1721406 (Refugee)

1721406 (Refugee) [2023] AATA 1338 (6 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721406
COUNTRY OF REFERENCE:                   China
MEMBER:David McCulloch
DATE:6 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2023 at 9:45am
CATCHWORDS
REFUGEE – protection visa – China – compulsory acquisition and demolition of properties – inadequate notification and compensation – local government corruption – fear of authorities due to complaints raised – credibility issues – delay in protection application – unlawful status – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 6 April 2017. The applicant was invited to an interview but did not attend. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 1 March 2023 at 9.30 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – China, 22 December 2021, a copy of which was provided to the applicant in the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the delegate’s decision, it is stated that the applicant entered Australia on a student visa subclass TU-573 [in] December 2015. The applicant’s student visa ceased on 4 January 2017. The applicant applied for the protection visa on 6 April 2017.
The following information is apparent from the application for protection forms. The applicant was born on [date] in Liaoyuan, Jilin, China. The applicant speaks, reads and writes Mandarin. The applicant has never married nor been in a de facto relationship. The applicant’s parents reside in China and she is in contact with them by phone. The applicant lived at one address in China from birth until December 2015. The applicant attended primary, middle and high schools in [China], from 2000 until 2012. The applicant worked part-time in Liaoyuan City from August 2012 until December 2012, and owned a [business] in Liaoyuan City from January 2013 until November 2015. At the time of application, the applicant was unemployed.
In her application for protection, the applicant provided the following responses to questions (not corrected for spelling or grammar):
89: Why did you leave that country(s)? Provide specific details
A: DUE TO I REVEAL THE CHINESE GOVERNMENT CORRUPTION, AND WAS PERSECUTED BY THE GOVERNMENT.
I OPENED A SMALL [BUSINESS] IN MY HOMETOWN. DUE TO LOW PRICE AND HIGH QUALITY OF GOODS, THE BUSINESS WAS SO GOOD. THE DEVELOPER NOTICED THAT THE AREA OF OUR [BUSINESS] WOULD BE REBUILD AND WE NEED REMOVE WITHIN THREE MONTHS. BUT THE DEVELOPER GAVE LOW COMPENSATION. I AND OTHER MERCHANTS HEARD THAT THE COMPENSATION WERE PUT INTO THE OFFICIALS AND DEVELOPERS' POCKET. SO WE ARE SO ANGRY AND DECIDED TO WROTE A COMPLAINT LETTER TO SUBMITTED TO LIAOYUAN CITY GOVERNMENT.
HOWEVER, THE GOVERNMENT SENT POLICE CATCH US. THEY SAID THAT WE ARE A FALSE ACCUSATION. I WAS NOT AT HOME, SO I SURVIVED. BUT OTHER MERCHANTS WERE CAUGHT THE POLICE. I WAS SO SCARED AND ESCAPE CHINA.
CURRENTLY, I HEARD THAT LIAOYUAN CITY'S THE DIRECTOR OF PUBLIC SECURITY BUREAU WAS REPORTED BECAUSE ABUSE AUTHORITY. THEY DOUBT THAT I TOOK PART IN, SO THEY WANTED TO CATCH ME. I WAS APRAID AND NOT TO RETURN CHINA. PLEASE AUSTRALIAN GOVERNMENT HELP ME.
90: What do you think will happen to you if you return to that country(s)?
A: IF I RETURN TO CHINA, I WILL SUFFERED PERSECUTED BY THE POLICE. ONCE I WENT INTO PRISION, I WILL DIE.
91: Did you experience harm in that country(s)?
A: No
93: Did you move, or try to move, to another part of that country(s) to seek safety?
A: Yes
Give details (including where you tried to move, why you were unable to move or where you moved to and what happened)
A: THE WHOLE SITUATION OF CHINA WAS THE SAME. THE GOVERNMENT WAS CORRUPTION. THEY COLLUDED WITH THE POLICE. THEY ONLY CARE THEIR OWN BENEFITS.
94: Do you think you will be harmed or mistreated if you return to that country(s)?
A: Yes
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)
A: IF I WENT TO CHINA, I WILL BE PERSECUTED BY THE POLICE. ONCE I WENT INTO PRISION, I WILL SUFFERED PERSECUTION ON MENTAL AND PHYSICAL.
95: Do you think the authorities of that country(s) can and will protect you if you go back?
A: No
Give details about why you think the authorities could not, or would not, protect you
A: THE CHINA GOVERNMENT WAS CORRUPTION. THE GOVERNMENT OFFICIALS ARE COLLUDED WITH THE POLICE. THEY ONLY CARE THEIR OWN BENEFITS.
96: Do you think you would be able to relocate within that country(s)?
A: Yes
Give details as to where you could relocate
A: THE WHOLE SITUATION OF CHINA WAS THE SAME. THE GOVERNMENT WAS CORRUPTION. THE POLICE WAS COLLUDED WITH THE GOVERNMENT'S OFFICIALS. THEY ONLY CARE THEIR OWN BENEFITS.
Independent information
The 2021 DFAT report on China provides the following information (underlining added):
Corruption
2.20    China ranked 78 out of 180 countries and territories in Transparency International’s 2020 Corruption Perceptions Index (where 1 is perceived to be least corrupt). The 2020 Global Corruption Barometer for Asia found that, while 64 per cent of Chinese citizens considered corruption had decreased in the previous 12 months, 62 per cent still perceived government corruption to be ‘a big problem’.
2.21    Transparency International estimated 28 per cent of public officials accepted a bribe in 2020. The 2020 US Department of State Human Rights Report notes frequent corruption in court decisions, and areas ‘heavily regulated by the government’ such as land-usage rights, mining and infrastructure development. Bribery in healthcare is also reported, for example offering cash for prioritised procedures. See also documentation and fraud and entry and exit procedures.
2.22    What might be considered corruption in the West may be viewed as guanxi in China. Guanxi, (literally ‘connection’) is a system where progress in business or government relies on patronage networks – giving and receiving ‘face’ (mianzi – esteem, prestige) and exchanging favours or gifts. Good guanxi can obtain favourable business, social and legal outcomes, and bad guanxi can make them impossible.
2.23    The government takes corruption seriously as a threat to its legitimacy. Penalties for corruption can include death for serious and high-profile cases. On taking office in 2013, President Xi launched a nation-wide anti-corruption campaign against high and low-ranked corrupt officials. Within five years the crackdown led to arrests of over 1,800 officials, including very senior political figures. Corruption charges can be interpreted broadly. Allegations of corruption by officials are investigated by Party organs in the first instance (the Central Commission for Discipline and Inspection and the National Supervisory Commission). While officials are generally investigated by these organs for alleged crimes related to fraud, financial misappropriation and other activities traditionally defined to constitute corruption, these organs appear also to investigate officials deemed to lack loyalty and ideological purity. Individuals critical of the Party and its leadership can also face detention and other consequences ostensibly for corruption charges.[1]
[1] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, p.10.
…
Protesters and petitioners – including land protests
3.86    All gatherings of more than 200 people must obtain approval from public security authorities. The Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges. Public demonstrations are rarely approved. Spontaneous protests sometimes occur. Common protest themes are related to labour disputes, environment, land disputes and local corruption. Recent estimates on numbers of protests are not available, but DFAT understands they have become much less common under President Xi.
3.87    Disputes with government may be raised at petitioning offices, also called ‘letters and visits’ offices, a type of government service office. Millions of disputes are raised every year. Local authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means local authorities are incentivised to retaliate against petitioners, which might include charges such as ‘picking quarrels and provoking trouble’. According to the 2020 US Department of State Human Rights Report, local governments have sent personnel to Beijing to force petitioners in the capital to return home. While examples of violence and, in extreme cases, deaths are reported, many complaints are resolved through the petitioning process.
3.88    Land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villages. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation (thus, disputes are generally complaints against local government which may escalate to the national government, as outlined above). China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs’, who intimidate protesters or cut utility supplies, have been used and are allegedly hired by local governments.
3.89    DFAT assesses that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.[2]
[2] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, p.25.
…
TREATMENT OF RETURNEES
5.28    DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear. See the relevant section of the report for information on treatment of specific Groups of Interest.
5.29    Those wanted for outstanding warrants could still be charged on return to China. The general statute of limitations for crimes is five years (for a crime where the maximum penalty is up to five years in prison), ten years (where the maximum penalty for a crime is five to 10 years in prison), 15 years (where the penalty for a crime is not less than 10 years in prison) and 20 years (where the maximum penalty is life in prison or death). In practice, a person who flees from prosecution and then returns is likely to be arrested.[3]
…
Exit and entry procedures
5.31 Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.
5.32 National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list. DFAT is also aware of instances where members of certain ethnic minority groups have been denied passports.
5.33 If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons. There is a legitimate risk that family members of an individual under investigation by Chinese authorities could be subject to an exit ban. This is not only for sensitive charges but also economic charges such as fraud.
5.34 Exiting China by land outside of border crossings would be very difficult. The far western borders are less policed but also much harder to cross due to very harsh conditions. Border checks exist at Hong Kong and Macanese ports and land crossings, and special provisions are in place at the Mongolian border to allow passage of Mongolian and Russian citizens that use ‘one-time passports’ that allow travel to only one country. The borders with Vietnam and Myanmar are more porous but efforts have been made in recent years to strengthen them. China is reportedly building a 4.5 metre fence on its Southeast Asian borders. Checkpoints have been set up in Vietnamese border areas and local villagers help officials to patrol remote areas.
5.35 DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents DFAT Country Information Report People’s Republic of China December 2021 41 because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[4]
[3] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, p.39.
[4] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, p.40–41.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself 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 him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of China and accordingly her claims will be assessed against China.
In the hearing, the applicant gave evidence that she was the owner of three shops; two shops sold [deleted] and the third premises was a [deleted]. She had been loaned money by her parents to buy these establishments. The applicant indicated that towards the end of 2013 there was an in-person approach from authorities advising that there was to be compulsory requisition of the two [shops]. The applicant stated that during a later oral conversation, compensation was offered, but the level of compensation did not reflect the value of the properties. The applicant indicated that 30 or so other premises were affected. The applicant indicated that she was the leader in taking action complaining about the demolitions and low offers of compensation.
The applicant stated that there was no specific information provided by authorities as to when the properties were to be demolished. The Tribunal expressed to the applicant its scepticism that there would not be advice as to when the properties were demolished and asked the applicant if it were the case that the properties were demolished without the opportunity being given to clear them and that she just turned up to work one day and the properties had been demolished. The applicant said that was the case.
The applicant indicated that she complained to authorities after the demolitions but that this was not in writing and her complaints were delivered orally in a meeting. The applicant indicated at a later point in the hearing that her oral representations were also on behalf of the other property owners affected and that these representations were oral and not in writing.
The applicant indicated that after she made her complaint, she went home where police were waiting for her and threatened her not to complain in future. The applicant indicated that she did not complain in future because of her fear. The applicant indicated that police visited her on another four or five occasions up until she left in November 2015 giving similar warnings that she should not make complaints.
The Tribunal has a number of credibility concerns, including some significant concerns, with the truth of core parts of the applicant’s claims. The concerns follow.
Firstly, the applicant has been inconsistent in terms of whether the complaint to authorities about demolition and compensation was in writing or verbal. The applicant’s written claims for protection indicate that she and other merchants wrote a complaint letter to the city government. The Tribunal noted to the applicant in the hearing that this was inconsistent with her evidence that the complaint was made only verbally. In response, the applicant indicated that other merchants wrote the complaint letter. The Tribunal put to the applicant that this was inconsistent with her evidence in the hearing that she was the leader in terms of making complaints and her evidence specifically that the complaints, including those made on behalf of others, were only delivered orally. The applicant maintained that other merchants wrote the letter of complaint. The Tribunal put to the applicant that she had clearly stated that she was representing the owners of the acquired properties and had made only oral representations. In response, the applicant indicated that she had no comment.
The Tribunal considers there has been an inconsistency in the applicant’s evidence on this point which is undermining of her credibility.
Secondly, the applicant has been inconsistent as to whether she was specifically approached by police after making the complaint. The applicant’s written claims indicate that police went to her premises but she was not at home, so she ‘survived’. She indicates that other merchants were caught by the police which caused the applicant to be scared so she escaped China.
In contrast, in the hearing the applicant indicated that immediately after her complaint to authorities, police were waiting for her at home and warned her not to complain again. The applicant then stated that police, from the time of this first visit in June 2014 until she left for Australia in November 2015, visited her on four or five other occasions issuing the same warning.
The Tribunal put to the applicant the inconsistency in evidence from her written claims as to her specifically being approached by police. In response, the applicant indicated that sometimes she would be home when police visited and sometimes not.
The Tribunal does not consider that this explains the applicant in her written claims only referring to one visit by police and her not being home at the time. The Tribunal considers that if it were true that there were multiple visits by police, if the applicant was at home or not, this would have been indicated in her initial written claims. The Tribunal considers that if at least in some of these visits the applicant had directly been warned by police, this very important evidence would have been included in written claims.
The inconsistency is significantly undermining of the applicant’s credibility.
Thirdly, the Tribunal finds it extremely implausible that government officials would seek to compulsorily acquire and offer compensation for approximately 30 premises and not convey information about this in writing, only orally. The Tribunal put this implausibility to the applicant and she maintained that there was nothing in writing.
The Tribunal considers it highly implausible that authorities would compulsorily acquire 30 properties and make offers of compensation without any written provision of such an intention. The Tribunal acknowledges the fact that something being implausible does not mean that it might not happen. This is not a determinative adverse credibility issue but is considered cumulatively together with other more significant matters.
Fourthly, it is implausible that authorities would have demolished the applicant’s property without giving her notice as to exactly when this was going to happen, allowing her to clear out chattels and goods. The applicant in the hearing maintained that there was no notice of when specifically the property was to be demolished. The applicant says this happens in China.
The Tribunal finds this implausible. Again, the Tribunal acknowledges that if something is implausible does not mean that it did not happen. This is not a determinative adverse credibility issue but is considered cumulatively together with other more significant matters.
Fifthly, the claim by the applicant that she is of adverse interest to authorities is not consistent with her own evidence at the hearing that she did not pursue a complaint after June 2014 in relation to the demolition and inappropriate compensation.
In the hearing, the applicant indicated that she did not pursue complaints after June 2014 as police warned her not to. The Tribunal put to the applicant why it would be the case that police would have any adverse interest in her if she did not make further complaints, complying with police instructions. In response, the applicant indicated that she remains of adverse interest because there is a fear that she might make a complaint.
The Tribunal has significant difficulties accepting the credibility of this, given that on the applicant’s own evidence she made no further complaints after her initial complaint in June 2014 up until leaving China in November 2015.
The Tribunal also considers it makes little sense that police would continue to approach the applicant and warn her not to make complaints if as she indicates in her own evidence she made no further complaints. This buttresses credibility concerns as a result of the inconsistency referred to above as to whether the applicant was ever actually approached by police in relation to the issue.
The Tribunal does not consider it credible that the applicant would be of adverse interest to authorities even if the Tribunal was to accept that police approached her in June 2014 warning her not to make further complaints, given that she in fact complied with this instruction and did not do so.
Sixthly, the fact that the applicant was able to leave China through normal channels is not consistent with her being of adverse interest to authorities. The Tribunal noted to the applicant in the hearing the DFAT information extracted in this report as to sophisticated entry and exit procedures in China and the inability of an individual to leave China without the knowledge of authorities. Control lists for exit are maintained. The Tribunal considers it most likely that if as the applicant claims she was of adverse interest to authorities for a period of approximately a year and a half prior to leaving China, this would not have been noted on relevant systems preventing the applicant from leaving China.
In response to this issue, in the hearing the applicant indicated that her belongings and mobile phone were searched thoroughly at departure. When asked, she indicated there was no reference by authorities to her being wanted as a result of land acquisition issues.
The fact of the applicant being able to leave through normal channels is undermining of her claims to be of adverse interest to authorities.
Seventhly, the significant delay by the applicant in applying for the protection visa, including for a period of several months while she was an unlawful non-citizen, is undermining of the claim regarding the applicant fleeing China for the reasons claimed.
In the hearing, the applicant indicated that when she left China in December 2015, she did so fearing for her safety. In the hearing, she stated that she studied for only three months before ending her studies because of financial issues as well as not understanding the course. The Tribunal noted to the applicant in the hearing that her student visa ceased on 4 January 2017 and she did not apply for the protection visa until April 2017.
The Tribunal put to the applicant that this delay in applying for the protection visa in the context of her claiming that she left China with fear for her safety is undermining that she did in fact have such a fear and is undermining of claims made. In response, the applicant indicated that she did not learn at the time that her student visa was cancelled. She referred to financial difficulties in taking steps to apply for protection. The Tribunal put to the applicant it would be inclined to consider that if the applicant left China with the fear claimed, she would have made it a priority to take much more immediate steps to secure a permanent right to stay in Australia than she did.
While the Tribunal understands financial, language and other cultural constraints in a new country, the Tribunal is not persuaded, given all of the evidence, that this explains why the applicant waited from December 2015 until April 2017 to apply for the protection visa, including allowing herself to be an unlawful non-citizen for several months. The delay is undermining of credibility in terms of what the applicant is claiming, particularly of her holding the fears claimed when her evidence is that she held these fears at the time of arrival.
The Tribunal considers these seven credibility issues cumulatively. Considered together, they are significantly adverse in the Tribunal’s consideration of the applicant’s key claims. The Tribunal is not satisfied that the applicant is a truthful or credible witness on key issues.
Having said that, the Tribunal is satisfied on the evidence that two of the applicant’s shops were compulsorily acquired and demolished in June 2014. The applicant at hearing offered to provide photographic evidence of this. There was reasonable detail in the applicant’s claims of having three businesses and two of these being compulsorily acquired and the premises demolished. The Tribunal is prepared to accept that the compensation that was offered was not deemed adequate by the applicant.
However, the Tribunal is not satisfied that the premises were demolished without specific notification as to the time of demolition being provided and the premises being demolished containing all their goods and chattels. The Tribunal is not satisfied that there would not have been written notification of the acquisition and an offer of compensation.
The Tribunal is not satisfied that the applicant led the approximately 30 individuals whose premises had been acquired and demolished. The Tribunal is not satisfied that the applicant complained either verbally or in writing to government officials resulting in police then seeking the applicant to warn her not to continue with her complaints. The Tribunal is not satisfied that police visited the applicant’s home on any occasion either when the applicant was at home or not with the aim of warning her not to make further complaints. The Tribunal is not satisfied that the applicant became or is currently a person of adverse interest to authorities in China as a result of a fear that she may continue making complaints in relation to property acquisition and demolition, or for any other reason. The Tribunal is not satisfied that there is any issue with the Director of the Public Security Bureau being ‘reported because abuse authority’ that creates any adverse interest in the applicant by authorities in China.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk of the applicant suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…

[2023] AATA 1338

6 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness