1722977 (Refugee)
[2023] AATA 986
•9 March 2023
1722977 (Refugee) [2023] AATA 986 (9 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Chang Liu (MARN: 1281423)
CASE NUMBER: 1722977
COUNTRY OF REFERENCE: China
MEMBER:Linda Holub
DATE:9 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 9 March 2023 at 1:30pm
CATCHWORDS
REFUGEE – protection visa – China – fear of harm from former boss and brother with political connections and collusion with police – failed investment project – threatened by gangsters and claim of beating – inconsistent evidence – country information – likelihood of returning to home area rather than work area and availability of state protection – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), 65
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 dependants.
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 7 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
According to information provided in his Protection visa application, the first named applicant was born in Fuqing, Fujian in [Year] and is a citizen of China. He is married. His mother and father live in China, and he is in touch with them by phone. He speaks, reads, and writes Mandarin.
The applicant departed China legally using his own passport [in] February 2017 and Department records indicate that the applicant first arrived in Australia [in] February 2017 travelling on a Visitor (Class FA) (subclass 600) visa granted on 25 January 2017. Following the lodgement of his Protection visa application he was granted an associated Bridging A visa on 18 April 2017 that is currently in effect. The applicant has not departed since that time.
The second named applicant is the spouse of the primary applicant. She was born in [Year] and arrived in Australia on the same date as her husband. She was granted a Visitor (Class FA) (subclass 600) visa on 17 January 2017. Following the lodgement of the Protection visa application she was granted an associated Bridging A visa on 18 April 2017 that is currently in effect. She has not departed since that time.
Throughout this desicion, the primary applicant is referred to as ‘the applicant’ and the secondary applicant is referred to as such.
Issues
The issues in this review are whether there is a real chance that, if he returns to China, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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
13) 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.
Claims and evidence
14) The Tribunal has before it the Department’s file relating to the application for protection. The applicant applied for the visa on 10 April 2017. At the time of application, the applicant did not provide any further information or evidence in support of his claims. The applicants provided a copy of their passports at time of visa lodgement.
Protection claims
15) The applicant made several written claims pertaining to his Protection visa application
16) In his application he claimed:
a.he worked in Liaoning Province’s [named] company. The boss, [Mr A] is Liaoning Province [Official]. The boss and his family are powerful, and his family were cadres of the province. When he worked in the company, [Mr A] wanted him to invest in [production] project. He said that the company was a low risk and high profits. The applicant agreed to invest. [Mr A] promised him five percent interest per month and if they invest more money, they will get more profits. The applicant and his wife took deposits and lent money to [Mr A]. However, [Mr A] began not paying interest to them, and refused to return their principal.
b.due to this, they did not receive any results, so they called the police, who ignored the case. [Mr A] sent people to threaten the applicant and smashed his family’s goods. The applicant heard that [Mr A] was colluding with government officials and the police.
c.he posted a public letter on the street to gain attention and hopefully get help. The police came to his home and wanted to catch the applicant. He and his wife were not at home, and they survived.
d.if he returns to China, he believes he will be caught by the police. The government’s officials are colluded with the police. If he goes to prison, he will be persecuted, and he could even die.
e.if he goes back to China, he will be persecuted by the police. The police and officials collude with each other. Once he is caught, he will suffer persecution both physically and mentally.
f.he could not relocate within China as the whole situation of China is the same. The government officials are colluded with the police. They only care about their own benefits. The government is protected by the umbrella of police. The government is corruption.
17) On 24 August 2017 the applicant was invited to attend a Protection visa interview with the Department on 7 September 2017. The letter advised if he was unable to attend the interview, he should contact the Department to make alternative arrangements. It also advised that if he did not attend the scheduled interview his Protection visa application may be decided on the information before the delegate. The applicant did not attend his scheduled interview to discuss his claims for protection. Accordingly, the delegate was only able to consider the information provided by the applicant in his written claims.
The delegate’s decision
18) The delegate refused to grant the visa on the basis that the written material did not provide a sufficient basis for the delegate to be satisfied that the applicant is a person who had been threatened by powerful CCP committee members, or had his property destroyed. Furthermore, the delegate was not satisfied the applicant would be imprisoned, persecuted or killed or that he would face harm of any kind for such a reason.
19) The delegate was not satisfied that there was a real chance that, if the applicants were returned to China, they will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore, the applicants were not refugees as defined in s 5H and the criterion in s 36(2)(a) of the Act was not satisfied. Similarly, the delegate was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicants will suffer significant harm as outlined in s36(2)(aa) of the Act. Consequently, the delegate was not satisfied the applicants are persons in respect of whom Australia has protection obligations as outlined in s36(2)(a) or in s36(2)(aa) of the Act.
Applicant identity and country of reference
20) The applicants claim to be citizens of China. The applicants provided copies of their People’s Republic of China passports issued [in] 2016. The delegate accepted their identity. There is nothing before the Tribunal to suggest that the applicants are not the person identified in the relevant application for protection.
21) The Tribunal finds that the applicants are citizens of China, which is also their receiving country for the purposes of the refugee and complementary protection assessments.
Review application
22) The applicants applied to this Tribunal for a review of the delegate’s decision on 25 September 2017. They provided a copy of the delegate’s decision but not did not provide any other material to the Tribunal in support of the application for review.
23) Aside from updating their contact details and seeking Medicare access, the applicants have not otherwise engaged with the Tribunal, nor have they provided any additional information or evidence to the Tribunal since they lodged the application.
24) On 3 February 2023 the applicant was invited to appear before the Tribunal on 28 February 2023 to give evidence and present arguments. The hearing was conducted with the services of an interpreter in the Mandarin and English languages.
25) The applicants were represented in relation to the review although their representative did not attend the hearing.
CONSIDERATION OF Claims and evidence
Oral evidence
Background
26) At the commencement of the hearing the applicant stated that the secondary applicant was unable to attend because they have a very naughty child aged [Age] and no one to leave the child with. The secondary applicant not make any claims of her own in the visa application and at hearing the applicant stated that she did not participate in the case because she is just a housewife. I asked him to confirm that the secondary applicant has no claims of her own to make, which he subsequently did.
27) The applicant stated that he has no changes to his claims and no additional claims.
28) The applicant stated that an agent helped him write his application because when he came to Australia, he didn’t know what to do. He stated that later he could not find the agent and engaged another one. He stated that he had written down his claims and they were translated and read back to him after the application form was completed.
29) I noted that at Department stage of the application process he had not nominated a migration agent but had referred to an authorised recipient by the name of [B]. I asked who this is. The applicant stated that it is a migration agent. I explained that based on the information provided in his application, it appears that [B] is not a migration agent. The applicant responded that he has no idea how [B] handled that. I note that in his application, the applicant ticked NO to question 11 regarding the appointment of a migration agent and did not provide any information in that section. [B] is listed as an authorised recipient.
30) The applicant stated that he did not attend the interview at the Department because he had no idea it was on. He stated [B] did not inform him of the interview and later he found out the application was refused. He stated that he found [B] by looking at signs on the street in [Suburb] and he just walked into the office.
31) The applicant stated that he did not know about applying for a Protection visa initially when he came to Australia, and he thought he would come here to hide. He stated that before he left China he hid in a village. He stated he had a friend who only needed his passport and photos and was able to obtain a visa for him to come to Australia. He stated that this friend was in a village in Lioaning Province. When asked how a person in a small village Lioaning Province would be able to arrange a visa to Australia, he stated that the person would get benefits from making the arrangement. He stated he paid RMB50,000 for him and his wife to obtain the visa.
32) The applicant stated he grew up in Fujian Province and went to school there. He told the hearing his family had a reasonable business selling and repairing [products]. He stated that now the business is not so good. He has one younger sister. He stated he left Fujian Province in 2005 because his parents opened a store selling and repairing [products] in Hunan Province. He stated that when he finished school, he assisted them in the store. He stated that he didn’t go to college.
33) In relation to why in his application he stated that he continued his education after he completed high school, he responded that there was a misunderstanding. He stated his grades were not good so he couldn’t attend college, but he went to [a] Technical school for one year in 2005. I referred to the fact that in his application it states that he went there from September 2006 until July 2007. He responded that could be right.
34) The applicant stated he lived in Hunan Province for seven to eight years and during that time worked in the family business. When asked if he was the owner of the business, he responded that he was not the owner and stated that he was quite young. I put it to him that in his application he had claimed he was the owner of [a] factory. He stated that it was most likely a translation problem by the person who helped with his visa application. He stated that in the last two years his father closed the store and because he and his wife had a child, his father helped with the child, and he ran the business so it’s not clear who’s name the business was in. I referred to his earlier evidence that it was in father’s name. He responded that the business belonged to his father, but the money belonged to him.
35) The applicant stated he went to Guangdong Province for about a year where he worked as a salesman in [a] company and then they moved to Liaoning Province. When asked what prompted him to move to Liaoning Province, he stated that people from the south moved around. He confirmed that he randomly picked a town in Liaoning Province and stated he loved the snow and wanted to experience something different. He stated that he worked as a salesman in Liaoning Province in a [business].
36) The applicant stated he met his wife through friends in 2009 when he was [age] years old. He stated he was visiting Fujian Province for Chinese New Year. When asked when they married, he responded no particular day. He stated in or around June or September 2009 they exchanged contact details. He stated that he cannot recall the date of when the marriage was registered but it happened after the second baby was born [Year].
37) The applicant confirmed they left their three daughters in China. A fourth child was born on 17 May 2020 in Australia.
38) The applicant stated that the secondary applicant did not work in China. I referred to the fact that according to the application she worked part-time from 2006 - 2015. He then stated that his parents were helping with the kids and while they lived in Liaoning Province, she found a [job] in a [workplace]. Noting that she lived there only in 2015-2016 according to the application, I asked him what work she did when they lived in the provinces of Guangdong, Hunan and Fujian. He stated that she didn’t work while they lived in Guangdong province because they only spent one year there and while they were in Hunan Province, he was doing business, so she was at home doing housework. In relation to the claim that she worked while she lived in Fujian Province, the applicant stated that it must be a misunderstanding because she was quite young. I showed him the application form which indicated that she worked from 2006 to 2015. I explained to the applicant that there appear to be quite a few misunderstandings in his application, to which he responded in the affirmative and referred to the previous agent.
39) The applicant stated that since he has been in Australia, he has worked in a [workplace] because he has no certificate and no education. His wife previously did some [Job task] jobs but no longer works because she cares for their child.
Fear of harm
40) In relation to what harm he fears, the applicant stated that he reported [Mr A] and [Mr C] who are brothers. He stated they tempted them to invest in a [project] and promised him 5% commission per month if he did so. He stated he worked in the company so he thought it would be alright, but he didn’t know his money would be lost. He stated that he and his father had RMB1 million in savings and RMB two million came from his father’s friends, and he was paying them interest.
41) The applicant stated that they lost the money. He stated that [Mr A] initially told him they would be paid interest each month but [Mr A] kept delaying the interest payment, so he asked for his money back and was prepared to forego the interest. [Mr A] promised to return to the money but then the applicant couldn’t get in touch with him.
42) The applicant gave evidence that after he reported the [brothers] to the police, the police did not give him any promises that they would follow-up. Later on, people came to their home and threatened him. When asked who the people were, he stated that they were gangsters, bad people. When asked in what way he was threatened, he stated that they told him he will die. They threatened him and his family.
43) The applicant stated that he lent the money in August 2016. He stated that the money was transferred in three amounts. Initially, one million and something and then two more amounts. He twice transferred money to their account and one payment was made in cash. The money was transferred in June and July; and interest was to be calculated from August 2016.
44) I put it to the applicant that I found it very difficult to comprehend why his father’s friends would lend him substantial sums of money to invest in a risky investment. He responded that their home was not a poor one and if his father told his friends he wanted to borrow money his friends would oblige.
45) The applicant stated that he later found out that [Mr C], was the head of the province, and because of his power the police were not able to deal with the [brothers]. He stated that later on he ran away but his parents stayed in the house. He stated the gangsters came to his home and asked where he was and hit his father. He stated that he and his wife escaped by bus to a village in Liaoning Province, called [Village], tens of kilometres away. He rented a place in the village and a neighbour, [Mr D], who learnt of his situation suggested he go abroad. He stated that all of these events occurred in November 2016. He confirmed that he stayed in that village for about two months, but he was moving around because it was a temporary residence. He stated they moved about every two or three weeks.
46) The applicant stated that his parents live in Fujian Province with his children, and they returned there after he and his wife ran away to [Village]. He stated he and his wife have been back to Fujian Province once at the end of January 2017.
47) I asked the applicant if there was anything further, he wanted to add about anything he had done or anything that happened to him. He responded that he was unsure. I asked him to think about it because it was important during the hearing that he described everything that occurred. After some contemplation he responded that there was nothing further he wished to add.
48) When asked if he was harmed in any way; he responded that he had been beaten. I put it to him that he did not refer to this previously even when I asked him if there was anything additional, he wanted to tell me. He stated that when they talked to him, they held his neck but there was no bodily harm. I told the applicant I was having trouble understanding how he could have been beaten but not harmed. He responded that because they threatened him for reporting the [brothers] to the police, he was threatened not to escalate the matter. He stated that he’s not sure if you can say he was beaten.
49) I asked him if he wrote a letter. He stated he did write a letter. I put it to him that when I asked him if he had any other evidence, he did not mention writing a letter. He stated that he wrote a letter to the government in November 2016.
50) The applicant stated that the police came to his home once and the bad guys came twice: once there and once in [Village].
51) In relation to what harm, he fears if he returns to China, the applicant responded he won’t be able to pay the people and he won’t be able to find a job to support his family and his parents live in the village. His father was hit once so they will come and threaten him. He fears this group will revenge him. As the applicant referred to a number of different issues in quite a tangled manner it was difficult to understand the specifics. I put it to him that it now appears that he only fears harm from the people his father borrowed money from. He responded that was not true. He stated he can’t pay the money back to them and he reported the [brothers] and disturbed their business model. He stated they will try to find him and do things to him for that reason. He stated that he was one of the early investors. He stated they might lock him in a place, and they may murder him.
52) Following an adjournment, I explained to the applicant that it is important for me to be very clear about each specific harm he fears if he returns to China and his previous evidence was not clear and that I would like to talk to him about them individually.
53) The applicant stated that his only fear of harm is from the [brothers]. He stated that he has no other fear of harm. He confirmed that he did fear harm from the police and did not fear harm from the people his father borrowed money from. He stated the police and the bad people from society are under instruction from the [brothers].
54) When asked how the [brothers] would find him, the applicant stated that he is not sure, but they will be find him. I explained to the applicant that it is not clear to me how in a country the size of China geographically with the number of people, the [brothers] would be able to locate him. He responded that they could find his hometown. When asked how they would know he returned, he responded, he’s not sure. I explained to the applicant that if I am not satisfied that they will do so and he does not fear harm from others, I may find that he does not meet the criteria for the grant of the visa.
55) I explained that from what he has told me I’m not convinced the [brothers] have the ability to find him and asked him if there was anything further that he wanted to add. The applicant replied that because he is still here and hasn’t returned, he is not sure what the harm will be, but they threatened him. I put it to him in the eventuality of them finding him, he can go to the police and report any threats or concerns. He stated that in China businesses work with police and are protected by them. He stated that it is no use reporting to police. He stated that China is unique in this way.
56) I referred to country information provided by the Department of Foreign Affairs and explained to him that I'm required to take account of information in the report. The most recent report on China was published by the Department in December 2021. I referred to the section on Corruption and explained to the applicant that the existence of corruption in China is well recognised and acknowledged as a problem and drew specific attention to the following:
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.
57) I put it to the applicant that in the very, very, unlikely event that the [brothers] will know that he has returned to China and able to find him, in the context of the Government’s focus on anti-corruption and given he would be in Fujian Province not Liaoning Province, if he is threatened again by these people, it appears that it is more likely the police will take action against them. When asked if he wish to respond, he stated he had nothing to say.
58) I asked the applicant if there was anything else he would like me to take into consideration. He responded that he strongly fears if he returns, he can’t earn enough money to support the eight members of his family and his parents are ageing. In addition, he stated that his son was born in Australia, and he is used to life in Australia.
59) In relation to his son, I expressed some surprise that he was worried about his son who is less than [Age] years old not fitting in, in China but that he seemed to be prepared to leave his three daughters for an extended period of time without concern. He responded that he is concerned about his daughters, but his son has never lived in China. I acknowledged that this is the case but do not necessarily consider the adjustment to be at the level of serious or significant harm.
60) Similarly, in relation to his parents ageing, I noted China’s ageing population and the fact of them ageing does not mean he fits the definition of a person meeting the criteria for protection.
61) I acknowledged that he may wish to remain in Australia because the income he can earn is higher, however, I noted that he gave evidence about the significant resources his family was able to pull together to invest and that he gave evidence that his parents ran a business in a number of provinces and he had also referred to the freedom he had in being able to move to Liaoning Province because he wanted to experience snow. All of his evidence suggested he had the wherewithal to find work. In response, the applicant said that he does not want to take the risk. He stated that he is the breadwinner for eight people and if he is harmed, they will not be able to earn any money as his father has had surgery and can no longer work.
Evidence provided by the secondary applicant
62) During the course of the hearing, I asked the applicant whether it would be possible to call the secondary applicant by telephone so that she could provide oral evidence. He agreed that I could do this.
63) Upon calling the secondary applicant, she stated she could not attend the hearing because she is caring for their child but agreed to give evidence.
64) In relation to the basis of the applicant’s claims she stated that when he was working in Liaoning Province they were defrauded and lost RMB 3 millkion. She stated that they gave this money to [Mr A] who told her husband about the investment opportunity. She stated that she supported her husband but is not across the details. She stated that after they could not find the boss, they reported the situation to police and were then threatened by [Mr A].
65) I did not proceed to take further evidence from the secondary applicant because of the difficulty hearing her above the noise being made by their child.
FINDINGS AND REASONS
66) Despite the fact that some of the claims made in the written application were inconsistent with the applicant's oral evidence, for example regarding his ownership of [a] factory, and in relation to the secondary applicant being in part-time employment, from 2006 until 2015 and some other matters, I am prepared to accept that the applicant and his family invested funds of around RMB3 million and that he subsequently had trouble having the principal returned to him and that interest was not paid to him. I am also prepared to accept that he reported the matter to the police and that he was subsequently threatened by the people engaged by the [brothers].
67) I have had regard to the applicant’s initial claim that he was beaten. However, in view of his description of what occurred, that is, that he was held by the neck and that his body was not hurt, I do not accept he was harmed in any way before departing China. I am prepared to accept his father was hit on one occasion, but the applicant did not refer to any further harm after his parents returned to Fujian Province around the end of 2016.
68) I do not accept that the applicant is at risk of harm should he return to China and to his home province where his parents and children reside. I have had regard to the fact that the applicant claimed that some six years ago [Mr C] held a significant role in Liaoning Province which is some 2,000 kilometres from the applicant’s hometown. Nothing in his evidence indicates that either of the [brothers] are influential outside Liaoning Province. Furthermore, nothing in the applicant’s evidence persuaded me that they have such authority and influence that they would know of his return to China and therefore, I am not persuaded they would be able to locate him.
69) I have had regard to the fact that the provisions of the Migration Act require an objective and a subjective fear of harm. While I am prepared to accept that the applicant may hold a subjective fear of harm, I am not convinced that there is an objective basis to it.
70) I have regard to the fact that the applicant’s family are from and reside in a part of China that is very distant from where the [brothers] have some influence and furheremore that the country information outlined above indicates that the government is taking corruption seriously and is focused on anti-corruption activities and that allegations of corruption are investigated. Therefore, I am satisfied that should the applicant face any harm or threat of harm from the [brothers] in the highly unlikely event they become aware of his return to China and his whereabouts, that he will be able to report the matter to police for their attention.
71) In relation to the applicant’s claims that he supports eight people I am prepared to accept this is the case and also prepared to accept his father had surgery and is unable to work and that his parents are ageing. I accept he may earn more in Australia and that he is the breadwinner for the family. However, these factors do not make him a refugee under section s 36(2)(a) of the Migration Act. Equally, these factors do not mean the applicant is owed complementary protection as outlined in s 36(2)(aa).
72) I have also considered the applicant's claim that his son who is not yet [Age] years old has not lived in China and that it will be difficult for him to adjust. While I accept the child has not lived in China, I have had regard to the fact that he would not be separated from his parents and that he is cared for by his mother. Therefore, his primary care givers would continue to be with him. I recognise the importance of their roles and that they would play a critical role in his adjustment, and he would finally get to know his three siblings and grandparents.
73) Accordingly, the Tribunal finds that the claims of the first named applicant are not made out, he does not have a well-founded fear of persecution in China for the reasons claimed. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
74) I have also considered the applicant’s claims against the complementary protection criteria and note that 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 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. Based on the country information set out above the Tribunal is satisfied that should he need it; the applicant could obtain protection against any threat of harm he fears from the [brothers] from the police in Fujian Province such that there would not be a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
75) As the secondary applicant is reliant on the claims of the primary applicant and given his claims are not made out, I am also not satisfied that she is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
76) There is no suggestion that either 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 applicants do not satisfy the criterion in s 36(2).
DECISION
77) The Tribunal affirms the decision not to grant the applicants protection visas.
Linda Holub
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.
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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.
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5H Meaning of refugee
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.
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5J Meaning of well-founded fear of persecution
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.
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.
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.
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.
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.
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
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.
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.
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Protection visas – criteria provided for by this Act
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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