1715219 (Refugee)

1715219 (Refugee) [2023] AATA 3195 (7 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  1715219
COUNTRY OF REFERENCE:                   China
MEMBER:Lilly Mojsin
DATE:7 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 July 2023 at 1:03pm
CATCHWORDS
REFUGEE – Protection visa – China – leader of the unofficial employees’ union – employment disputes – adverse political opinion – conflicting evidence – claims do not have a credible basis – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 13 December 2016. The delegate refused to grant the visa on the basis that the applicant would not suffer serious or significant harm on return to China.
The applicant appealed that decision to this Tribunal annexing a copy of the Department decision to her application for review.
The applicant appeared before the Tribunal on 15 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal hearing was held by Teams video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant and the interpreter confirmed that they could hear and see the Tribunal Member. The Tribunal was able to interact with the applicant and the interpreter and was able to maintain line of sight and appropriate communication throughout the proceedings.
The Tribunal is satisfied that the hearing on 15 March 2023 provided a real opportunity to be heard.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims in PV Application made by applicant
·She was born on [date] in [Hunan] Province, raised by her foster parents after being abandoned by her parents.
·She could not complete her study at junior high school but had to start looking for jobs when she was only about [age] years old.
·In February 2002, she arrived in Shenzhen, met her husband, [Mr A], who was from Fujian and they had two daughters. Their first daughter [was] born on [date], and their second daughter [was] born on [date].
·In June 2012, she started working at [a] Factory. With 10 years' experience in the industry, she was considered a skilful worker by her peers and they often looked to her guidance. She understood their difficulties very well as she was once in their position and so she was always happy to teach her peers around her everything she knew. Because of this she was very respected and looked up to during her time in the factory.
·The boss of [the] Factory was [Mr B]. He had an uncle who was a senior official at Shenzhen municipal government. His father worked at [a] district government.
·[Mr B], was a tyrant of an employer. He often abused his power over his employees and forced them to work overtime without pay or push unreasonable conditions of labour onto them. To enforce his power, [Mr B] set up a team of personal security guards who would threaten the employees that did not listen to or accept [Mr B]’s requests. Furthermore, [Mr B] maintained connections with the Public Security Bureau (PSB) through family background. He often used this connection to threaten employees saying he had the power to send them to prison if they did not cooperate.
·In January 2016, the applicant, along with the other employees at the factory, agreed to set up an unofficial employees' union where they would voice their opinions against the factory's management as a group. They believed that their strength in numbers would influence management to change their treatment of employees and that the union would uphold justice for the employee. As the applicant was the most respected amongst her peers and had a large following, she was elected as the chairman of this union and her voice started to represent not only herself but those who depended on her.
·As the leader of the unofficial employees union she many times took their problems to [Mr B] and attempted to negotiate better outcomes for them. Specifically, she emphasized their dismay with the unreasonable working hours and requested the following working conditions regarding this matter. Firstly, the factory should respect the normal working hour of 8 hours a day, 5 days a week and limit their schedules to this accordingly. Secondly, the factory cannot force employees to work overtime. Thirdly, overtime work should be paid time and a half. Last but not least, the factory must refrain from abusing, bullying and oppressing employees and must respect the basic human rights of employees.
·Initially [Mr B] decided to calm them down with false compliance to their demands. Later on, he dismissed them with empty promises, but also warned them not to make any troubles for him. The applicant had to visit some departments of [the] district government, expected the district government could give them support and help. In April 2016, [Mr B] reported to the PSB saying that the applicant had set up the "illegal” workers union at his factory. The applicant was then interrogated by the police. The police threatened that she had to disband the union and she would be subjected to severe punish otherwise.
·On 1 May 2016, it was International Labourers Day and workers across the entire of China are treated with a three day public holiday from the first to the third of May. As usual, [Mr B] denied his employees this holiday and forced them to work over the holiday. In the two weeks prior to the public holiday this was already filled with endless overtime work with no breaks at all. The applicant and her peers were stressed and tired. The applicant was infuriated and immediately organised for a strike. [Mr B] then reported to the police accusing the applicant that she continually developed the 'illegal' workers union at his factory and that she organised “anti-government" activities through the “illegal" workers union, and that she had seriously threatened the social security. As a result, the applicant was arrested by the police [in] May 2016.
·From [May] 2016 to [August] 2016, she was detained at a detention centre in [the] District of Shenzhen for more than 3 months. During her detention, she was interrogated by the police many times. She insisted that she did not do anything wrong but only strived for basic human rights. She was physically and mentally mistreated and tortured. She was also forced to do hard manual jobs.
·Her biological parents, after they learned that she had been arrested and detained by the police, went to Shenzhen immediately. Her father had a friend, [Mr C], who ran a [business] in [the local] district. Through [Mr C], her biological father used money to bribe the police. Meanwhile, she was very sick owing to having inhumanly been treated for a long time at the detention. Therefore, she was temporally released on bail [in] August 2016.
·As she was still under investigation of the PSB, she was not allowed to leave [but] had to report to the PSB once a week. She was often harassed by the police. She could not find any jobs. Her biological father had to organise her trip overseas through his friend [Mr C]. Furthermore, her husband. through his family's friend, had to bribe an official at the airport in Fuzhou. Therefore, she could leave China from Fuzhou on [date] October 2016.
·After leaving, she was put on the wanted list of the PSB. All members of her foster parent family, her biological parent's family, as well as her husband's family have been subjected to investigation by the police.
·If she goes back to China, she must be subjected to persecution by the PRC authorities.
The applicant attended a Department interview on 21 February 2017. As recorded by the delegate in the Department decision, lodged with the PV application, the applicant stated:
·The applicant was asked about her passport. She said she obtained it [in] 2013, as she had planned to travel to [a country] for a holiday with her husband. She applied for the passport [in] 2013 but later said "I can't remember". She went back to her hometown to apply for it. when she was asked if something important was happening in her life at the time she obtained her passport, she said that nothing special was happening that day. She also stated it was her fathers.
·At the time she worked for [a] Company in Shenzhen.
·The applicant was asked why she cannot return to China. She said that the police may arrest or suppress her as she was regarded as an illegal element there. She was threatened and harassed and was arrested. She organised 200-300 people into a union however it was feared her actions would create a riot.
·she first became involved in this union in April 2016. She also said it was January of 2016. When asked to clarify the date, she replied that it was a certain Sunday in January 2016. in April she attended the Department of Labour to discuss the details of the union demands.
·She explained that [in] May 2016 she was went to the authorities to protest her working conditions. She added that she was suddenly surrounded by more than ten people from the Public Security Bureau (PSB). She was hit and reported as a riot organiser by the company boss. She was detained for 3 months for organising the riot. She was released on bail by her solicitor on the condition she would not leave Shenzhen. She also had to report to police once per week.
·She was harassed from time to time and this caused mental harm.
·She was placed on the PSB wanted list for her actions. She couldn't take public transport, including the train, she couldn't leave Shenzhen and she couldn't find employment.
·She left Shenzhen on [date] October and travelled with the help of her father's friend to Fuzhou where she stayed for several hours until [date] October when she left China.
·The applicant was asked if she experienced any difficulties with Chinese authorities when she departed the airport. She said that her father's friend organised everything and she had no knowledge of it.
·It was put to the applicant that someone on a PSB watchlist would likely not be able to leave China through a Chinese airport. She explained that everything was arranged by her father's friend. She added that her father's friend may have paid a bribe to help her depart China.
·It was put to the applicant that in item 15, folio 6 of her claims, it states 'Furthermore, my husband, through his family's friends, had to bribe an official at the airport in Fuzhou. Therefore, I could leave China from Fuzhou on [date] October 2016.'
·The applicant was asked who helped her obtain her visa. She said it was her father's friend, [Mr C]. She confirmed that it was the friend who helped her depart China.
- Following a natural justice break the applicant was asked to comment on the discrepancies discussed during the interview. The applicant stated that [Mr C] is a friend of her father's. A staff member working at the Fuzhou Airport was a friend of her husband's. Her husband bribed staff at the airport so she could leave China easily.
- The applicant was asked if it was her husband who paid a bribe himself or an associate.
- The applicant claimed that she could not remember clearly the issue date of her passport previously because it was a new passport and she only started using it last year in 2016.
On 7 March 2023, the applicant’s representative wrote to the Tribunal and provided the following additional documents:
·A statement and translation from [Mr A], the applicant’s husband, and his Chinese National ID Card.
·A copy and translation of an administrative penalty issued to [Mr A] (born [date]) [in] October 2021. The administrative penalty provides the following findings:
oCurrent Findings - [the applicant] (female, born on [date]), the wife of [Mr A], was detained by [the] District Branch of Shenzhen Municipality Public Security Bureau on [date]/05/2016 for the reason of her organizing the illegal workers union and through such illegal workers union organizing the anti-Government protests. She was temporarily released on bail on [date]/08/2016 for the medical treatment. However, [the applicant] refused to repent and had no attempt to correct her mistakes. Instead she insisted on going her own wrong way and took the chance of being bail released for medical treatment to flee to overseas on [date]/10/2016. She is now on the list of the Wanted. Deeply influenced by his wife's anti-Government ideology, [Mr A] has for a long time acted as the enemy of the Government and the Party. He refused to abide by the relevant Rules and Regulations for the Covid-19 Pandemic Impact Period, picking quarrels and provoking trouble and endangering the public order and security, which has resulted in extremely bad social influence.
·A copy and translation of a Radiological X-Ray Examination Report for [Mr A] on 13 October 2021.
·A copy and translation of a [a] Hospital Discharge Summary for [Mr A] on 21 October 2021.
The applicant’s husband, in his statement, provided the following information (in summary):
·On the morning of 2 October 2021, his [daughter] [was] suffering from [a medical condition]. As a result of the long time and ongoing government Covid-19 Pandemic Impact control policy, they ran out of medicine at home. So, he had to go out to buy medicine for his daughter, however, he was stopped by the epidemic prevention station of Longtian Town because a positive case had been found in [a] Village, and all villagers were not allowed to go out.
·At that time, because he was eager to save his daughter's life, he had a quarrel with the staff of the epidemic prevention station. He was accused of refusing to implement the relevant regulations set by the Government during the Covid 19 pandemic impact period, causing trouble, endangering the public order and having caused the bad impact and influence and he was therefore then taken to the Fuqing Public Security Bureau [PSB] by the police.
·At the PSB, the police forced him to admit that he was deeply influenced by his wife's anti-Government ideology, that he had been the enemy of the party and the government for a long time, and that he deliberately refused to implement the government's relevant regulations during the Covid 19 pandemic impact period.
·Although he initially denied the allegations, he, in the end, had to admit his crimes under torture, which caused him to be sentenced to 10 days of administrative detention and he was released [in] October 2021.
·During his detention, he was detained in [a] Detention Facility. He was beaten by guards many times, resulting in multiple fractures to his right clavicle and ribs, as well as serious injuries to other parts of his body. Therefore, after he was released from the detention, he had to go to [a] Hospital for medical treatment on 13 October 2021, and underwent surgery on 14 October 2021. He was hospitalized for as long as 8 days before he was discharged from the hospital on 21 October 2021. There is still metal fixing in his right clavicle today.
·Since she left China, his wife has been on the Wanted Person List issued by the PSB. As a result of her case, he was constantly harassed and threatened by the PSB, which has made it impossible for him to find any normal work and he can only live by farming in his hometown, which was very difficult.
At the Tribunal hearing, the applicant said that she is married with two children, her husband and daughters live in Fujian. Her husband is originally from Fujian, worked in Shenzhen, where the couple met each other and he returned to Fujian in 2016 when she was arrested by the police. The applicant works in Australia in a number of different jobs, odd jobs.
Asked how she set up a union, she said that she was working for [the] Factory because the employer asked them to work overtime, the usual working hours were 8 hours a day, the boss forced them to work until 10:30 pm. If that was paid overtime that would be fine, but it was not paid.
I asked again how she set up a union in [a] factory in China. She responded that it is because “they force us to work overtime. Many of us were unhappy about that and we have reflected this issue to the boss, [Mr D]. He didn’t agree. We just wanted to protect our own rights. That is why we set up the union”.
I again asked how she set up the union and she said that “many people in the company were not happy about that and because I have helped many people before, they also had this thought about setting up the union, but they recommended me to set up the union or be the representative of the union”.
I asked what she had done about obtaining affiliation with the All-China Federation of Trade Unions. She responded that “it’s an informal union and many workers that were there were not happy with the situation where the company forced us to work overtime. This union was led by me. We have been talking with the boss of the factory, saying that we have been worked until very late at night. On the second day, we would still need to continue to work on the second day. They don’t understand that we have worked very late the night before and they expect us to go to work the next day. We kept receiving many orders. So, we had to work, work and work”.
I asked her why she would set up an unofficial employee’s union, when workers in China have the right to join or form a workers trade union. She said they tried to contact the formal trade union in China and make a complaint about the factory, the request for overtime and not being paid. They sent many letters and made phone calls to the labour union, but did not receive any response, so they set up the informal union.
I asked what action she took to take the dispute to the Labour Dispute Arbitration/Action Committee. She said that in Shenzhen there is like a trade union, or like a local trade union or community that they can make a complaint about overtime. There is a letterbox at the front of the office. They have put many letters in that letterbox to reflect issue of working overtime without any extra pay. But because their boss knows many elected officials, no one agreed to help them even though they put letters into the suggestion box. This letterbox was located in Shenzhen city, outside the office of Labour Bureau. She said that after putting in many letters, without any response, she also went into their office and spoke with the people there and made a complaint to them about what happened in the factory. She went there many times but still they didn’t do anything about her complaint.
I discussed independent evidence with the applicant that states it is relatively straightforward and inexpensive to lodge a case with the Industrial Dispute’s Tribunal[1]. She responded that as the boss’ uncle is [a government official] of Shenzhen city, it was useless to make all these complaints. I put that one is able to go to court and she said she spoke to a lawyer but all the lawyers know the [factory] and all say that it would be useless and they also don’t want to displease the boss because of his background.
[1] Workers’ rights and labour relations in China | China Labour Bulletin (clb.org.hk)

She represented between 200 and 300 people. There were 7 delegates, she was a [manager]. She and 6 or 7 other people formed the decision-making part of this union, she was the main person
I asked about union participation. She responded that they met every day, a morning meeting. “The head of the departments met every morning to decide what orders should be done first and about the production or the allocation of the orders. We discuss and make decisions on that every day”. I put to the applicant that I was not asking her how the factory was run but about the union participation. She said that “there are between 200 and 300 people in the factory. Not all of them wanted to have to work overtime without pay. So, they tell the head of the department, they tell the person in charge of the department and that person will talk to me and then I talk to the boss about these problems, like overtime without pay and no rests. I am the main person to talk to them”.
The other 7 participants in the union collect the details about their department. Then they report those details or situations of their department to her. Asked what exact details they reported to her, she said “It is about work overtime. They worked for too long. And no overtime pay. So, the boss is always pushing them to work over time and then he refused to pay for the overtime”.
The boss was aware that these people were involved with her, she told him about that. Usually, the salary should be paid at the end of each month. Like on the 30th. “But sometimes we haven’t received our salary by the 5th of the next month. This delay would also impact upon our ability to pay our rent”.
Asked if she discussed, with the other 7 people, about taking the dispute to the arbitration committee she said that “we did discuss that and we went there altogether. We went so many times so security knew us. Security wouldn’t let us in. In the end we had to write letters and send them in the letterbox. Every time I would be there but because they have different times to finish their work. It is not like definitely each of them would go but I would definitely go”. The Labour Committee was well aware that there was a problem in this factory and security wouldn’t let them in.
I put to the applicant that she did not inform the department about going to the arbitration committee nor about [a government official] of the city being related to the boss. She responded that they didn’t ask her.
I asked her over what period of time she went and lodged these complaints. She responded that she started talking to [Mr D] [the boss] in January and by April 2016, it was still not resolved. From January when they started to talk to [Mr D], he was very comforting. He promised that he would arrange work time in a reasonable way and pay overtime. But [Mr D] did not do that. That’s when they created the union. When she went to discuss these issues with [Mr D], the delegates went with her but sometimes she went by herself.
I put to the applicant that she had told the department that she organised a strike. Asked if she did this with the other delegates, she said that “because sometimes they work very late, until very late night, and the second day, if they didn’t go to work, then the boss, [Mr D], would deduct their salary. Like about 3 days salary. If they didn’t go for 2 days, he would deduct half a month. So because they went to work to make money, and [Mr D] is not giving them time to have proper rest, they were deprived of their rights to have a rest. That is why they set up the union by themselves”.
I asked how she organised the strike she said that she proposed this idea together with 7 other delegates at their meeting. “At our meeting, on 30 April, we decided to have the strike. That is we do not go to work on 1 May, it is Labour Day. There is a public holiday for 3 days. We just protest by not going to work”.
She was arrested [in] May 2016, in front of the accommodation of the factory. I put to her that no one went to work on 1 May 2016, a Sunday and a public holiday. She said she was arrested because they didn’t go to work. So, [Mr D] just brought the police and arrested her. The other delegates were not arrested. Because she was arrested, and the other people were saying she was arrested, they were afraid. So, because they were afraid and [Mr D] asked the police to arrest her, they went back to work.
They charged her with setting up this illegal trade union which impacted upon the security of the society. She did not go to court.
I put to the applicant that she was able to exist China, legally, with a passport in her own name, but told the department that she was held by the PSB for a lengthy period of time but then released on medical grounds.
She said she was able to get help from [Mr C] to leave China.
I put that the independent evidence indicates that it is just about impossible to leave China if you are of interest to the PSB and are on the wanted list. She responded that she was bailed out of the police station because she got sick. She was not allowed to leave Shenzhen. But [Mr C] asked her to give her passport and a photo. It takes a lot of money to bribe the officials so that she can get this procedure exiting China done.
I put independent evidence to her that indicates it is just about impossible to bribe your way out of China in those circumstances. She responded that whilst she was arrested, it was only for investigation. She was not on the wanted list for the PSB. She was arrested for that time but they haven’t started the legal process for going to court yet, even though the boss’ uncle has his background. But at this time it was still under the investigation period.
I asked why they would put her on the wanted list after she left and she said that when she was bailed out of the police station it was on medical grounds. She was still required to report every day. So, she didn’t report and that is why she went on the wanted list. I put that if she was required to report and she didn’t turn up, they would have found her. It is also not illegal to strike in China. She responded that they think that she gathered the crowd and it is anti-government. That is the crime.
I put that in China, workers have the right to join or form a trade union. Unions must be affiliated with the All China Trade Unions. Asked why she and the other people who were members of the union with her, did not go through the proper legal processes that were available to them. She responded that they thought about going through the legal process but because they got no response and it is a private company, the official trade unions in China just ignored their complaint. They did go through the formal trade union but they didn’t receive any response. They are just workers. It costs a lot to find a lawyer and seek legal support. It is a big cost for common people and workers. The boss has a powerful background. Common people are not able to fight.
I put to the applicant that there is a legal process to allow workers to lodge a complaint. As the employer did not agree with their complaint, there is no point in taking it up with him if he wasn’t interested in negotiating but she still persisted in doing so and failed to use the legal processes that were available. The independent evidence is that it is relatively straight forward and inexpensive for workers to submit a case to the Labour Dispute Arbitration Committee and if one disagreed with that, then court proceedings are available.
She then responded that she did seek some advice from a lawyer. It was a support lawyer. The boss is well known in that area. “The lawyers and the judge in the court all know his uncle, [name]. Because we did make the complaints through the normal procedure. It was no use. We didn’t receive a response”.
Asked for the name of the person related to [Mr B] who is [a government official] of Shenzhen City, she responded it is [Mr E], the brother of [Mr B]’s father. I explained in 2016 it was [Mr F].
I asked who the person was who arranged her exit out of China, she said it was [Mr C]. In the city there is many small areas. Like Hunan Province. That has many provinces. Within a big city there are different areas and there are different leaders for each different area.
Asked who actually paid the bribe to the airport official, she said it was her husband’s father’s friends, her father-in-law’s friend. I put that she told the department that her husband, through a family friend, paid a bribe to the airport. At the department interview she said that her husband paid the bribe. She responded saying that her husband’s friend and her father-in-law’s friend are the same person.
I put to the applicant information pursuant to s424AA of the Act and advised her it may form part of the reason or the reason for affirming the decision under review. I advised her she did not have to comment straight away, and could seek additional time to respond, including after the hearing. I put that she told the Tribunal that her father in laws friend paid the bribe to the airport official. She told the department that her husband through a family friend paid a bribe, she told the department at the interview that her father’s friend paid a bribe, and then after a natural break her husband paid the bribe. I explained that this information is relevant because it is inconsistent. I explained that if I rely on this information, I may conclude that her claims are not genuine and I may affirm the decision under review.
She responded that it is “all the same person that we talking about. No matter whether it is paid by her husband or her father in law, it is all paid by her family. The friend is the same friend. It is through the husband’s father, her father in law, through him, we bribed the person at the airport. It is all through the same person”.
I explained that the independent information before me is that security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. What that indicates is that if you pay one official, you are still not going to be able to get through via bribery, because there are a few other people that you are going to have to go through before leaving.
She responded “actually in China, you may not have been to China, as long as you have money, as long as you are rich, you can go wherever you want to go. You cannot imagine how dark the legal system is in China. By knowing a security guy in the airport, because that security guy will know the leaders at the airport it would be quite simple to do the things that they want to do”.
I put to the applicant that she had no independent evidence to support her claim. The independent evidence says that being able to depart China on documents containing their own name, passing through security exists at the airport, indicates that the person is not of adverse interest to the Chinese authorities.
She explained that she was able to exit because “China’s legal system is not what you have seen. As long as you have money, as long as you have power, you can do whatever you want to do. Because this cannot be solved through the legal process. That is why my husband spent a lot of money to get me out of China”.
I put to the applicant that the documents she provided in regard to her husband are of no weight because fraudulent documents in China are very common and the scale of fraud is unmatched in any other place in the world. She responded that the legal system is not designed to protect their rights. The government didn’t help to solve the problem at all. Not only did they not solve the problem they also arrested her for 3 months. The legal system is only designed to protect the rich.
I put that whilst I accept that her husband may have had problem with officials during COVID, but I did not accept that he faced any adverse consequences because of her but rather whatever it was that he did regarding the COVID crisis.
She responded “I can’t use my husband’s life to tell you that the information were true. Right now, they have showed that a steel plate, that is still in my husband’s neck. It is not removed. It has been there for several months already. If the legal system works in China, my husband would not be hit for buying medicine for their daughter. I can provide further evidence telling you that it is true. Then we will use the husband’s life to tell you that the evidence is true”.
She said that her husband went out wanting to buy medicine for their daughter. But they thought that her husband was influenced by her. Her thoughts. They considered that her husband was anti-government. Her husband wanted to explain to them. They didn’t give him the chance to explain. They hit him. It was so bad that her husband had to stay in hospital for 8 days after that. Because she was fleeing outside of the country, they considered that her husband was influenced by her. In China they don’t care. The judges or the government don’t care about the common people.
I asked what is it that she feared about returning to China she said that because she is already in the wanted list, if she arrives in China, they will not give her any opportunity to explain. They will definitely put her in prison. If arrested, she will not go through the legal procedure at all.
On 20 March 2023 the Tribunal wrote to the applicant pursuant to s.424A stating as follows:
· You advised the Tribunal that [an official] of Shenzhen, in 2016, was [Mr E] who was the relative of [Mr B]
· Independent information[2] indicates that [an official] of Shenzhen, in 2016, was [Mr F]
This information is relevant to the review because it is inconsistent.
If we rely on this information in making our decision, we may conclude that you have created your claims and affirm the decision under review.
[2] [Deleted]
The applicant responded stating as follows:
Firstly, a person's full name is, in Chinese format, 'surname' plus 'given name'. For example, my surname is '[name]', and my given name is '[name]'. So, my full name is [name]' in the Chinese format, but in English, my full name is normally translated as '[the applicant’s name]', because a person's full name is, in English format, 'given name' plus 'surname'. Likewise, the full name of '[Mr B]', the boss of [the] Factory, could be translated as ‘[variation]’ in Chinese format.
I believe that '[Mr F]', [an official] in Shenzhen, according to independent source from the Tribunal, is the name translated in Chinese format, and that his surname is '[name]', and that his given name is '[name]'. So, his full name could be also translated as '[Mr F variation name]' in English version. Obviously, he was not the brother of '[Mr B]' (a.k.a. '[Mr B variation]').
Secondly, the brother of '[Mr B]' (a.k.a. '[Mr B variation]')'s father is '[Mr E]' (a.k.a. '[Mr E variation]' in Chinese format). He was [an official] of [a] district government in Shenzhen city between December 2011 and November 2015, [an official] of [a] bureau between November 2015 and March 2016, and the President of [an agency] between March 2016 and September 2017. After I left China, he used to be [an official] of Shenzhen municipal government (07/2020 - 05/2021). He is currently [title]. Obviously, '[Mr E]' (a.k.a. '[Mr E variation]') is very powerful official even today.
Thirdly, I made a mistake at the Tribunal's hearing, because '[Mr E]' (a.k.a.’[Mr E variation]’) actually became [an official] in Shenzhen after I left China. Nevertheless, he is a very powerful official. That's why '[Mr B]' (a.k.a. '[Mr B variation]') could take advantage of '[Mr E]' (a.k.a. '[Mr E variation]')'s powerful official position to do whatever he wants, and that's why I am unable to receive any protection or any helps, and that's why I have wantonly been deprived of my basic human rights in China.
Country Information
According to China Labour Bulletin[3]
China has a comprehensive legal framework that gives workers a range of entitlements and protects them from exploitation by their employer. Workers have the right to be paid in full and on time, a formal employment contract, a 40-hour working week with fixed overtime rates, social insurance covering pensions, healthcare, unemployment, work injuries and maternity leave, severance pay in the event of contract termination, equal pay for equal work, and protection against workplace discrimination. Workers also have the right to form an enterprise trade union (see below for more details), and the enterprise union committee has to be consulted by management before any major changes to workers’ pay and conditions. Since China’s economic slowdown in the mid-2010s, however, there has been little new legislation to bolster workers’ rights and senior government officials have openly discussed rolling back some existing protections in a bid to create a more pro-business legal environment. The most important laws governing labour relations in China are the 1995 Labour Law
Local governments in China are responsible for enforcing labour law and ensuring that workers’ rights are protected. However, the local labour authorities are generally under-funded and under-staffed and lack the ability and the will to enforce the law.
There is no legal prohibition on workers taking strike action.
There is only one legally-mandated trade union, namely the All-China Federation of Trade Unions (ACFTU). All enterprise trade unions have to be affiliated to the ACFTU via a hierarchical network of local and regional union federations. Any attempt to establish an independent trade union movement is seen by the Party as political threat.
China has a four-stage process designed to resolve disputes between employees and their employer: consultation, mediation, arbitration and litigation. The key institution in this process is the local labour dispute arbitration committee (LDAC) which adjudicates in the majority of routine labour disputes in China. Minor cases might also be handled by the local government’s labour and social security inspectorate, an administrative office tasked with ensuring employers’ compliance with labour law and regulations. It is relatively straightforward and inexpensive for workers to apply for arbitration and most cases are dealt with as quickly as possible. However, LDACs will only accept cases where the plaintiff can prove a formal labour relationship with the employer, effectively excluding workers in the informal economy, workers discriminated against in the hiring process and those over the retirement age who are no longer officially considered workers.
[3]
According to DFAT Country Report China 21 December 2017
Exit and Entry Procedures - Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight.
According to DFAT Country Information Report 22 December 2021
5.1 In general, fraudulent documents in China are very common and the scale of fraud is unmatched anywhere in the world. Fraudulent documents and the criminals who create them are highly sophisticated. Criminal syndicates may provide a suite of documents to asylum applicants. As most applications for visas are made online there is further opportunity to doctor copies of genuine documents that are uploaded into the system.
………………….
5.31 Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.
5.32 National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list. DFAT is also aware of instances where members of certain ethnic minority groups have been denied passports.
5.28 DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear. See the relevant section of the report for information on treatment of specific Groups of Interest.
5.29 Those wanted for outstanding warrants could still be charged on return to China. The general statute of limitations for crimes is five years (for a crime where the maximum penalty is up to five years in prison), ten years (where the maximum penalty for a crime is five to 10 years in prison), 15 years (where the penalty for a crime is not less than 10 years in prison) and 20 years (where the maximum penalty is life in prison or death). In practice, a person who flees from prosecution and then returns is likely to be arrested.
………………..
5.33 If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons. There is a legitimate risk that family members of an individual under investigation by Chinese authorities could be subject to an exit ban. This is not only for sensitive charges but also economic charges such as fraud.
5.34 Exiting China by land outside of border crossings would be very difficult. The far western borders are less policed but also much harder to cross due to very harsh conditions. Border checks exist at Hong Kong and Macanese ports and land crossings, and special provisions are in place at the Mongolian border to allow passage of Mongolian and Russian citizens that use ‘one-time passports’ that allow travel to only one country. The borders with Vietnam and Myanmar are more porous but efforts have been made in recent years to strengthen them. China is reportedly building a 4.5 metre fence on its Southeast Asian borders. Checkpoints have been set up in Vietnamese border areas and local villagers help officials to patrol remote areas.
5.35 DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption
REASONS AND FINDINGS

On the basis of her PRC passport, I accept that the applicant is a national of the PRC and a not national or citizen of any other country or has a right to enter and reside in any country other than PRC. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that PRC is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
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 the 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.
The applicant claims that she formed a union in China, she organised a strike, she was arrested, released on bail due to illness and then left China after bribes were paid for her to leave. She is on the wanted list. Since she has been in Australia her husband was harmed because he is member of her family.
I do not accept that the applicant is a witness of truth.
Firstly, the applicant claimed that her boss [Mr B] had an uncle who was a senior official at the Shenzhen municipal government and he maintained connections with PSB through his family and used these connections to threaten employees and/or her.
At the Tribunal hearing the applicant explained that the boss’ uncle was [a government official] of Shenzhen city. She told the Tribunal his name was [Mr E], the brother of [Mr B]’s father. She made no comment when advised by the Tribunal that the [official] was [Mr F].
By s424A letter, dated 20 March 2023, it was put to the applicant that independent information indicated that the [official] of Shenzhen, in 2016, was [Mr F] [4]. The applicant responded to a s.424A letter stating that the first name and the surname is interchanged when translated from the Chinese format i.e. his name can be translated also as [name]. Whilst I accept that there may be times when the first name and the surnamed are interchanged the internet report, in English, reporting about a visit of the [official] of Shenzhen stated the [official] was [Mr F][5]. I reject her explanation I accept his name was [Mr F].
[4] [Deleted]
[5] ibid
The applicant also claimed that she made a mistake when [Mr E] became the [official] in Shenzhen, it was after she left China i.e. from July 2020 to May 2021. She stated that '[Mr E]' was [an official] of [a] district government in Shenzhen city between December 2011 and November 2015, [an official] of [a] Bureau between November 2015 and March 2016, and the President of [an agency] between March 2016 and September 2017. He is currently ‘[title]’.
The applicant has not provided any independent evidence to support her claim that a [Mr E] was a person of influence employed in various government Departments or that [Mr E] was [an official] of Shenzhen at any time in the past. I am of the view that the applicant has created this explanation of [Mr E] being a person of influence in government in order to enhance her claims to the visa sought.
During the hearing the applicant consistently maintained that corrupt influence by the [official] of Shenzhen enabled the factory boss in his employment disputes to prevent any action being taken by the workers. I am satisfied that [Mr F] was [a specified official] in 2016. Therefore I do not accept that the [official] of Shenzhen assisted [Mr B].
Secondly, independent evidence indicates that the Labor Dispute Mediation and Arbitration Law of the People's Republic of China (the New Law”), was adopted by the Standing Committee of the National People's Congress on December 29, 2007, and took effect on May 1, 2008[6]. Under the Labour Law of the People's Republic of China[7], employers are required to resolve labour disputes through either mediation or labour arbitration first. Litigation should be the last resort as parties must proceed through labour arbitration before a litigation case can be filed. Upon the occurrence of any labor dispute within an enterprise[8], either the employer or the employee may seek mediation assistance. Such assistance may be provided by any designated labor dispute mediation committee within the enterprise (the “Internal Mediation Committee”) or by certain governmental or quasi-governmental organizations or groups established at the township or lower level outside of the enterprise (the “External Mediation Committee”). The Law provides that any Internal Mediation Committee of an enterprise must be comprised of member(s) representing the employee side and member(s) representing the employer side. The labour dispute arbitration committee (LDAC) handle the majority of routine labour disputes in China, as an employment case must first go through this dispute resolution mechanism before being entertained by the civil courts.
[6]
[7]
[8] ibid
I accept that lawyers are expensive in China in order to take legal action and independent evidence suggests that local labor authorities are generally under-funded and under-staffed and lack the ability and the will to enforce the law.
In her PV application, it was claimed that the applicant had to visit some departments of [the] district government, expecting the district government would support them and help. I asked what action she took to take the dispute to the LDAC. She said that she complained utilising a letterbox at the front of the office, outside the office of Labour Bureau in Shenzhen city. They put many letters in that letterbox to reflect issue of working overtime without any extra pay, but because their boss knows many elected officials, no one agreed to help them even though they put letters into the suggestion box. After putting in many letters, without any response, she also went into their office and spoke with the people there and made a complaint to them about what happened in the factory. They did not do anything about her complaint because the boss’ uncle is [a government official] of Shenzhen City. She also tried to lodge a case with the Industrial Dispute’s Tribunal when she went to the reception, completed the form with all the details, and then working staff just told her that it is useless to do that because the boss of the [factory] has a very powerful background. She was unable to go to a lawyer as they are expensive.
As I have found that the boss’ uncle was not [an official] of Shenzhen at the time, I reject her claim that he used his influence to prevent her obtaining assistance for the union or that he had the PSB arrest and detain her.
Thirdly, I put to the applicant that she was able to exist China, legally, with a passport in her own name, but told the department that she was held by the PSB for a lengthy period of time but then released on medical grounds. She said she was able to get help from [Mr C] to leave China.
When I asked who actually paid the bribe to the airport official, she said it was her husband’s father’s friend, her father-in-law’s friend.
I put to the applicant information pursuant to s424AA of the Act that she told the Tribunal that her father-in- laws’ friend paid the bribe to the airport official, she told the department that her husband through a family friend paid a bribe, and then after a natural break she told the Department that her husband paid the bribe.
She responded that it is “all the same person that we talking about. No matter whether it is paid by her husband or her father in law, it is all paid by her family. The friend is the same friend. It is through the husband’s father, her father in law, through him, we bribed the person at the airport. It is all through the same person”. I reject her explanation. She has provided inconsistent evidence. I find that the applicant and/or her family did not pay bribes for the applicant to leave China.
I also put to the applicant that the independent evidence indicates that it is just about impossible to leave China if you are of interest to the PSB and are on the wanted list. She responded that she was bailed out of the police station because she got sick. She was not allowed to leave Shenzhen even though she was arrested for investigation. She was put on the wanted list after she left because she was required to report every day and did not do so.
I explained that the independent information before me is that security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. Whilst I accept that bribery exists in China I prefer to rely on DFAT reports, 21 December 2017 and 22 December 2021, that consistently confirm that being able to depart China on documents containing a person’s own name and passing through security exits at the airport indicates at the person is not of adverse interest to the Chinese authorities.
As the applicant did not pay bribes to depart China I do not accept that she was in breach of reporting conditions to the PSB. I am satisfied she was not of adverse interest to the Chinese authorities when she departed China.
In light of the above findings, I am satisfied the applicant is not a witness of truth, who has created her claims in order to obtain the visa sought.
As the applicant is not a witness of truth, I find that the applicant
§Did not work for [Mr B] at [a factory] in Shenzhen
§In January 2016 the applicant did not set up an unofficial employees union
§She was not the leader of an unofficial employees union
§She was not reported to the PSB for setting up an illegal union
§She did not organise a strike on 1 May 2016
§She was not arrested [in] May 2016 and detained until [August] 2016
§She was not released from police detention through payment of bribes and she was not under investigation
§She was not placed a wanted list and none of her family have been subjected to investigation by the police
Further, as I do not accept that the applicant is a witness of truth, I do not accept that the applicant’s daughter was taken ill during the COVID epidemic in China and when attempting to obtain medicine the applicant’s husband quarrelled with staff at the epidemic prevention station, he was arrested, detained or that as a consequence of his behaviour he was sentenced to 10 days of administrative detention, released [in] October 2021 and then hospitalised for his injuries.
As I do not accept that the applicant was arrested or harmed when she resided in China or that she was on the wanted list, I do not accept that her husband was punished and harmed because his wife had an adverse political opinion. Therefore, I find the applicant’s husband was not punished for actions he took during the pandemic.
I have considered a copy and translation of an administrative penalty issued to [Mr A] [in] October 2021. DFAT has advised that fraudulent documents in China are very common and the scale of fraud is unmatched in any other place in the world. Whilst I accept that the applicant believes that the legal system is not designed to protect their rights only to protect the rights of the rich I prefer to rely on DFAT advice regarding the prevalence of fraudulent documents and I place no weight on this Administrative Penalty.
As for an X-ray and a hospital discharge summary, whilst I accept that the applicant’s husband had a fracture of the right shoulder, rib fractures, right knee abrasion there is nothing on the face of those documents to suggest how these injuries occurred therefore I place no weight on these documents regarding the applicant’s claim that her husband was injured at the hands of the PSB because of the applicant’s adverse political opinion.
I have considered the applicants’ claims singularly and cumulatively. In light of the above findings, I find that the applicant did not leave China fearing serious harm for a refugee reason.
I am required to consider whether the applicant will suffer serious harm for reasons of her race, religion, nationality, membership of particular social group or political opinion on her return to China.
I have rejected all her claims that she was involved in establishing a union in China or that she was arrested and harmed for organising a strike or that she left China paying a bribe or that she is now on the wanted list.
I have considered the applicants’ claims singularly and cumulatively. I do not accept that the applicant had an adverse profile in China or an adverse imputed profile in China or that she will be imputed with an adverse profile on return to China.
I find that there is not a real chance the applicant will suffer serious harm in China on return within a reasonably foreseeable future. I am not satisfied that the applicant is at risk of serious harm on her return to China for reasons of her race, religion, nationality, membership of a particular social group or political opinion.
For the reasons given above, the applicant does not satisfy the criterion set out in s.36(2)(a).
I am required to consider whether the applicant will suffer significant harm on her return to China.
The applicant is a married woman. I have rejected all the applicants’ claims of harm in China or claims of harm to her family. I have rejected her claims that she organised a union and a strike and that she was arrested/detained and is now on a wanted list. I do not accept that the applicant had an adverse profile in China or an adverse imputed profile in China or that she will be imputed with an adverse profile on return to China.
Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will be arbitrarily deprived of life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment.
Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
CONCLUSIONS
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

100. The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

ANNEXURE A
101. 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.
102. 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).

104. 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

106. 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 3195

7 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice