1716695 (Refugee)

1716695 (Refugee) [2021] AATA 3301 (19 May 2021)
DECISION RECORD
DIVISION:  Migration & Refugee Division
CASE NUMBER:  1716695
COUNTRY OF REFERENCE:                  China
MEMBER:Peter Haag
DATE:19 May 2021
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 19 May 2021 at 3:27pm
CATCHWORDS
REFUGEE – protection visa – China – political opinion – protested against demolition of property for development – claim that government planned to harvest his organs – religion – church membership and activity in Australia – credibility – visa refusals for third country not declared – inconsistent explanations for this omission – no supporting evidence of ownership of property, offer of compensation or church membership and activity – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 201 FCR 505
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) on 27 July 2017 to refuse to grant the applicant a Protection (Class XA) 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 10 March 2015. The delegate refused to grant the visa as they were not satisfied that the applicant is a refugee, or that there exists a real risk of the applicant suffering significant harm upon his return to China.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In this review the applicant provided to the Tribunal a copy of the record of the delegate’s decision made on 27 July 2017; the Tribunal has read that decision.
The applicant was born on [Date] in Qingdao, Shangdong, in the Peoples’ Republic of China (China). The applicant claims and the Tribunal accepts he is a citizen of China. These facts are well established by the documentation the applicant provided to the Department, including his passport. There is no evidence before the Tribunal that indicates the applicant’s passport is a bogus document. The Tribunal is satisfied the applicant is a national of China, a citizen of China and that China is the applicant’s ‘receiving country’ for the purposes of s 36(2)(aa) of the Act.
The evidence does not demonstrate the applicant has a right to enter and reside in a country other than China, accordingly, the Tribunal is satisfied the applicant is not excluded from protection under the laws of Australia by s 36(3) of the Act.
On 29 March 2021 the Tribunal convened a hearing to consider the merits of the review application. Upon considering the contents of the Department file, the Tribunal file and the applicant’s claims and the supporting materials contained therein, the Tribunal determined a telephone hearing would not deprive the applicant of a meaningful hearing. Without objection to the hearing proceeding other than by way of an in-person hearing, the applicant participated at the hearing before the Tribunal by telephone and, was assisted by an interpreter in the Mandarin and English languages, who also participated by telephone.
Applicant’s background
The applicant stated in his application for the protection visa that he has never been married and has no children. The applicant stated that he belongs to the Han ethnic group, is Christian [Denomination] in terms of faith, and can speak, read and write Mandarin.
The applicant first arrived in Australia [in] August 2013, having been granted [a] Visitor visa which was set to expire on 4 October 2013. The applicant departed Australia [in] October 2013.
The applicant returned to Australia [in] December 2014, having been granted [a] Visitor visa which was set to expire on 16 March 2015.
He applied for a Protection visa on 10 March 2015, shortly before the expiry of his [Visitor] visa. He has not departed Australia since [December] 2014.
There is no dispute that on 21 June 2017 the applicant voluntarily responded to questions asked of him in an interview with the responsible officer of the Department of Immigration and Border Protection.
Protection claims
In seeking protection, the applicant claims:
·In August 2012, the government told him that his property was to be demolished to allow for a tower to be built. The government offered the applicant a low price for his property;
·He began to lead protests against the demolition and shouted that he was against the Communist Party;
·He was kicked and hit by police officers at the protests, and another protester died;
·While the proposed demolition did not go ahead, it could take place at any time;
·The Chinese government targets dissidents;
·He will be targeted by the government for his involvement in the protests;
·He was compelled by the authorities to attend a hospital to ensure any injuries he suffered during the protest were not serious;
·The real purpose of the forced hospital visit was to identify his blood type in preparation for his organs being harvested;
·The government has not taken his organs during the years since his blood sample was taken after the protest, because they have not been able to find anyone to match his blood type;
·If returned to China, he will be arrested, and his organs will be harvested;
·In November 2014, while watching a protest, the applicant saw an official beating a protester and despite the applicant only being an observer, the official threatened to kill him; this threat caused the applicant to fear for his life;
·Subsequent to the threat, his first cousin, a high ranking government official, warned him to leave China because his role in the anti-demolition protests might put him at risk of arrest in an imminent regional crackdown on people who did not support the Chinese government;
·He continues to hold views against the Chinese government, and will face persecution for his political beliefs;
·On two occasions in 2008, the applicant attended his aunt’s home in China where people were reading the bible and praying;
·The two visits to his aunt’s home are the only occasions that he had contact in China with Christian faith based practices, and he was not a Christian at that time;
·In February 2015, the applicant became interested in Christianity, and was baptised in Australia on 17 May 2015;
·He converted to Christianity as he believes in God and wants eternal life;
·He attends church in Australia every week;
·It is his duty as a Christian to spread his faith, and the government will take an interest in him because of this;
·The applicant did not apply for a Protection visa earlier, as he was not aware that he could apply for protection in Australia.
Refugee considerations
The applicant lodged his application for a Protection visa on 10 March 2015. As part of the application, the applicant completed a Form 80. In Part N of the Form 80, under the heading ‘Visa refusals’, the applicant was invited to respond to question 40 which asked: ‘Have you ever been refused a visa to any country’? The applicant’s response was ‘No’. This answer was incorrect. Additionally, as part of the application the applicant was invited to complete Form 866C. In that Form, under the heading ‘Visa and travel history’ at question 73, the applicant was asked this question: ‘Have you ever been refused a visa to any country other than Australia’?, to which the applicant responded ‘No’. This answer was incorrect. For reasons that will later become apparent, the applicant should have answered ‘Yes’ to both questions.
According to the delegate’s decision, and the evidence the applicant gave to the Tribunal, he was twice refused a Tourist visa to enter [Country 1]. The first refusal occurred in 2012 and the second in 2013. Accordingly, it is evident the applicant’s answer to both questions was incorrect.
Part S of Form 80 calls on the applicant to make a declaration. Under the heading ‘Declaration’, before making the declaration, the applicant is given this warning: ‘Giving false or misleading information is a serious offence’. Following that warning the applicant declared on 10 March 2015 that ‘the information I have supplied in or with this form is complete and up-to-date in every detail’. The evidence establishes, that despite being warned that it is a serious offence to include false or misleading information in the Form, the applicant did not disclose he had twice been refused visas to enter [Country 1]. Instead he adopted the false position that he had never been refused a visa.
In Part C of Form 866C in the application, the applicant was called on to make a further declaration. This declaration is materially different from the declaration the applicant made in respect of the contents of Form 80. At item 101, under the heading ‘Declaration’, the applicant is warned in the following terms: ‘Section 11 of the Statutory Declarations Act1959 provides that ‘a person must not wilfully make a false statement in a statutory declaration’’, and provides a maximum penalty of four years imprisonment. The applicant is then warned that giving false or misleading information is a serious offence. Amongst other things, the applicant solemnly declared: ‘the information I have supplied or caused to be supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail’. Additionally, the applicant declared: ‘I understand that if I have given false or misleading information my application may be refused, and any visa issued may be cancelled’.
The applicant further declared: ‘I make this solemn declaration by virtue of the Statutory Declaration Act 1959, and subject to the penalties provided by that Act for the making of false statements in statutory declarations conscientiously believing the statements contained in this declaration to be true in every particular’. The applicant declared the application at [Suburb 2] on 10 March 2015 before [Ms A], an Australian Legal Practitioner within the meaning of the Legal Profession Act 2004.
Below the applicant’s solemn declaration at item 102 in Form 866C, the applicant was asked: ‘Did you receive assistance from an interpreter or anyone else to complete this application’? To that question the applicant responded in the affirmative, and further acknowledged that his statement and other information [that comprised the application] was read back to him in his own language.
To digress slightly: according to the delegate’s decision, the applicant was asked at interview whether in addition to applying for a Schengen visa and a Visitor visa to visit [Country 2], he had applied for visas to other countries. The applicant twice denied that he had applied for visas to any other country. These denials were false.
At interview the applicant was confronted with the fact that he was twice refused a visa for entry to [Country 1]. The applicant then accepted that was so and he explained his failure to declare those refusals on the basis that he forgot to do so, due to the passage of time.
In evidence to the Tribunal the applicant accepted that in 2012 and again in 2013 he had been refused a visa to enter [Country 1]. When asked for his reason for twice denying at interview that he had twice been refused a visa to enter [Country 1], the applicant explained that he was worried the answer would conflict with the documents he provided to the Department. The applicant accepted that it was a mistake not to answer the delegate truthfully and he apologised for not doing so.
To summarise, at interview the applicant attributed his false answers to questions about his visa history to his failure to recall the two visa refusals due to the passage of time. Before the Tribunal the applicant attributed the false answers he gave during his interview to a conscious endeavour to give answers that did not contradict visa related information he had provided to the Department, rather than tell the truth. The applicant claimed the remaining answers he gave during the interview were true and that he has been otherwise truthful and accurate to the Department and the Tribunal. The inconsistency, in the explanation given to the interviewing officer and to the Tribunal for providing the false information about his visa history, is a matter of concern.
The applicant submitted to the Tribunal a written statement in response to various adverse findings that appear in the delegate’s reasons for decision. In that document the applicant makes clear that he was concerned that a truthful answer to the delegate’s question about whether he had previously been refused a visa to enter any other country would contradict the answer he gave to questions in his Protection visa application. He went on to say he was unsure whether the interviewing officer was aware of the information about his visa history he provided in his application form. The applicant went on to write ‘I was not honest enough, I apologise for what I have done’.
The applicant has admitted to providing what amounts to calculated untruths in the answers he gave to the interviewing officer about his visa history. The applicant provided the false answers, aware of the risk he was running that the interviewing officer may be aware of the past visa refusals but chose to gamble on his false answers remaining undetected. The applicant took the chance that he would get away with his untruths for the purpose of advancing his application for the Protection visa. When he failed to get away with his untruthfulness, the applicant claimed that he had forgotten about being refused a visa to [Country 1] in 2012 and 2013, a period relatively close to the lodgement of his visa application in March 2015. The refusals occurred in each of the two years immediately preceding the year the applicant arrived in Australia on a Tourist visa. The Tribunal does not accept that by the time the applicant came to lodge his visa application form, he had forgotten the two prior visa refusals.
In considering cumulatively the matters discussed in paragraphs 21 to 32, the contents of the explanatory statement the applicant submitted to the Tribunal, the false answers he gave to the interviewing officer about his visa history, the false answers he gave in the visa application forms about his visa history, and the accompanying false declarations, including a solemn declaration (Form 866C), he made as to the truthfulness and reliability of all the information he provided in support of his application for a Protection visa: the Tribunal is concerned that the applicant is predisposed to telling untruths and being factually inaccurate for the purpose of strengthening, or not detracting from his prospects of being granted a Protection visa. Put differently, the Tribunal has significant concerns about the accuracy and veracity of the applicant as a witness and source of evidence in this review.
It is convenient to observe here the applicant’s claims for protection based on religion and political opinion were first stated comprehensively in the statutory declaration he declared in Melbourne [in] March 2015 before [Ms A]. The applicant made his statutory declaration pursuant to the Statutory Declarations Act1959. An accompanying statutory declaration declared by an interpreter satisfies the Tribunal that the contents of the applicant’s statutory declaration were properly translated for him from the English language to the Mandarin language by a competent interpreter.
The contents of the applicant’s statutory declaration form part of the information provided or caused to be provided by the applicant as part of his response to Part C of Form 866C, and form a material part of his protection application.
The applicant’s statutory declaration comprises information that is subject to the applicant’s declaration, described previously in paragraphs 23 to 25. Considering the Tribunal is unable to accept the applicant is a truthful and reliable witness, and that he provided false information in his application about his visa history, irrespective of his declarations, upon pain of penalty, that he included only correct information in the application forms, the Tribunal is concerned the contents of his statutory declaration are unreliable.

In the statutory declaration and evidence to the Tribunal, the applicant claims he fears for good reason that if returned to China it would only be a matter of time before his blood type – type O, according to his evidence – is matched to someone and the government harvests his organs. On this topic, the applicant gave oral evidence to the Tribunal consistent with the statutory declaration and the written statement he provided to the Tribunal to the effect that the only reason his organs had not been harvested by the government between the time his blood sample was taken in August 2012 and when he departed China in December 2014, is the government had so far been unsuccessful in matching his blood to a potential recipient for his organs.
In substance the applicant claims between August 2012 and December 2014 the government was actively trying to find someone with a blood type that matched the applicant’s blood type, for the purpose of transplanting the applicant’s organs into that someone. The Tribunal has considered the applicant’s evidence about his circumstances and fear of his organs being harvested, and the evidence about the government of China harvesting organs from prisoners, dissidents, and their political opponents; and, the Tribunal’s concerns about the accuracy of the applicant as a witness and source of reliable evidence. On balance, the Tribunal is not persuaded by the applicant’s evidence that he was compelled by government officials to provide a sample of blood for the purpose of eventually harvesting his organs; or that government officials have been searching unsuccessfully for about two years for a recipient for his organs. The Tribunal finds the applicant’s claim that if he returns to China he will be at risk of having his organs harvested to be unpersuasive.
Additionally, the applicant accepted, in answers he gave to the interviewing official, that the explanation he gave in his statutory declaration about his movements after he arrived in Melbourne, and the circumstances that led to him taking up residence in [Suburb 3], is untrue.
In the evidence he gave to the Tribunal, the applicant explained he was untruthful in his statutory declaration about the circumstances that led to him residing in [Suburb 3] because he was afraid the truth would bring trouble to his landlord, cause the landlord to evict him, and expose him to acts of revenge by the illegal immigrants residing in the house. These considerations constitute evidence that the applicant is willing to fabricate facts in his statutory declaration where he considers fabricated facts will serve his purposes better than the truth.
In the applicant’s statutory declaration, he claims he is a Christian and that upon return to China he will spread Christianity and he is at risk of persecution in China for reasons of religion. In the written statement the applicant provided to the Tribunal he elaborated on this claim. He states that after arriving in Australia [in] December 2014 and about two months after he submitted his application for protection on 10 March 2015, he was baptised as a Christian on 17 May 2015. On the date of his baptism, according to the written statement he provided to the Tribunal, he officially became a Christian. According to the applicant, leading up to his baptism he undertook a three-month course in Christian studies which was followed by his baptism.
In evidence the applicant claimed to be a member of the [Suburb 1 Denomination] Church and that he attends services every Sunday, subject to what is permitted during the COVID-19 pandemic, otherwise he attends services online.
In considering what weight to give to the applicant’s claim that he was a [Denomination] Christian on 10 March 2015, the date he submitted the Protection visa application form, which is about three months after he arrived in Australia, and about two months before 17 May 2015, the date on which he claims he was baptised, it is relevant to consider whether the applicant was a Christian before he arrived in Australia [in] December 2014.
According to his evidence to the Tribunal about his contact with Christian practices in China, he attended his auntie’s home on two occasions in 2008 where people were reading the Bible and praying. These are the only two occasions in which he had contact with Christian faith-based practices in China. According to the applicant’s evidence at hearing, he was not a Christian at that time. The applicant does not claim he became a Christian, or that he had any contact with Christian practices in China after the two occasions in 2008 when he visited his aunt’s home. The applicant may have been interested in Christian beliefs in 2008 in China, but the evidence does not satisfy the Tribunal that the applicant was interested in becoming a Christian while he was residing in China.
According to the Tribunal’s understanding of the claims and evidence, the applicant became interested in becoming a Christian in Australia. In furtherance of his interest in Christianity he completed a three-month course of study and thereafter was baptised, at which point he officially became a Christian on 17 May 2015. In that setting, between [December] 2014, the date the applicant arrived in Australia, and 10 March 2015, the date he lodged his claim for protection; the latter date being about two months before his baptism on 17 May 2015, he claims he became a [Denomination] Christian.
The applicant’s claim that he is a baptised and practising member of the [Denomination] Church in [Suburb 1], a suburb of Melbourne, that being the Church in which he studied Christianity and was baptised, is unsubstantiated by concrete supporting evidence, either oral or documentary.
The timing of the applicant’s written claim to be a [Denomination] Christian, first made in his Protection visa application which was lodged two months before he was baptised, considered in combination with the evidence of the applicant’s two incidents of contact with Christian religious practice in China in 2008; the absence of evidence that demonstrates the applicant was interested in becoming a Christian in China; and, the Tribunal’s concerns about the truthfulness and reliability of the applicant as a witness, amount to factors weighing against accepting as reliable the applicant’s claim to be a [Denomination] Christian.
Considering the foregoing matters and concerns relevant to the applicant’s claim to be a baptised practising [Denomination] Christian, in the context of the Tribunal’s concerns about the truthfulness and reliability of the applicant as a witness, the Tribunal is not persuaded to accept the applicant is a Christian; that he would engage in Christian practices in China, including evangelising; that he fears being persecuted for reasons of religion; or there is a real chance that if the applicant is removed to China now or in the foreseeable future he would suffer serious harm for reasons of religion.
The applicant also claims to fear persecution in China for reasons of his political opinion.
In summary, the applicant claims he engaged in open protests in August 2012 against the decision to demolish the building in which his grandfather owned an apartment promised to the applicant as a wedding gift. In this regard the Tribunal notes the applicant stated in his visa application form the he was never married. The applicant claims that during the protests he supplied conspicuous anti-government banners that were affixed to the targeted building; he shouted anti-Communist Party and anti-government slogans; and he was assaulted by officials.
Because of his political activity, the applicant claims he was compelled to provide a blood sample, which is now available to the authorities for the purpose of matching his blood type to a suitable recipient for his organs, and if he returns to China his organs will be harvested.
The applicant provided photographic records and other visual records of the building said to be the subject of the August 2012 protest. There is no dispute that the visual materials do not depict the applicant. The applicant claims he is absent from the visual material because he was the one using the camera to record the protests.
The applicant explains he did not provide any documents in Proof of Title to any part of the depicted building he claims he was trying to protect because the relevant certificate was confiscated and retained by government officials. The applicant claims government officials offered compensation for the loss of the property, but the sum of money offered was inadequate.
There is no documentary evidence relevant to the offer of compensation, or a copy of the allegedly confiscated property title documents before the Tribunal to support the applicant’s claim that he or his grandfather own a proprietary interest in the depicted building, or that he participated in the depicted protests. It is reasonable to expect the applicant to have available to him documentary evidence, such as copies of original documents, including the Certificate of Title, and correspondence concerning the offer of compensation for the destruction of the apartment, if in fact the applicant, or his grandfather had a proprietary interest in the building and had received an offer of compensation for the compulsory demolition of the depicted building. No such evidence was provided to the Tribunal. The applicant explained at hearing how he left China hurriedly and was unable to obtain any documents. At hearing the applicant also claimed the authorities confiscated his grandfather’s Title documents.
In view of the Tribunal’s findings about the credibility and reliability of the applicant as a witness; the absence of supporting documentary evidence; the applicant’s explanation for the absence of supporting documentation; the evidence that the applicant’s grandfather owned an apartment in the depicted building; the evidence that the applicant’s grandfather promised him the apartment as a wedding gift; the evidence that an offer of compensation was made; that the offer was not accepted because it was inadequate; the Tribunal is concerned the applicant’s evidence that his grandfather owned an apartment in depicted building and that the applicant protested the demolition of the depicted building is unreliable. Relevant to the foundation of this concern is the evidence that establishes the visual images relating to the depicted building do not establish that the applicant, or his grandfather, have a property holding in the building or that the applicant participated in the depicted events. On balance, the Tribunal finds the applicant’s evidence and claims about being at risk of serious harm in China because he protested the demolition of the depicted building; and, in that context expressed and otherwise demonstrated anti-government and Communist Party political views to be unpersuasive.
In addition to the foregoing circumstances, the applicant claimed that around November 2014 he observed people who were protesting against forced demolitions – not the demolition of the building in which the applicant claims to have an interest – being beaten by a police officer. The applicant was not involved in the protest, nevertheless, the police officer told the applicant, he would kill him and to leave the area. Having regard to the Tribunal’s concern that the applicant is not a truthful and reliable witness, and that he is disposed to giving untruthful and inaccurate evidence to achieve a favourable visa outcome, the Tribunal is not satisfied the applicant witnessed a protest in China where he saw a police officer assault a person and that the assailant police officer threatened to kill him and told him to go away from the protest.
The applicant claims his first cousin, who is, according to the applicant, a highly placed government official and depicted in photographs before the Tribunal, warned him he may be targeted in an imminent government crackdown on dissidents, and that he should leave the country. Having regard to the Tribunal’s concern that the applicant is not a truthful and reliable witness, and that he is disposed to giving untruthful and inaccurate evidence to achieve a favourable visa outcome, the evidence does not satisfy the Tribunal that the applicant’s first cousin warned him that he was at risk of arrest because of his political opinions and advised him to leave China.
After considering the applicant’s claim for protection for reasons of political opinion, and the supporting evidence that is material to that claim, and giving regard to the Tribunal’s finding that the applicant is an untruthful and unreliable witness, the Tribunal is not satisfied the applicant fears being persecuted in China for reasons of his political opinion. Furthermore, the Tribunal is not satisfied there is a real chance the applicant would suffer serious harm for reasons of his political opinion if he were returned to China now or in the foreseeable future.
In summary: the Tribunal is not satisfied the applicant is a Christian; that he will practise Christianity in China; that the applicant was involved in a dispute with authorities concerning demolition of the depicted building; that the applicant participated in protests against the demolition of the depicted building; that government officials intend to harvest his organs; that he witnessed a protest as a bystander and that a police officer threatened to kill him; or that for reasons of political opinion he will be persecuted in China. The Tribunal is not satisfied there is a real chance the applicant would suffer serious harm for reasons of religion or political opinion, or for any other reason specified in s 5J(1)(a) of the Act, if he were removed to China now or in the foreseeable future.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied the applicant is a refugee for the purposes of the Act. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a).
Complementary protection
The Tribunal will now consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act. A person will satisfy the s 36(2)(aa) criterion if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case China, there is a real risk the applicant will suffer significant harm. The definition of significant harm is stated in s 36A of the Act, which is reproduced in the Attachment to this decision.
In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(aa) of the Act. Therefore, for the reasons outlined above the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk the applicant will suffer significant harm.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa).
There is no suggestion that the applicant meets the family member criteria in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Permanent Protection (Class XA) (Subclass 866) visa.
Peter Haag
Member
ATTACHMENT – Extract from Migration Act 1958 (Cth)
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.
…
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.
…
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.
…
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 of 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 of persecution would not exist if it were assumed that the fear of 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.

[2021] AATA 3301

19 May 2021

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