1720632 (Refugee)

[2022] AATA 3105

1720632 (Refugee) [2022] AATA 3105 (27 July 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1720632

COUNTRY OF REFERENCE:             China

MEMBER:Dr Jason Harkess

DATE:27 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the Applicants Permanent Protection (Class XA) (Subclass 866) visas.

Statement made on 27 July 2022 at 1:51pm

CATCHWORDS

REFUGEE – protection visa – China – political opinion – petitions against corruption – land resumption – inadequate compensation – detention – business debts – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2 cl 866.611

CASES

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

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

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND Overview

Application for Review – Refusal of Protection Visa

1. The Applicants are citizens of China. They seek review of decisions made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refusing to grant them protection visas. The First Applicant is [age] years of age. The Second Applicant is [age] years of age and is the spouse of the First Applicant. The Third Applicant is [age] years of age and is the son of the First and Second Applicants. All three Applicants are presently residing in Victoria, Australia.

2. The Applicants originally applied for the protection visas on 4 January 2017. The visas were refused on 15 August 2017. The Applicants lodged their review application with the Tribunal on 5 September 2017. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicants their visas.[1]

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

Type of Visa

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

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

Applicable Criteria

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

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

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

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

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

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

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

2. A person is a ‘refugee’, and therefore meets the refugee criterion, if the person ‘is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.’[6]

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

3. A person meets the complementary protection criterion if there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.’[7]

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

Delegate's Reasons for Visa Refusal

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

2. The Second and Third Applicants did not make any claims in the protection visa application themselves. Their claims for protection are founded on being family members of the First Applicant. As the First Applicant’s claims for protection were found not to be accepted, the delegate rejected their applications for protection visas as a consequence.

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

Issues for Determination by Tribunal

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

   (a)whether any of the Applicants meet the refugee criterion;

   (b)whether any of the Applicants alternatively meet the complementary protection criterion;

   (c)in the event that one Applicant meets either the refugee or complementary protection criterion, whether the other Applicants meet the family member criterion.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application on 14 June 2022. The Applicants participated at the hearing before the Tribunal by video (MS Teams) to give evidence and present arguments in support of their case.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, who also participated at the hearing by video.

Tribunal’s Determination

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

   (a)the Applicants' original written visa applications;

   (b)the delegate’s decision record;

   (c)the written material filed by the Applicants in relation to their case;

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

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

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

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

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

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

consideration oF APPLICANT’S CASE

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

Original Protection Visa Application

1. The Applicants were obliged to complete a form when they lodged their protection visa applications. The form requested that they provide details about their personal background, their circumstances leading up to their arrival in Australia, and their reasons for applying for a protection visa. In this case, it is the First Applicant’s background that is most pertinent, as the Second and Third Applicants seek protection only as members of the same family unit as the First Applicant. They have not made specific claims of their own.

Applicants’ Background

1. In his application form, the First Applicant stated that he comes from [City 1], Jilin, China. He stated that he is a citizen of China by birth. He further said that he does not hold citizenship of any other country. A copy of his passport, which he provided to the Department, corroborated this claim.

2. The First Applicant further stated that he married the Second Applicant in 1999 and, together with the Second Applicant, have a son, the Third Applicant, included in this review application

3. The First Applicant arrived in Australia [in] August 2015, having been granted a Subclass 457 Temporary Work (Skilled) visa which was set to expire on 17 January 2017. The Second and Third Applicants arrived in Australia [in] September 2015 as dependants of the First Applicant’s Subclass 457 Temporary Work (Skilled) visa. The First and Second Applicants briefly departed Australia in mid-2016 before returning. The Applicants have not departed Australia since the protection visa applications were made.

Protection Claims

1. The First Applicant’s original claims for protection are to be found in answers to questions in his protection visa application form. The relevant questions posed in the form, and the First Applicant’s answers given, are reproduced verbatim (spelling, grammatical and expressional errors included):

   88    I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside in. This includes countries you are a citizen or national of or you have a current visa for)..

   CHINA

   89    Why did you leave that country(s)? Provide specific details

   DUE TO I PROTEST THE COLLUSION BETWEEN GOVERNMENT OFFICIALS AND BUSINESSPEOPLE, AND REVEAL THE TRUTH OF GOVERNMENT CORRUPTION, SO THAT BEING PERSECUTED.

   MY HOMETOWN’S HOUSE WOULD BE DEMOLISHED IN 2014, HOWEVER, THE PRICE OF COMPENSATION WAS ONLY HALF OF THE MARKET PRICE. RESIDENTS NEGOTIATED WITH THE DEVELOPER MANY TIMES, BUT WITHOUT ANY EFFECT. AT THE END OF THE 2014, I AND NEIGHBOR WROTE A COMPLAINT LETTER, AND WENT TO [City 1] GOVERNMENT TO HAND IN THE MATERIALS SEVERAL TIMES. UNFORTUNATELY, THE GOVERNMENT HAD NO COMMENT ON THE ISSUE. SO I PREPARED TO GO TO BEIJING TO COMPLAIN.

   SHORTLY AFTERWARDS, MY NEIGHBOUR WAS ARRESTED BY THE POLICE AND CHARGED HIM WITH ”ILLEGAL PETITION”. I WAS VERY FEAR AND GET AWAY FROM THE CHINA.

   ON JUNE OF 2016, I RETURNED TO CHINA AND PLAN TO PETITION AGAIN. HOWEVER, THE POLICE GOT THE NEWS AND CONFISCATED MY HOME AND TOOK THE PETITION MATERIAL AWAY. I HAVE DODGED THE BULLET BECAUSE I AM NOT HOME. THEREFORE I FLED CHINA AND CAME BACK TO AUSTRALIA.

   90    What do you think will happen to you if you return to that country(s)?

   IF I RETURN TO CHINA, I WILL BE CAUGHT BY THE POLICE AND SUFFER PERSECUTION.

   91    Did you experience harm in that country(s)?

   Noþ►   Go to Question 93

   Yes¨►   Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)

   92    Did you seek help within the country(s) after the harm?

   No¨►   Give reasons for why you did not try to seek help

   Yes¨►   Give details (including the name of the person/organisation/authorities you asked for help, and if they helped you, what they did)

   93    Did you move, or try to move, to another part of the country(s)to seek safety?

   Noþ►   Give reasons for why you did not try to move to another part of the country(s)

   THE WHOLE COUNTY SITUATION IS THE SAME. THE BUSINESSMAN IS COLLUDE WITH THE GOVERNMENT OF OFFICIALS. THEY ONLY CARE THEIR OWN BENEFITS.

   Yes¨►   Give details (including where you tried to move, why you were unable to move or where you moved to and what happened)

   94    Do you think you will be harmed or mistreated if you returrn to that country(s)?

   No¨

   Yesþ►   Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)

   IF I RETURN TO CHINA, I WILL BE CAUGHT BY THE POLICE. THEY COULD PUT ME INTO THE BRAINWASHING ROOM SO THAT TORTURED AND DESTROY MY MIND.

   95    Do you think the authorities of that country(s) can and will protect you if you go back?

   Noþ►   Give details about why you think the authorities could not, or would not, protect you

   THE WHOLE COUNTY SITUATION IS THE SAME, RECIPROCAL PROTECTION OF OFFICIALS, THEY DO NOT CARE THE BENEFITS OF CIVILIAN POPULATION.

   Yes¨►   Give details as to which authorities you think would protect you

   96    Do you think you will be able to relocate within that country(s)?

   No¨►   Give details about why you are unable to relocate

   Yesþ►   Give details as to where you could relocate

   THE CHINA GOVERNMENT IS CORRUPTION, THEY TOOK NO ACCOUNT OF OUR BENEFITS.

2. The First Applicant indicated in his protection visa application form that he would provide a statement in support of the claims contained in his original protection visa application. However, this was never been provided.

3. The First Applicant was invited by the delegate to attend an interview on 7 August 2017 so that his claims could be further explored. However, he did not attend that interview. The delegate proceeded to assess the Applicants’ case on the basis of his written claims that had been provided.

Claims before Tribunal

1. At the hearing before the Tribunal on 14 June 2022, the First Applicant gave oral evidence concerning his claims for protection that was significantly inconsistent with his original claims. It is summarised as follows:

   (a)The First Applicant said that he does not wish to return to China because he owes lots money in China. He said that he cannot pay off those debts. He said that he owes up to ¥1 million and, from his perspective, there are not many good opportunities to make money in China.

   (b)The First Applicant said that part of his debt was owed to corporate entities and part of it was owed to individuals. He said that he has repaid some of the money but presently ¥1 million is still owing. He said that he continues to pay back the money gradually, but that he owes a lot to the individual lenders. The Applicant said that the money was originally borrowed for a business venture that the First Applicant started in China. That business venture failed.

   (c)The First Applicant said that he communicates about his loan repayments to a ‘middle man’ who acts on behalf of the lenders (‘the lenders’ agent’). He said that the last time he communicated with the lenders’ agent was approximately one year ago. When asked by the Tribunal when he last made a repayment, he said that was around one year ago. The First Applicant was unable to specify exactly how much he had repaid because sometimes he accumulates and saves to make a one-off payment. He said that he has no documents that could verify his loans or his repayments. He said that he owes money to uncles, aunts, brothers, sisters and two of his best friends. The lenders’ agent, [named], represents the interests of his two best friends.

   (d)The First Applicant said that he has been unable to work in recent years and make repayments to the lenders’ agent because he has been sick. He said that he has had two operations in relation to [specified conditions]. When the Tribunal asked whether he had any medical records to corroborate these claims, he said that he could provide them to the Tribunal. The Tribunal advised the First Applicant, in the course of the hearing, that he could provide that documentation within seven days after the Tribunal hearing.

   (e)The First Applicant said that, when he was in hospital, he explained to the lenders’ agent his medical situation. He asked for more time to meet his repayment obligations, which was granted to him.

   (f)The First Applicant’s concerns about returning to China stem from his fear of harm because he would be unable to repay the debts. He said that he is not afraid of his friends or family to whom he owes money. Rather, he said that his friends told him that they had borrowed money from people who had threatened them with harm if they did not repay the money. The First Applicant said that when he was still in China in 2012, verbal threats were made against him by these people. The First Applicant was concerned about his safety.

   (g)The First Applicant said that the only reason he does not wish to return to China is that he will not be able to repay the debt. When asked by the Tribunal why he could not work in China to pay off the debt, he said that he believes he would not be able to make as much money working in China and so his capacity to service the debt would be reduced such that he would not be able to repay it.

2. At the conclusion the First Applicant being questioned, the Tribunal read out to the First Applicant his claims contained in his original protection visa application concerning his protests against collusion between government officials and business people because of the demolition of his home. The First Applicant confirmed that he had instructed his original migration agent to make claims of this nature on his behalf. However, when the Tribunal specifically asked whether any of his original claims about his house being compulsorily acquired were true he said that his house was not confiscated. When the Tribunal asked whether he had participated in any protests against the government before coming to Australia, he said that he had participated once. However, he did not give any details or description of events in respect of this protest.

3. At the conclusion of the hearing, the Tribunal inquired of the Second and Third Applicants as to whether they wished to raise any additional concerns about returning to China. They indicated that they adopted the First Applicants’ claims and did not wish to add to them.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about China on 22 December 2021 (‘the DFAT report’).[11] However, given the Tribunal’s findings in relation to the First Applicant’s credibility (explained below), none of that information is of relevance in this case.

   [11] Department of Foreign Affairs and Trade, DFAT Country Information Report: People’s Republic of China (22 December 2021).

Analysis of Evidence and Factual Findings

Assessing Credibility of Claims – General Principles

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

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

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

   [13] Ibid [15.4].

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

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

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

   [16] Sun v MIBP [2016] FCAFC 52

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

Credibility of First Applicant’s Claims in this Case

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

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

1. In this case, the Tribunal is not satisfied that the First Applicant’s claims are credible. The claims advanced at the hearing before the Tribunal were fundamentally different to those which he had advanced in his original protection visa application. Whereas his claims advanced originally concerned his alleged protestations against government and business because of a compulsory acquisition of the family home, the claims advanced at the Tribunal hearing concerned the fear of potential threats or harm from money lenders.

2. That fundamental discrepancy in itself would be enough to raise significant doubt as to the credibility of the First Applicant’s claims in this case. However, in this case, there are further factors that have led the Tribunal to the conclusion that it cannot be satisfied of any of First Applicant’s essential claims. These include the following:

   (a)The First Applicant initially did not directly answer the question, when it was first asked by the Tribunal, as to whether his original claims were true. His answer was evasive. When pressed, however, he admitted that his home had never been confiscated.

   (b)The First Applicant made only a fleeting reference to a protest that he had participated in while in China. It was clear that his experience of that was not so memorable such that he felt the need to describe it in detail. That aspect of his evidence stood in marked contrast with the description of events given by the First Applicant in his original protection visa application. It seems reasonably clear to the Tribunal that the original claims, as articulated by the First Applicant, were never actually experienced by him. His original claims are untrue.

   (c)As to claims concerning the loan debt, the Tribunal is not satisfied that any such debt exists. The First Applicant’s evidence was very vague in this respect, in relation to both the amount of money borrowed and the terms by which he was to pay it back. He was able to provide no evidence of correspondence with the lenders’ agent, or any transactional records that might have corroborated any of his claims. In the end, this aspect of his evidence was not convincing.

   (d)Lastly, the Tribunal notes that the First Applicant was specifically given the opportunity to provide medical evidence of his [specified] operations following the Tribunal hearing. To date, the Tribunal has received no such documentation or any further correspondence from the Applicants. The Tribunal is therefore not satisfied that any of these medical procedures were undertaken in relation to the First Applicant.

3. In the end, the Tribunal is not satisfied that the First Applicant can be regarded as a witness of truth. There is no credible basis for his claims. Accordingly, the First Applicant’s claims are rejected in their entirety.

Does the Applicant Meet the Refugee Criterion?

General Principles

1. Section 5H of the Act defines a refugee as a person who, in the case of a person who has a nationality, ‘is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to return to avail himself or herself of the protection of that country.’[19]

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

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

   [20] ‘persecution, n.’, OED Online (Oxford University Press, March 2022, Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a likelihood of any kind, where the denial threatens the person’s capacity to subsist.

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

First Applicant Not a Refugee

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

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

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

1. The Tribunal is not satisfied that the First Applicant has a well-founded fear of persecution because it is not satisfied that there is any credible basis for accepting his claims. Accordingly, the Tribunal finds that the First Applicant does not meet the refugee criterion.

Does the Applicant Meet the Complementary Protection Criterion?

General Principles

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal has ‘substantial grounds for believing that, as a necessary and foreseeable consequence of … being removed from Australia to a receiving country, there is a real risk that [they] will suffer significant harm’.[25]

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

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

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

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

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

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

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

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

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

   [28] Migration Act 1958 (Cth), s 36(2A)(c). Torture is defined in s 5(1) as meaning an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person: (a) for the purpose of obtaining from the person or from a third person information or a confession; or (b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or (c) for the purpose of intimidating or coercing the person or a third person; or (d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or (e) for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (‘the Covenant’); but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   [29] Migration Act 1958 (Cth), s 36(2A)(d). Cruel or inhuman treatment or punishment is defined in s 5(1) as meaning an act or omission by which: (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. It does not include an act or omission: (c) that is not inconsistent with Article 7 of the Covenant; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

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

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

No Real Risk of Significant Harm

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

1. The Tribunal finds that the First Applicant does not meet the complementary protection criterion for the same reasons as contained in paragraph 36 above.

Summary

1. The Tribunal is not satisfied that the First Applicant meets either the refugee criterion or the complementary protection criterion. There is no material before the Tribunal to suggest that the First Applicant meets the family member criterion. The Second and Third Applicants’ cases are contingent on the outcome of the First Applicant’s case

2. Accordingly, the decisions under review must be affirmed.

DECISION

1. The Tribunal affirms the decisions not to grant the Applicants Permanent Protection (Class XA) (Subclass 866) visas.

Dr Jason Harkess

Member