1715712 (Refugee)

[2022] AATA 1662

1715712 (Refugee) [2022] AATA 1662 (17 April 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1715712

COUNTRY OF REFERENCE:             China

MEMBER:Dr Jason Harkess

DATE:17 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the Applicant a Permanent Protection (Class XA) (Subclass 866) visa

Statement made on 17 April 2022 at 8:37pm

CATCHWORDS

REFUGEE – protection visa – China – local police corruption – death and injuries to family members – forced sterilisation – employment – fear of killing – school enrolment – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth (1999) 197 CLR 510
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP [2016] FCAFC 52
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Application for Review – Refusal of Protection Visa

1. The Applicant is a citizen of China. She seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refusing to grant her a protection visa. The Applicant is [age] years of age and is presently residing in Australia.

2. The Applicant originally applied for the protection visa on 15 September 2015. The visa was refused on 23 June 2017. The Applicant lodged her review application with the Tribunal on 20 July 2017. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicant her visa.[1]

   [1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Division 2 of Part 7 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements not being met in this case.

Type of Visa

1. The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia, and either:

   (a)they are a ‘refugee’ (‘the refugee criterion’);[3]

   (b)they otherwise qualify for complementary protection (‘the complementary protection criterion’);[4] or

   (c)they are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

2. A person is a ‘refugee’, and therefore meets the refugee criterion, if the person ‘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.’[6]

   [6] Migration Act 1994 (Cth), s 5H(1)(a). Because the Tribunal is satisfied that the Applicant is a citizen of China, the s 5H(1)(b) definition of ‘refugee’ (which applies only to ‘stateless’ applicants) is not applicable in this case.

3. A person meets the complementary protection criterion if there are ‘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.’[7]

   [7] Migration Act 1994 (Cth), s 36(2)(aa).

Delegate's Reasons for Visa Refusal

1. In her original application form lodged with the Department of Immigration and Border Protection (‘the Department’), the Applicant sought a protection visa claiming that she met the refugee criterion or the complementary protection criterion. The delegate was not satisfied that she met either. The Applicant did not claim to meet the family member criterion. The delegate therefore refused the visa application.

2. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicant she was notified of the delegate’s decision. That notification prompted the Applicant to lodge the present review application. The Applicant also provided a copy of the delegate’s decision record to the Tribunal following lodgement of the review application.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the present review application:

   (a)whether the Applicant meets the refugee criterion;

   (b)whether the Applicant alternatively meets the complementary protection criterion.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application on 22 December 2020. The Applicant participated at the hearing before the Tribunal by phone and gave evidence and presented arguments.

2. The Applicant was assisted by her representative, [named], who also participated at the hearing by phone.

3. The Tribunal hearing was conducted with the assistance of an interpreter in the Fuqing, Mandarin and English languages.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to refuse the Applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the Applicant’s original written visa application;

   (b)the delegate’s decision record;

   (c)the written material filed by the Applicant in relation to her case;

   (d)the oral evidence and arguments presented at the hearing;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[8]

   (f)country information assessments relating to China that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[9]

   [8] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [9] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be material to the determination of the issues in the case.[10]

CONSIDERATION OF APPLICANT’S CASE

[10] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Original Protection Visa Application

1. The Applicant was obliged to complete a form when she lodged her protection visa application. The form requested that she provide details about her personal background, her circumstances leading up to her arrival in Australia, and her reasons for applying for a protection visa. The Applicant’s claims in her form and written statement lodged with that form were as follows:

   (a)She is the youngest of [her family]. Her Mother and her [sister] are deceased.

   (b)The Applicant herself is divorced and has [number] children.

   (c)[In] July 1998 her sister was involved in a car accident and died at the scene. The driver was a relative of the local chief police inspector, [Officer A]. The driver denied responsibility and did not pay funeral expenses to the Applicant’s family.

   (d)The Applicant’s brother and mother attended the police station many times to seek compensation and justice. However, despite their ongoing efforts, two years later they had still not received the compensation and justice they sought.

   (e)The Applicant’s mother grew frustrated and felt that she could not be at ease until the matter was resolved. On 19 March 2000 the Applicant’s mother mother attended the police station and argued with [Officer A]. After arguing with the chief police inspector, the Applicant’s mother took her own life by drinking farming chemicals because of the repeated refusal of justice. The Applicant’s mother thought that her death would apply some pressure and allow her family to obtain justice for the death of the Applicant’s [sister].

   (f)The Applicant’s father suffered an emotional shock from the death of the Applicant’s mother.

   (g)The Applicant married to [her husband] hastily in a traditional rural wedding, according to local customs, within rheww months of her mother’s passing. They had [number of children].

   (h)Following her mother’s suicide, the Applicant’s brother repeatedly sought compensation and justice for his sister and mother. However he was unsuccessful. He attempted to lodge appeals to the city and provincial level government authorities but the government officials were shielding one another and the matter was never formally resolved.

   (i)In 2005 the driver of the car that killed her sister was forced to pay [amount] Yuan to the family.

   (j)Due to her brother’s persistence [Officer A] missed an opportunity for promotion and began to bear a grudge against the Applicant’s family. 

   (k)[In] February 2008, when her brother was riding his motorbike, with her [Relative A] on the passenger seat, at [a named] village, [Officer A] happened to be driving his [vehicle] towards him. [Officer A] was drunk at the time and suddenly drove his vehicle into her brother's moving motorbike. When the Applicant rushed to the scene after getting the news, she saw her brother and [Relative A] lying in a pool of blood while groaning distressfully. She at a loss as to what to do. She was crying and begging [Officer A] to use his vehicle to take them to the hospital. However, he refused her request and asked her to pay him money first for the damaged front lamps of his vehicle. After that she became very angry. She kicked [Officer A], bashed him and screamed at him, stating "You are really a person worse than a beast." [Officer A] told her to stop screaming. She kept kicking him, bashing him and scolding him. Eventually, he got back to his vehicle and drove off. The Applicant could only call the ambulance. After a very long time, two ambulances arrived and took the Applicant, her brother and her [Relative A] to hospital.

   (l)The Applicant believes that [Officer A] felt that he had lost face after he was kicked, bashed and scolded in the public by her. He began to wreak vengeance on the Applicant. Her miserable life started from here.

   (m)On [on day in] April 2008, a white van suddenly arrived at her home and she was forcibly pushed into it. She was then taken to [a named] Family Planning Office, where she was sterilised forcibly. She believed that this was caused by [Officer A], who used his connections among government officials.

   (n)On [a day in] December 2015 the Applicant attended the police station and was informed that she was the subject of an investigation into the accusation that she had intentionally hurt others. The Applicant tried to explain the circumstances, and was told that the man who she attacked did not wish to press charges against her and the incident would be treated as though it had not occurred. Despite the Applicant’s protests that she had been the victim, the police did not listen to her.

   (o)The Applicant’s brother became disabled because [of his injuries]. He had approached [Officer A] a few times asking for compensation. However, there was no satisfactory result.

   (p)She claims that in September 2008, the Applicant’s daughter was not allowed to enrol in the local public primary school. She believes this was because of [Officer A]. For this reason, she enrolled her daughter in a primary school in Fuqing City after she paid substantially more fees because she did not fall within the catchment of the family Hukou registration address. They rented an apartment to live in Fuqing City. Later, [another child] also enrolled in that school after paying high fees as well.

   (q)In 2009, the Applicant’s brother attempted to sue the police in relation to his car accident. However, he got arrested without being given a formal reason and was detained for [number] days. After release, he once again began his journey of lodging appeals to seek compensation and justice. The Applicant’s brother has never received any compensation or justice.

   (r)[Officer A] was later demoted and moved to work in [Town 1] police station. The Applicant does not know whether this was caused by her brother's appeals. She believes [Officer A] harboured further resentment in his heart towards her family.

   (s)The Applicant’s husband had been working in [a Town 1 agency] for a very long time. After [Officer A] moved to worked in [Town 1] police station, he came to make trouble for her husband and harassed him continuously many times. [Officer A] threatened her husband and said to him that he was going to destroy their family step by step. Because [Officer A] sent his friends and colleagues to harass her husband and lodge false complaints against him, her husband was fired by his employer in May 2013.

   (t)The Applicant started to look for jobs. Initially she worked in a local [business] in Fuqing City. However, after she worked there for three months, she was sacked by her boss. Her boss’s wife told the Applicant that she was sacked because of pressure from the local police station.

   (u)The Applicant claims that after losing his job, her husband blamed her for everything. Their relationship deteriorated. She agreed to divorce only after he threatened suicide. They divorced [in] December 2013. The Applicant retained the custody of the [children]. Her ex-husband suffered a lot mentally by [Officer A’s] continuous harassments over those years.

   (v)In 2014, the Applicant worked in [specified businesses] in Fuqing City, one after another, as [an occupation 1]. However, she only worked a few months in each [business] before she was sacked. She believe she lost her jobs because there were always people lodging complaints against her. She believes the complainants were were friends of [Officer A]. She also believes [Officer A] directed the local police officers to her apartment for inspection on many evenings. On each occasion, the police brought her landlord with them. The Applicant’s landlord could not bear the disturbance from the police, so he took back his apartment and terminated her lease in September 2014.

   (w)The Applicant tried to move to another rental property. After about half year, the police found her residence, which she believes they obtained from her children’s school. Police came knocking on her door and asking for her identification card. After she opened the door, she saw two policemen and [Officer A], all in police uniform. She was very frightened after she saw [Officer A] for the first time after so many years. After they pretended to inspect her identity documents, they asked her about her then employment details. At that time, she had been worked in [a specified business] for about four months. She feared that they would undermine her employment, so she said to them that she did not work. They threatened that if she refused to tell them about her employment, they would alleged that she was working as a prostitute and would arrest her straight away. She became very fearful and had to tell them where she worked. Before they left, [Officer A] reached out his right hand and his fingers squeezed the Applicant’s neck. He threatened her by saying, “You would never be able to escape out of my palm. I will gradually torture you spiritually, physically and financially and let you get the worse result than your brother. I will let you not to forget me in your whole life. You would better off be really careful in the rest of your life for avoiding falling out of my hands.” On the following day, the police came to the Applicant’s boss's shop and put pressure on him. After a few days, she was sacked again.”

   (x)The Applicant became very concerned about her safety and her children's safety and thought that she should flee China. At that time, one of her friends happened to know a lady who could help others go overseas. The Applicant left her children and came to Sydney [in] June 2015.

   (y)The Applicant fears returning to China because she fears [Officer A] who she believes seeks revenge against her. She believes he will continue to harass her and make her life very difficult or even worse than before, because he is still interested in her even though so many years have passed. She believes he has many connections within various governmental departments in China. She believes she will be arrested and sent to prison at [Officer A’s] instigation. She believes he might set up another car incident in which she or her children are victims.

   (z)The Applicant believes the Chinese government is corrupt and only protect their own. No matter where she would live in China, she believes [Officer A] would track her down easily because he is a policeman.

Evidence Given at Tribunal Hearing

1. At the hearing before the Tribunal, the Applicant gave evidence concerning her claims for protection that was to a large extent consistent with her original claims. In summary, the Applicant’s evidence in this respect was as follows:

   (a)The Applicant reiterated that she is divorced and has [number of children, who] are living in China. She said that she maintains regular contact with [one child] but that she rarely speaks to [another]. She said that the relationship with [this child] was not good because of the divorce with her now ex-husband.

   (b)The Applicant referred the Tribunal to [Officer A] and reiterated that he is the principal reason why she does not wish to return to China. She referred to police, at the instigation of [Officer A], being responsible for her forced sterilisation. She repeated her claims that he had been responsible for harassing and threatening her when she was in China. She referred to the last time that she saw him was in 2015 when he pinched her neck.

   (c)The Applicant stated that her family has not had any contact with [Officer A] since she fled China. She does not know where [Officer A] lives. But she believes that, if she were to return to China, he would detect her arrival through her passport and then continue to threaten and harass her as he had done for the many years prior to her departure from China.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about China on 22 December 2021 (‘the DFAT report’).[11] It is, however, unnecessary to refer to specific aspects of the report because of the findings made in relation to the credibility of the Applicant’s claims as set out below.

   [11] Department of Foreign Affairs and Trade, DFAT Country Information Report: People’s Republic of China (22 December 2021). The content of this report updates the information that was contained in the DFAT report concerning China that was current at the time of the hearing in relation to the present review application in December 2020. The Tribunal notes that there is no new information contained in the more recent report that is material to the Tribunal’s determination now.

Analysis of Evidence and Factual Findings

Assessing Credibility of Claims – General Principles

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[12]

   [12] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].

2. The Tribunal also recognises that applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions. The nature of their claims, if genuine, may cause them some consternation in expressing their fears. Allowing for such considerations, if the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt if they are unable to fully substantiate all of their claims.[13]

   [13] Ibid [15.4].

3. However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[14] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[15] While there is no legal concept of ‘onus of proof’ that is to be applied by the Tribunal, in the same way that such a concept is routinely applied in courts of law,[16] the Tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an applicant’s claims. If there is no such foundation, the Tribunal is obliged to reject those claims.

   [14] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [15] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

   [16] Sun v MIBP [2016] FCAFC 52

4. Ultimately, it is for the applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[17] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[18]

Credibility of Applicant’s Claims in this Case

[17] MIEA v Guo (1997) 191 CLR 559, 596’ Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

[18] Migration Act 1958 (Cth), s 5AAA(2).

1. In this case, the Tribunal is not satisfied of the credibility of the Applicant’s essential claims, for the following reasons:

   (a)If the Applicant’s claims are to be accepted, the Tribunal would need to find that a particular senior police official, who at some point held the position of chief police inspector, has been on a relentless campaign to undermine and destroy the life of the Applicant. The Applicant would have the Tribunal accept that [Officer A] was responsible for:

   (i)the suicide of her mother;

   (ii)ploughing into her brother and [Relative A] while they were riding a motorcycle, causing them significant injury;

   (iii)her ex-husband losing his job;

   (iv)her children being denied enrolment at their local school;

   (v)her forced sterilisation;

   (vi)her losing her residential tenancy;

   (vii)her losing her job and failing to hold any job longer than a few months;

   (viii)influencing police officers to harass her periodically, including threatening to allege she was engaging in prostitution.

   (b)The allegations made by the Applicant in this respect are elaborate, highly unusual, but very serious if they are true.

   (c)Although China is known for corruption by public officials, the scale and extent of the corruption alleged by the Applicant against [Officer A] seems extreme, particularly in circumstances where the Applicant does not allege that she herself has been charged with a criminal offence by [Officer A]. The proposition that a senior police officer would invest so much time to engage in malevolent behaviour towards the Applicant and her family over such a protracted period of time seems bizarre.

   (d)The Applicant has provided no corroborative evidence, in the nature of other independent testimony or documents, that would tend to support her claims in relation to [Officer A].

   (e)By the Applicant’s own admission, none of her family who remain in China have had any dealings with [Officer A] since her departure from China. This would seem to be fundamentally inconsistent with the Applicant’s essential claims regarding [Officer A].

2. For these reasons, the Applicant’s claims in their entirety lack a sufficiently credible foundation. The Tribunal is therefore unable to accept them.

Does the Applicant Meet the Refugee Criterion?

General Principles

1. Section 5H of the Act defines a refugee as a person who, in the case of a person who 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 return to avail himself or herself of the protection of that country.’[19]

   [19] Migration Act 1958 (Cth), s 5H(1)(a).

2. The term ‘persecution’ is not expressly defined in the Act. However, it is commonly understood as referring to ‘an injurious act’ and ‘[a] particular course or period of systematic violent oppression, esp. one directed against the members of a particular religious or political group, race, etc.’[20] Within the context of Australia’s relevant migration and refugee laws, the concept of persecution is limited by the operation of a number of statutory provisions found in the Act. These provisions essentially prescribe the approach that the Tribunal must take when considering whether an applicant has a ‘well-founded fear of persecution’ when assessing their claim of being a refugee. This includes a requirement that persecution must involve ‘serious harm’ to the person who is seeking protection.[21]

   [20] ‘persecution, n.’, OED Online (Oxford University Press, March 2021, Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: (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 likelihood of any kind, where the denial threatens the person’s capacity to subsist.

Determining whether a person has a well-founded fear of persecution involves making a risk assessment as to what is likely to happen in the future.[22] In this regard, conclusions about what has happened in the past may provide some assistance in working out what is likely to happen in the future.[23] In many cases, an applicant will be relying on their own past experiences as founding their claim for a protection visa. The logical starting point for the Tribunal in such cases is to determine whether the events happened as claimed and, if so, whether they constituted persecution.[24]

Applicant Not a Refugee

[22] MIEA v Guo (1997) 191 CLR 559, 574.

[23] Ibid, 574-5: ‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’

[24] See Abebe v The Commonwealth (1999) 197 CLR 510, [82] (per Gleeson CJ and McHugh J), [192] (per Gummow and Hayne JJ): ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’.

1. For reasons that have been explained in paragraph 22 above, the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution. While the Tribunal accepts that the Applicant subjectively fears returning to China for the reasons that she has articulated, the Tribunal is not satisfied that these personal fears amount to a well-founded fear of persecution because they are not rationally based. The Tribunal is not satisfied that there is a real risk of her suffering serious harm of a kind that attracts Australia’s protection obligations.

2. Accordingly, the Tribunal finds that the Applicant does not meet the refugee criterion.

Does the Applicant Meet the Complementary Protection Criterion?

General Principles

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal 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 [they] will suffer significant harm’.[25]

   [25] Migration Act 1958 (Cth), s 36(2)(aa).

2. Section 36(2A) provides that a person will suffer ‘significant harm’ if:

   (a)they will be arbitrarily deprived of their life;[26] or

   (b)the death penalty will be carried out on them;[27] or

   (c)they will be subjected to torture;[28] or

   (d)they will be subjected to cruel or inhuman treatment or punishment;[29] or

   (e)they will be subjected to degrading treatment or punishment.[30]

   [26] Migration Act 1958 (Cth), s 36(2A)(a).

   [27] Migration Act 1958 (Cth), s 36(2A)(b).

   [28] Migration Act 1958 (Cth), s 36(2A)(c). Torture is defined in s 5(1) as meaning 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 International Covenant on Civil and Political Rights (‘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.

   [29] Migration Act 1958 (Cth), s 36(2A)(d). Cruel or inhuman treatment or punishment is defined in s 5(1) as meaning 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. It 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.

   [30] Migration Act 1958 (Cth), s 36(2A)(e). Degrading treatment of punishment is defined in s 5(1) as meaning an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission.

3. A ‘real risk’ of significant harm otherwise involves the application of the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ when considering the refugee criterion.[31]

Is there a Real Risk of Significant Harm?

[31] Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33.

1. For the same reasons articulated in paragraph 27 above, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk that the Applicant will suffer significant harm.

2. The Tribunal finds that the Applicant does not meet the complementary protection criterion.

Summary

1. The Tribunal is not satisfied that the Applicant meets either the refugee criterion or the complementary protection criterion. There is no material before the Tribunal to suggest that the Applicant meets the family member criterion. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the Applicant a Permanent Protection (Class XA) (Subclass 866) visa.

Dr Jason Harkess

Member