further recourse to government in relation to the historic imposition of fines. There is no evidence that the applicant undertook any further action after May 2015, and nothing to indicate he would seek to do so in the future.
107. The Tribunal accepts that the applicant would like to live in Australia and that he does not wish to return to China. The Tribunal is not satisfied that he is at a real chance of serious harm or significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.
108. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It finds he does not face a real chance of serious harm amounting to persecution arising from any fines imposed from January to May 2015 or because of any related complaints of protest activity, corruption or related issues. It finds that there is no real chance of him being persecuted for any reason, including for reason of any political opinion (actual or imputed) or for membership of a particular social group or any other s.5J(1) reason, now or in the reasonably foreseeable future.
109. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
110. The Tribunal has considered whether on the evidence before it, that there are substantial grounds for believing there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
111. The Tribunal’s findings of fact above lead it to conclude that no one has an adverse interest in the applicant, or any intention of inflicting significant harm on him. This includes in relation to any former business he operated and any outstanding fines.
112. The Tribunal has considered the applicant’s claims that he was detained on two occasions, but has rejected these claims. The Tribunal also considers that the applicant’s claimed source of conflict was in relation to his [Product 1] business, which he ceased to operate by April 2015. The Tribunal therefore considers that the source of the imposition of any fines or bribes now no longer exists, and at most the applicant claims that if he returns to China he may be forced to pay the fines which were previously imposed.
113. The applicant’s circumstances do not suggest that there is a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. The Tribunal is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty.
114. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm: s.36(2)(aa).
Conclusion
115. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the first named applicant does not satisfy the criterion set out in s.36(2)(a).
116. Having concluded that the first named 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 first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
117. There is no suggestion that the first named 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 first named applicant does not satisfy the criteria in s.36(2).
118. The Tribunal finds that the second applicant is not in Australia and it finds that she does not satisfy s.36(2) of the Act, and thus it affirms the decision under review in respect of the second applicant.
DECISION
119. The Tribunal affirms the decision not to grant the applicants protection visas.
Frank Russo
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.
…

[2021] AATA 1795

17 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

Jurisdiction

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