1705194 (Refugee)

1705194 (Refugee) [2020] AATA 4273 (12 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705194
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Booth
DATE:12 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 October 2020 at 8:30am
CATCHWORDS
REFUGEE – Protection visa – China – applicant failed to attend hearing – refusing to pay bribes sought by government officials – failure to provide relevant details – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 360, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 13 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 7 July 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
By letter dated 25 August 2020, the Tribunal wrote to the applicant and invited him to attend the hearing of his application for review. The letter was sent by email to the email address provided by the applicant in his application for review. The letter informed the applicant that his application for review would be heard on 9 October 2020 at 9:30 AM. He was informed that the application would be heard by telephone. Tribunal confirmed the applicant’s telephone details which had previously been provided by him to the Tribunal. The applicant did not respond to several telephone calls by the Tribunal on the appointed day and time.
Pursuant to s.36(2B) of the Act, where the applicant is invited pursuant to s.360 of the Act to appear before the Tribunal and does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. In these circumstances, the Tribunal will make a decision on the applicant’s application for review without taking any further action to allow or enable the applicant to appear before it.
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.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L of the Act. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2) of the Act. Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
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 s.36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Pursuant to s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.
Pursuant to s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Pursuant to s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
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 issue in this case is whether the applicant meets the criteria set out in either s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The facts are taken from the applicant’s protection visa applications as follows.
The visa applicant applied for the visa on 7 July 2016.
Identity and country of reference
The applicant is [an] [age]-year-old male, born [date] in [Zhejiang], China.
The applicant can speak, read and write Mandarin.
The applicant states that he is of Han ethnicity and did not provide a response to the question asking his religion, if any.
The applicant claims to have Chinese citizenship by birth and a copy of the applicant’s passport, held upon the Department file, confirms that he is a citizen of China.[1]
[1] Passport, Department file [number deleted]
The applicant stated that he was married in 2006.
The applicant recorded former employment in China in his Protection Visa Application and listed education in China including primary and middle school.
In summary, the applicant claimed that he left China because he was detained and tortured after refusing to pay bribes sought by government officials and complained about corrupt behaviour.
Migration history
The applicant arrived in Australia [in] April 2016 on a [Tourist] visa.
The applicant applied for a XA-866 Protection visa on 7 July 2016.
CLAIMS
866 Visa Application
The applicant’s claims for protection are contained in his Protection Visa Application. A Department interview was conducted on 19 January 2017.
The relevant questions and responses are as follows:
89. Why did you leave that country(s)?
Please read my claims.
90. What do you think will happen to you if you return to that country(s)?
Please read my claims.
91. Did you experience harm in that country(s)?
[Applicant selected ‘yes’.]
Please read my claims.
92. Did you seek help within that country(s) after the harm?
[Applicant selected ‘yes’.]
Please read my claims.
93. Did you move, or try to move, to another part of that country(s) to seek safety?
[Applicant selected ‘no’.]
Please read my claims.
94. Do you think you will be harmed or mistreated if you return to that country(s)?
[Applicant selected ‘yes’.]
Please read my claims.
95. Do you think the authorities of that country(s) can and will protect you if you go back?
[Applicant selected ‘no’.]
Please read my claims.
96. Do you think you would be able to relocate within that country(s)?
[Applicant selected ‘no’.]
Please read my claims.
The applicant provided a statement to the Department as below:
My claims
My name is [name], born on [date]. My friend and I rented factory building in [a] City and set up a company named [a named company] in July 2011, with the total investment of [amount]RMB. The business had been good until 2014 when the economic situation became deteriorate nationwide. Our business was getting bad as well. Besides, we had to deal with the extorting bribes from the government officials, which really made us headache. Especially, those officials from the Health departments kept forcing us to reimburse the [invoices]. We were their ATM. In June 2015, Director [A] from the Health Bureau asked us to reimburse his invoices of thirty thousand RMB again. I was hesitated because the business was so poor that we had not paid our employees for two months. I requested him to consider our difficulties. Director [A] left with displeasure. Not long after that, I turned down his request of reimbursing his invoices once again.
[In] August, 2015, several officials of the Health Bureau came to my factory for inspection. After the inspection, they said to us: ‘Your [products] do not meet the criteria so you need to suspend the business for rectification. You cannot continue the business until your products meet the criteria.’ I explained to them: ‘All our [equipments] and [procedures] passed the acceptance tests of the Health Bureau and are standards-compliant. We never had any problem before.’ The officials went on to say: ‘If you do not stop to rectification, we will revoke your production license.’ I was aware that those officials from the Health Bureau were retaliating against us. So I applied for reconsideration, but I failed. In desperation, we had to suspend the business for rectification.
These government officials were really lawlessness. So I logged in [municipal] government's official website and complained about [Health] Bureau officers’ abuse of power and extorting bribes with my real name. Unexpectedly, [in] September, 2015, I was taken away by [policemen] and detained for three days on the accusation of false accusation of government officials. They threatened me to lock me up again if I continued to complain.
[In] October, 2015, I secretly went to the Provincial Complaints Bureau and complained about the Health Bureau abuse of power and retaliation of informants. I was hoping the superior level of government could get justice for me. People from the provincial Complaints Bureau said they would make some investigation and let me wait for the news. So I got on a bus to go home. When I just walked out of the station, someone pulled over my head with a bag from behind, made me get onto a car and took me to the detention center, where they beat me hard and locked me up. During my detention, they insulted me, threatened me and not gave me any food or drink. They also forced me to sign the statement. When I refused, they ordered other detainees to beat me up. I could not stand the torture any longer, so I promised not to petite any more. I was detained for seven days there.
When I was set free from the detention carter, I was emaciated and haggard due to the torture. I was monitored by some plainclothes police. I was followed when I went out and the life of the whole family was greatly affected. We all lived in terror, which made me sick. The Chinese officials are corrupted and shield each other. The government's complaints departments exist in name only. Ordinary people have nowhere to get their injustice redressed. The officials overrule the law. They hoodwink the public and abuse their power to benefit themselves. I could not endure to keep living in such a country. An agent helped me get passport and visa. So I came to Australia. I hope the Australian government could approve my application so that I could start a new life.
EVIDENCE AND SUBMISSIONS
The applicant did not appear at the hearing to provide oral testimony in support of his application for review. The applicant had provided no written submissions or evidence in support of his application to the Tribunal. The Department file contains no additional submissions or evidence from the applicant in support of the application for a protection visa except that set out above. Accordingly the evidence upon which the application is to be assessed is contained solely in the applicant’s written application for a protection visa dated 7 July 2016. The applicant’s answers to the relevant questions are set out above. In summary, the applicant claimed that he left China because he was detained and tortured after refusing to pay bribes sought by government officials and complained about corrupt behaviour.
Based upon the applicant’s answers to other questions in the application for a protection visa, the substance of which is also set out above, the Tribunal finds that the applicant:
- is [an] [age]-year-old male, born [date] in [Zhejiang], China;
- can speak, read and write Mandarin;
- is of Han ethnicity;
- is a Chinese citizen; and
- was married in 2006.
The country information
In accordance with Direction No.84 made pursuant to s.499 of the Act, the Tribunal also had regard to country information assessments prepared by DFAT. The DFAT report titled ‘People’s Republic of China’ dated 3 October 2019 relevantly stated as follows (footnotes omitted):
SECURITY SITUATION
2.55 Gaining support for CCP policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. China’s internal security agencies include: the Ministry of Public Security, which is responsible, inter alia, for the police, border security and household registration (hukou, see Hukou (household registration) system, Health and Children)); the Ministry of State Security, the main intelligence agency; the People’s Armed Police (PAP), a paramilitary force responsible for internal security; and the People’s Liberation Army (PLA), China’s military (see also Military and Police). In November 2013, President Xi established a new National Security Commission to strengthen coordination of both international and domestic security issues.
2.56 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 (see The Social Credit System).
2.57 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.
2.58 Since 2010, China’s expenditure on internal security agencies such as the police, the PAP, the courts and the prison system has outstripped spending on the military. In 2016, the gap between domestic security and defence expenditure reportedly reached a record high of 13 per cent, with domestic security expenditure increasing by 17.6 per cent compared to the previous year, to exceed RMB 1 trillion (AUD 209.4 billion), while defence expenditure only increased by 7.5 per cent. However, the actual amount China spends on its military and domestic security is widely debated. Most foreign experts, governments and relevant publications concur that Chinese statistics on security spending do not include some outlays that are standard reporting for most other countries, and note there is no way to verify the accuracy of official figures reported by China.
2.59 Domestic security expenditure across all provinces and regions increased by 215 per cent between 2007 and 2016, and continued to grow in 2018 - particularly in sensitive minority regions such as Xinjiang and Tibet, where security remains volatile due to heightened ethnic tensions and government attempts to curb perceived threats to social stability (see Ethnic Uighurs and Ethnic Tibetans). Over the same 10 year period, security expenditure increased by 411 per cent in the Xinjiang Uighur Autonomous Region (XUAR, Xinjiang), by 404 per cent in the Tibet Autonomous Region (TAR) and 316 per cent in Qinghai (where the population is approximately 25 per cent Tibetan). In February 2018, Xinjiang reported a 92.8 per cent increase in its domestic security spending, from RMB 30.05 billion (AUD 6.3 billion) in 2016 to RMB 57.95 billion (AUD 12.9 billion) in 2017. The increase in security spending in TAR is estimated at 9.3 per cent, although TAR maintains its position as the region with the highest per capita domestic security expenditure of all provinces and regions since 2008, ahead of Xinjiang. Analysts of Chinese security expenditure suggest that per capita domestic security spending in sensitive minority regions is now higher than per capita domestic security spending in the US or Russia (PP adjusted by wage levels).
2.60 In June 2017, China’s National People’s Congress Standing Committee also passed a new National Intelligence Law (2017; amended 2018) which forms part of a national security legal architecture introduced in 2014 which includes the Counter-Espionage Law (2014), Criminal Law (1979; Amended 2015), National Security Law (2015), Anti-Terrorism Law (2015) and Cyber Security Law (2017). The National Intelligence Law calls upon all elements of Chinese society, including individuals, to contribute to national intelligence work. The law inter alia empowers security agencies: to launch intelligence operations in China and abroad; to collect intelligence on foreign bodies ‘engaged in activities that may harm China’s national security or its interests’; to monitor suspects, raid premises or seize vehicles during the investigation of domestic or foreign individuals or groups; to gain priority use of transportation or telecommunications equipment, buildings or enterprises; and to employ ‘technical reconnaissance’ measures with permission. The law explicitly requires security agencies to act in strict compliance with laws relating to the protection of human rights, and states agencies should not exceed their authority or abuse their powers. DFAT is aware of reports of kindergarten children being given homework instructing how they should assist state security officers.
Arbitrary Arrest and Detention
4.20 The Ministry of Public Security manages pre-trial detention facilities and procedures. Authorities with the power to authorise the detention of a criminal suspect include (but are not limited to) the Public Security Bureau (PSB), Ministry of State Security, and the Anti-Smuggling Bureau.
4.21 Under the Criminal Procedure Law, the term ‘arrest’ refers to the stage of the criminal prosecution process when authorities determine there is sufficient evidence to proceed with prosecution. A suspect can be, though is not necessarily, detained prior to being formally arrested. A detention warrant must be issued to a suspect’s family within 24 hours of their detention. The formal arrest of a detainee must be approved by the Procuratorate, which can take up to 37 days. Unless released on bail, criminal suspects will generally remain detained until the conclusion of the judicial process, including appeals. In practice, the rate of release on bail is extremely low. Bail is not considered a right; under the Criminal Procedure law bail ‘is not an individual right designed to minimize restraints on freedom, but an alternative pre-trial coercive measure. When bail is granted, it is usually on the initiative and for the convenience of the police.’
4.22 These procedures are not subject to judicial oversight. The post-arrest investigation period can be up to seven months, and preparation of indictment can take up to six and a half months. The total time required to hear a case and issue a verdict in standard cases ranges from twenty months to an indefinite period. Security agencies can hold individuals for years while they progress through the charge, arrest, investigation, court hearing and sentencing processes. Individuals convicted of an offence do not move into the prison system until their case is finalised, including any appeal processes. Time served in a detention centre is deducted from their custodial sentence.
4.23 Amendments to the Criminal Procedure Law (1979; amended 2012, 2018) require the prompt delivery of suspects to detention facilities following arrest. The law stipulates that interrogations must take place in the detention facility, and must be recorded in audio and video. The revised law also requires judicial officials to investigate cases of extraction of confessions under torture.
4.24 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.
4.25 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.
4.26 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. The notification does not need to specify the reason for or location of detention. Suspects do not have the right to meet defence lawyers in these categories of cases. In cases involving national security or terrorism, police are authorised to detain a suspect after arrest for up to an additional seven months while investigating the case. Following investigation, the procuratorate has an additional 45 days to determine whether to file criminal charges of detention, during which time detention can continue. The law explicitly allows detainees to meet with defence counsel before criminal charges are filed but this rarely happens where cases are considered politically sensitive. After filing charges, authorities can detain a suspect for an additional 45 days before beginning judicial proceedings.
4.27 RSDL has been criticised for exposing detainees to risk of mistreatment (see Torture) and for enabling conditions of detention that produce forced confessions. While evidence obtained while in RSDL should be able to be excluded in court, rarely is this the case. Human rights groups report RDSL has been increasingly used to detain activists, human rights lawyers and government critics in recent years, and claim police training dormitory facilities have been repurposed for RSDL.
4.28 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 and criminals.
4.29 Public security authorities continue to use other forms of administrative detention to suppress political and religious dissidents, sex workers, drug users and petitioners. Authorities also detain family members of dissidents: poet Liu Xia, widow of Nobel Peace laureate Liu Xiaobo, was released in July 2018 after being under house arrest for nearly eight years following her husband’s nomination for the Nobel Peace Prize in 2010 (see Deaths in Custody). Authorities have also curtailed the freedom of family members of ‘709’ lawyers (see Human Rights Defenders (including Lawyers) and Uighur and Tibetan activists (see Ethnic Uighurs and Ethnic Tibetans). The law does not provide for house arrest. Individuals facing this type of detention do not have the right to legal counsel or due process. The Chinese government abolished its ‘re-education through labour’ policy in December 2013, although media and human rights groups claim re-education through labour (including in prisons and linked to Xinjiang-based re-education centres) continued in 2018 and supported production in factories for overseas markets (see Detention and Prison and Ethnic Uighurs).
4.30 DFAT assesses that reports that security authorities use extra-legal detention for politically sensitive investigations are credible.
STATE PROTECTION
5.1 Article 5 of the Constitution states that ‘no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws’.
5.2 There is no organisation in China tasked with enforcement of the Constitution and courts do not have the general power of judicial review which would allow them to invalidate laws on the grounds they violate the Constitution. The Constitution states the National People’s Congress and its Standing Committee have the power to review laws that violate the Constitution, but, in practice, these powers are rarely exercised, with only one instance of regulations being rescinded.
5.3 Crimes are investigated by public security organs, generally the PSB, but also including other organs such as the Anti-smuggling Bureau, Ministry of State Security and National Supervision Commission, prosecuted by the People’s Procuratorate, and tried in the People’s Courts. All lawyers must be registered with, and operate in compliance with, regulations issued by the All China Lawyer’s Association, which is directly supervised by the Ministry of Justice (see Human Rights Defenders (including Lawyers)).
5.4 The Criminal Procedure Law and Criminal Law regulate arrest and detention. The Criminal Procedure Law sets out the procedures to be followed in the criminal process. It applies prior to a verdict being issued by a court and the Criminal Law is applied after a verdict has been issued. Criminal prosecution can be lengthy, and it can take in excess of one year for a case to progress from initial detention to verdict and sentencing.
Military
5.5 China has the largest active military service in the world. The People’s Liberation Army (PLA) reports to the Party’s Central Military Commission, which is headed by the president (and Party General Secretary). The PLA currently has over two million members. It serves the Party, rather than the Chinese state. In March 2018 the Ministry of Finance proposed increasing China’s defence budget by 8.1 per cent, from RMB 1.044 trillion (AUD 218.6 billion) in 2017, to RMB 1.107 trillion (AUD 231.8 billion) in 2018. The PLA has shrunk significantly from an estimated three million active personnel in 1992. It continues to decrease as it seeks to improve the quality of its staff and systems. The PLA has five branches of service: Army, Navy, Air Force, Rocket Force (strategic missile force) and Strategic Support Force (space and cyber forces). While China reported spending 1.28 per cent of GDP on the military in 2016, actual military expenditure is probably higher. The military service age is 18-24 years for selective compulsory military service, with a two-year service obligation. There is no minimum age for voluntary service (all officers are volunteers). The PLA has not been deployed against Chinese citizens in China since June 1989, when PLA units killed several hundred protesters in Beijing’s Tiananmen Square and surrounding areas.
Police
5.6 The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. The government no longer publicises the size of its police force, but media estimates place the number at around two million. The People’s Armed Police, a paramilitary force responsible for internal security issues such as riots, terrorist attacks, natural disasters and other emergencies, has an estimated 660,000 members. Police undertake four-year training programs that include courses in procedural law and public order, as well as extensive physical training. Performance is statistics-driven and a national ranking system provides incentives for compliance. Local-level police are generally entitled to receive housing and food allowances as part of their monthly salaries, which are calculated according to local conditions rather than a national standard.
5.7 Maintaining public order and social stability – defined as defending CCP rule – are the key priorities of the police force in China, and outweigh protection of the public from criminal activity. Regular police do not generally carry firearms but can do so in areas of heightened security (such as in Xinjiang and Tibet). Reflecting the power held by the Ministry of Public Security, procuratorate oversight of the police is limited, localised and ad-hoc.
5.8 Chinese citizens have the right to lodge complaints against the police in their city of residence through a telephone hotline, or online complaints website, in person, or in writing to the Public Security Bureau Complaints Office. Local authorities have targeted petitioners (including those with complaints against police) with punishments including arrest and detention (see Protesters/petitioners). Complaints against police rarely lead to disciplinary action and, where investigations are announced, their outcomes are not publicly released (see also Deaths in Custody).
5.9 Police are unable to open a case until the prosecutor is confident there is a high chance of conviction. Police are required to send a brief to the prosecutor seeking formal permission to arrest, and only very clear- cut cases are generally approved, accounting for the 99 per cent conviction rate. When the procuratorate deems there is not enough evidence to justify arrest, it sends the case back for further investigation. Sources report that police are under pressure to obtain confessions prior to trial, and to ensure success in all police investigations. However, China has taken some positive steps to protect individual rights through amendments to the Criminal Procedure Law prohibiting the use of confessions obtained under torture as evidence, and requiring interrogations in major criminal cases to be audio and video recorded. However, these protections do not apply in cases involving national security, which are investigated outside of China’s criminal justice system. In practice, the number of cases in which evidence is not accepted at trial because it was obtained through torture or other coercive means is still very low, and only very few cases of this nature have been reported.
5.10 DFAT has no additional information on the quality of local policing or responsiveness of the PSB to local crime.
Judiciary
5.11 China has explicitly rejected ‘Western notions’ of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. The CPP approves judicial appointments and personnel decisions. Jurors are also appointed to a jury pool by the CCP for a five-year period and therefore serve the needs of the Party. The CCP also exercises direct influence in individual cases through Political-Legal Committees (PLCs) at each level of government. PLCs supervise and direct the work of state legal institutions, including the courts, and are typically staffed by court presidents, the heads of law enforcement agencies, officials of the justice ministry or bureau, and other legal organs. Although PLCs focus primarily on ideological matters, they can influence the outcome of cases, particularly when the case is sensitive or important.
5.12 China’s 2016 White Paper on Judicial Reform includes measures to reduce political influence on courts, improve access to justice, strengthen professionalism of the judiciary, and increase transparency. In an effort to curb local corruption, new policy shifts funding of courts from the local to provincial level and courts have started recording attempts to influence proceedings. Since May 2015 there has been a mandatory nation-wide case filing system, through which courts cannot refuse to hear cases without sound legal justification.
5.13 Enforcement of court judgements remains an issue. However courts now publish many routine judgements online on the Open Trial Network (OTN). The OTN is a case database platform, which increases transparency (for listed cases) to help enforce judgements and parole. If individuals or entities do not comply with fines or fulfil judgements, they can face other restrictions in line with the SCS (see The Social Credit System). Nevertheless, OTN coverage is patchy and not all cases reported in the media are listed. The 709 crackdown cases, for example, are not listed on the OTN. Only final judgements can be viewed on the OTN; intermediary judgements are not always accessible if there is an appeal.
5.14 Articles 183, 274 and 196 of the Criminal Procedure Law require cases involving state secrets, personal privacy, trade or commercial secrets or where the defendant is under 18, to be tried in a closed court. Cases involving trade or commercial secrets are also held in private if any party concerned in the matter requests a closed court session. However, Article 196 requires all verdicts to be issued in open courts.
5.15 Judicial reforms implemented in recent years have led to an increase in administrative law cases, albeit from a very low base, including local cases of official abuse of power. For example, the Shenzhen court has published figures for administrative cases showing 10,133 administrative cases in 2015, compared with 9,167 in 2014 and only 3,840 in 2013. In 2015, the government lost 381 (15.2 per cent) of 2508 lawsuits against it. While improving, these relatively low numbers - even in one of China’s wealthiest and most international cities (Shenzhen has a population of 12 million) - indicate the difficulties faced by ordinary people in pursuing cases against officials.
5.16 A number of special courts also play a key role in the judicial system. The Standing Committee of the National People’s Congress has the power to list the functions and powers of special courts and set up new special courts. Special courts include the military courts, maritime courts, railway transportation courts, forestry courts and the intellectual property courts. The military court, established within the People’s Liberation Army, is responsible for hearing criminal cases involving servicemen and women. This is a relatively closed system without external supervision.
5.17 The maritime court system deals with highly specialised issues related to waters under Chinese jurisdiction. Maritime courts operate in Shanghai, Tianjin, Qingdao, Guangzhou, Wuhan, Haikou, Xiamen, Ningbo, and Beihai, and there are also 39 detached tribunals in major port cities across 15 provinces. Maritime courts have jurisdiction over maritime tort disputes, maritime contract disputes, sea environmental protection cases, and maritime administrative and special procedure cases, including any disputes in this category arising between Chinese and foreign citizens, organisations and enterprises. The procedures of the maritime courts are governed by the Civil Procedure Law (1991; amended 2017), and where there is no provision in the Civil Procedure Law, the Special Maritime Procedure Law (1999) applies. However, maritime courts have no jurisdiction over criminal cases and other civil or administrative cases without a maritime element. In the event of a jurisdictional dispute regarding the existence of a maritime element, the ordinary court at one level higher than the maritime court and the ordinary court seeking to exercise jurisdiction, will determine jurisdiction. The High People’s Court in the locality where a particular maritime court is located has appellate jurisdiction over judgments and orders of the maritime court. Sources claim the maritime court’s remit has, at times, increased to include administrative cases, labour cases involving unpaid workers, shop workers (sailors) and maritime pollution cases. The Maritime Courts connect with port and border authorities, and entry and exit can be prohibited if an Individual has a pending Maritime Court order.
5.18 DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.
INTERNAL RELOCATION
5.31 There are many opportunities for internal relocation in China and movement of people is fundamental to China’s push for continued economic growth and urbanisation. While there are no legal impediments to internal migration, the hukou system presents the biggest administrative impediment to freedom of internal movement (see Hukou (household registration) system). Those who have otherwise come to the attention of the authorities may also face impediments to freedom of movement (see The Social Credit System and Security Situation).
5.32 Linguistic and cultural barriers are not an inhibiting factor for ethnically Han Chinese to move away from their place of hukou registration. Ethnic minorities may face varying degrees of difficulty or discrimination, depending on their ethnicity and their destination (see also Uighurs and Tibetans).
5.33 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 (see The Social Credit System, Religion, Political Opinion (actual or imputed) and Groups of Interest). 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 (see Security situation and The Social Credit System).
Hukou (household registration) system
5.34 The hukou system ties access to government services, such as education above a certain level and health, to a citizen’s place of birth, or even their parents' place of birth, rather than their place of residence. Only an estimated 35 per cent of urban residents have an urban hukou. Chinese migrant workers (estimated at 282 million) who move away from rural areas for better employment opportunities, are unable to access key services and in some cases, face institutionalised discrimination. An estimated 60 to 100 million children have been ‘left behind’, either in their grandparents' care or alone, while their parents work in cities.
5.35 The Ministry of Public Security reported 28.9 million new urban residency permits issued in 2016, mostly in third or fourth tier cities. The local governments of the largest cities, including Beijing, Shanghai, Guangzhou, Shenzhen, Chengdu, Wuhan and Xi’an, have historically had tough restrictions on granting new hukou permits given the already high populations and overburdened infrastructure in these cities. Lower-tier cities (with fewer than 3 million permanent residents in downtown areas) have been generally more willing to issue hukou, in line with government’s aim to drive economic growth in less developed and less populated regions.
5.36 In April 2019, the National Development and Reform Commission announced the 2019 Urbanisation Plan, which relaxed hukou residency restrictions in small and medium-sized cities. The 2019 Urbanisation plan requires cities with populations between one and three million to end all household registration restrictions under the hukou system. Cities with populations between three and five million will relax restrictions on new migrants and remove limits on key population groups, including graduates of universities and vocational colleges. Small and medium-sized cities and towns of under one million permanent residents have already gradually lifted restrictions on household registration. In addition to loosening hukou restrictions, the plan directs local governments to promote basic public services for permanent residents and further develop urban infrastructure to handle increases in population.
5.37 According to media reports, it will be easier to apply for hukou in big, medium-sized, and small cities (some second-tier and all third and fourth tier cities). China has 13 cities with a population of more than five million in their urban areas, which will not see a relaxation of hukou restrictions under the new policy: Beijing, Shanghai, Guangzhou, Shenzhen, Tianjin, Chongqing, Wuhan, Chengdu, Nanjing, Zhengzhou, Hangzhou, Shenyang and Changsha. Cities that may be affected by the new plan may include, but are not limited to: Xi’an, Harbin, Changchun, Taiyuan, Nanning, Dongguan, Suzhou, Hefei, Jinan, Qingdao, Dalian, Xiamen, Ningbo, Kunming, Shijiazhuang, Nanchang and Fuzhou.
National Identity Cards
5.51 Citizens over the age of 16 are required to apply for identification cards while those under 16 years can voluntarily apply with the assistance of a guardian. The PSB issues and manages ID cards according to the Resident Identity Cards Law (2003). Cards are valid for five years for children under 16, ten years for individuals aged between 16 and 25 years, twenty years for individuals between 26 and 45 years and permanently for individuals aged 46 years or older.
5.52 Use of China’s latest (second generation) resident identity cards (RICs) became mandatory in 2013. RICs include the cardholder's name, sex (male or female), ethnicity, date of birth, residential address, a unique 18-digit ID number and coloured photograph. Embedded digital microchips in each card contain the same identifying information, as well as work history, educational background, religion, police record, medical insurance status, landlord’s telephone number, and reproductive history. Cards issued in ethnic minority areas contain corresponding text in the minority language. Han Chinese in ethnic minority autonomous regions must have text listed only in Mandarin.
5.53 Applicants must complete a Registration Form of Application for Resident Identity Card and present their hukou for examination by public security authorities. Costs of new or renewed cards vary according to location and the circumstances of the applicant. For example, the law exempts payment for urban residents on subsistence allowances and rural residents who live in ‘specially straitened’ circumstances. Breaches of the law can lead to disciplinary warnings, fines (ranging from RMB 200 to 1,000 – approximately AUD 40 to 200) and up to ten days detention. Forgery of cards is a criminal offence.
5.54 Second-generation cards are reportedly difficult to counterfeit. Since 2013, the government has run trials to include fingerprints on the cards making it more difficult to forge. Places such as banks, train stations and airports have card readers. Valid ID cards are required for hukou, employment, opening bank accounts, obtaining passports and drivers’ licences, applications for tertiary study, travel by plane or train, marriages and legal cases. Internet cafes and some shops also require proof of identity.
5.55 Sources report that the government has longer term plans to change the national identity card to an online identity card.
POLITICAL SYSTEM
2.35 China is a one-party state governed by the CCP (also known as ‘the Party’). While minor political parties exist, they are approved by and are subordinate to the CCP. The Party’s peak leadership body, the Politburo Standing Committee (PBSC), is responsible in practice for making all key decisions on foreign and domestic policy. The head of the Party, General-Secretary Xi Jinping (concurrently president and chairman of the Central Military Commission) is a member of the PBSC. PBSC members are drawn from the subordinate 25-member Politburo, which in turn is drawn from the Party’s central committee. The 2017-2022 PBSC has seven members, the same number as for the 2012-2017 term.
2.36 China’s government enacts policy decisions. The government is subordinate to the Party, which is an integral element of China’s government structure. Senior government officials at all administrative levels concurrently hold Party positions, and in almost all cases the local Party Secretary outranks the most senior government position. These structures are replicated across the country’s various administrative levels. The National People’s Congress (NPC) is the highest state body, and is China’s closest approximation to a parliament. In March 2018, under the leadership of President Xi, the NPC amended the Constitution to abolish presidential term limits and establish a National Supervision Commission (NSC) under the new PRC Supervision Law (2018) to investigate party members and civil servants (see Corruption).
2.37 The State Council is the most important administrative body of China’s central government. It oversees the implementation of policy decisions, as well as regulations and laws adopted by the NPC. The premier (currently Li Keqiang) is head of the State Council and China’s Head of Government. Premier Li is also a member of the PBSC.
2.38 Governments at the provincial level and below are responsible for the majority of public expenditure on health, education, unemployment insurance, social security and welfare. They have the power to enact their own regulations as a means of implementing laws adopted centrally. Below the provincial level are prefectural-level administrative units, counties and county-level cities, and finally townships and towns.
2.38 The government has allowed ‘grass-roots elections’ to take place every three to five years at the local (village) level in some provinces. This administrative level is outside the formal four-tier government system. According to China’s Electoral Law (1979; amended 2010), any citizen can become a candidate as long as they are nominated by the Party or receive 10 signatures supporting their candidacy. Party-appointed local election committees must confirm candidates, publish final lists of candidates, set rules for campaigning, and count and announce results. In practice, candidates not put forward by the Party are rarely successful.
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 The Party Central Committee’s Propaganda Department maintains tight control over media coverage of the anti-corruption campaign and, consequently, state media rarely play a watchdog role. Authorities have detained members of the public, including journalists, who have sought to publicise official corruption beyond that endorsed by authorities. 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).
Guanxi
2.48 Guanxi is the Mandarin term for a system where progress in business or government relies heavily on patronage networks. Literally meaning ‘connection’, guanxi historically manifested through the provision of gifts, meals and favours. Along with China’s rapid economic development, expensive gifts of branded cigarettes and alcohol or lavish banquets quickly advanced to gifts of large sums of money, property or title.
2.49 The government has introduced a range of austerity measures to limit official hospitality in line with its anti-corruption campaign. Guanxi-related gifts can be considered bribery by foreign companies and by national and international anti-corruption laws, and anti-corruption laws are inconsistently and selectively enforced. Despite this, patronage networks and the notion of ‘building guanxi’ remains important within Chinese culture, particularly in business and government. A person’s guanxi can affect their ability to secure favourable outcomes such as access to senior officials, enrolment in preferred schools, universities, jobs or legal outcomes. A lack of guanxi can render such favourable outcomes unattainable.
Conclusions

The Tribunal is informed by the country information, in summary, as follows. As to security generally, gaining support for CCP policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. As to the police, citizens can be arrested prior to being charged. 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. The arrest procedures are not subject to judicial oversight. As to State protection, Article 5 of the Constitution states that:
no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws.
As to the judiciary, China has explicitly rejected ‘Western notions’ of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low. As to internal relocation, 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. As to corruption, 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.
The Tribunal notes that it is a requirement of the Act that the applicant provide details of the applicant’s claim and that it is not incumbent upon the Tribunal to prove the applicant’s case. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The applicant did not produce any documents to corroborate his claims for protection. This is most surprising having regard to the importance of this matter, apparently, to the applicant and the time which the applicant has had to consider and prepare for this application.
The applicant’s claims for protection are contained in his application for a protection visa and in the associated narrative document which he provided to the Department at the same time. The applicant has asserted generally that he paid bribes to officials, especially from the health department. He has not provided any details of the assertion. He has asserted that one official asked for RMB[amount]. The applicant asserts that after he refused to pay his business was targeted by health officials. He has otherwise provided no details. He has asserted that he applied for reconsideration of a decision, apparently, to revoke his production licence. He has provided no details of this and no documentary corroboration. He has asserted the complaint to the municipal government. He has provided no details of this and no documentary corroboration. He has asserted that he was detained by police for three days. He has provided no corroboration of this. He has asserted that he ‘secretly’ complained to the provincial complaints bureau but has provided no documentary corroboration. He has asserted that he was detained again and assaulted. He has provided no medical evidence. He asserted that he conducted the business together with his partner. He has provided no corroborative statement from the business partner. The vague nature of the assertions, the failure to provide relevant details and documents and the failure to provide corroborative testimony compel the conclusion that the applicant’s assertions cannot be accepted. The Tribunal does not accept the matters asserted by the applicant as the bases for his claim for protection in Australia.
The Tribunal has considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act.
Having regard to the evidence the Tribunal makes the following findings:
a)the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b)the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to China, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c)the Tribunal is not satisfied that there is a real chance of persecution that relates to all areas of China;
d)the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;
e)the Tribunal is not satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act; and
f)the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Act.
Complementary protection criteria assessment – s.36(2)(aa)
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 has considered 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 the applicant will suffer significant harm.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or if the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case must be provided by the applicant.
While the Tribunal is required to adopt a reasonable approach to such matters, the Tribunal is not required to make the applicant’s case out for the applicant. Neither is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. In respect of the Tribunal’s assessment in regard to complementary protection, the Tribunal adopts the findings stated above in relation to the refugee criterion assessment.
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)(b) or (c) 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.
Peter Booth
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.
…

[2020] AATA 4273

12 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction