1719124 (Refugee)

[2023] AATA 1350

1719124 (Refugee) [2023] AATA 1350 (20 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr George Li (MARN: 0005687)

CASE NUMBER:  1719124

COUNTRY OF REFERENCE:                   China

MEMBER:Frank Russo

DATE:20 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 February 2023 at 2:28pm

CATCHWORDS

REFUGEE – protection visa – China – expropriation of land by village government for development with no compensation – collusion by officials and developers – complaint to provincial government and neighbours arrested – country information – credibility – inconsistent and unconvincing claims and evidence and no supporting documentation provided – lawful departure on own passport – no continuing profile of interest to authorities – similar claims and wording to another application lodged by same representative – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA

Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 4 May 2017. He claims that he owned land in China which was expropriated by the village government for use by a developer, and that the developer did not pay the agreed compensation for the land. He claims that he and his neighbours gave a letter of complaint to the provincial government, and when the village government found out they arrested those involved, however the applicant escaped arrest because he was not at home at the time. He claims that the developer was related to the village government officials and that they colluded with each other. He claims that he was so afraid of arrest that he escaped China and fled to Australia.

3. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

4. The application for review of the delegate’s decision was lodged with the Tribunal on 23 August 2017. Although the applicant’s name was listed as the authorised recipient in the application for review form, the contact details listed (address, mobile number and email) are the same as those for [Ms A], who was listed as the authorised recipient in the visa application form. On 22 July 2019, the applicant advised the Tribunal of the appointment of his current authorised recipient and representative, Mr Li.

5. The Tribunal initially scheduled a hearing for 28 October 2022, however on 17 October 2022 the Tribunal granted a postponement of the hearing on the basis that the applicant’s representative advised that the applicant had not received the correct Department file from the Department.

6. The applicant appeared before the Tribunal in person on 13 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

14. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

15. The applicant provided to the Tribunal with his application for review, a copy of the delegate’s decision and notice of the decision from the Department. The applicant provided a response to the hearing invitation and provided a copy of his Chinese passport at the hearing. The applicant has not otherwise provided the Tribunal with any other supporting documents in support of his claims for protection.

16. The Tribunal has also had regard to the documents on the Department file, which include the application for the Protection visa. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Identity

18. The applicant provided copies of his Chinese passport to the Department and to the Tribunal. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, that he is a national of China, which is also his receiving country.

19. The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.

    Claims

    Claims made with visa application

20. In his Protection visa application, the applicant makes the following claims:

    a.The applicant owned a cornfield in his hometown. He received notice from the village government that the land would be ‘collected’ so it could be used by a developer to build a warehouse;

    b.The developer did not give compensation. The applicant and his neighbours were angry and wrote a complaint letter, which they submitted to the Sichuan Province Government, asking for an explanation;

    c.The applicant and his neighbours did not obtain any results from their complaint to the provincial government. Once the village government found out about the complaint, they sent the police to ‘catch’ them. The applicant was not at home at the time, so he ‘survived’, although the other ‘protestors’ were caught by the police;

    d.The applicant heard that the police forced the protestors who were caught to tell them the whereabouts of the other protestors. He also heard that the developer was a relative of a government official and they colluded with each other. He claims that he chief of the public security bureau (PSB) was reported because of abuse of authority; and

    e.The authorities wanted to catch him. He was so scared that he escaped China and fled to Australia.

21. At Question 90 of the visa application form, the applicant claimed that if he returns to China he will suffer persecution from the police, and once he goes to prison, he will die.

22. The applicant did not provide any documents in support of his claims, other than a copy of his passport.

    Departmental interview and delegate’s decision

23. According to the delegate’s decision, the applicant was invited by the Department to attend an interview on 9 August 2017, but did not attend the interview.

24. The delegate found that the written material provided with the application did not provide a sufficient basis to be satisfied that the applicant is an anti-government protester, or that he faces harm of any kind for this reason upon return to China. The delegate was not satisfied that there is a real chance the applicant will be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act, upon return to China, and therefore found the applicant is not a refugee as defined in s.5H and the criterion in s.36(2) of the Act were not satisfied. The delegate also found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm as outlined in s.36(2)(aa) of the Act.

    Evidence at the hearing regarding preparation and contents of the application

25. At the hearing, the applicant gave evidence that he remembered making the Protection visa application, which he initially stated he made himself. When questioned whether anyone helped him to make the application, he stated that he received help from someone, then stated that they were a migration agent, but they were arrested, and he believes they were arrested because of tax evasion. The Tribunal notes that the Protection visa application was lodged with the assistance of [Ms A].

26. The applicant confirmed that he was aware of the contents of the application form and the statement attached to the application and that the contents of his application were read back to him. He confirmed that the contents of his application form and are true and correct, and that he did not wish to make any changes or additions to the claims made in his application form.

    Evidence regarding the applicant’s background

27. The applicant gave evidence that he is a citizen of China. Apart from Australia, he has not travelled to any other countries.

28. When questioned about the address he lived at in China immediately prior to arriving in Australia, the applicant stated that he lived in Chengdu in Sichuan Province. When asked whether he lived in a town or village or lived in the city, he responded that he lived in a suburb. Upon further questioning, he stated it was called Longquan Town and he lived there for five years. When questioned whether this was his hukou or registered addressed, he responded no, and stated that his hukou was in Leshan City, and gave in [Town 1] which is consistent with the address he provided in his Protection visa application for the period from [Year] to [Year]. However, in his evidence he stated that he lived at this address for the five years before he lived in Chengdu.

29. When asked where he lived before this, the applicant gave an address in [Village 1, [Town 2], Jianyang City. He stated that he lived there for 20 years. He stated that his wife lived there, and he moved there when he married her when he was [Age] years of age, in [Year]. Prior to this he again lived in [Town 1], Leshan City.

30. The applicant gave evidence that his wife lives in [Village 1], and they have a son who is [Age] years old and also lives in [Village 1]. The applicant stated that his father is still alive and lives at the address in Leshan City.

31. The applicant stated that he completed junior high school in [Year or Year] and had a pig farm. He stated that he had no other work besides farming, and that he earned his living from the pig farming and from growing crops.

    Applicant’s travel to Australia

32. The applicant gave evidence that he departed Chengdu on [Day 1] March 2017 by plane and arrived in Australia on [Day 2] March 2017. He confirmed that he travelled using his own passport and arrived in Australia holding a Visitor visa. When asked about his reasons for coming to Australia, he stated that the government acquired their lands and he did not receive compensation, so they wrote a ‘collective letter’. When asked who organised the visa to Australia, the applicant at first stated that he did so himself, but when asked whether he remembered how much he paid for the visa and his travel, he stated that he could not remember because someone else booked it for him. When asked who, he stated it was a friend. He stated that he currently works in Australia as [an Occupation].

    Applicant’s evidence regarding his claims for protection

33. The Tribunal noted that in his Protection visa application, the applicant claimed that he owned a cornfield in his hometown, which the government wanted to expropriate so the land could be developed by a developer. The developer did not pay compensation, so the applicant and his neighbours wrote a letter which they submitted to the Sichuan Province Government. Once the village government found out, they sent police to arrest them. The applicant was not home and was not caught, but the other protestors were caught. The police forced those caught to give the whereabouts of the other protestors. The applicant was scared and escaped from China. The applicant confirmed that this was correct. When asked if he was claiming anything else, he stated that he believes he will be prosecuted if he returns to China and that the government officials gang up, therefore ‘we’ cannot return. When asked who he was referring to as ‘we’, the applicant stated that he came out to Australia with a friend of his, but that friend is currently in the United States of America. He was not referring to any other family members present with him in Australia.

34. When asked about the land which was expropriated, the applicant stated that it was in [Village 1], [Town 2], Jianyang City. The applicant stated that the land was his, then explained that he came to ‘own’ the land after he married his wife. The Tribunal questioned whether he owned the land or whether it was communal land owned by the village, to which he responded that the government distributed the land to people and that everyone had their share of the land. He stated that the land had been allocated to his wife’s family several decades ago and was hers prior to their marriage. He stated that the land was 16 mu in size and was being used to grow corn.

35. The applicant gave evidence that he received notice in April 2016 that the land would be used to build a factory. When asked what information was contained in the notice, he stated that it said how much compensation would be for each mu. He then stated that the village and developer did not pay them or compensate them as promised, so that’s why ‘they’ wrote the letter, after which the village government sent the police. The Tribunal attempted to obtain further details about the information contained in the notice, despite the applicant jumping ahead and providing a general summary of his claims. When asked what compensation was offered, he stated it was 50,000 RMB for 1 mu, so the compensation should have been around 800,000 RMB. When asked who else was affected by the notice, he stated that the whole group involved more than 30 households. The Tribunal put to the applicant that if it involved 30 households, it sounded like a very large area for a factory, to which the applicant responded yes.

36. The applicant gave evidence that the developers said they were going to compensate them, but lied to them. He stated that the developers made them sign documents, then acquired the land and did not pay any compensation, which is why he and his neighbours wrote a letter. The developers started using the land in July 2016. The Tribunal questioned when the applicant first realised that he was not going to be compensated. He stated that the developers kept telling him and the others that they were going to pay them compensation, but then nothing happened. The developers kept delaying things, and afterwards they threatened the applicant and others not to ‘make any things’ and said that they would pay them.

37. The Tribunal questioned whether the applicant had any discussions with government representatives before writing the letter. He responded that the developers were related to the government officials in charge, so there was no way he or his neighbours could talk to them. He stated that they therefore had to turn to a higher level and then an even higher level. When questioned further about who he actually spoke to within government, the applicant gave a vague and indirect response, stating that all of the households in the village communicated about this and then they wrote the letter collectively. The Tribunal put to the applicant that it sounded from his evidence as though he did not speak to or see any government representatives about the issue. The applicant responded that he did, then stated that he went to see the Jianyang City Council. When asked what happened when he saw the City Council, he stated that he went there to make a complaint, but the City Council informed the lower level of government. While they were complaining to the City Council, those who had stayed behind in the village ‘were already arrested’.

38. When questioned about the arrests, the applicant stated that after he saw the City Council, the police came to arrest him and his neighbours. He stated that he was not arrested because he had not yet reached his home. His wife warned him that some people were arrested. Only six or seven were not arrested. When questioned what he did after this, the applicant stated that he went to Chengdu. The Tribunal put to the applicant that he did not leave China until March 2017, and the applicant acknowledged that this was a period of about six to seven months. When asked what he did during this time, he stated that he was ‘escaping’ and ‘running from them’. When asked where he stayed during this time, he stated he was in Longquan Town (in Chengdu). The Tribunal questioned why the authorities were unable to find him during this period of time if they had come to arrest him, to which he responded it was because he did not contact his family during this period.

1. The Tribunal questioned the applicant as to the contents of the complaint letter and why it would have resulted in the police arresting people. The applicant responded that the letter just demanded that they pay compensation. When asked if he has a copy of the letter, he stated that he does not as it has been many years. He then stated that he had a copy in his old mobile phone, but this phone broke. When asked if he has any other documents in support of his claims, such a documents confirming the grant of the use of the land or a copy of the expropriation notice, he stated no and that it didn’t occur to him to bring copies of those documents with him. The Tribunal questioned whether he is still in contact with his wife and son, who are still living in [Village 1], the location of the land in question. The applicant responded that back then it did not occur to them that they would need to keep these documents. He again stated that he took photographs with his mobile phone, but the phone broke.

2. When asked what he knew about the arrests, the applicant stated that those arrested were taken to the police station, questioned and interrogated and two people had their arms broken. He stated that those people got some medical expenses paid. He stated that some people were charged and sentenced for disrupting society. The Tribunal questioned whether this was solely on the basis of sending a letter or whether there was any other activity. The applicant confirmed that it was solely on the basis of the letter and confirmed that no-one protested. He stated that no-one had the courage to protest because the developer is related to government officials and ganged up with them. The Tribunal questioned what happened to those who were arrested and whether any of them were sentenced. The applicant stated that they were sentenced to jail and probably also fined. He stated that the longest sentence was seven years. The Tribunal put to the applicant that this was a very long time to be sentenced to jail on the basis of only having written a letter about the non-payment of compensation by a developer, and questioned whether there was anything else the applicant had not told the Tribunal about. The applicant did not provide the details of any other claims, but responded that the person who wrote the letter was sentenced to jail.

3. The Tribunal questioned the applicant as to any reasons why he believes he would still be of interest to the authorities in China in connection with these events which occurred in 2016. He stated that the village authorities have been asking his wife whether he is back home. When questioned whether the police had gone to his house to arrest him in 2016, he stated that they did, though when asked if they came with an arrest warrant, he stated that they didn’t. When questioned why the authorities would still wish to detain or harm him, the applicant stated that the government officials gang up and undertake private or secret arrests. He stated that if he returns to China he will be beaten up and arrested by local authorities. He claimed that every year the authorities go to his home to ask if he is there and to ask him to return home. The Tribunal questioned why the authorities would want him to return, given the expropriation of the land has occurred and his departure means he has not been following up on the issue of unpaid compensation, to which he responded that he and his neighbours did not get their compensation and they wrote a complaint letter against the authorities, who were not happy about it. He stated that the authorities will not let the issue go because he is one of the leaders who organised the complaint letter.

4. When questioned if he has ever been arrested or detained, the applicant stated that he was once detained prior to his marriage (at the age of about [Age]) and confirmed that this was not in connection with any claims for protection.

5. The Tribunal questioned how the applicant was able to leave China using his own passport if the police had gone to his home to arrest him and he hid for over six months to avoid being captured. The applicant responded that he contacted his wife and had his passport delivered to him. He stated that after half a year the village authorities slacked off a little and his wife managed to get out with his passport.

6. The Tribunal put to the applicant whether he would be able to relocate to another part of China to avoid the harm he fears from the local government authorities. He stated that this is not possible because in China the identification system means he would be located wherever he goes.

7. When questioned about any political activities which he had undertaken since leaving China, or any action he had taken in relation to the land and the issue of compensation, the applicant confirmed that he had not made contact with any authorities in China and had not protested in any way. He stated that he has called his family to see whether the issue has been solved but was told the authorities have asked him to return to China and they would then deal with him.

   Country information

8. The Tribunal discussed with the applicant relevant information from the most recent DFAT Country Information Report for China[1] includes the information regarding petitioners and protestors. The section of the DFAT report relating to Protesters/petitioners contains the following information:

   [1] DFAT Country Information Report People’s Republic of China 22 December 2021.

   Protestors and petitioners – including land protests

   3.86    All gatherings of more than 200 people must obtain approval from public security authorities. The Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges. Public demonstrations are rarely approved. Spontaneous protests sometimes occur. Common protest themes are related to labour disputes, environment, land disputes and local corruption. Recent estimates on numbers of protests are not available, but DFAT understands they have become much less common under President Xi.

   3.87      Disputes with government may be raised at petitioning offices, also called ‘letters and visits’ offices, a type of government service office. Millions of disputes are raised every year. Local authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means local authorities are incentivised to retaliate against petitioners, which might include charges such as ‘picking quarrels and provoking trouble’. According to the 2020 US Department of State Human Rights Report, local governments have sent personnel to Beijing to force petitioners in the capital to return home. While examples of violence and, in extreme cases, deaths are reported, many complaints are resolved through the petitioning process.

   3.88    Land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villages. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation (thus, disputes are generally complaints against local government which may escalate to the national government, as outlined above). China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs’, who intimidate protesters or cut utility supplies, have been used and are allegedly hired by local governments.

   3.89      DFAT assesses that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.

9. The Tribunal put to the applicant that what it might infer from this country information is that persons who organise unapproved protests of more than 200 people are at risk of prison sentences and detention, but on his own evidence the applicant was not involved in any protest activities other than writing a letter and taking it to a city council. The Tribunal indicated that it might also infer that issues relating to the expropriation of land are common in China, that there are processes put in place for fair and reasonable compensation, as well as petitioning offices which serve as a type of government service office for complaints. The Tribunal put to the applicant that he had the option of lodging a complaint with such a local petitioning office. The Tribunal also put to the applicant that the country information did not support his claim that the police would seek to arrest him and his neighbours merely on the basis of a letter provided to the city council.

10. In response to this information, the applicant stated that one cannot actually turn to a higher level in China. He stated that even though the information indicates that complaints can be made to a higher level, these higher levels would not actually do anything and would give the complaint back to the local government, who will arrest you. The Tribunal again put to the applicant that it was having difficulty accepting that the authorities would seek to arrest him merely on the basis of a complaint letter which was not accompanied by any protest activity, to which he responded that the local government authorities and developers were persecuting them. He indicated he had no further comments in relation to the country information.

    Information put to the applicant pursuant to s.424AA of the Act

11. Following the applicant’s evidence, I used the procedure in s.424AA of the Act to put to the applicant particulars of information from an application for review by another applicant to the Tribunal, in Tribunal Case File Number 2013802, that the Tribunal considered could be the reason or part of the reason, for affirming the decision under review. I put to the applicant that I had previously heard Tribunal Case File Number 2013802, and that when reading his visa application, I noticed similarities with the claims contained in the visa application for Tribunal Case File Number 2013802, which was also lodged with assistance from [Mrs A]. The Tribunal put to the applicant that the claims in this other visa application also related to the expropriation of land, and that while the details of the property were different, both applications use similar wording, and in several places use identical phrases. The Tribunal put the following particulars to the applicant regarding the claims made at Question 89 of the visa applications:

    a.The applicant in Case File Number 2013802 states that ‘… the local government noticed me that the house would be demolished …’, and in the current matter the applicant states in his visa application that ‘… the village government noticed us that our land would be collected’;

    b.After claiming that the compensation to be paid from the expropriation was unfair, the applicant in Case File Number 2013802 states, ‘So I and other residents wrote complaint letter to submitted to (sic) city government, to hope that get a reasonable explanation and compensation’. The current states in his visa application, ‘I and other neighbours were angry, so we wrote complaint letter to submitted to (sic) Sichuan Province Government to require give us a reasonable explanation’;

    c.The applicant in Case File Number 2013802 states that ‘after the officials knew my behaviour, they sent the police to catch me’, which is similar to the current applicant’s statement, ‘After the village government knew our behaviour, they sent police to catch us.’; and

    d.The applicant in Case File Number 2013802 ends their response to Question 89 of the visa application by stating, ‘I was so scared, escape China and fled (sic) to Australia’. The current applicant also ends his response to Question 89 by stating, ‘I was so scared, escape China.’ The words ‘And fled Australia’ have then been added in handwriting after the typed text.

12. The Tribunal put to the applicant that this information may be relevant because the similarity in the wording and structure of the two claims, which were both lodged by the same authorised representative, may suggest that a template set of claims was being used by this representative, with different details of locations and properties inserted. The Tribunal put to the applicant that the similarity in the wording used may indicate that the wording of his claims are not his own and may therefore not be genuine.

13. The Tribunal advised the applicant that if it relies on this information, it may be the reason, or part of the reason, for the Tribunal affirming the delegate’s decision. The applicant confirmed that he understood the relevance of the information and the consequences of the Tribunal relying on the information. The Tribunal invited the applicant to comment or respond to the information and informed him that he could seek additional time to comment or respond to the information if needed. The applicant chose to respond to the information at the hearing. The applicant responded that the information contained in the application lodged for him by his agent at the time was based on the information he had told them and is the absolute truth and nothing else.

14. The Tribunal raised a number of other concerns with the applicant’s evidence and gave him the opportunity to comment or respond to each concern as a matter of procedural fairness. These concerns, together with the applicant’s responses where relevant, are set out in the analysis of my findings below.

    Assessment of claims

15. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need, and importance of, being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

16. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

17. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

18. The applicant claims that he had land which had been allocated to his wife’s family in her hometown in Sichuan Province, which he used to grow corn. He claims that in April 2016 he received notice from the village authority that the land would be given to a developer who planned to build a factory. He claims that the notice affected about 30 other landholders. He claims that they were forced to sign an agreement for compensation, but after the developer took hold of the land in July 2016 the developer did not pay compensation. He claims that he and some of his neighbours wrote a letter of complaint, which they took to the Jianyang City Council. He claims that the City Council informed the village council of the complaint and before he returned home, those people who were involved but had not attended the City Council’s office, were arrested by the police. He claims that some of them were charged with disruption of society and the person who signed the letter was sentenced to seven years in prison. He claims that his wife told him that the police came to look for him and he then went to Chengdu to hide, where he remained for at least six to seven months, until March 2017 when he departed China. He claims that each year the authorities come to ask his wife about his whereabouts and ask him to return to China. He claims that his wife was able to leave their village after about six months and take him his passport so he could leave China. He claims to fear returning to China on the basis that he will be jailed because he was one of the organisers of the letter.

19. The Tribunal has carefully considered the claims made by the applicant. The Tribunal has several concerns with the applicant’s evidence, which are set out below, and overall finds the applicant to be an unreliable witness who lacks credibility.

20. Firstly, the Tribunal has concerns regarding significant discrepancies in background information contained in the applicant’s Protection visa application with that given at the hearing, in particular the details of where the applicant lived in China and what work he did, some of which is not consistent with his claim that he made a living from growing crops on the expropriated land, nor with his claim that he lived in the same location as the expropriated land.

21. At the hearing, when asked about his background, the applicant gave evidence that he lived in Longquan Town, a suburb of Chengdu, for five years prior to arriving in Australia. He stated that prior to this he lived in [Town 1], Leshan City for five years, and stated that this address is his hukou. Prior to that he lived in [Village 1], [Town 2], Jianyang City for about 20 years from the age of [Year], when he married. The Tribunal notes that according to his passport, the applicant was born in [Year], and is therefore almost [Age] years of age, and the evidence he gave of his marriage at the age of [Age] and then having lived in two other locations in China, each for approximately five years, is consistent with these estimates of how long he lived in each location (also keeping in mind that he left China in March 2017). He gave evidence that prior to marrying, he lived in [Town 1], Leshan City, where he was raised. In contrast, in his Protection visa application, the applicant stated that he lived in [Town 1], Leshan City from [Year] to [Year] and then in [Village 3], [Town 2], Jianyang City from [Year] to March 2017. The applicant did not mention [Village 1] in his application form, which at the hearing he claimed was the location of the expropriated land, nor did he mention having lived in Chengdu for five years immediately before arriving in Australia, nor in [Town 1] for the five years prior to that.

22. The Tribunal also put to the applicant that in his Protection visa application he lists his work from [Year] to February 2017 as being a ‘worker’ in ‘[Job task]’ in Jianyang. While he lists ‘farming’ as an occupation, this is listed from [Year] to [Year] and he states that this work was undertaken in Leshan. The Tribunal questioned the applicant as to why he did not tell the Tribunal about the [Job task] work he did from [Year] to 2017 in Jianyang City, to which he stated that he did not do any decorating work, and that he just married his wife and moved to Jianyang City. As to the discrepancy regarding living in Longquan Town, Chengdu, the applicant stated that after the incident occurred, he hid in Longquan Town. When asked why he told the Tribunal that he had lived there for five years, he responded that he thought the Tribunal was asking him how long he had been living in Australia. He stated that he hid in Longquan Town for several months.

1. The Tribunal does not find the applicant’s explanation of the inconsistency regarding his evidence about living in Longquan Town to be convincing. I note that I asked the applicant the name of the suburb or town he had lived in in Chengdu, to which he responded Longquan Town. I then asked him how long he had lived there, to which he responded five years. I next asked him whether this place was his hukou, to which he responded that it wasn’t. After further questioning he responded that his hukou was in [Town 1], Leshan City. While I note that the applicant arrived in Australia in March 2017, approximately five years ago, I am not convinced with his explanation that he thought he was being asked about his time in Australia when he answered ‘five years’, given all of the questioning at that time was about his addresses in China, and immediately after his response, he was asked whether the place he had lived for five years was his hukou (and therefore, logically, the Tribunal was not asking him about an address in Australia, but about one in China).

2. Even if I were to accept the applicant’s explanation of the inconsistency regarding how long he lived in Longquan City, Chengdu, the applicant gave evidence that he lived in [Town 1], Leshan for five years immediately prior to this, and before that he lived in Jianyang City for about 20 years from the age of about [Age] until he was about [Age] (which would be from approximately [Year] to [Year]). This is not consistent with his evidence that he was earning a living from pig farming and growing corn on the expropriated land (in Jianyang City) in 2016. Secondly, the information that he worked in decoration in Jianyang City is inconsistent with his claim that he worked as a farmer. I do not find that the applicant provided a sufficient or convincing explanation for this inconsistency when it was put to him. Thirdly, at the hearing the applicant gave the name of the town he lived in in Jianyang City as [Village 1], whereas in his Protection visa application he has recorded it as [Village 3]. While the Tribunal does not consider that these inconsistencies on their own are sufficient to discredit the applicant’s claims, they raise concerns that the applicant has not been entirely truthful in his evidence or his written claims. Of particular concern is the applicant’s evidence that he was either living in [Town 1], Leshan from about [Year] to 2017 or in Chengdu for five years, rather than in Jianyang City, when the incident is said to have occurred in 2016.

3. Secondly, I have concerns with the lack of any supporting documentation provided by the applicant, including no evidence of the grant of rights to use land in a village in Jianyang City, nor any evidence of the expropriation notice, the letter that was given to the City Council or of any warrants for his arrest or any other evidence of interest from the police. The applicant claimed that it did not occur to him that he would need to keep copies of documents. He also claims that he took photographs on his mobile phone of the letter which was given to the City Council, but his phone has since been broken and he no longer has access to these copies. The Tribunal does not find the applicant’s explanation for the lack of supporting evidence to be convincing. In particular, the Tribunal notes that the applicant is still in contact with his wife and [Age]-year-old son whom he stated are still living in [Village 1]. The Tribunal therefore considers that the applicant’s wife or son would be able to provide the applicant with documentation regarding the land they were granted use to in this village. Further, the applicant claims that the expropriation involved at least 30 households, and that each of these households were issued with a copy of the expropriation notice.

4. Given the applicant’s claim that his wife and son continue to live at this location, the Tribunal considers it reasonable that the applicant would have access to supporting evidence of his claims, such as a copy of the expropriation notice or a copy of the letter provided to the City Council. At the hearing, the applicant told the Tribunal that he would contact his family to see if there were any documents in support of his claim. The Tribunal gave the applicant four weeks, until 10 January 2023, to provide any supporting evidence. The applicant did not provide any further documents by that date, and nothing further has been provided by the applicant despite the passing of over a month since this extension of time ended.

5. Thirdly, the Tribunal has concerns with the credibility of aspects of the applicant’s claims. The Tribunal has had regard to the country information and notes that rural land in China is collectively managed by villages and that land disputes are a common reason for protest in China, including disputes relating to the expropriation of land.[2] The Tribunal is prepared to accept that the applicant’s wife had land which was allocated to her family prior to marriage. The Tribunal is also prepared to accept that this land may have been expropriated by the village committee, however the Tribunal did not find the applicant’s claims regarding his dealings with various levels of government or the developers to be convincing, nor did it find convincing his claims regarding the arrest of people who had written a letter to the city government.

   [2] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.88.

6. The Tribunal found the applicant’s claims regarding dealings with government and his written complaint letter to be vague and lacking a convincing level of detail. When questioned about the details, the applicant showed a tendency to restate the limited information which was contained in his visa application and to jump forward to tell the Tribunal other details of his claims, such as about the arrests, rather than providing a level of detail which the Tribunal would find convincing. For instance, when asked what was in the notice of expropriation that he received, the only details the applicant gave were to state what compensation was payable, and he then jumped forward to say that the compensation was not paid, that he wrote a letter, and the police were sent in to arrest him and his neighbours, thus providing the same limited and unconvincing level of detail contained in his written claims.

7. When asked about any discussions he had with government representatives prior to giving the letter to the city government, the applicant stated that there was no way he could talk to them because the government officials in charge were related to the developers, so they had to go to higher, and then even higher levels. When again questioned whether he spoke to anyone from the Village committee or government, the applicant did not respond directly, and instead stated that the villagers wrote a letter (to the City Council) collectively. The applicant gave no evidence of having spoken to, or complained to, any government authorities, other than Jianyang City Council. He claims that while he was seeing the City Council, the City Council informed the village government about the visit and letter and then village government arranged for the arrest of the villagers.

8. On the applicant’s own evidence, there is no evidence to indicate that the applicant or any other villagers spoke to or made any formal representations to the village committee or government prior to visiting Jianyang City Council. While I accept that if the applicant or other villagers made representations to the Jianyang City Council, the City Council may have referred the issue back to the responsible village committee. I do not however find convincing the applicant’s evidence that villagers were arrested while the applicant and others were meeting with the City Council or prior to the applicant returning home. The applicant’s evidence in this regard raises serious questions as to who would be arrested and on what basis the authorities would consider them responsible for the letter, given they had not attended the meeting with the City Council, and those who attended the meeting had not yet returned home. It raises questions as to why the police would not wait for these people to return home before making arrests. It also raises questions as to why the applicant’s wife was not arrested, given the land had been allocated to her family for several decades, and given she witnessed other people being arrested and telephoned the applicant to warn him not to return home.

9. Further, the country information indicates that there are processes in place in China for raising complaints such as this, namely at petitioning offices, with millions of disputes raised every year. While the country information indicates that there are examples of violence involving local authorities who are incentivised to handle matters at the local level before they escalate to a higher level, it does not support the applicant’s claim that villagers would be arrested, and in one case sentenced to seven years imprisonment, merely on the basis of taking a complaint letter to a city council. The country information indicates that persons who organise unapproved protests of more than 200 people are at risk of detention or prison sentences, and that people who organise or participate in protests over land or local corruption are subject to a high risk of official discrimination. However, there is no evidence that the applicant or anyone he was associated with conducted any form of protest, other than a small group of people delivering a letter to the City Council. I do not find the applicant’s evidence of the arrests of people, or of the police visiting his home, to be convincing. Nor do I find it convincing that one of the persons who wrote the letter was imprisoned for seven years merely on the basis of the events as described by the applicant.

10. I also do not find the applicant’s account of going to Chengdu after this incident, and hiding there for several months, to be convincing. I do not accept his explanation that the authorities were unable to find him during this period merely because he did not contact his family, but his wife was nevertheless able to sneak out of her village to deliver him his passport prior to his departure from China. While I have considered his claim that his wife was able to do so because after six months or so the authorities started to get slack, I do not find this a convincing explanation for how he was able to evade authorities for a period of about six to seven months.

11. I also do not find convincing the applicant’s claim that he continues to be of interest to the local authorities in Jianyang. The applicant claims that each year his wife is visited by the police or local authorities, who ask her where the applicant is, and tell her that he should return to China. I do not find it convincing that the local government authorities would actively seek to have the applicant return to Jianyang. On the applicant’s evidence, the land which was expropriated was taken by the developer in July 2016. There is no evidence that the applicant organised or participated in any protest in China and there is no evidence that he has undertaken any protest activities or attempted to address the issue of unpaid compensation since arriving in Australia in March 2017. The applicant has not provided a convincing reason for why the local authorities would seek for him to return to China, nor of why he would continue to be of interest to them, given the expropriation of the land occurred approximately five-and-a-half years ago and the developer has taken possession of the land, and there is no evidence of any public protest.

12. The applicant’s claim that he is of interest to the authorities in China is also not supported by his evidence that he departed China through a major airport, using his own passport approximately six to seven months after the claimed incident. The Tribunal put to the applicant country information from the DFAT report which indicates that the Chinese government maintains border controls which prevent persons of interest from leaving, and that they use sophisticated technology at major airports to identify persons of interest, as well as maintain an exit control list. The Tribunal put to him that his ability to leave China through a major airport without incident suggests that he was of no interest to Chinese authorities when he departed China. In response, the applicant claimed that the police who were interested in him could not do these things as they are only local officials and can only have him arrested locally. He stated that it is not as though he or anyone else murdered someone.

13. The Tribunal notes that the applicant claims the incident occurred sometime after July 2016 and that there was a period of six to seven months before he left China in March 2017. The Tribunal considers that this time period would have been sufficient for local police to notify agencies of charges against the applicant and for security systems to be updated. The Tribunal is concerned that security monitoring capabilities at China’s airports are comprehensive and departing passengers pass through several identity checks, including passport and ticket/boarding pass inspection run by different agencies.[3] A similar state of affairs is recorded in earlier DFAT country information reports, issued on 21 December 2017[4] and 3 March 2015[5]. According to the 2015 report, China’s major airports have a centralised system with name matching alert capabilities, and security monitoring capabilities at major airports are comprehensive. The Tribunal considers that the applicant’s ability to depart China without attracting any adverse interest, adds further doubt to his claim that he was of any interest to authorities in China at any level prior to departing China.

    [3] DFAT Country Information Report People’s Republic of China, 3 October 2019, paras 5.40-5.41.

    [4] DFAT Country Information Report People’s Republic of China, 21 December 2017.

    [5] DFAT Country Information Report People’s Republic of China, 3 March 2015.

14. Accordingly, despite the lack of any supporting evidence, the Tribunal is prepared to accept that the applicant’s wife’s family had been allocated land in a village in Sichuan Province. The Tribunal is also prepared to accept that this land may have been expropriated by the village authorities. The Tribunal does not however accept the applicant’s evidence that he organised or participated in writing a letter of complaint to the Jianyang City Council or to any authorities or government at any level. There is no evidence that the applicant organised or participated in any protest activities in China, nor that he has conducted any protest activities or corresponded with any government authorities in China in relation to the issues of land or compensation since arriving in Australia. I do not accept that the police sought to arrest the applicant for organising or participating in writing a letter to Jianyang City Council, or for any other reason, nor that the applicant hid from police in Chengdu for a period of six to seven months after the claimed incident. I do not accept that the applicant was of any interest to authorities in China in relation to his stated claims.

15. I also note the information which I put to the applicant using the procedure contained in s.424AA of the Act, regarding the similarity of the wording of the claims made by the applicant to those made in another protection claim which was lodged with the assistance of the same authorised recipient as that for the applicant’s Protection visa application at the time of lodgement with the Department. While I do not base my findings on the applicant’s credibility on this information alone, but rather on the concerns which I have set out above, I find that the similarity of wording and structure of these two claims adds further doubt to the applicant’s claims and strengthens the finding that his claims are not truthful or credible. While I note that representatives may use templates to assist in preparing visa applications, and that these may involve the use of standard wording, the similarity in the structure of the claims made by the applicant in the current matter with those in Tribunal Case File Number 2013802, together with the use of very similar wording for certain claims, suggests that the claims made by the applicant may not be his own, but rather that they are standard claims prepared for him by the authorised recipient who lodged both claims. This is of concern given the claims for protection are meant to be those of the applicant himself and represent his own experiences of harm and fears, and not wording borrowed from other claims. In particular, both applicants claim that after experiencing issues with the payment of compensation, they together with other residents/neighbours, wrote a letter of complaint to get a ‘reasonable explanation’. Both claim that after the local authorities ‘knew [their] behaviour’ they ‘sent police to catch’ them. Both claim that they were so scared that they escaped China and fled to Australia.

16. I find that the similarity of this wording and the structure of the claims is such that the claims do not appear to be those of the applicant himself, but rather generic claims given to the applicant by his previous representative who lodged his claim, using generic language which is not the applicant’s own language, and that used to also describe the claims of at least one other applicant for a Protection visa from another part of China. I do not consider the applicant’s response to this concern to be convincing or sufficient to explain the similarity of wording used in several parts of his claims as set out at Question 89 of his visa application. As stated already, I do not base my findings about the credibility of the applicant’s claims on this information alone, but rather consider that it lends further support to the findings which I have made above, namely that the applicant’s claims are not convincing and lack credibility.

    Does the applicant have a well-founded fear of persecution if he returns to China?

17. The Tribunal accepts that the applicant is a Chinese national, and on the basis of the information in his passport, that he is from Sichuan Province. The Tribunal is also willing to accept that after marrying his wife, he moved to a village in Jianyang City, and that he and his wife had land which was allocated to his wife’s family decades before. The Tribunal is also prepared to accept that the village committee or government may have issued a notice for the expropriation of the land. The Tribunal does not however accept the remainder of the applicant’s claims. It does not accept that the applicant organised others or that he himself wrote a letter of complaint to Jianyang City Council about the non-payment of compensation or that he organised or participated in delivering such a letter to the City Council. The Tribunal also does not accept that the village committee or government arranged for police to arrest any of the people associated with writing such a letter. There is no evidence that the applicant led, organised or participated in any protest activities in China. The Tribunal also does not accept that the applicant fled to Chengdu for a period of six to seven months to escape local authorities and avoid being arrested. The Tribunal also finds that the applicant was not of any interest to the police or local authorities for any of the reasons claimed at the time that he left China. There is also no evidence that the applicant has conducted any protest activities while in Australia or has contacted any government authorities in China regarding the issue of compensation for the expropriation of land, and the Tribunal does not accept that the applicant would be of any interest to authorities in China on this basis, nor that he would seek to conduct any protest activities upon return to China.

1. These findings are further reinforced by the applicant’s delay of six to seven months in leaving China after the claimed incident. The Tribunal notes that the applicant’s Chinese passport was issued in 2011. The Tribunal does not accept as credible the applicant’s claim that his wife was able to sneak out of their village about six months after the claimed incident, without being noticed, in order to take him his passport. The Tribunal also does not accept the applicant’s explanation for the delay in departing China, and finds it raises further concerns regarding the veracity of his claimed fears of returning to China.

2. The applicant has not claimed any other reason or basis on which he fears returning to China. I do not find that he has any other reasons to fear persecution or serious harm. The Tribunal accepts that the applicant would like to live and work in Australia. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if he returned to China, now or in the reasonably foreseeable future.

3. 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) of the Act.

Does Australia have protection obligations to the applicant under the complementary protection criterion?

1. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.

2. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[6] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition. ‘Significant harm’ is defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

   [6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]

3. As detailed above, I have rejected the applicant’s claims that he was involved in organising or participated in any way in writing a letter of complaint to the Jianyang City Council. I have also rejected his claim that the police arrested persons involved in writing the letter and sought to arrest the applicant, as well as rejected his claim that he escaped and hid for six to seven months in Chengdu before fleeing to Australia. I have also rejected any claims that he continues to be of any interest to the police or local authorities in China in connection with writing such a letter or anything to do with his claims about the expropriation of land and compensation. I do not accept that he will be threatened or harmed for these reasons if he returns to China.

4. The applicant did not claim that he faced a risk of harm for any other reason or on any other basis on return to China, and on the information before me I find that there is not any other basis for a risk of harm to the applicant on return to Sichuan Province, China.

5. Having considered all of the applicant’s claims, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.

   Conclusion

6. 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).

7. 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).

8. 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

9. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Frank Russo
   Member

   
   

   Attachment  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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   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.

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