1713688 (Refugee)

1713688 (Refugee) [2020] AATA 6123 (6 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713688
COUNTRY OF REFERENCE:                   China
MEMBER:Damian Creedon
DATE:6 April 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 April 2020 at 3:36pm
CATCHWORDS
REFUGEE – protection visa – China – land expropriation – protested inadequate compensation – victim of detention and beatings – motive for persecution no longer exists – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 6 April 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a [age] year old man from [Village 1], Shaanxi province, People’s Republic of China.
He is married and has two children. His wife and children reside in his home village in China.
The applicant arrived in Australia [in] February 2012 on a [temporary] visa, granted on 11 January 2021 and valid until 4 May 2012 and lodged an application for a Protection Visa on 6 April 2016.
Claims:
In his application for a protection visa[1] the applicant made the following written claims:
[1] See Departmental File, folios 18 – 42.
a.He left China to avoid further ‘harm’ from a ‘military [facility]’.
b.There is a ‘military [facility]’ near his ‘home land’. Before he left China the military [facility] claimed that they needed to expand their campus and expropriate his land. However he did not receive ‘reasonable compensation’ and he reported the military [facility] to the ‘authority’. The government did nothing to protect him and sent the army from the military [facility] to beat him up ‘a few times’ at his home.
c.He did seek help from the government, but it resulted in him being badly beaten. He was afraid that if he sought help for a second time he would be arrested and tortured by the authority.
d.The authorities in China are ‘inter-connected’ and ‘inter-protected’. The military army is able to locate his position no matter where he is located (or relocated) in China and he can’t escape their torture.
e.He was afraid that if he ‘tried to do anything again’ he would face ‘serious life threatening’ consequences.
f.The military, army and relevant Government officers have already paid ‘close attention’ to his whereabouts and once he ‘appears, they will continue to persecute him.
g.The ‘military [facility]’ used to send the army to arrest him; and if he returns to China the military [facility] would send the army to arrest him again.
h.The army will ‘falsely imprison and torture’ him.
i.His life will be ‘seriously threatened and harmed’.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
a.The applicant’s protection visa application forms dated 6 April 2016 (visa application);
b.The applicant’s identity documents being a certified copy of his passport;
c.The delegate’s protection visa decision record dated 8 June 2017 (delegate’s decision record); and
d.The review application form which included a copy of the delegate’s decision record.
The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s most recent ‘Country Information Report on the People’s Republic of China’, published on 3 October 2019 (DFAT Report).
Country of reference / receiving country:
The applicant claims to be a Chinese national. Based on the copy of his passport provided by the applicant prior to the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that China is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Hearing:
The applicant attended a hearing on 17 March 2020. He was not represented at the hearing. The hearing was assisted by an interpreter in the Mandarin and English languages.
The Tribunal asked the applicant about the completion of his Protection Visa application forms. The applicant stated that he had engaged a lawyer to advise on his application and, implicitly, that the application was made on his instruction. He said that the contents of the forms were true and correct and that he did not wish to add anything to them.
The applicant stated that he is married with two children and that his family live in his home village of [Village 1] in Shaanxi province, China.
The applicant gave evidence broadly conforming to his the written claims outlined in his visa application. In particular, the applicant stated that:
a.In 2009 his father died and he assumed the role as head of his household. The principal economic asset of the household was the lease of [number]mu[2] of farmland in his village. When pressed by the Tribunal the applicant clarified that all such land is owned in common by the state, but that individual households take exclusive possession of parcels of that land for agricultural purposes.
[2] Approximately [number] acres.
b.The applicant’s evidence is that prior to his father’s death, he and his father had borrowed approximately [amount] yuan which they had spent on making improvements to the land. The applicant stated that the improvements involved the installation of an irrigation system and the planting of [specified] trees.
c.The applicant stated that abutting the family’s land was a ‘military [facility]’. When pressed by the Tribunal, the applicant stated that it was a [specific kind of military facility]. The applicant stated that shortly after he had inherited the leasehold the military [facility] issued a notice to the village stating that it intended to compulsorily acquire certain of the village’s land in order to expand.
d.The applicant’s leasehold was part of that land, together with more than 10 other households.
e.The military [facility] commenced negotiations with the village to agree an amount of compensation for the acquisition, however the amount offered, and ultimately settled upon, did not, in the applicant’s view, adequately compensate him for the improvements that he and his father had made to the land. He stated to the effect that, as a result of this, he would be left with significant debts and no means to pay them.
f.The applicant stated that he appealed the amount offered by the military [facility] to a ‘higher level’. When pressed, the applicant stated that he appealed to the ‘Letters and Visits Bureau’ in the closest [city]; however his appeal was ‘ignored’ and he was told to take up his complaint with the military.
g.The applicant stated that he did so, by attending the premises of the military [facility] to make his complaint; however he stated that the guards at the [facility] detained and physically assaulted him. The applicant stated that he was beaten with ‘fists’ and that the beatings were so bad that he was bed-ridden for ‘two weeks to a month’ before he fully recovered.
h.The applicant stated that, although initially there had been a number of protesters from the village seeking better compensation, of which the applicant was one, by the time of his detention and beating the applicant was protesting on his own.
i.After his recovery the applicant continued his protests by taking his claim to the ‘military headquarters’ in Beijing. When pressed by the Tribunal, the applicant clarified that by ‘military headquarters’ he meant the superiors of the ‘military [facility]’. When asked by the Tribunal what response he received, the applicant stated:
They just ignored me.
j.When asked by the Tribunal how he made his complaint to the superiors, the applicant stated that there was no formal process, but that he stood at the entrance to the ‘military headquarters’ with a banner on which was printed the text ‘give me justice’.
k.When asked what the response of the authorities was when they observed him holding his banner, the applicant stated he was ‘ignored’ and eventually ‘driven away’ by the guards.
l.The applicant stated that he stayed in Beijing and returned back to the ‘military headquarters’ to protest ‘many times, every few days’ over the course of ‘three or four’ months.
m.The applicant stated that his protests came to an end when he voluntarily ceased them and returned to his village.
n.Upon his return to his village he stated that that was when the ‘persecution’ started. The applicant stated that he was detained in the military [facility] for ‘several months’. When further pressed, the applicant stated that the military [facility] had a detention area within the [facility] in which he was kept. He stated that the area was usually used for disciplinary purposes for [members] of the [facility].
o.When asked who it was that was detaining him, the applicant stated that it was the guards of the ‘military [facility]’ under the orders of the ‘[head]’ of the [facility]. When pressed by the Tribunal, the applicant stated that the ‘[head]’ was a ranking military officer and he identified that person by name.
p.When pressed by the Tribunal as to the nature of the persecution the applicant stated that he was detained to prevent him from returning to Beijing and that whilst he was detained he was beaten at will by the guards: ‘whenever they felt like it’. He stated that he was punched, kicked and that the guards used their fists to strike him.
q.When asked by the Tribunal about the motive for the detention and beatings, the applicant stated that he had later found out, after he moved to Australia, that his protests had ‘reflected negatively’ on the ‘[head]’, upon the ‘[head’s]’ promotion prospects and upon the [head’s] plan to raise the status of the [facility].
r.When the Tribunal asked whether the [head’s] actions towards the applicant were reflective of the [head] trying to ‘solve a problem’ and prevent him from protesting, the applicant agreed, describing himself as having been ‘a pain in the arse’ to the ‘[head]’.
s.The applicant stated that eventually, in around August 2010, he was released from detention. When pressed by the Tribunal as to why he was released, the applicant stated to the effect that ‘they could not detain him forever’. When pressed as to why he could not be detained forever, the applicant stated that his family would ‘put pressure’ on the [facility] to release him. He stated that his family ‘was at the front gate of the [facility] every day’.
t.The applicant stated that after his release he went to ‘other cities’ to earn money and that he eventually returned to Beijing to renew his appeal because he had ‘a lot of financial pressure’ on him.
u.The applicant clarified that he was appealing for compensation for the land resumption, not for his detention and mistreatment. The applicant stated that he did not complain about his mistreatment because ‘in China these types of [complaints] will not go anywhere’. The applicant stated that his renewed appeals for compensation also failed.
v.After his this failure, the applicant stated that the ‘’military [facility]’ was ‘still looking for him’. He stated that he had tried to work in various cities in China, but that the [facility] guards would inevitably find him, place him in detention in the [facility], beat him at will ‘for a couple of weeks’, and then forcibly return him to his village. He stated his belief that the [facility] wished to ensure that he remained in close proximity so as to be assured that he was not causing trouble for them. When pressed by the Tribunal on this issue, the applicant stated that during the period in which the [facility] was seeking to expand and upgrade their status, and the ‘[head]’ was seeking promotion, ‘they had to keep things quiet’. As a result of this, he stated, he could not earn a living or repay his debts. Eventually it was suggested to him by a friend that he should ‘go overseas’. He stated that, in deciding to do so, his motive was to leave China, not to travel to Australia in particular.
w.When asked by the Tribunal whether the [facility] had succeeded in their upgrade project, the applicant stated that they had; he stated that whereas they had been called [Name 1] they are now called [Name 2]. When pressed, the applicant stated that they had achieved that upgrade ‘two or three years ago’.
x.The Tribunal asked the applicant whether, with the successful upgrade of the [facility], it would now be safe for him to return to China. He stated that now the ‘[head]’ had retired and that if he (the applicant) could ‘stay for another couple of years’ it would be safe for him to return to China. When pressed by the Tribunal as to the ‘[head’s]’ retirement, the applicant stated that the ‘[head]’ had ‘stepped down and his influence has reduced’.    When further pressed, the applicant stated that the ‘[head]’ has ‘stepped back, not fully retired’ but that he would be ‘fully retired’ in ‘another couple of years’.
y.The Tribunal asked the applicant why, with the successful upgrade of the [facility] and the ‘[head’s]’ reduced influence, they would still wish to ‘keep him quiet’. The applicant stated his belief that there may be ‘revenge there’ and that without his (the applicant’s) protests the ‘[head]’ may have been promoted to an even higher rank ‘meaning more money’. The applicant gave no evidence to substantiate these claims.
z.The Tribunal asked the applicant whether he had had any difficulties in applying for his passport which was issued after the events he experienced, in September 2010. The applicant stated that he did not. He clarified that the issuing authorities and the military were two different systems. He stated that, although the military had a connection with the village security service, he had obtained his passport ‘in the city’ where there was no such connection. The applicant further clarified that the army could not veto the issuing of his passport.
aa.The applicant stated that his object in leaving China was to ‘escape’ from the ‘[head]’.   When asked by the Tribunal whether he could simply have stayed in his village, the applicant stated that he could have ‘stayed home’ but that he was not allowed to go out. He clarified that staying at home was not a viable option for him as he had such bad debts that he had to earn a living. The Tribunal asked the applicant whether it was the object of the [facility] authorities that he sit at home and not earn money. The applicant stated:
I think what they want is that I stay home [and] do nothing for a period of time and then when they sort out what they need to do probably I could have freedom to do things.
bb.The Tribunal asked the applicant whether the [facility] and [head] had now ‘sorted out’ what they needed to do’, given the successful upgrade to the [facility]’s status. The applicant stated that he is ‘just afraid’ and that there are ‘a lot of difficulties at home’. When pressed as to ‘the difficulties’ he stated that he and his family are ‘very poor’ and that they have ‘financial difficulties’. He stated that, if he was to return now, it would be ‘even more difficult’ and that even if he returned ‘in a couple of years’ he would have to go to a different province to earn a living. The Tribunal asked whether that was an option for the applicant now. He stated:
But I am still afraid [that] if I go back now it will still be difficult for me, so give me a couple of years and I may be able to go back, by then [the head] will be fully retired and it will be easier to earn a living there.
cc.The Tribunal asked that applicant whether it was partly economic considerations that were keeping him in Australia now, and he confirmed that it was. When pressed as to his current employment status, the applicant stated that he did not work regularly. When asked whether he sent money home to China the applicant confirmed that he did.
dd.The Tribunal put to the applicant the prospect of his moving to one of the big cities I China like Beijing of Shanghai. The applicant stated that ‘after a couple of years’ he would return to China and would choose to stay in ‘the country’ as a farmer.   He stated that he wants to move to ‘a more remote place’ where he would feel safer.
ee.The applicant stated that if he had to return to China now, even to a large city such as Beijing, he could not be sure that the ‘[head]’ would not still be targeting him and that he is still in ‘huge debt’.
ff.The Tribunal asked the applicant whether he would still be targeted given that the events he described were over a decade ago, to which we responded that he was ‘not sure’. He stated:
If [the head] is fully retired then I [would] feel better.
gg.The Tribunal asked the applicant whether his wife had been visited by the military [facility] guards and he stated that she had but that those visits had ceased when it was discovered he was no longer there, the last time being some two years after he had left.
hh.The Tribunal asked the applicant whether his decision to leave China was motivated by fear for his safety, or for economic reasons or both. He stated ‘both’.
Assessment of Claims and evidence, and findings:

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
Country information
In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully. The Tribunal considers the applicant has provided a consistent and plausible account of the claimed land confiscation which occurred in 2009. Furthermore, his claims are consistent with country information which indicates that protests and petitions related to land seizures by officials and the conduct of developers were and remain common in China.[3] The Tribunal accepts the applicant’s land was confiscated together with that of other villagers in 2009.
[3] DFAT Report, paras [3.134] – [3.137]
DFAT reports that the treatment of individuals who protest and/or petition over land disputes varies depending on the attitude of local authorities. However, there are reported incidents of authorities violently suppressing protest action.[4] More specifically in this regard the Tribunal notes the following information from Freedom House:[5]
Lacking judicial checks on state power and alternative channels of political participation, many citizens resort to directly petitioning higher-level party and government authorities via “letters and visits” (xinfang) institutions in an attempt to redress their grievances. Deeply rooted in earlier imperial practices, such institutions are the result of centralized political power in the hands of a few and a paternalistic state narrative that depicts central government authorities as “father-mother” officials responsible for the welfare of their citizen-wards, which lead citizens to seek the personal intervention of top party officials (or the emperor) in resolving their individual and collective grievances. This is rarely successful. One survey found that only 0.2 percent of petitioners succeeded in having their complaints addressed. Moreover, since local officials receive career and salary sanctions for petitioners who leave their jurisdictions and complain to higher authorities, they have significant incentives to suppress citizen petitioning. This has led to systematic abuses. Local Chinese authorities resort to an extensive network of illegal “black” jails, forcible psychiatric detentions, and hired thugs (or “retrievers”) to prevent petitioners from reaching higher authorities. Such practices have become increasingly common in recent years as central government authorities have strengthened pressure on local officials to maintain social stability and prevent instances of citizen petitioning.
(Tribunal’s emphasis.)
[4] Ibid.
[5] Minzer, C; “Countries at the Crossroads 2011 – China”, 10 November 2011, Freedom House (footnotes omitted). (Accessed on 25 March 2020 at: >
Accordingly, the Tribunal is also prepared to accept that the applicant was detained and beaten by the military [facility] guards in the manner he describes on the orders of the [facility’s head], and that the detention and beatings were inflicted for the purposes of minimising or preventing the risk of:
a.career and/or salary sanction for the ‘[head]’ of the military [facility]; and/or
b.negatively affecting the ‘[head’s]’ plan to upgrade the military [facility]’s status.
According to the applicant, neither he, nor any of his family members, has engaged in any protest action over the land confiscation since his efforts were made in 2009 and 2010.
Further, his express evidence is that the mistreatment he received was temporal – that is, until the [facility] and the ‘[head]’ ‘sort out what they need to do’. The applicant’s evidence is that the military [facility] received the planned upgrade to its status ‘two or three years ago’ and that the ‘[head]’ has now retired to a position of diminished influence.
That being the case, the essential conditions for the existence of a motive in the [facility] or the ‘[head]’ to maintain persecution of the applicant (that is, to maintain the cycle of regularity under which the past events occurred[6]) no longer exist. This finding is supported by the applicant’s express evidence that, upon the [facility] and the ‘[head]’ achieving their goals, he (the applicant) would ‘have freedom to do things’ again.
[6] MIEA v Guo (1997) 191 CLR 559 at 574-5
When pressed by the Tribunal as to the foundations for his fear of persecution if he is returned to China the applicant could provide no further or other basis for his fear that did not amount to vague, subjective feelings of apprehension. Although he claimed that their ‘may be revenge there’ on the part of the ‘[head]’ he provided no evidence to support this claim and it appeared to the Tribunal to be mere conjecture on his part.
It follows that the Tribunal finds that the applicant’s fear of persecution if he is returned to China as a result of the continued influence of the ‘[head]’ and the ‘military [facility]’ to be mere speculation not amounting to a well-founded fear.[7]
Claims
[7] Ibid at 572.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to China. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.
The Tribunal is satisfied there is no real risk that the applicant 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 inflected on the applicant, 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. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to China. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that he will suffer significant harm.
Overall 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.
Damian Creedon
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 6123

6 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies