1722969 (Refugee)

[2023] AATA 517

1722969 (Refugee) [2023] AATA 517 (4 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722969

COUNTRY OF REFERENCE:                   China

MEMBER:Lilly Mojsin

DATE:4 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 04 January 2023 at 1:25pm

CATCHWORDS
REFUGEE – protection visa – China – decision on the papers – internet addiction treatment centre – electro-shock treatment – threatened and harmed by the police – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2

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 6 September 2017 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 23 September 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm on his return to China.

3. On 2 December 2022, pursuant to s425 of the Act, the Tribunal invited the applicant to attend a Tribunal hearing on 22 December 2022 to give evidence and present arguments. The hearing invitation informed the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.

4. On 18 December 2022, the applicant emailed the Tribunal requesting the Tribunal to make a decision on the papers. The applicant stated “after much deliberation, I have decided not to attend the hearing on 22 December 2022 and wish the Tribunal to make its findings based on the materials I have submitted”.  The applicant did not attend the scheduled hearing.

5. The Tribunal is satisfied that the applicant has consented to the Tribunal deciding the review without the applicant appearing before it and has proceeded to make a decision on the information before the Tribunal and not to offer the applicant a hearing.

6. In accordance with s. 425(2)(b) the Tribunal proceeds to decide this application on the material before the Tribunal.

   CRITERIA FOR A PROTECTION VISA

7. See Annexure A

   CONSIDERATION OF Claims and evidence

8. In a statement accompanying the protection visa application, the applicant stated (in summary): 

   a.    In his hometown, in [City 1] in Shandong Province, in an internet addiction treatment centre patients have been receiving electroshocks to rid them of their 'addiction' to the internet. Over 1000 inmates - most of whom are teenagers - have been kept there since 2010. The centre was banned from conducting the procedure in 2011 by the then Ministry of Health. The centre was still carrying out the procedure, under a new name - low-frequency-pulse- electronic acupuncture.

   b.    Beginning of June 2012, the applicant was sent to the treatment centre. He was electroshocked many times. Some media interviewed him and other young people who received the treatment. He revealed the painful story. His family also changed their view and joined him to ask the closure of the treatment centre. However, Government officials hold shares in the treatment centre. His family and his behaviour put the treatment centre in the risk of loss.

   c.     One night in July of 2012, the police brought him to [a] Police Station and five to six police tried to force him to confess to crimes he and his family had not committed.

   d.    Police punched him in the stomach, used wooden and rubber batons to beat his knees and legs and even used electric batons to shock him. They handcuffed his hands behind the back of the chair. Then they passed a baton through the handcuffs, catching one end of the baton on the arm of the chair, and pressed the other end forcefully, making him cry out in such pain. That night, they kicked his lower body. One of them, the head of the police station, kicked him maliciously. He said to them "Are you even human or are you a beast? Do you have parents, do you have children?"

   e.    After he was released, for his future, his family sent him to Australia. He wrote a lot of appeal letters. He asked his family to send them anonymously to the Government. The main contents of the letters are:

   i.The treatment centre seriously violated the law. It persecuted the teenagers.

   ii.It extorted money from the patients, forcing them to submit 3,600 Yuan as the "education fee." The "education fee" has no reason to be collected. It used this method to further extort money from the patients. Those patients who refused to submit the money were illegally held in the centre after the treatment.

   f.   In early September 2016, the police searched his home. They said they suspected his family framed the government officials. They also asked him to come back for investigation. Obviously, he will suffer the official's retaliation if come back.

   g.    He is a young man with intelligence and diligent. He is willing to contribute to the community in Australia.

9. The applicant did not provide any further information to the Tribunal.

   Reasons and findings

10. The applicant's identity has been accepted by the Department in his visa application. On the basis of his Chinese passport I accept that the applicant is a national of the PRC and is not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than China. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that China is the applicant's “receiving country” for the purposes of s.36(2)(aa).

11. 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. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

12. According to a CTV article from 3 July 2005, China first introduced an officially licensed clinic for internet addiction in March 2005.[1] The usual stay for a patient was between 10 and 15 days. Part of a patient’s treatment included sessions on a machine that stimulates nerve impulses with 30-volt charges to pressure points. The treatment centre was operated under the care of a dozen nurses and 11 doctors including a psychiatrist.

    [1] 'Internet addicts treated at clinic in Beijing', 03 July 2005, CX125264

13. Independent evidence, being an article from CNN, dated 8 July 2020[2], reported that a group of men who operated an internet addiction treatment centre in south-eastern China were sentenced to prison after being convicted of locking children in isolation for up to 10-days.

    [2] CNN ‘Children in China locked up for as long as 10 days at internet addiction camp’, 8 July 2020,

14. The applicant was put on notice that the Tribunal did not accept his claims. The applicant did not attend the Tribunal hearing and I was unable to explore the applicants’ claims with them.

15. Without further information from the applicant I am unable to accept that the applicant was forcibly treated at an internet addiction treatment centre in [City 1], in the beginning of June 2012 by receiving electro-shock treatment and that following his treatment, he protested against the treatment centres by writing letters to the local government. The applicant did not provide any evidence to support his claims of being forced into treatment for internet addiction, e.g. copies of the letters that he sent to the authorities. The applicant claims to have been interviewed by media outlets following his treatment, however, no news articles have been produced.

16. Whilst he claims that his family had joined him in requesting the government close the treatment centres, his parents remained in China. Additionally, without further information, I do not accept that in September 2016 the police searched his home suspecting his family framed the government officials and asked him to come back for an investigation.

17. I am also unable to accept, without further information, that he was assaulted and tortured by police in 2012 at [a] Police Station and the police were attempting to force a false confession from him.

18. Further, the applicant claimed that these events happened in July 2012, but the applicant  did not obtain a passport until January 2013, and he did not leave China until 9 August 2013. In  light of the delay in leaving China after the claimed forced treatment and attacks by the police I do not accept that the applicant feared harm for engaging in protest action against the government. Without further information from the applicant I am not satisfied he had or was imputed to have an adverse political opinion. 

19. I have considered the claims of the applicant individually and cumulatively. I am satisfied that the applicant did not leave China fearing harm for a refugee reason.

20. For the reasons given above, the applicant does not satisfy the criterion set out in s.36(2)(a).

21. I am required to consider whether the applicant will suffer significant harm on his return to China within a reasonably foreseeable future.

22. I have rejected all the applicant’s claims. I do not accept that the applicant has been admitted to an internet addiction treatment centre and received treatment contrary to his wishes or engaged in protest against internet addiction treatment centres or that he was threatened and harmed by the police. I do not accept that the applicant had an adverse profile in China or an adverse imputed profile in China or that he will be imputed with an adverse profile on his return to China.

23. Therefore I do not accept if he returns to China he will be physically and mentally abused and that his life will be in danger. I do not accept that there is a real risk the applicant will suffer significant harm upon return to China in the reasonably foreseeable future.

24. Therefore, I am not satisfied that 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 the applicant will suffer significant harm i.e., that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.

25. Accordingly, I find that the applicant does not satisfy s36(2)(aa) of the Act. 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).

    CONCLUSIONS

26. 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).

27. 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

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

    Lilly Mojsin
    Member

    
    
    

    ANNEXURE A

29. 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.

30. 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.

31. 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).

32. 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.

33. 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

34. 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.

    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.

    …