1708595 (Refugee)

1708595 (Refugee) [2023] AATA 1144 (9 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708595
COUNTRY OF REFERENCE:                   China
MEMBER:Gabrielle Cullen
DATE:9 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 February 2023 at 8:23am
CATCHWORDS
REFUGEE – protection visa – China – harassment for creditors – prevent harm from authorities – dispute with neighbour – contravening family planning policy – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of China, claimed to fear harm in his application for the visa from the Government of China as he breached the family planning policy and from creditors on account of his debts as well as due to a dispute with his neighbour.
The applicant arrived in Australia on a Subclass 573 student visa [in] March 2015 and applied for a protection visa, to which this decision relates, on 19 June 2015.
On 29 March 2017 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
The delegate refused to grant the visa on 31 March 2017. The delegate referred to a number of credibility concerns with the applicant’s claims and found that even if the applicant’s fear of harm is genuine, it is located to his home village.
The applicant applied for review of the Department decision and attached the decision of the Department.
The applicant appeared before the Tribunal on 14 December 2021 to give evidence and present arguments and, where relevant, the evidence from that hearing appears in this decision. The applicant was assisted by an interpreter in the Mandarin and English languages.
The hearing was postponed and a new hearing in person was held on 21 November 2022 together with his [spouse] (221456) at their request and with both of their consent. At hearing, the Tribunal confirmed they both wished their matters to be heard in the same hearing. The applicant and [his spouse] were assisted by an interpreter in the Mandarin and English languages.
While the applicant and [his spouse] were initially questioned separately as to their claims, concerns in their evidence were raised both individually and together. Both agreed to the concerns being raised together.
The applicant’s spouse[did] not make any claims in her own right at the Tribunal hearing and claimed she was applying as a member of the family unit of the applicant. She indicated and confirmed she did not fear return to China.
The issues to be considered in this case are as follows:
·     Is the applicant credible as to his claims?
·     Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act?
·     Does he meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision (see Attachment A).
CONSIDERATION OF Claims and evidence
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·     The applicant’s protection visa application dated 19 June 2015, identity documents and his claims for protection outlined within the application.
·     Oral evidence provided at the Department interview on 29 March 2017 and Tribunal hearings held on 14 December 2021 and 21 November 2022, as well as evidence provide by his [spouse].
·     Drawing of the positions of the neighbour’s house and the applicant’s house provided at hearing.
·     Department of Foreign Affairs and Trade (DFAT), Country Information Report, China, 22 December 2021.
·     Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
The applicant claims in his protection visa application dated 19 June 2015 that he left China to prevent himself from being harmed by the Chinese authorities and its officials. He claims to fear harm because he contravened China’s family planning law and at the hands of his influential neighbour. He claims he had a residential property in his village and had to rebuild it according to the Government’s redevelopment plan. He claims the units were demolished to meet the redevelopment planning. He said the influential neighbour refused to have his property redeveloped. When building the houses, he claims they borrowed money and planned to sell some of the units to repay the debts. However, the units became worthless, and he could not afford to pay back the loan. In addition, they had a second child in the end of 2014 and the authorities penalised them for contravening the family planning policy by way of a heavy fine and threatened him with ligation. He therefore went into hiding.
He claims he experienced physical harm in China and was physically attacked by his neighbours and their associates. He claims the creditors constantly harassed his family. He claims the authorities have been after him for penalisation. He claims that when he returns to China, he will be harmed and mistreated unless he can afford to pay back his debts and consent to ligation. He claims the authorities cannot protect him because he has contravened the family planning policy and he displeased his influential neighbour.
At the Department interview held on 29 March 2017 the applicant provided the following evidence:
·     He was involved in a dispute with his neighbour in 2010. The neighbour assaulted him with a knife and caused a 5 cm cut on his scalp.
·     The applicant fought with the neighbour and caused a cut in his neighbour’s leg. The applicant was detained for 18 days and was released on bail after paying RMB 5,000 bail. His detention was during August 2010.
·     His neighbour was detained for 9 days but due to connections was released.
·     He was required to submit his documents to a higher authority, the Procuratorate, a higher authority in China in 2011 in relation to this knife attack. He was advised that he needed to attend Court but was too frightened to attend. Instead, he travelled to Liaoning Province, Fuxin City.
·     He resided in Liaoning Province from 2013–2015 until he departed China from Shanghai. He made multiple trips back to his hometown where he stayed in secrecy and only for short periods of time.
·     The applicant was asked if he faced difficulties outside of his home region. He explained that he had not. He explained that “as long as I do not cause any trouble, there will be no trouble”. It was put to the applicant that it appeared that his fear of harm applied only to his home region and not to other areas of China. He replied “yes, you may say that”.
·     The applicant was asked what he feared would happen to him if he returned to China now. He replied, “I am scared I might have to go to jail”.
·     The applicant was asked if he faced any difficulties when leaving China through the airport at Shanghai. He replied, “I experienced no trouble, I showed my passport, they had a look, then I went to the airport”.
·     The applicant was asked if he feared harm for any other reason. He explained that the Public Security Bureau would look for him if he ever returned to China. The applicant was asked if he feared harm for any other reason. He explained that he would of course have a dispute over property with the neighbour if he returned.
·     The applicant was asked if he feared harm for any other reason. He confirmed that he did not.
The Department raised a number of concerns with the applicant as to the credibility of his claims as well as that it appeared the harm he feared on return was local to his area.
At the Tribunal hearings held on 14 December 2021 and 21 November 2022 the applicant reiterated his claim to fear harm from his neighbour on return to China.
The applicant indicated that he lived in [Village 1], Gaocheng District, Shijiazhuang City, Hebei Province, and worked in [Village 1] on construction sites up until he departed for Australia in March 2015. He said he had lived in that village since he was born and had always worked in construction in [Village 1]. He said he travelled from his home in [Village 1] to Shanghai to depart for Australia. He said he had always lived in the same home in [Village 1], and his parents and two children continue to live there.
As to why he fears return to China; he referred to a quarrel with his neighbour. He drew a picture of his house and his neighbour’s house and said the dispute arose due to the narrowing of the road from 4 metres to 1.5 metres wide between their houses. He confirmed because there was only a 1.5 metre road between their houses, this caused the dispute. He said his neighbour would not demolish his home. He said as a result of the dispute, his neighbour hit him on the head with a knife and he pointed to a scar on his head under his hair.
When asked about the fight; he said they quarrelled and he was hit with a knife on his head by his neighbour and he said in retaliation he used the knife against his neighbour. He said as a result he had to spend 18 days in custody. He said his neighbour spent no time in custody as he has better connections with the authorities than him and more money to bribe the officials.
The Tribunal asked for more details as to when and what happened.
He said in 2009 he spent 18 days in custody, and because his mother was so worried, she found someone with connections from her side of the family who obtained his release.
When asked whether any further issues occurred with the law including whether he was charged after he was released; he said he did not think he was charged, he was just put in custody and then the two families negotiated.
The Tribunal questioned what he fears will happen to him on return. He said because they have the dispute and the quarrel has continued, he is worried that if there is another fight and it is severe, like the one in 2009, he will again be placed in jail.
The Tribunal raised with him that he claims the dispute occurred in 2009 but he did not depart China until 2015 and continued to live at his home in [Village 1]. It raised with him that his behaviour in living at home from 2009 to 2015 next to his neighbour raises questions regarding the credibility of his claims and whether he fears return on this basis at the hands of his neighbour. He referred to him living on construction sites and that because the quarrel happened in the past and based on his imagination, he is concerned that it is a possibility that a similar fight could happen in the future.
The Tribunal also referred to him leaving his wife and two young children living in the family home and questioned whether he would do this if there was an ongoing dispute with his neighbour. The Tribunal asked why he did not move and continued to live next door to the source of the problem; he said because that is the place where he was born, he had no money and did not want to abandon his home to go and live somewhere else. The Tribunal asked whether he could sell the home and he said that is difficult.
The Tribunal asked whether there were any other reasons why he fears return to China and he answered in the negative.
The Tribunal asked whether he had to pay any money to be released from jail and he then said he had to pay RMB 5,000.
The Tribunal asked him whether he had a criminal record and he said he did not as he paid 20,000 RMB to the Procuratorate. He said roughly one year after he was released he was asked by the Procuratorate to go there and the case was settled for 20,000 RMB. He confirmed that as a result of the payment the matter was finalised and he did not have to go to Court. He then said on the last day he was released from jail he was issued with an arrest warrant because of pressure from his neighbour but that it was later settled by paying the above sum to the Procuratorate.
The Tribunal asked whether anything happened to his wife in China or she faced any difficulties and he referred to their economic difficulties as they are farmers and then he referred to an industrial accident years ago where his wife lost two fingers. The Tribunal asked whether his wife ever faced any difficulties from the neighbours or whether she quarrelled with them or was threatened and he said as she is a woman she did not.
The Tribunal asked whether he left China in fear in March 2015 and he said he had a little bit of fear because he kept imagining that the quarrel would resurface with his neighbour and there would be a fight with a severe outcome.
The Tribunal noted that in his application for the visa he had referred to a fear of return on the basis of the family planning policy and it raised independent country information as to the change in the family planning policy in 2021 and questioned whether he would face a real chance of serious harm or real risk of significant harm on this basis. He said in the past when his second child was born this was not allowed so his daughter was not registered but later a party member allowed her to be registered for 1,000 RMB. The Tribunal asked whether he now fears return on this basis, and he said his wife is pregnant and while this is now allowed and he doesn’t fear return on the basis due to the change in the family planning policy he is concerned as to how he is going to be able to support his wife and three children and parents. The Tribunal questioned whether a fear of return for economic reasons meets the refugee protection provisions and complementary protection provisions.
The Tribunal asked the applicant’s wife why her husband, the applicant, departed China for Australia in March 2015 and she said she was aware but could not remember. When asked if she was aware on what basis her husband applied for protection, she said she was not sure. When asked if she faced any difficulties in her neighbourhood after her husband departed; she said she stayed at home and rarely had contact with the outside world. When asked if she was aware of any disputes with her neighbour; she said she could not clearly remember as it was a long time ago. When asked specifically if her husband faced any difficulties at the hands of the neighbour, she answered in the affirmative but could not provide any further evidence. When asked whether she could provide the Tribunal with any evidence as to the difficulties he faced, she could not.
When asked whether she departed China in fear, she said she left as she missed her husband and did not fear return to China.
Together with her husband, via s 424AA, the Tribunal raised concerns regarding the truth of the claims of her husband, her vague evidence lacking in detail as to the difficulties her husband claimed he faced in relation to the dispute with the neighbour and in particular his detention. The applicant said that as his wife was breastfeeding at the time she was not aware, and the applicant confirmed this.
The Tribunal raised with him concerns as to the credibility of his evidence, including inconsistencies in his evidence, including some via s 424AA, which where relevant are outlined below.
When asked whether he had anything to add, he referred to the better life he can lead in Australia and the economic pressure of living in China.
Assessment of claims
Is the applicant credible as to his claims?
On the basis of the applicant’s identity documents, including his passport and evidence provided at hearing, the Tribunal accepts that the applicant is a national of China. Therefore, for the purposes of s 36(2)(a) of the Act, the Tribunal accepts that China is the country of nationality, and for the purposes of s 36(2)(aa) of the Act, the Tribunal accepts that China is the receiving country.
As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding aspects of the applicant’s claims and evidence, particularly those he claims led him to leave China, which the Tribunal does not accept as true, and why he fears return, there are other aspects of his claimed basic circumstances which have remained consistent over time and which the Tribunal is satisfied are true. Specifically, the Tribunal accepts because of his consistent evidence that the applicant has two children in China and a third child recently born in Australia and for economic reasons wishes to remain in Australia to provide for his family.
As to the applicant fearing return for the reasons he claims, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness regarding his claims as to having a fight with his neighbour and fearing return due to this fight and bad relations, or that he fled China in fear of retribution for breaching China’s family planning policy or as a result of owing money and being unable to pay it. It finds the applicant’s testimony inconsistent and a fabrication, for the reasons set out below. This leads the Tribunal to find that the applicant is not a witness of truth.
Firstly, he has provided the following inconsistent evidence between the Tribunal and the Department as to his claims:
· To the Tribunal at hearing when asked as to why he fears harm on return, from whom, and the difficulties he faced, he referred to the dispute with his neighbour and said he did not fear return for any other reason.
However, as raised with him, in his application for the visa:
ohe referred to fleeing China to prevent harm from the Chinese authorities and officials but at the Tribunal hearing only referred to fearing harm on return from his neighbour.
ohe referred to fearing harm from creditors who constantly harassed his family as he borrowed money to build some units but the units became worthless and he was constantly harassed by the creditors but did not refer to this at the Tribunal hearing.
ohe referred to the authorities penalising them for contravening the family planning policy by way of a heavy fine and forced him into ligation but did not refer to this at the Tribunal hearing, other than indicating that a fine of 1,000 RMB had to be paid to register their second child.
In response when the above concerns were raised with him, he said his application was written by a lawyer not him. However, as raised with him in his application for the visa, there is no evidence of a lawyer assisting him and the form indicates he signed the application himself. The Tribunal therefore does not accept his explanation for these inconsistencies. They add to the finding he is not a credible witness.
· When describing the difficulties he faced with his neighbour following the quarrel and fight, at the Department interview he noted the following:
oAfter the fight his neighbour was also arrested and held in detention for 9 days but his neighbour knew someone in the police and was released.
oAfter he, the applicant, was released from 18 days detention in 2010, his documents were submitted to the Procuratorate. When he went there, he was advised the matter was under investigation and he would need to attend Court.
oHe did not go to Court or go a second time to the Procuratorate, instead, he travelled to Liaoning Province, Fuxin City.
oHe resided in Liaoning from 2013–2015 until he departed China from Shanghai for Australia.
oHe was told by his family the authorities were looking for him and his family told them they did not know about him.
oHe made approximately two trips back to his hometown where he stayed in secrecy and only for short periods of time. He was very scared and the rest of the time he lived in Liaoning Province until he departed China for Australia via Shanghai.
oWhen asked what he feared would happen to him if he returned to China now, he replied “I am scared I might have to go to jail”.
oWhen travelling to Australia in 2015 he did not travel from his hometown but from Liaoning Province.
In contrast at the Tribunal hearing, he gave the following evidence:
oHe said he lived and worked at his home in [Village 1], Hebei Province, until he departed for Australia in 2015 and had always lived and worked around there, albeit sometimes living on or near his construction worksite. As raised with him via s 424AA, his wife also indicated he lived and worked in [Village 1], Hebei Province, up until the time he departed for Australia in March 2015.
oHe travelled from his home in [Village 1] via Shanghai to Australia in March 2015.
oHis neighbour was not detained after the fight due to his connections and bribery of the authorities.
oThe matter was resolved when he paid 20,000 RMB to the Procuratorate and there is no unresolved Court matter. He said he did not have a criminal record.
oHe fears harm on return from his neighbour and does not refer to fearing harm from the authorities.
When the abovementioned inconsistencies were raised, he said that it was a long time ago and he referred to the similarity in his evidence that there was a fight with his neighbour and he was detained for 18 days. He then said the inconsistencies arose because of poor interpretation at the Department interview. The Tribunal raised with the applicant via s 424AA that there is no evidence concerning a complaint about not understanding the interpreter at the interview and that its own observations, having listened to a recording of the interview, is that it did not appear the applicant did not understand the interpreter or that there were issues with the level of interpretation or the applicant’s ability to give evidence effectively. The Tribunal therefore does not accept that the reason for the applicant’s inconsistencies on which its findings are based were because of interpretation problems at the Department interview. It also does not accept that being a long time ago would affect the consistency of the abovementioned issues. It has below dealt with his claim that some information was inconsistent but has rejected that this undermines the Tribunal’s finding he is not credible as to his claims.
These inconsistencies add to the finding the applicant is not a credible witness.

Further, the Tribunal views it as of concern, as raised with the applicant via s 424AA, that despite claiming he was hit with a knife by his neighbour and due to their fight he spent 18 days in custody and departed due to the difficulties with his neighbour, and his wife was unable to provide any detailed evidence as to his claims. In particular, the Tribunal asked the applicant’s wife why her husband, the applicant, departed China for Australia in March 2015 and she said she was aware but could not remember. When asked on what basis her husband applied for protection, she said she was not sure. When asked if she was aware of any disputes with her neighbour, she said she could not clearly remember as it was a long time ago. When asked specifically if her husband faced any difficulties at the hands of the neighbour, she answered in the affirmative. When asked whether she could provide the Tribunal with any evidence as to the difficulties he faced, she could not. In response when the concern was raised the applicant, he responded that his wife was breastfeeding at the time, she was not aware, and the applicant’s wife confirmed this. The Tribunal does not accept this response and is of the view if the applicant faced the difficulties he claimed, being hit with a knife, spending 18 days in custody, departing and fearing return due to an ongoing issue or quarrel with his neighbour over the road or for any reason, she would be able to provide more detailed evidence than she could, even if breastfeeding or it happened a long time ago. The applicant’s wife’s vague evidence lacking in detail about the difficulties the applicant faced undermines the truthfulness of his claims. It adds to the finding he is not a credible witness.
The Tribunal also views his behaviour in continuing to live in his home up until his departure in March 2015, as he stated at the Tribunal hearing, as undermining his claims that he faced any difficulties from his neighbour or the authorities or the creditors, departed in fear, or fears return on this basis. He responded when the concern was raised with him that he spent most of his time working on construction sites, albeit in the [region], and would sleep there. The Tribunal is of the view that if he fears return for the reasons he claims, he would not have continued to live at his home or work in his home region, or even spend time living on construction sites in his home area. While not solely determinative, it undermines his claims. It adds to the finding he is not a credible witness.
Credibility summary
For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns, the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, and the manner in which responses can differ depending on the nature of and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making these findings, the Tribunal accepts that some information has been consistent over time, including that he had a dispute with his neighbour and this resulted in a fight where he was hit with a knife and he retaliated and hit his neighbour, and as a result he spent 18 days in custody and was released on paying 5,000 RMB. However, the Tribunal considers that these are relatively easy matters to recall and that his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
In making this finding, the Tribunal has considered the scar he referred to on his head as evidence of the fight with his neighbour and being hit on the head with a knife. The Tribunal is of the view there are numerous other reasons why a person could receive such marks and the evidence of such marks does not necessarily indicate that they were received in the circumstances he claims. The Tribunal therefore does not accept that the scar was received for the reasons the applicant claims.
In making this finding the Tribunal has considered the applicant’s drawing of the position of the applicant’s house versus his neighbour’s house. However, based on the Tribunal finding that the applicant lacks credibility, the Tribunal does not accept this drawing overcomes or explains the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness.
As the Tribunal has found, on the basis of the cumulative evidence before it, that the applicant is not a witness of truth, it follows it does not accept that the applicant faced any of the difficulties he claims from his neighbour or his neighbour’s associates, creditors, the Chinese authorities or anyone else.
It follows it does not accept he had a quarrel with his neighbour as the road between them was only 1.5 metres wide, as he would not demolish his home or as the neighbour would not have his home redeveloped, or for any reason claimed. It follows it does not accept there was ever a quarrel or fight that led to the applicant being hit or cut with a knife or that the applicant hit the applicant with a knife and/or cut his leg with the knife and he spent any time in jail, had to pay money for his release, had to pay money to the Procuratorate, fled to Liaoning Province to avoid a Court hearing date, was charged, lived in hiding and only went home on brief occasions. It follows it does not accept he fears return because of any dispute with his neighbour or his neighbour’s associates who are influential and connected, or that this might happen again and he would again retaliate and end up in jail. It follows it does not accept that he avoided a hearing and did not appear at Court and there is an outstanding charge or warrant for his arrest, or he is wanted in any criminal matter by the authorities because of a dispute with his neighbour.
Based on the applicant’s lack of credibility, it also does not accept that he left China to prevent himself from being harmed by the Chinese authorities and its officials because he contravened China’s family planning law by having a second child in 2014, or that the authorities penalised him for contravening the family planning laws by way of a heavy fine and the authorities wanted him to undergo ligation. It does not accept he fled in fear for these reasons when he departed China in March 2015.
Further, based on the applicant’s lack of credibility, it does not accept he had a residential property in his village and had to rebuild it according to the Government’s redevelopment plan, and units were demolished to meet the redevelopment planning, they borrowed money and planned to sell some of the units to repay the debts but the units became worthless, and they could not afford to pay back the loan, and he and his family were constantly harassed by creditors. It follows it does not accept that when he returns to China, he will be harmed and mistreated unless he can back his debts.
The Tribunal rejects the applicant’s claims of fear of harm in their entirety and does not accept at the time he departed China in March 2015 that he and his family were of interest to the authorities, police, creditors, their neighbour or his associates, or anyone else. It follows it does not accept he fears return for the difficulties he claims he faced.
Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act and meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the credibility findings above, and as it does not accept the applicant or his family faced the harm or threats of harm he claims or are of any interest to the Chinese Government and its officials or creditors or his neighbour and his associates for the reason he claims, it follows the Tribunal does not accept that were the applicant to return to China now or in the reasonably foreseeable future, he or his family would face any of the difficulties he claims for the reasons he claims due to any of the difficulties he faced in China prior to his departure. It follows it does not accept that were he to return he will be arrested, imprisoned, beaten, threatened, harassed, detained, be forced to undergo ligation, be fined or have to report to local authorities, or that a fight would again break out with his neighbour which would lead him to again be placed in prison.
It follows the Tribunal does not accept that the applicant or his family face a real chance of persecution involving serious harm were he to return to China in the reasonably foreseeable future at the hands of the Chinese Government and its authorities, the police, local officials, his neighbour and his neighbour’s associates and creditors due to unpaid debts, as he fled without appearing in Court and there is a warrant for his arrest, or due to any dispute with his neighbour for any of the reasons he claims.
Similarly, based on my findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that he or his family will suffer significant harm on his return to China at the hands of the Chinese Government and its authorities, the police, local officials, his neighbour and his neighbour’s associates and creditors due to unpaid debts, as he fled without appearing in Court and there is a warrant for his arrest, or due to any dispute with his neighbour for any of the reasons he claims.
While the Tribunal has rejected he fled China in fear for breaching China’s family planning policy, that he was sought by the authorities on this basis for penalisation and for ligation, it, however, accepts that he had his second child in contravention of this policy and paid a fee. The Tribunal notes he has now had a third child. On the basis of country information that indicates that the family planning policies in China have been relaxed since 2021 to the extent that it is now permissible for couples to have three children[1] and his own evidence that he does not fear return on this basis, the Tribunal does not accept that the applicant or his family face a real chance of persecution involving serious harm were he to return to China as he has breached the family planning policy.
[1] 3.119 DFAT DFAT Country Information Report China 22 December 2021
Similarly, based on my findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that he or his family will suffer significant harm on his return to China at the hands of the authorities as he has breached the family planning policy.
The Tribunal has accepted above that the applicant does not want to return to China for economic reasons. In particular, he claims he can economically provide for his family while in Australia as it will be difficult in China. The evidence indicates he has not claimed he fears the economic difficulties for one of the reasons set out in s 5J(1)(a) if he returned to China in the reasonably foreseeable future. Therefore, on the evidence before it, the Tribunal is not satisfied that difficult economic circumstances, including being unable to provide for his family, are for reasons of race, nationality, membership of a particular social group or political opinion.
‘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. The Tribunal considers that the problems he claims to face upon return because of economic difficulties do not constitute significant harm under s 36(2B)(c) of the Act as the real risk is one faced by the population of China generally and is not faced by the applicant personally.
The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined in s 36(2A).
Conclusions regarding the refugee protection
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in China in the reasonably foreseeable future. As the Tribunal has rejected the applicant’s claims in their entirety, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.
For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
The Tribunal has also considered whether the applicant is eligible for complementary protection. The Tribunal has above rejected the credibility of the applicant’s claims in their entirety. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined in s 36(2A).
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).
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) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Member

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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…

[2023] AATA 1144

9 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Standing