1708251 (Refugee)

1708251 (Refugee) [2020] AATA 4243 (6 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708251
COUNTRY OF REFERENCE:                   China
MEMBER:James Silva
DATE:6 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 6 October 2020, at 5:29pm
CATCHWORDS
REFUGEE – protection visa – China – fear of harm as whistle-blower against alleged corrupt practices by state-owned enterprise – complaints to enterprise and city government – detention and assault – credibility – inconsistent claims and evidence – no documentary evidence – alleged corruption took place in another province – country information about corruption – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a man in his early [Decade] from Jiangsu province, China. He claims to be a citizen of China.
The applicant arrived in Australia [in] September 2016, as the holder of a visitor (tourist) visa. On 1 December 2016, he applied for a protection (Class XA) visa. He attended an interview with a delegate of the Minister for Immigration and Border Protection on 20 February 2017. On 14 March 2017, the delegate refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is in the attachment to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Background
The applicant is a [Age] year old man from a village in [a][1] town, Haian county, Nantong city, Jiangsu province.
[1] This appears in Google Maps as [Alternative name].
The applicant wrote that he lived in [Town] (Nantong) until his departure for Australia in September 2016, although at the Department interview, he added that he used to visit Zhuzhou city, Hunan province for work. Zhuzhou city, and neighbouring Changsha (the capital of Hunan province), are some 1,100km inland from [Town].[2]
[2] Google Maps; the applicant estimated the distance at about 800 km.
At hearing, the applicant said that, while [Town] remained his permanent residence and his place of household registration (hukou), in fact he lived in other cities, on work assignments. These included Wuhan (Hubei province) in 2013, for over a year; Changsha (Hunan province) in 2014, for about two years; and Chongqing, from about March/April to September 2016. (The applicant gave approximations of these periods.) Chongqing is some 1,600 km from [Town].[3]
[3]Google Maps; the applicant estimated the distance at about 1,400 km.
The applicant attended primary school and middle school in [Town] from [Year 1] to mid-[Year 2]. He initially worked as an [apprentice] for a company in Nantong, and later became a salesman for that company. From about 2013, he worked as a salesman for [another] company.
The applicant married a woman from a nearby village. His wife and their [Age] year old son currently live with the applicant’s in-laws. He said that the family had always lived with his wife’s parents, implying that this was due at least in part to his work in other provinces.
The applicant holds a PRC passport issued in Jiangsu in [2015]. In November 2015, he visited [a few countries] for a total of about ten days.[4] Asked at hearing about the purpose of this travel, the applicant was guarded and said only that he wanted to undertake tourism and broaden his mind.
[4] This was evidenced by information he provided on his protection visa application, the stamps in his passport, and his oral evidence at hearing.
As noted above, the applicant entered Australia [in] September 2016, and lodged his protection visa application some three months later.
Claims
The applicant claims that while working as a sales agent for [a] manufacturer in Hunan province, he discovered that a state-owned company had engaged in corrupt practices. He resolved to expose this, initially by approaching the company (or its parent company), and later government agencies (at the city or province level). In response, he was subject to threats and assaults (although his claims have varied as to the agents, nature and timing of this harm). The police have also detained him, and (by some accounts), been verbally abusive, assaulted him and/or forced him to confess to having made slanderous allegations. In response, he went to another city in China, and eventually decided to leave the country. He claims that his family have been subject to intimidation after he left China.
Essentially, he claims that corrupt officials are motivated to harm him because he has incriminating evidence against them, and his complaints could cause trouble for them. He is not sure how far they will go but is concerned they might inflict serious or significant harm on him.
Evidence
The material before the Tribunal includes the following:
§The applicant’s protection visa application of 1 December 2016. Attached to this is a two-page statement in English setting out his protection claims.
§Partial photocopy of the applicant’s current PRC passport, issued in [2015]: the biodata page, and pages showing departure/entry stamps for travel to [Region] in November 2015, and his arrival in Australia in September 2016.
§Audio recording of the protection visa interview (‘Department interview’) held on 20 February 2017.
§Protection visa assessment (‘delegate’s decision record) of 14 March 2017.
§The applicant’s review application form received on 16 April 2017.
The applicant attended a Tribunal hearing on 30 September 2020. The hearing was conducted via teleconference, with the assistance of an interpreter in the Chinese (Mandarin) and English languages. The applicant is unrepresented in this matter. He did not submit any documentation or ask the Tribunal to take evidence from witnesses.
Credibility
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence. For the reasons set out below, the Tribunal has extensive concerns about the credibility of the applicant’s claims and evidence, as it found them vague, changeable and without reasonable corroboration.
The applicant as a whistle blower
The applicant’s claims arise from his work as a sales representative for [Company 1], marketing [items] required to produce [a product]. Most recently, he was responsible for sales in Hunan province. This meant that he was based in Changsha; he estimated he spent about 30 days a year back home in Jiangsu. The company had a website, and the applicant’s task was to visit and maintain relations with customers, bid for tenders and the like.
The applicant moved to Chongqing in early 2016. His statements at the Department interview and his initial statement to the Tribunal suggested that he went there in March/April 2016, i.e. following and perhaps in response to the tender process in Changsha that lies at the heart of his protection claims. However, at hearing it became clear that he had moved to Chongqing a little earlier, and that he went back to Changsha for the purposes of participating in the tender process.
Discovery of fraud
The applicant claims that, in March 2016, a state-owned enterprise [Company 2] in Hunan issued a public tender for the supply of [items]. At hearing, he explained that he was already living in Chongqing, and returned to Changsha to attend the ten-day ‘tender conference’. He emphasised that it was a lucrative contract, and his 10 per cent commission offered him the chance to earn more than a year’s income in one hit.
Acting as a sales representative for [Company 1], he offered the [item] for sale for RMB [amount], which is about $A[amount]. He told the Tribunal that he had had no previous dealings with [Company 2]. There were two other bidders for this tender. The main competitor, and successful bidder, was [Company 3]. A third bidder was a large company in Hebei. This company was not a serious bidder. It regarded the contract as small and had merely participated to assist the formal requirement that public tenders have at least three bidding parties.
The applicant wrote that after submitting the bid, he received a warning to withdraw it, which he ignored. There are no details about the warning, and nothing to suggest that the applicant suffered any harm as a direct result of it. On the contrary, the applicant claims that the tender process was rigged and he stood no chance of winning, despite putting in the cheapest offer. His subsequent complaints triggered the alleged harm to him.
The applicant said at hearing that, on the critical day, five or six other public tenders were decided. In each instance, the winning bid was announced publicly, in accordance with usual practice. Only [Company 2]’s tender and its outcome were kept secret.
The applicant claims that [Company 3] won the contract, with an offer of [amount]. In his statement of claims, he wrote that industry insiders suspected that [Company 3] had colluded with the tenderer, [Company 2]. At hearing, the Tribunal explored what evidence the applicant had of such collusion or other corrupt conduct, and whether he had it in a form that could put others at risk of exposure.
§ Asked how he learned about the other bids if, as claimed, the process had been secretive, the applicant said that the third bidder, the company from Hebei, shared with him the details of their bid. Meanwhile, his boss at [Company 1] learned the details of [Company 3]’s bid, through a contact he had in their production area.
§ In relation to [Company 3]’s ability to win with a more expensive offer, the Tribunal asked whether this might have reflected other, perhaps more favourable conditions in their bids, such as warranties or after-sales service. The applicant replied that this was not possible, as there were standard terms and conditions that applied. Moreover, his boss’s enquiries revealed that [Company 3] had pulled some strings.
§ In relation to evidence (for instance, to confirm the contents of [Company 3]’s bid), the applicant replied vaguely that he has a copy of a document, which may still be in China. It was not clear what this referred to, or whether it would demonstrate corruption, or why the applicant did not present it (to the relevant authorities or to the Department and the Tribunal during this application). The Tribunal does not accept at face value that the applicant holds any document that demonstrates corruption in the tender process.
Country information about corruption in China provides some context for this claim. According to the Department of Foreign Affairs and Trade’s (DFAT) most recent country information report on China[5], corruption is a pervasive problem in China, and includes favouritism by government officials, and irregular payments and bribes. The applicant’s account of collusion between [Company 2] and [Company 3], perhaps with kickbacks or the like, is broadly consistent with this country information.
[5] DFAT, Country Information Report – People’s Republic of China, 3 October 2019
Whistle blower activities
In his written statement, the applicant described his whistle blower activities (and his reporting of associated threats and violence) in the following terms:
§ In April 2016, he reported his concerns to the [Company 2] disciplinary committee[6] (this may have been the company itself, although the delegate refers to the parent company). An officer from the disciplinary committee rebuffed him.
§ The applicant claims to have then received threats and violence, which he reported to the police. He received no feedback.
§ He later approached the Zhuzhou City disciplinary committee (i.e. city government) to report his concerns. An officer said he would start an enquiry; he continued to keep the applicant informed.
§ On 26 June 2016, the applicant returned to Zhuzhou City offices to follow up on his report, but a security guard refused him admission.
§ The applicant claims that the police took him to the Public Security Bureau, PSB. They accused him of interfering with public functions, and that his complaint was fuelled by jealousy and slanderous. They assaulted him with an electric baton.
§ Eventually, the applicant signed a written confession (relating to slander). The police continued to hit him, before eventually releasing him.
[6] The applicant’s translated statement refers to the ‘discipline inspection committee’, but the Tribunal uses the term ‘disciplinary committee’ for convenience.
At hearing, the applicant described his anger at missing out on the tender, since the commission would have been a huge win for him and his family. He said that his boss at [Company 1] took no further action, and (as noted above) the other unsuccessful bidder had no real interest in the tender.
In terms of his activities, the applicant said that the tender was conducted in March 2016, and he later learned (i.e. after returning to Chongqing) that [Company 3] was the successful bidder. In April 2016, he returned to Changsha to press his concerns about the tender process. He stayed there for about a week, during which the following occurred:
§ He approached the [Company 2]’s tender committee to express his concerns about the tender process. This resulted in some verbal threats.
§ He later reported the matter to the Hunan province tender bureau, in Changsha. After this, some people assaulted him, and he reported this to the police. (The applicant claims that the police detained him for two days.)
§ The applicant confirmed that, after these incidents in April 2016, he returned to his friend in Chongqing, and spent the following five or so months there, without incident.
The Tribunal explored with the applicant his motivation and aims in trying to expose the corruption of [Company 3] and the government officials linked to the tender. As noted above, he stressed his anger at having missed out on the sales commission. The Tribunal noted that he did not appear to have hard evidence to prove his allegations of corruption (at least none to hand); he did not have the support of [Company 1] (the supplier for whom he acted as sales representative); he was only [age] at the time; and he had no past or ongoing relationship with the state-owned [Company 2]. Similarly, there was nothing to suggest that he could reverse the tender outcome. In these circumstances, it was difficult to see what he had hoped to gain, or indeed why [Company 3] or any government officials would see him as a threat. In response, the applicant said that government officials would be scared that corruption allegations could result in trouble for them.
Country information about the government’s anti-corruption drive suggests that government officials would indeed have a strong interest in avoiding allegations, and the potential for unwelcome enquiries. Beyond this, however, the Tribunal found the applicant’s explanation of his motivation to expose the alleged corruption to be weak and poorly thought through.
The applicant’s account of his whistle blowing activities raises further concerns. First, as discussed at hearing, there is a stark difference in his accounts of the timing of these activities. In his written statement, he first approached [Company 2] in April 2016; then complained to the city authorities, with a final unsuccessful attempt to call on them on 26 June 2016. At hearing, the applicant claimed that he went to Changsha to challenge the tender process in April 2016, and he spent one week there trying to lodge a complaint. He did not pursue the issue after this. Second, the applicant wrote of his approach to [Company 2]’s disciplinary committee in the first instance, and later to Zhuzhou city authorities. At hearing, he claimed to have first approached [Company 2]’s tender committee, and later the Hunan province tender bureau. The Tribunal appreciates the risks of reading too much into these discrepancies. For instance, the structure and power relations within state-owned enterprises (that is, [Company 2] and its parent companies’ various committees and key players) may not be transparent. And the applicant’s description of the exact government agency he approached will depend on his recall, and how it is rendered through a translator or interpreter. Even so, the Tribunal expects that he would be aware of, and be able to consistently recall, whether the government officials he approached in Changsha were at the city or provincial level.
These discrepancies, when added to the Tribunal’s concerns about the applicant’s motivation in pursuing the corruption allegations, and his lack of supporting evidence, lead the Tribunal to doubt that he engaged in any such activity at all. (The Tribunal considers this further, and makes findings, below.)
Harm to the applicant as a result of whistle blowing
In his written statement, the applicant outlined a series of adverse experiences he had from April 2016, while lodging complaints about the process. These are, in summary:
§ When he first approached [Company 2]’s discipline inspection committee, he was rebuffed. Shortly afterwards, he received a threatening phone call. Later that night, several men dragged him to a quiet area, where they threatened and assaulted him.
§ He reported this incident to the police but received no feedback.
§ He then approached the Zhuzhou City authorities, who started an investigation. He went to their office to follow up [in] June 2016. Security guards did not allow him to enter. Instead, some police officers came and took him to the local PSB, where they detained him (according to the applicant’s evidence at interview, for one day). They accused him of making a slanderous report and interfering with public functions. They abused him and hit him with an electric baton. Before releasing him, they forced him to sign a confession stating that he had defamed the authorities.
At hearing, the applicant said that a few days after he made the complaint to [Company 2], some people warned him verbally not to pursue the matter. They told him he was young and should think carefully before proceeding. The applicant said that he ignored the warning and proceeded to lodge a complaint with the Hunan tender bureau.
He also said that, after approaching the Hunan authorities (during his week-long stay in Changsha), some people came and beat him up. He reported this to the police, but they did not assist him. This was, he said, his only interaction with the police. He later went on to say that the police detained him for two days. They referred to the tender, and made verbal threats, but did not physically harm him. After his release, he went back to Chongqing.
The applicant’s successive versions of his experiences in Changsha during this period contain inconsistencies, the most significant of which are:
§ His written statement claims that his first complaint, to [Company 2], resulted in a telephone warning and, later that night, the applicant’s abduction and assault by unknown men. He reported this incident to the police, to no avail. By way of contrast, at hearing, the applicant said that his approach to the company resulted only in a verbal warning a few days later, which he ignored.
§ The applicant wrote that after he complained to the government authorities, there was some follow-up. However, when he last tried to call on them, [in] June 2016, security guards turned him away. The police were then called, and took him to the PSB, where they accused him of defamation, assaulted him and forced him to sign a confession, before being released.
§ However, at hearing he claimed that it was after his approach to the government authorities that some unknown people assaulted him, and that when he reported this to the police, they detained him for two days but did not assault him.

The Tribunal notes that some of these apparent inconsistencies – such as whether unknown men beat up the applicant after his approach to [Company 2], or after he went to the government authorities – could conceivably be the product of genuine confusion, or at least reflect the applicant’s narrative style and/or how the person who wrote his statement of claims recorded it. However, it is not satisfied that such factors adequately explain all these inconsistencies. For instance, the applicant’s written claims clearly refer to physical abuse at the hands of the police, which he now claims was not the case at all.
In sum, the applicant’s account of a corrupt tender process for the supply of [items] to a state-owned company is consistent with country information about corruption in China. The Tribunal accepts that the applicant has drawn on his own experience in this business and accepts as plausible that his account of corruption is based on the kinds of practices that he has witnessed or heard of from friends in the sector.
However, given the extent of the Tribunal’s concerns, it does not accept that the applicant set about to expose corruption in a tender process in Changsha which had resulted in him missing out on a large sales commission. It does not accept that he initially approached the state-owned company (whether the purchasing entity, its disciplinary or tender committee, or its parent company), of any government authorities in Hunan (including the Zhuzhou city or Hunan province authorities, or any associated committees, etc.). It does not accept that, after lodging complaints; the applicant received anonymous threats or warnings, that unknown men abducted and assaulted him; or that there was any associated harm.
The Tribunal also does not accept that the police sought police protection, from any warnings or actual assaults; that the police detained him (for one or two days); that they issued threats or warnings (including in connection with his corruption allegations); that they assaulted him; or that they forced him to sign statements confessing to defamation and/or undertaking to stop petitioning.
Departure from China
The applicant lived in Chongqing from at least April 2016 until his departure from China in September 2016. He wrote that his experiences [in Hunan] made him ‘recognise the corruption and darkness in China’, implying that this influenced his decision to leave the country. He also told the Tribunal that he had been living in fear.
At the Department interview, the applicant stressed that the government (i.e. the Hunan province authorities) had persecuted him, and they may think he still intends to pursue the corruption allegations. At hearing, he said that he went back to Chongqing and resumed working there with his friend. He said that he did not experience any problems there, but added that he was living in fear, and constantly on the move within the city. Asked whether he had accommodation or other receipts to show that he was on the move, the applicant replied vaguely that his friends have these.
The Tribunal accepts that the applicant lived in Chongqing before coming to Australia. However, it does not accept his vague, unsubstantiated claims about living in fear there, and moving around. As a result of the above findings, it does not accept that he was living in fear from [Company 2], or any authorities in Hunan province (including city or provincial authorities); or any other individuals or State entities.
The Tribunal does not accept that the applicant left China for reasons arising from any whistle blower activities; associated threats or assaults; or related fears. It nonetheless accepts that his experiences as a sales representative, in an environment where corruption and nepotism are said to be rife, may have played some small part in his decision to go abroad.
Events following the applicant’s departure from China
At the Department interview, the applicant said that at Chinese New Year in 2017, someone hurled stones or rocks at the windows of his family’s home. He did not know the perpetrators or their motives, but he believed this was linked with his experiences in Hunan, as that is the only reasonable explanation.
The applicant referred to this at hearing and confirmed that he could not definitively link any such incident with his claims. He also said that during 2020, there had been some roadblocks in his local area, ostensibly linked with the COVID-19 pandemic. The applicant said he was worried these might have something to do with his protection claims.
The Tribunal, noting the passage of more than four years since the applicant’s departure from China, asked if he had taken any action in relation to [Company 2]’s corrupt conduct. He said that he posted anonymous material online. Intimating that he does have documents directly relating to the corruption, he went on to say that he does not have the courage to do anything with these. The applicant did not express an interest in providing any such materials, and the Tribunal did not press him to do so.
Given the Tribunal’s findings about the applicant’s experiences in China, its doubts about his credibility and the passage of time, it does not accept that the authorities in Jiangsu or Hunan, or any other persons, have intimidated his family or caused property damage; or that any COVID-19 measures such as local road blocks have any relevance to his protection claims; or that he has had to refrain from posting personal or official complaints online due to fears of the ramifications, or a lack of courage.
Comments on corruption in China
In his statement of claims, the applicant wrote that his experiences made him ‘recognise the corruption and darkness in China’, and that the police mistreatment of him had reinforced these feelings.
At hearing, the Tribunal noted that corruption is a widespread problem in China, and that the government had signalled its resolve to tackle it. It asked the applicant whether he has a political opinion related to this issue, including in support of the government’s policies, or critical of the authorities for not having done enough in the past. The applicant said that he knows that corruption is a problem, and that guanxi (connections, or nepotism) is important. However, as [an apprentice], he does not really know the situation in detail. In terms of any political opinion, he observed generally that people usually lack the courage to engage in these activities in China, and it seems futile to do so overseas.
Overall, the Tribunal formed the view that the applicant is aware of these general problems in China but has not really thought much about them. The upshot is that while the Tribunal accepts that he 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.
ASSESSMENT: REFUGEE CRITERION
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.
At hearing, the applicant said that he would likely return to Nantong. The Tribunal notes that this is more than 1,000 km from Zhuzhou/Changsha, where the applicant claims his adversaries live. The applicant said he would probably look for work as an ordinary factory worker; he said that you need ‘powerful people’ to work as a salesman. The Tribunal took this to mean that connections play an important part in Chinese business culture, and he would find it difficult to re-establish himself in that field.
For the above reasons, the Tribunal does not accept that the applicant uncovered corrupt practices during the course of a tender process; that he lodged complaints against the companies involved and/or officials linked with the tender processes; that he was subject to threats, assaults or other adverse attention; or that he lived in fear of retribution. Furthermore, the Tribunal does not accept that there are any government officials, business figures or others, in Hunan or elsewhere in China, who believe that the applicant had incriminating material against them, and who are therefore motivated to target him if he returns to China. The Tribunal finds that these claims are untruthful, and the applicant has no genuine fear of such harm.
It follows that the Tribunal finds there is no real chance of the applicant facing serious harm amounting to persecution arising from these claims, in Hunan (where the alleged corruption and adverse incidents took place), Jiangsu (the applicant’s home province) or anywhere in China. In these circumstances, it is unnecessary for the Tribunal to determine whether the feared harm from the Hunan (Zhuzhou city or provincial) authorities, or others, has as its essential and significant reason(s) one or more of the grounds set out in s.5J(1)(a), such as imputed political opinion; or other motivations, such as personal retribution.
The applicant recorded his disapproval of ‘the corruption and darkness in China’, and in this context, mentioned the importance of connections (guanxi) in doing business, implying that it works to his disadvantage. At hearing, he said that he had not given much thought to issues such as the government’s anti-corruption drive, and its effectiveness. This leads the Tribunal to infer that his concerns are general, rather than a political opinion that he is motivated to express and act upon. As such, the Tribunal finds that he will not be motivated to engage in any political activities that the Chinese authorities (including at the national level, or in Hunan province, or elsewhere) will perceive as opposed to their interests; and he will also not need to refrain from such actions in order to avoid persecution.
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 tender in early 2016 (including any whistle blower activities, or threats or assaults linked with these); or from any views he may have about China’s business culture and practices, including continued corruption. 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 any other s.5J(1) reason, now or in the reasonably foreseeable future.
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
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.
The Tribunal’s findings of fact above and its consideration of the applicant’s other circumstances (including his involvement in any tender processes that may have involved corruption, and his likely preference for Australia’s business culture and economic opportunities, compared with China) lead it to conclude that no one has an adverse interest in the applicant, or any intention of inflicting significant harm on him. His 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.
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
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member
ATTACHMENT – RELEVANT LAW
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 policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
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 4243

6 October 2020

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Appeal

Statutory Construction