1721121 (Refugee)

[2021] AATA 5637

1721121 (Refugee) [2021] AATA 5637 (20 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721121

COUNTRY OF REFERENCE:                   China

MEMBER:Frank Russo

DATE:20 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 20 April 2021 at 11:20am

CATCHWORDS

REFUGEE – Protection visa – China –compensation for demolition of homes – applicant being the victim of physical harm – harassment and threats by the local government or by gangs –past protest activities – evidence was contradictory, inconsistent and unreliable – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (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 & Anor (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 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 29 September 2015. 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.

3. On 19 March 2021, in accordance with measures introduced in response to the COVID-19 pandemic, the Tribunal invited the applicant to attend a hearing by way of video conference.

4. The applicant appeared before the Tribunal by video hearing on 13 April 2021.

5. The applicant was represented in relation to his application for review by his registered migration agent, however his agent did not attend the hearing.

6. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   Criteria for a protection visa

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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

13. 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 they will suffer significant harm.

14. The applicant provided with his application for review, a copy of the decision of the delegate and notice of the decision sent by the Department. He provided a response to the hearing invitation, but otherwise did not provide any documents in support of his claims.

15. The Tribunal also has a copy of the Department file and has had regard to the documents on that file.

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

    Identity

17. The applicant provided a copy of his Chinese passport to the Department. 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.

18. 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

19. In a statement attached to his Protection visa application, the applicant makes the following claims:

    a.That he was born in China in [year] and is afraid of going back to China because of persecution from the Chinese government;

    b.At the beginning of 2013 his neighbourhood received notification from the [City 1] City construction and demolition office that it required their neighbourhood to be relocated by the end of 2013, and that all residences in the neighbourhood needed to sign an agreement for demolition and compensation (the agreement). The agreement was written in accordance with a ‘[a] Building Development and Relocation Compensation Plan. The agreement, the notice and all subsequent notices carried only the stamp of [a] Village Committee (the Committee), instead of stamps from other authorities. The applicant claims this committee carried out relocations under the guise of ‘old village renovation’ in order to get money, and they sold land to developers without obtaining approval from government authorities;

    c.That when compensation was handed out to villagers, there was different pricing and the powerful people got more compensation. He claims that normal people like his parents got much less. He claims that his home was a two bedroom home with a living room, but the Committee offered to compensate for only a one bedroom, one living room property, and because of this his parents did not sign the agreement;

    d.The Committee organised local gangs to force the applicant’s family to sign the agreement. On an afternoon in mid-November 2013 ‘several people’ destroyed the lock to the applicant’s home, then smashed his family’s belongings, including a TV, washing machine and fridge, and he and his parents found the mess when they got home. He states that ‘we’ went to [a] Police Station to report the case, but the police already knew about it and said they were very unlikely to solve the case. The police also told them that they should sign the agreement. They asked the police to check the surveillance cameras, but the police said they were not working;

    e.On a night in December 2013 his father went to a nearby supermarket after dinner and someone hit him from behind. His father’s head bled badly and he required more than 10 stitches in hospital. They reported this incident to the police, but the police dealt with it like they did with the last incident;

    f.In January 2014 several people took his mother’s handbag while she was on her way home;

    g.At the beginning of March 2014, the applicant was beaten up when he was walking home from school. He states that he ‘was injured and full of bruises’. He claims that the people who beat him shouted out that if his parents didn’t sign the agreement, next time they would kill him;

    h.The applicant claims that his parents realised that the gangs could do anything they wanted to them, and they therefore wanted to get him out of China. The applicant then started applying for a Student visa to come to Australia, and in the meantime his parents organised for him to hide at his father’s parents’ place;

    i.On a night in May 2014 some people stopped the applicant’s mother while she was on her way home. They slapped her face several times. They said that they knew the applicant was living with his grandparents and they knew their address. They said that if his parents didn’t sign the agreement, they would kill the applicant;

    j.The applicant then moved to his mother’s parents’ place to hide, but the gangs still found out where he was; and

    k.The applicant’s Student visa was granted and he arrived in Australia on [date] June 2014.

    Departmental interview and delegate’s decision record

20. The applicant attended an interview with the Department on 11 August 2017. The delegate’s decision record indicates that at the interview the applicant provided the following additional information:

    a.His parents are now living with his grandmother in a rural area in Yantai;

    b.The compensation offered by the Committee to his family was much lower than the market price for their 2-bedroom apartment, and with the amount offered they could only afford a 1-bedroom apartment;

    c.The Committee employed ‘bad people’ to force residents to relocate and accept the compensation. His family and other residents were beaten up by these people. His father was beaten up when he returned to their old address to pick up some documents;

    d.The apartment block where they lived was demolished at the end of 2014 or the beginning of 2015. His parents received 50,000 yuan as compensation, but some residents with government connections received more;

    e.They signed a petition against the demolition and refused to move from their apartment when the demolition team came. They were forced to move out by the police and other people. The applicant claimed that he asked his father to give up the protest, as they would not receive any more money;

    f.He claimed that China is not safe and he will be beaten up if he returns there.

21. The delegate considered that the applicant had not been singled out or targeted for differential treatment in relation to the demolition of homes, and that the local government response was consistent and in line with the compensation outlined in legislation, and applied to all residents in the village and was therefore non-discriminatory in its application.

22. The delegate also considered that the applicant, by coming to Australia, had effectively discontinued his protest activities relating to the compensation case, and as such could cease his activities if he returned to China. The delegate did not accept that the applicant would be harmed for his past activities of he returned to China.

23. The delegate also considered that there was no impediment to the applicant moving to a larger city in China, and referred to country information in this regard.

24. After considering the applicant’s written claims and testimony at interview, the delegate accepted that the applicant’s home was demolished, as were other homes in the village. The delegate however found that the demolition was undertaken in line with the Land Administration Law of the People’s Republic of China 1986 and the Property Law of the People’s Republic of China 2007, and that these laws represent laws of general application. Accordingly, the delegate was not satisfied that, if the applicant returned to China, he will be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Migration Act, and was therefore not a refugee as defined in s.5H of the Act. Similarly, the delegate was not satisfied that there is a real chance of the applicant being persecuted on return to China for the reasons claimed.

    Evidence at the hearing regarding preparation and contents of application

25. At the hearing the applicant gave evidence that he remembered making the Protection visa application and that he was assisted by a lawyer. The applicant stated that he was aware of the contents of the application form and the statement attached to the application. He stated that the contents of the form were not read back to him, but he stated that he had the application form and the attached statement, which he wrote himself. He stated that he spoke to his lawyer about the content in his statement and his lawyer helped him write it down. He confirmed that the contents of the application are true and correct. He confirmed that he did not wish to make any changes to his application form or add to the claims which he had made.

    Evidence regarding the applicant’s background

26. The applicant gave evidence that prior to arriving in Australia he lived at an address in [a] Town, [City 1] City, Yentai, Shandong Province. He stated that this was his grandmother’s place, and that he had to stay there because something had happened.

27. The applicant gave evidence that prior to this he lived in [address], Yentai, Shandong Province. The applicant stated that this was his auntie’s address, but sometimes he also lived there. The applicant confirmed that this was his hukou and he lived there since entering primary school, until the time that he left China to come to Australia. The Tribunal questioned whether the apartment was owned by his aunt, to which he responded it was under his mother’s name. He then stated that his auntie is his mother’s sister, and that sometimes she would take care of him.

28. The applicant confirmed that his parents are alive and live in [City 1] City, Yentai, Shandong Province. He confirmed that they live on their own, without any other family members, and that they reside at an address on [a] Road. He stated that they are renting this property and then stated that there are some problems with their own property, which means they cannot live there.

29. The applicant confirmed that he is an only child. He stated that he finished high school in China around [year range], but stated he could not remember clearly.

30. The applicant stated that he arrived in Australia on either [date] or [date] June 2014 (his movement record indicates he arrived on [date] June 2014). He departed China by plane and travelled on his own passport, and departed China from Beijing Airport.

31. The applicant confirmed that he entered Australia holding a Student visa. He stated that the visa was organised by his father. He stated that he was enrolled to study [a course] at [a] University, but only finished one semester of this course. He commenced the second semester but did not complete it and he did not enrol in any further courses after this. He stated that he currently does some [work] to earn some money, and during his holidays he does some voluntary work in the community.

    Applicant’s claims for protection

32. The Tribunal noted that the applicant’s claims in his application were that his neighbourhood received notice that it would be demolished and relocated, his parents were offered compensation which was not sufficient, and gangs threatened and physically assaulted members of his family and forced his parents to sign an agreement. This included claims that he was personally assaulted and threatened. The applicant confirmed that this was correct, and he had no additional claims.

33. In his oral evidence the applicant stated that his parents first received notice of the forced demolition and relocation around 2011 or 2012, though he stated he was not sure about the time, although it was around that period. He stated that the notice was issued by the government of [City 1] City and that the notices had their stamps on them.

34. As to the area covered by the proposed demolition, the applicant stated that it was not very big and included only two buildings, one of which was the building in which he lived, which had six floors, the other being the building next door, which had four floors.

35. When asked whether compensation was offered, the applicant stated no, and that in the beginning they were just asked to move out and were told that compensation would be paid later. He stated that the first contract received mentioned compensation, but required the property owner to sign it without knowing what compensation would be offered. He confirmed that his mother owned the apartment that they lived in.

36. The applicant gave evidence that at first they did not sign the agreement because the residents of the buildings were trying to have discussions with the government to see how much compensation they could receive. He stated that the value of the building was higher than what was being offered.

37. When questioned whether his mother later signed the agreement, the applicant stated that he didn’t know about his, but he had a video call with his mother the Saturday night before, and from what he understood, she did not sign any agreement as the terms were unfair. When asked whether his family eventually received any compensation, he first stated no, but then stated that someone forced them to sign the agreement and did not give them much compensation. The Tribunal again sought to clarify whether his mother received any compensation, to which the applicant responded no. He stated that in the beginning they were promised that they would be paid compensation in two instalments, but only people with friends or relatives in government received any compensation.

38. The applicant gave evidence that following his family’s refusal to sign the agreement, the government authorities organised people to threaten his family, and this included the applicant being the victim of physical harm.

39. The Tribunal questioned the applicant about any incidents of threatening behaviour or violence, to which the applicant gave evidence of several incidents involving members of his family. The applicant stated that the first incident occurred in June or July 2013. He stated that his family had not signed the first agreement which was provided. He stated that people attended his home a second time to discuss the agreement, and that he was home at the time. He stated that the people who came to his home told his parents that they could give them a greater amount of compensation secretly, but told them not to tell anyone. His parents did not sign the agreement as the compensation offered still did not meet their requirements. The applicant stated that the discussion ended unpleasantly.

1. The applicant stated that the next incident occurred around 1 October 2013. He stated that the government found a group of people to come to his home to discuss the proposal with his parents. He stated that he was at home that time as well, and that his parents were discussing the issues with them, but the people were not friendly. He stated that they were taking about the program, but then they smashed the TV, as well as cups, and they kicked the chair to his computer table. The table was made of glass and was also broken. He stated that the people threatened them and told them that if they did not move out soon and sign the agreement, they would start to harm the applicant.

2. The applicant stated that his parents were worried about this threat and asked him to live at a schoolmate’s place for a few days. The applicant stated that at night he would go out with his schoolmate to play basketball, and one night he was beaten to the ground. He stated that it occurred at the basketball grounds outside [a] School of [City 1] City. The applicant stated that he did not know who it was that beat him, but they told him to tell his parents to move out and sign the agreement and not to interfere with the carrying out of the construction. He stated that his schoolmate was also harmed and afterwards his parents found out. The applicant stated that he stayed in hospital for a few days after this incident. When questioned about the injuries he received, the applicant stated that they used a sharp object on his chest, and that his knee and forehead were also injured. He later stated that the corner of his eye, chest and forehead were bleeding. He stated that he attended a hospital in [City 1] City.

3. The applicant stated that he has a scar on his chest as a result of the cuts from the sharp object, and asked whether the Tribunal wanted to see it. The Tribunal indicated that he could show the scar if he wished to do so. The applicant then moved his camera to the area of his breastbone and focused it on what appeared to be a scar or some redness on which a series of small lines of up to four inches in length were visible by video. The applicant stated that there were some scratches of the scar and pointed to one of the lines, which he said was a long scar.

4. The Tribunal questioned whether the applicant required any ongoing treatment after he was hospitalised. He responded that when he left the hospital he was quite depressed and went to see a psychologist on three occasions. He stated that he did not see the psychologist more than this because he did not dare go out by himself. He stated that he feared he would be beaten up again if he went out.

5. The Tribunal questioned whether the applicant had any reports from the hospital or from the psychologist. He responded that after he came to Australia he could not find the documents. He stated that he has a relative who is a nurse in the hospital, who tried to get a letter, but the government did not allow her to do so.

6. When asked whether this incident occurred, the applicant stated it was on 13 or 14 November 2013, and that he recalled it happening two or three days after 11 November. When asked how he remembered this specifically, he stated that 11 November is a kind of holiday referred to as Singles Day, which is a large shopping day.

7. The applicant gave evidence that after this incident his parents did not want him to stay home, so they moved him to his grandparents’ place. He later stated that when he left the hospital he went directly to his grandparents’ house, and that the psychologist went to his grandmother’s village to do the counselling. He stated that the gang could no longer find him, so they instead started to look for his father. He stated that the people went to talk to his parents again and told them that if they did not sign the agreement, they would never see their son again. He stated that they also beat up his father on this occasion. The applicant stated that he was not home at the time, so he only heard about the events afterwards. He told the Tribunal that during the quarrel his father injured his fourth finger and his arm was dislocated. He stated that on that occasion his mother tried to drag his father away, but they also beat her and she lost a tooth. When questioned when this occurred, the applicant stated it was around Christmas 2013.

8. The Tribunal questioned whether there were any other times when either he or his family were assaulted. He stated that his parents were not just beaten on this occasion, but they did not want to tell him the details. He stated that his parents also received threats while he was in hospital. People told his parents that they would not see him anymore.

9. When questioned whether these incidents were reported to anyone, the applicant stated that they were reported to the police at [City 1] Police Station, but they never received an outcome, and this was probably because the government had interfered. He stated that they also reported incidents to Yentai City Police Station, but again got no results. He stated that the police seemed quite impatient, as if someone had told them what had happened already. Someone took notes of their complaint and then asked them to leave, and the applicant and his family never heard anything further.

10. When asked whether his parents had made any complaints, the applicant again referred to visits to the PSB in Yentai City. When asked whether his parents made any complaints elsewhere besides the police, the applicant responded that they went to the PSB but got no results, and his parents didn’t dare go to the government building. He stated that they instead went to the local court, but as far as he was aware they got no result as the court tried to defer the case and did not want to hear it.

11. When asked whether he or his family took any other action to stop the development, the applicant responded no, and stated that they did not have the capacity to go against ‘them’.

12. When asked whether anything else happened to him in China that he had not already told the Tribunal about, the applicant responded no, and sated that this was because he took a bus to Beijing and then came to Australia. He stated however that the bus was scheduled to depart at 7:00am, and prior to that time his father received a phone call from an unknown caller who threatened him.

13. When asked whether anything else happened to his parents after he left China, the applicant responded yes, but then stated that he can only tell what he knows, as his parents have not told him everything that happened. He stated that someone poured paint onto his mother’s sister’s property as they thought his parents might be living there. He stated that his parents have moved many times to try to hide from the gangs. He stated that his parents don’t tell him many things because they are worried it might cause further psychological problems for him, and that now he is getting better and does voluntary work.

14. When questioned what has happened to his parents’ apartment, the applicant responded that the four-storey building was demolished, but their building has not been demolished yet, although they don’t dare go back to it.

15. The applicant confirmed that there was no other reason why he does not want to return to China. He also confirmed separately that there is no other basis or reason on which he believes he would be harmed if he was to return to China. He stated that if he returned to China he would worry about the experiences he had before and would also be concerned about adapting to life in China as he has been in Australia for 7 years and is an introverted person. The applicant also stated that he does some volunteer work with a church. When asked which church, he stated it is usually with a church in [Suburb 1] or one in [Suburb 2], but did not provide any other information, other than stating that they have some community activities and gather together on Sundays.

    Country information

16. The Tribunal discussed with the applicant relevant information from the most recent DFAT Country Information Report for China[1], which includes information regarding compensation for expropriated land in a section about Protesters/petitioners:

    [1] DFAT Country Information Report People’s Republic of China 3 October 2019.

    Protesters/petitioners

    3.134    Protests and petitions occur regularly across China. An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. China Labour Bulletin (CLB) obtained details of 1,287 protests in 2017, and 1,318 protests between January and October 2018, but it estimates this only reflects one tenth of protests that occurred. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes …

    3.135    Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices) in 2014, an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT is aware of, but cannot verify, reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.

    3.136    China’s Constitution and State Compensation Law (1994; amended 2010) enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. Sources report that local officials are encouraged to ensure protests do not reach Beijing …

    3.137    In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise …

17. The Tribunal indicated that this information may lead it to conclude that while the expropriation of land is common in China, protests and petitions about these processes are also common and there are processes to enable citizens to seek compensation, however it may be difficult to generalise and there may be practical issues in access to such justice.

18. The Tribunal invited the applicant to provide comments in relation to this country information. The applicant responded that his family tried very hard to calm down this ‘event’, and if they could now only be offered less compensation, they would accept it. He stated that his family was willing to talk about receiving less compensation, but the government does not want to let them go that easily as they feel that his family created problems. He stated that his city is under the control of Yentai City and the local government does whatever it wants. He stated that authorities don’t care much about a little city like his as it does not contribute much to the country.

    Assessment of claims

19. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person 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.)

20. 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.

21. On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. 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).

22. The applicant told the Tribunal that all of the information he had provided as part of his Protection visa application form is true and correct, and that he gave an oral statement to his lawyer, who helped him to write the statement which is attached to his application.

23. I have carefully considered the claims made by the applicant. I found the applicant was not a truthful or reliable witness. In reaching this view, the Tribunal has had regard to the inconsistencies between the applicant’s oral evidence and the testimony that he gave at the Departmental interview and in his claims in his application. I have also had regard to the country evidence, which generally supports that land expropriation is a common issue in China and commonly results in protest activity or petitioning. The Tribunal does not consider that things like minor changes or mistakes in dates, or minor omissions from the applicant’s claims would, on their own, undermine an applicant’s credibility. However, the Tribunal has considered the evidence set out above, some of it regarding critical matters, and when it is considered cumulatively, considers it raises serious concerns regarding the applicant’s credibility and his reliability as a witness.

24. The applicant’s evidence at the hearing was inconsistent in a number of respects with the testimony which he gave to the Department at the interview, as well as with the claims that were made in his visa application form. There were also inconsistencies in the evidence provided at the hearing. When the inconsistencies in his evidence were put to the applicant he demonstrated a propensity to shift his evidence in an attempt to resolve the inconsistencies.

25. Overall, the Tribunal is not satisfied that the applicant has given a candid account of his experiences in China, his reasons for coming to Australia or his concerns about returning to China. Its full assessment of his claims and evidence is set out below.

26. It did not appear that the applicant experienced difficulty communicating with the Tribunal with the assistance of the interpreter, and he did not raise any concerns regarding difficulty understanding the interpreter, or brought the accuracy of the interpreting to the attention of the Tribunal. The applicant raised no concerns that his ability to meaningfully take part in the hearing or present his claims was constrained through his participation by video.

27. The Tribunal accepts that the applicant is from Shandong Province and grew up in [City 1] City. The Tribunal is also prepared to accept that the applicant lived with his parents in an apartment in [City 1] City prior to departing for Australia. The Tribunal is also prepared to accept that the applicant had grandparents who lived in Shandong Province. It also accepts that he completed high school in China prior to arriving in Australia in June 2014.

28. The Tribunal finds that there are a number of inconsistencies in the applicant’s claims regarding the notification of the demolition and compensation process, the subsequent harassment and threats by the local government or by gangs, the physical harm which was inflicted on himself and his family members and his attempts at going into hiding prior to leaving for Australia.

29. In particular, the Tribunal drew the following inconsistencies to the applicant’s attention. In his evidence before the Tribunal, the applicant stated that the four-storey building which was next door to his family home was demolished, but the building in which they once lived has not yet been demolished. This is inconsistent with testimony the applicant provided at his interview with the Department, where he indicated that the apartment block where he lived was demolished at the end of 2014 or the beginning of 2015, and that his family received 50,000 yuan in compensation. At the interview, the applicant also gave testimony that his family signed a petition against the demolition and refused to move from the apartment when the demolition team came, and they were then forced to leave by the police and other people. The applicant also claimed that he eventually asked his father to give up the protest as they would not receive any more money.

30. The Tribunal noted that the applicant’s written statement made no mention of any protest activity or of his family signing a petition against the demolition, nor were these claims mentioned in his oral evidence, despite the Tribunal inviting the applicant on several occasions to provide details of any other incidents which occurred while he was in China, as well as after he left. Similarly, there is no mention in the applicant’s written statement or in his oral evidence of the police forcing the applicant and his family to leave their apartment building or of the arrival of a demolition team. The Tribunal also put to the applicant that his testimony to the Department appears to indicate that he was in China at the time that his apartment building was demolished. The Tribunal noted that his testimony was that this demolition occurred at the end of 2014 or the beginning of 2015, but the applicant’s evidence to the Tribunal and the delegate’s decision indicate that he arrived in Australia on [date] June 2014.

31. The applicant indicated that he understood the concern which was put to him. He responded that it was his father, and not him, who was forced to sign the agreement. He stated that the agreement was for the four-storey building where they had a carpark. He stated that they received 50,000 yuan for the carpark, but this did not cover the amount they had paid for the carpark. The Tribunal does not find this explanation convincing and notes that the delegate’s reasons for decision indicate that the applicant and his family refused to move from their apartment when the demolition team came and they were forced to move out by the police. The Tribunal does not accept that the applicant could confuse a protest in an underground carpark with a protest in his family home and does not accept the applicant’s explanation. The Tribunal notes that this was the first time that the applicant claimed that his family also owned a carpark in a neighbouring building, and considers the applicant has given this evidence in an attempt to resolve the inconsistency in his stated claims.

1. The Tribunal also put to the applicant a number of inconsistencies in his claims regarding damage to his family home and the physical assaults that he and his family members sustained, as follows:

   a.In his written statement the applicant describes an initial incident where his family home was broken into and belongings destroyed. He claims that in an afternoon in mid-November a group of people destroyed the lock to his home and smashed their belongings, including a TV, washing machine and fridge, and that he and his parents found out about this when they got home. Whereas in his evidence the first and only incident which he described as involving the destruction of belongings was an incident which he stated occurred around 1 October. He claimed that he and his parents were at home at the time and some people hired by the local government were discussing the proposed program with his parents. He claimed that they smashed the TV as well as objects such as cups, kicked his computer chair and damaged his computer table;

   b.In his written statement the applicant claimed that he was beaten up at the beginning of March while he was walking home from school. The description of his injuries was that he was ‘injured and full of bruises’. There is no reference to receiving any cuts or being hospitalised. Nor is there any mention of him being with anyone else at the time, or of him living away from home. There is also no mention of him being sent to live with his grandmother after this event, but instead a reference to his parents wanting to get him out of China. The applicant gave a contradictory description in his oral evidence, claiming that he was beaten up in the company of a schoolmate whom he had gone to live with, and that both he and his schoolmate were beaten up at a basketball court at night. He claimed this event occurred in mid-November, a couple of days after Singles Day. He claimed that he received cuts to his chest with a sharp object, which resulted in scarring that he still possesses today, as well as injuries to his knee, forehead and the corner of his eye, and he claimed that he was hospitalised for several days. He claimed that when he was released from hospital he was taken directly to his grandmother’s house;

   c.The applicant also gave inconsistent descriptions in his evidence of physical assaults which his parents experienced, compared to the claims made in his written statement. In his written statement he claimed that his father was beaten from behind one night in December 2013 while he went to a nearby supermarket, and that he was bleeding badly and required 10 stitches. Whereas at the hearing he claimed that his father was beaten during an argument he had at their family home, where people had come to convince him to sign the agreement. He claimed that his mother was also present, and that as she tried to drag her husband away, she lost a tooth. In his written statement the applicant gave a description of mother having her handbag stolen by several people in January 2014, but the applicant did not mention this at the hearing despite being asked on several occasions whether any other events had occurred.

2. The Tribunal did not find the applicant’s explanations for these inconsistencies to be convincing. In relation to the inconsistent descriptions of the circumstances under which belongings at his home were destroyed, he claimed that at the interview with the Department he was nervous, and so he was not very clear, and that they had two televisions in their home, one in the living room which was smashed on one occasion, and one in his parents’ room, which was smashed on the second occasion. In relation to the inconsistencies regarding the physical assault he received, he stated that he did not have too much to say about it, but he asked his lawyer to write down what had happened to him. He then stated that he was beaten up twice, once at school and once at the basketball court.

3. The Tribunal put to the applicant that this explanation was unlikely to be true, and noted his claim that following the assault at the basketball court in November 2013, he was hospitalised and then taken directly to his grandmother’s house, where he hid until then moving to his other grandparents’ house. In his written description of the assault in March 2014, the applicant claims he was walking home from school at the time, and his parents then realised they had to get him out of China. The Tribunal also questioned why the applicant’s written statement would include a description of the less serious assault which he claims to have received in March 2014, which he described his injuries as ‘full of bruises’, but not the more serious injuries he claims to have received in November 2013, where he was hospitalised for a few days and his injuries resulted in ongoing scarring to his chest. The applicant responded that he described the scar to his lawyers, but he did not look at his written statement clearly. He stated that his grandmother’s house was only 30 minutes away, and that sometimes he lived with his grandmother or his auntie.

4. The applicant gave unconvincing explanations for the inconsistences in the descriptions of the physical assaults experienced by his parents. He stated that his mother and father were beaten up separately and he had forgotten about this. He stated that they were also beaten up together in the first row of the supermarket. The Tribunal pointed out to the applicant that the assault to his father at the supermarket does not mention his mother, and describes his father as being hit by ‘someone’ from behind. He claimed that his mother was ‘probably beaten up three times’.

5. The Tribunal does not accept the applicant’s attempts at explaining the above inconsistencies. It finds it more likely that the applicant did not remember the contents of his written statement and therefore provided inconsistent descriptions of each of the above incidents in his oral evidence.

6. The Tribunal noted that in his oral evidence, the applicant did not provide any description of protest activities, nor was there any mention of having signed a petition to stop the proposed demolition, as he had given in his testimony at the Departmental interview. This is despite the Tribunal giving the applicant several opportunities to provide such evidence, including asking the applicant whether his parents made any complaints other than to the PSB and whether he or his family took any action to stop the development. He instead told the Tribunal that the building had not yet been demolished. In response, to this latter question, the applicant responded no, and stated that they did not have the capacity to do anything. The Tribunal also put to the applicant that it any case it appears that he has discontinued any protest activities, if he had in fact undertaken any, and therefore the Tribunal may find it difficult to accept that he would be harmed on the basis of protest activities which occurred in 2013-2014.

7. The applicant responded that he was not asked about protest activities, so he didn’t dare to mention them. He stated that this year at Chinese New Year his parents received more threats letting their son go back to China. He stated that his family protested, but it was controlled by the government and they did not get the respect they deserved. The Tribunal noted that the applicant had not given any testimony to the Department of a public protest, but rather claimed his family had signed a petition against the demolition and refused to move from their apartment when the demolition team came. The Tribunal noted that the applicant appeared to be shifting his evidence to address concerns raised by the Tribunal. The applicant claimed that if you protest in China you will be arrested, however the Tribunal does not accept that automatic arrest is a consequence of all protest in China, and notes that the applicant’s claim in this regard is not supported by the country information, which indicates that protests and petitions occur regularly across China.

8. The Tribunal also put to the applicant that the latest DFAT report indicates that there are processes in place in China for seeking compensation from the State, as well as processes for submitting complaints through government-controlled websites and local petitioning offices. The applicant did not appear to be aware of the availability of such processes, and instead stated that his parents made complaints to the PSB. When questioned about any further action taken, the applicant stated that his parents started a court action, but got no results from this. The Tribunal did not consider the applicant’s responses to be convincing, and considers that his responses indicated a lack of familiarity with expropriation processes, and cast further doubt on whether his parents received a notice of demolition or were otherwise involved in any expropriation process.

9. For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful or reliable witness. His evidence shows a propensity to shift and tailor evidence in response to questions raised about inconsistencies in his claims. The Tribunal considers the inconsistencies go to the heart of the applicant’s claims, including whether he or any members of his family were threatened or assaulted. Given these concerns, I find that I do not accept the claims of the applicant.

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

10. At the time of his protection visa application, the applicant claimed that in the beginning of 2013 his neighbourhood received notification from the local government construction and demolition office of the demolition of their neighbourhood, and that his parents were offered compensation which fell short of the value of their apartment, and therefore they did not sign the compensation agreement. He claimed that subsequently his family home was broken into and property damaged, and that his father, mother and then he himself were each physically assaulted from December 2013 to March 2014, following which his parents wanted him to get out of China and he applied for a Student visa to Australia.

11. In his oral evidence, the applicant gave a similar account, although he stated the demolition only involved two apartment buildings and he gave a different account of the property damage to his family home and of the assaults of members of his family. He claimed that the apartment building has not yet been demolished, which was in contradiction to testimony provided to the Department in August 2017, and he claimed that his family continues to receive threats and harassment from gangs or the local government because of the trouble they caused in relation to the proposed redevelopment.

12. Having considered all of the evidence before me, I find the bulk of the applicant’s evidence was contradictory, inconsistent and unreliable.

13. The Tribunal accepts that the applicant lived and grew up in Shandong Province in China prior to his arrival in Australia in June 2014. It also accepts that the applicant may have lived in an apartment building owned by his mother, and that he lived with his mother and father. The Tribunal also accepts that the applicant may have occasionally lived with his aunt or grandparents.

14. On the basis of the country information I accept that issues associated with the expropriation of property are common in China. I do not however accept that the applicant’s family received a notice of the demolition of their family home in 2013 or were forced or threatened to sign a compensation agreement. The applicant has provided no evidence in support of such a claim, such as a copy of the notice or a copy of documents associated with the court action which he claims his parents commenced.

15. Even if I were to accept that the applicant’s family received a notice for the demolition of their apartment, I do not accept any of the applicant’s claims regarding harm or threats of harm received from gangs, local government authorities or others in relation to the claimed demolition process. I do not accept that the applicant’s home was broken into by a gang in November 2013 and his family’s possessions destroyed. Nor do I accept that his family’s possessions were destroyed by local government representatives or gangs during an argument with the applicant’s father in their family home. I also do not accept the applicant’s claims that he and members of his family were assaulted between November 2013 and May 2014 by gangs in an attempt to induce the applicant’s parents to sign the agreement for compensation. I do not accept that the applicant was hospitalised in November 2013 as a result of any assault by gangs, and I do not accept that the scarring which he showed to the Tribunal was the result of such an attack. The applicant provided no medical evidence in support of his claimed hospitalisation or his subsequent visits to a psychologist. Although the Tribunal accepts that the applicant has scarring to the skin around his breastbone, it does not consider the applicant provided convincing evidence of the origin of this scarring. I do not accept that the applicant or his family received any threats of violence in relation to their refusal to sign a compensation agreement. I find that the applicant’s accounts of the physical assaults and the timing of them in relation to his claimed move to his grandmother’s house in November 2013, are inconsistent. I also do not accept that the applicant went into hiding as a result of any violence or threats associated with his claims, and again note his inconsistent claims regarding the timing and location of his attempts to hide.

16. Given the above findings, I do not accept the applicant’s claim that his parents continue to be harassed and threatened by local government or gangs as a result of any protest action taken from 2013 to 2014. Even if I were to accept that the applicant or members of his family did engage in protest activities or sign a petition in relation to the proposed demolition of their home (which I do not accept), I do not accept that such activities which occurred six to seven years ago would be a source of persecution in the future, given the applicant has been in Australia since June 2014 and he claims his parents have moved away. The Tribunal does not accept that the applicant engaged in any protest activities, but in addition finds that there is no evidence that he has continued to engage in any protest activities or would engage in them in the future upon return to China. I do not accept his claims that he will be harmed as a result of any past protest activities.

17. I am prepared to accept that the applicant’s parents may no longer live at the family home where the applicant grew up in Shandong Province, but if this is the case, I do not find that there is any convincing evidence that such a move was precipitated by the events which the applicant has recounted in his claim or in his oral evidence. I also do not accept that the applicant’s parents have moved on multiple occasions to avoid harm from gangs because of their position regarding the demolition process and their refusal to sign a compensation agreement.

18. These findings are further reinforced by the applicant’s lack of urgency in applying for protection. The applicant arrived in Australia on [date] June 2014. He did not apply for the Protection visa until 29 September 2015, over 15 months after arriving in Australia. His Student visa ceased on 17 September 2015, which suggests that the applicant lodged the Protection visa to maintain his residence in Australia. When this concern was raised with the applicant, he indicated that he could not afford to continue with his studies in Australia.

19. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant's fear of persecution. In Selvadurai v The Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 the Court observed in regard to a delay in lodgement of a protection application: “In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant's alleged fear of persecution. It is a rational consideration open on the material”. In the Tribunal's view, the applicant's delay in lodging the Protection visa application further suggests that the basis of the claim for protection should not be accepted.

20. Even if the Tribunal were to accept that the applicant has a genuine fear of returning to China, which the Tribunal does not accept, it considers he could avoid harm by relocating within China. On the applicant’s evidence, his parents have moved from their hometown, and the Tribunal considers it would be open to the applicant to do the same. The applicant’s evidence indicates that his fear of harm is from local gangs organised by the local government authority, and the Tribunal therefore considers the applicant could avoid harm by relocating elsewhere within China.

21. 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.

22. 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[2] 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.

   [2] 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. ‘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.

4. As detailed above, I have rejected the applicant’s claims that he and his family were threatened and assaulted as a result of their refusal to sign a compensation agreement for the proposed demolition of their home or harmed in any other way on this basis. I have also rejected his claims that his parents continue to receive threats, and reject his claim that his parents have had to move on multiple occasions to avoid harm.

5. 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 Shandong, China.

6. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China, now or in the reasonably foreseeable future.

1. 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

100.   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).

101.   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).

102.   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

103.   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.

…

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.

…