1720311 (Refugee)

1720311 (Refugee) [2021] AATA 5238 (1 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720311
COUNTRY OF REFERENCE:                   China
MEMBER:James Silva
DATE:1 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 December 2021 at 8:51am
CATCHWORDS
REFUGEE – protection visa – China – harassed by village leader – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Fox v Percy (2003) 214 CLR 118
SZLVZ v MIAC [2008] FCA 1816
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

The applicant is a woman [age] from China (People’s Republic of China, PRC), who claims to be a citizen of that country.
The applicant arrived in Australia [in] May 2017, as the holder of a visitor (subclass 600) visa. She applied for a protection (class XA) visa on 29 May 2017. On 23 August 2017, a delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act). The applicant had failed to attend the Department interview, and the delegate rejected the applicant’s protection visa application on the basis of the limited available information.
This is an application for review of that decision.
For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
CLAIMS AND EVIDENCE
Protection claims
The applicant claims to have antagonised the leader of her village, by failing to vote for him in an election in 2015. He harassed and intimidated the applicant, including by destroying property, denying her financial subsidies, threatening her children and, according to her claims at hearing, making sexual advances in her husband’s absence. The psychological pressure grew over time. She claims that a letter of complaint went unanswered. She fears that the (former) village leader still has the power to harass and assault her if she returns to China, and that it is ‘unrealistic’ for her to live elsewhere in that country.
Background
The applicant is a [age] year old woman from Hebei province. She lived in at one address in a village of in Gaocheng district, from 1987 until her departure from China in May 2017. The applicant told the Tribunal that the village has about [number] inhabitants and is some [number] km from Shijiazhuang city.
The applicant gave few details about her personal background in the protection visa application. She attended primary and then secondary (junior high school) up to July [year]. The applicant gave no details of paid employment in China. At hearing, she said that after leaving school, she worked casually as a [occupation] before her marriage. On the application form, she wrote that after her marriage, she had home duties (‘housewife’).
The applicant married in late 1995, and has a daughter born in [year] (now [age] years old), and son born in late [year] ([age] years old). She claims that, for financial reasons, her husband had to work in another location, and did not see the family often. She told the Tribunal that her husband farms [produce], on communal land. In the off-season, he works in other locations to supplement the family income. He is currently living in the village. She said that her children are studying in Shijiazhuang; her daughter has graduated [from] her degree course and is currently undertaking research and working part-time. Her parents live in the same village, in a separate house. During the course of the hearing, the applicant said that her family have now moved to farmland in a neighbouring village (implicitly, in response to threats from the former village head). For the reasons set out below, the Tribunal does not accept that claim.
The applicant holds a PRC passport issued in [2015], a partial copy of which appears on file. It replaced an earlier passport. The applicant told the Tribunal that the earlier passport had expired; she thought that it had been of five years’ validity. This suggests that it may have been issued in around 2010. The applicant wrote on the application form that she has never visited any country other than Australia in the past 30 years.[1] However, her passport includes entry/exit stamps for [Country 1] ([named] Airport) [from] April to [May] 2016.
[1] Form 866C, question 80.
The applicant arrived in Sydney [in] May 2017 and, as noted above, lodged her protection visa application on 29 May 2017.
Evidence
The evidence before the Tribunal includes the following relevant material:
§ The applicant’s protection visa application form, with attachments. The applicant’s protection claims are set out in a three-page statement in English attached to the form.
§ The applicant provided a partial copy of her PRC passport, issued in Hebei [in] 2015. The passport includes on page 9 a copy of a Schengen C (short-term) visa issued [in] April 2016, valid for multiple entries. Visa stamps show her entry into [Country 1] on [date] April 2016, and departure on [date] May 2016.
§ The applicant was invited to a protection visa interview (‘Department interview’) on 21 August 2017, but failed to attend.
§ The delegate’s protection visa assessment record (‘delegate’s decision record’) of 23 August 2017.
§ Review application form, to which the applicant attached a copy of the decision record.
The applicant appeared before the Tribunal on 16 November 2021, to give evidence and present arguments. The hearing was conducted via teleconference, with the assistance of an interpreter in the Chinese (Mandarin) and English languages.
The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. In doing so, it also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant is not represented in this matter and did not present any witnesses or additional documents.
Receiving country
The applicant claims that she is a national of China. She holds a PRC passport, speaks Mandarin and showed her familiarity with that country. The Tribunal accepts she is a national of China, which is therefore the receiving country when assessing her protection claims.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment of Claims
When considering claims the Tribunal must first make findings of fact, in order to assess whether there is a real chance of serious harm or a real risk of significant harm. The Tribunal recognises that the assessment of credibility is inherently difficult, and that special considerations apply in relation to asylum seekers. It has had regard to guidelines on the assessment of credibility issued by the Tribunal, Department and others.[2] Relevantly, the courts have noted that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[3] However, it is also well established that the Tribunal is not required to accept uncritically claims made by an applicant.[4]
[2] The Tribunal has before it the AAT’s Migration and Refugee Division, Guidelines on the Assessment of Credibility; Department of Home Affairs, Policy – Refugee and humanitarian – Refugee Law Guidelines, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines); and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, re0issued February 2019 at [203]-[204] (UNHCR Handbook)
[3] Fox v Percy (2003) 214 CLR 118
[4] SZLVZ v MIAC [2008] FCA 1816 at [25].
Overall, the Tribunal found the applicant’s claims and evidence, as presented in her original application and at the Tribunal hearing, to be vague, inconsistent, selective and lacking in context. The applicant appeared to have a general outline of her claims but could not provide meaningful detail and observations.
On several occasions, the applicant replied briefly to the Tribunal’s questions by saying that she could not remember, including on key aspects of her protection claims. For instance, she could not recall the name of her alleged persecutor, explaining that she tries to forget the past. The Tribunal is mindful that traumatised individuals may be unable to recall aspects of past events or may suppress aspects of it due to associated distress.[5] In the present case, however, the applicant presented no evidence of any medical issues, including mental health problems or memory loss. In light of the applicant’s evidence as a whole, the Tribunal considers that she was not in fact speaking from personal experience.
[5] See, for instance, MRD Guidelines on Vulnerable Persons, ‘Impaired memory’ p.18 particularly paragraph 82.
The applicant gave inconsistent, uncertain and changeable accounts of her alleged persecutor’s actions and threats, both against her and her family. At hearing, when seeking to explain her delay in leaving China after the problem began in 2015, and her return trip to Europe in 2016 (without seeking protection), she said that her persecutor’s actions later became more serious and more physical, directed against her as a female. She said that he had wanted to make her his mistress. At face value, these references suggest a gender-related claim. As noted in the AAT’s Guidelines on Gender[6], applicants may find it difficult to present and pursue such claims, including for social and cultural reasons. The Tribunal is mindful of the need to provide an appropriate environment for an applicant to present relevant material, and notes that a telephone hearing may not be optimal. It considered whether to adjourn the hearing and resume it in person, to explore any possible gender-related claims. During the discussion, the Tribunal explored these new claims, including the village leader’s alleged pursuit of the application over time, the context, and the applicant’s subsequent conduct. The Tribunal full assessment of these issues is below. Given the Tribunal’s significant concerns about the applicant’s claims and evidence as a whole, and her credibility, it considered it unnecessary to adjourn the hearing and resume it in person.
[6] MRD Guidelines on Gender, page 5.
The village head and local politics
In her statement of claims, the applicant indicated that the village head, [Mr A], had been in the position since about 2005.[7] She wrote that he was corrupt, and bullied and intimidated local residents. In the lead-up to the elections in early 2015, he campaigned vigorously, calling on everyone’s homes with gifts and money, as bribes for their votes.
[7] She wrote that her problems started in 2015, and he had been in head of the village for about ten years at that stage.
At hearing, the applicant confirmed that she fears harm from the (former) village head. She could not recall his name; she thought his family name might be [B]. (The Tribunal refers to this individual as ‘[Mr A] / [Mr B]’ in this decision.) She did not know how long he had held the position, or what political background he had. In response to the Tribunal’s surprise, particularly given the modest size of the village, she stated vaguely that he had a ‘political background’ and likely had some senior people protecting him. In explaining her lack of knowledge about her alleged persecutor, the applicant referred to the passage of time and said that she tries to forget her past.
The applicant confirmed that the village elections took place in 2015, but could not remember when. She thought that it might have been in Spring (hence, March to May 2015), but appeared uncertain. She said that she believes there is now a new village leader, but she had no further information, adding that she has no interest in those matters.
Independent reporting, largely based on anecdotal evidence, refers to corrupt local officials as a major concern in China. The most recent Department of Foreign Affairs and Trade’s Country Information Report[8] describes the prevalence of corruption at a local level, the main forms of which are bribery, diversion of public funds, and favouritism by government officials.[9] It notes that the kind of local disputes that can trigger protests or petitions typically involve land disputes, housing problems, industrial, environmental and labour matters, and government corruption.[10] The applicant’s characterisation of the (former) village head’s conduct, including his political pressure on local residents, is broadly consistent with this.
[8] DFAT, Country Information Report – People’s Republic of China, 3 October 2019
[9] Ibid, paragraph 2.40.
[10] Ibid, paragraph 3.134.
The applicant’s lack of knowledge or recent enquiry about her (former) village leader, such as his name, political background and current circumstances, are of concern. These are basic elements of her claims. They include information that goes to the heart of her need for protection, such as the former village leader’s capacity to harm her and the attitude of the current leader to such matters. Given that her husband and parents continue to live in (or near) the village, the applicant could easily have made enquiries, if these matters concerned her own welfare. The Tribunal is not satisfied on the available material, and in particular in the absence of any medical evidence, that she suffers from memory loss or that she tries to suppress memories of past experiences.
In the Tribunal’s view, the applicant appeared to be struggling to recall what she had recorded in her protection visa application, strongly suggesting that neither it nor her evidence at hearing are based on her personal experience. This raises significant doubts about the truthfulness of her claims as a whole.
The elections in early 2015
In her statement of claims, the applicant wrote that when [Mr A] (referred to at hearing as possibly [Mr B]) called on her home, she accepted his bribe and promised to vote for him, mainly due to her fear of him. However, she resolved not to do so.
She told her husband, who was worried that [Mr A] would find out if the applicant reneged on her promise, and, in his (the husband’s) absence, take revenge. The applicant also told a neighbour whose husband was similarly absent. The neighbour agreed with the applicant. The two of them called on other villagers, to persuade them not to vote for the village leader. While other villagers agreed with the applicant and her neighbour, they were too scared not to vote for [Mr A]. In the end, [Mr A] won the village election.
At hearing, the applicant confirmed that [Mr B] ([Mr A]) came door-knocking during the election period. At the time, she, her husband and two children were all home. [Mr B] merely asked them to vote for him. He called on everyone’s home. During the exchange, the applicant tended to blur her accounts of [Mr B]’s earlier conduct (i.e. the reasons she opposed his re-election), his campaign activities and his reactions on learning that she had not voted for him. She suggested that he had campaigned strongly, but said that the threatening behaviour came only later.
The applicant confirmed that she did not vote for [Mr B]. She said vaguely that she voted for another candidate and that, to her knowledge, some other villagers had done likewise.
The Tribunal found the applicant’s oral evidence to be generally vague, and at odds with her written claim that she and her neighbour campaigned actively against [Mr A] ([Mr B]). It is not prepared to accept at face value that the applicant in fact campaigned against the incumbent village leader, or had any kind of profile.
The village leader’s pursuit of the applicant
As noted above, the applicant referred in her statement of claims to [Mr A] ([Mr B]’s) corrupt behaviour and intimidation, and that he had ‘bullied’ her during her husband’s absence. They were afraid of him. She suggested that her neighbour and others had similar experiences with him. This motivated them to oppose his candidacy for re-election. She confirmed this at the hearing.
Threats and abuse following the election (early 2015)
The applicant wrote that [Mr A] ([Mr B]) found out that she had not voted for him, and he started to take revenge. She gave some examples of the harm he inflicted on her, her family and her property. Although she did not give any specific timeframe, her account suggests that these actions started soon after the election, that they ramped up in response to her complaints, and they continued up to the time of her departure from China.
§ He came to her home to ‘harass her all the time’, leading the applicant to fear for her children’s safety.
§ He took the family’s ‘financial subsidy’.
§ He sent people to destroy the family’s farmland.
§ He warned people to stay away from the family.
§ (After the applicant reported [Mr A] to the provincial government), he also sent people to her home to destroy things.
§ The applicant wrote that [Mr A] also thwarted her efforts to protect herself and her family; for instance, he refused to give permission for her children to be transferred to a school in another area.
§ The applicant alluded to the growing psychological pressure on her. Finally, in March 2017, she decided she ‘could not endure that life any more’.
At hearing, the applicant stressed the psychological impact of [Mr B]’s ([Mr A]’s) actions, stating that he was verbally, and later physically, abusive. She initially spoke of his sexual aggression towards women in general, but went on to state that this had in fact been her own experience.
The Tribunal explored the context for these claims, and how they related to her written claims. The applicant said that [Mr B] ([Mr A]) had threatened everyone who had not voted for him; but later added that she did not know about other people’s experiences. In any event, she knew that some of these people continued to live in the village. The Tribunal asked about the applicant’s written claim that [Mr B] withdrew a financial subsidy that the family used to receive, and that he continued to withhold it even after they complained to the local government. This did not appear to resonate with her. She said that [Mr B] asked for bribes to perform his roles, and for gifts. This appears to be a general statement about his corrupt conduct. Asked about any associated threats, she replied that he would be verbally abusive to her family. In relation to her husband (when he was in the village), the applicant said that [Mr B] simply used to ask him to vote for him. She could not recall if there had been any more specific problems.
The Tribunal finds significant inconsistencies between the applicant’s written and oral claims, in terms of the character and severity of the village leader’s pursuit of her. Strikingly, her written claims that the village leader destroyed the family’s farmland, ransacked the home and threatened the children were starkly different in tone from her oral evidence, and do not match the applicant’s evidence that her husband and parents continue to live in or very close to the village. The Tribunal finds it unremarkable that the applicant’s children and studying (and in the daughter’s case, working) in Shijiazhuang, the largest major city, and places no weight on this as evidence that the (former) village leader poses any threat to them.
The applicant’s responses to threats and harassment

In her written statement, the applicant claimed that she (like her neighbour) was particularly vulnerable during periods of her husband’s absence. She wrote that, after [Mr A] ([Mr B]) first started to harass her, by harassing her at home, destroying the farmland and threatening her family. She gave some examples of her responses to these threats.
§ [Mr A] withdrew the family’s ‘financial subsidy’, on the basis that they were no longer entitled to it. The applicant (and by implication, her husband) disagreed, and raised the matter with local government officials. However, the subsidy was not reinstated.
§ After [Mr A] stepped up the harassment, the applicant’s husband returned home for a few days off to support the applicant. Due to financial pressures, he could not stay longer. When he left, the harassment resumed.
§ When [Mr A] also refused permission for the applicant to at least move her children to another location, she started to collect materials about his corruption, and sent a report to the provincial government. When [Mr A] discovered this, he sent people to ransack the family home, and he made more explicit threats about the children,
§ Due to the cumulative pressure, the applicant then decided to apply for an Australian visa, ‘secretly’.
At hearing, there was discussion of the applicant’s responses to these threats over the two years or so between the elections and her departure for Australia. The Tribunal took into account that the applicant’s focus had shifted from her earlier claims about [Mr B]’s ([Mr A]’s) verbal threats and property damage, to his more direct verbal and physical abuse of the applicant herself. In response to questions, the applicant said that she and her husband are ‘common people’ and have no avenues to seek recourse. Asked whether she discussed this with other residents or made complaints to any other authorities, she initially replied that she did not. She then said, in response to a question whether she made any written complaint, that she wrote a letter to a committee whose name she found on a website; she could not remember the name of the committee. The Tribunal drew to her attention the written claim that she collected material and presented it to the provincial material, which was significantly more than simply writing a letter. The applicant replied vaguely that she definitely did that. The Tribunal found her account uncertain and changeable. Even in relation to the written complaint, which if true would have been a significant step, the applicant gave inconsistent accounts of what that involved and was not sure of the addressee.
The Tribunal asked the applicant about her husband’s return visits to the village, and the extent to which these were a response to any threats she was facing (including verbal or physical). The applicant said she was not sure, and added that, in any event, her husband is a ‘weak person’.
The applicant said that she and her family did not consider moving away from the village, as her family has strong ties there and they are not familiar with any other place. However, in response to the Tribunal’s observation that most of the family (except for the children, who are studying and working in Shijiazhuang) continue to live there without apparent harm, she changed her evidence to say that they have moved to farmland attached to a neighbouring village. She did not think that this would prove a solution for her in the future, as [Mr B] ([Mr A]) would certainly come after her. The Tribunal does not accept that the family has moved to any different location.
At hearing, the applicant confirmed that she obtained a Chinese passport, after the elections, she thought. The Tribunal noted the passage of two years between the issuance of the passport ([2015]) and the applicant’s travel to Australia. The applicant replied that she left China in response to increasing pressure and threats from [Mr B] ([Mr A]). She hesitated to leave her children in China, but felt she had no other option.
The Tribunal noted that the applicant’s passport (a copy of which the applicant provided with her protection visa application) showed travel to [Country 1] from [April] to [May] 2016. The applicant said that she travelled to [Country 1] to relax, as her mood had not been good. She confirmed that the sole reason for her travel was tourism, and she did not seek protection there. The applicant said that she was part of a tour group. She could not remember the cost of the travel, commenting vaguely that she travelled with a friend who helped pay her expenses. She went on to say that it was following her return to China that [Mr B] ([Mr A]) intensified his pursuit of her, essentially forcing her to flee China.
The Tribunal finds the applicant’s travel to Europe in April/May 2016 and her account of it highly problematic. First, it is clear that she avoided mention of this at hearing, when describing her activities between the elections in early 2015 and her travel to Australia two years later. Second, her two-week visit to Europe in mid-2016 suggests that she and her family are better off than she has claimed to the Department and to the Tribunal, and/or not being truthful about the nature and purpose of that travel. Third, and significantly, the visit and her return to her home village strongly suggests that she did not fear harm from the village head or anyone else, in the year following the elections. In particular, it undermines her claims that he inflicted financial and property damage on her and her family; that he thwarted her efforts to relocate her children to safer places; and that he targeted the applicant personally (including by way of verbal abuse or, as she more recently claimed, also physical or sexual abuse). Finally, the Tribunal considers the applicant’s lack of candour about her European travel reinforces its concerns about her credibility as a whole. As such, the Tribunal does not accept the applicant’s recent claim that, following her return from Europe, [Mr B]’s ([Mr A]’s) adverse interest in her intensified, and that it became more aggressive, including sexually.
Findings of fact
The Tribunal has considered the applicant’s claims and evidence carefully and, in light of the above concerns, makes the following findings of fact. It does not accept that she had any conflict with a village leader, for having refused to vote for him in early 2015, for resisting his subsequent conduct, or for any other reason. It does not accept that the village head, after finding out that she did not vote for him, harassed her, threatened her and her family, arranged for the family’s property to be damaged (such as destroying farmland or ransacking the family home), used administrative means to target the family, or sought to have the family ostracised by local residents. It also does not accept that the former village leader abused the applicant verbally or physically, including through any sexual intimidation or assault. It rejects all associated claims of past harm.
It follows that the Tribunal also does not accept that the applicant or her husband, or other family members, took measures to protect themselves and avoid persecutory or significant harm. It does not accept, for instance, that the applicant’s husband returned to the village to protect the applicant; that the family made efforts to relocate the children (although they now study and work in Shijiazhuang for unrelated reasons); or that the applicant wrote any petition or letter to authorities declaring the village leader’s abuses or seeking protection. The Tribunal finds that the applicant left China for reasons unrelated to her protection claims.
Other factors
At hearing, the applicant said that there are no human rights, democracy or freedom of speech in China. She contrasted this with the situation in Australia, where the government was democratic and had provided financial support in response to the COVID-19 pandemic. The Tribunal accepts that the applicant finds aspects of life in Australia – such as living conditions and its governance – agreeable. However, it does not detect in such statements, or any other evidence, that the applicant has any political opinion that motivates her to engage in related activities, or that would lead the Chinese authorities to perceive her to be opposed to the government.
ASSESSMENT: REFUGEE CRITERION
In order to meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion. The Tribunal assesses this in light of the above findings of fact and having regard to other relevant factors such as the applicant’s future conduct and country information.
The Tribunal considers it likely that the applicant will return to her home village. Having found that she had no conflict with the former village leader, [Mr A]/[Mr B], and has suffered no associated harm in her home area, the Tribunal finds that there is no real chance of the applicant being subject to serious harm at the hands of the former village leader, his agents or any other persons. In these circumstances, it is unnecessary to consider whether such harm would fall within the five grounds set out in s.5J(1)(a), eg. whether the motivation for the claimed harm can be properly characterised as an imputed political opinion, and/or the applicant’s personal attributes (including gender); and whether that would be the essential and significant reason(s) for the feared persecution, as required by s.5(4)(a). It is also unnecessary to consider whether such actions by [Mr A]/[Mr B] would be those of a non-State actor (as a former village head), and/or whether the applicant faces a real chance of being denied protection on selective and discriminatory grounds, i.e. those set out in s.5J(1)(a).
The Tribunal accepts that the applicant prefers aspects of life in Australia, but for the reasons set out above, does not accept that she has any political opinion that motivates her to engage in political activities, or that would make her a person of adverse interest to Chinese authorities, at any level of government. It finds there is no real chance of persecution on the basis of any political opinion, actual or imputed.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if she returns to China.
The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
The Tribunal concludes in light of the above findings of fact, and having regard to the same country information, that there are no substantial grounds for believing that the applicant will be subject to any harm from the former village head, or any other persons in China.
The Tribunal therefore finds that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering (physical or mental) is intentionally inflicted on her, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of her life or the death penalty. In other words, the Tribunal finds no grounds that suggest she will be subject to significant harm, for any reason, if he returns to China.
Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm, as required by s.36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member
ATTACHMENT - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted immediately below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 5238

1 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal