1723053 (Refugee)

1723053 (Refugee) [2023] AATA 1480 (24 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chang Liu (MARN 1281423 / LPN 5511465)
CASE NUMBER:  1723053
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Papadopoulos
DATE:24 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 24 March 2023 at 2:18pm
CATCHWORDS
REFUGEE – protection visa – China – acquisition of land by local government without proper compensation – complaints to local and provincial authorities and attempt to travel to complain to national government – arrested, detained, beaten and threatened – credibility – inconsistent, unsupported and implausible claims and evidence – obtained passport and departed unhindered – lack of knowledge of complaints procedures and no efforts to pursue further while in Australia – lack of knowledge of situations of fellow complainants – member of family unit – applicants separated, second applicant left Australia and now divorced – no response to tribunal’s invitation to comment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36(2), 65(1), 424A
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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

The first-named applicant (hereinafter referred to as [the applicant]) is a [Age] year old male who claims to be a national of China. The second-named applicant is a [Age] year old female who claims to be a national of China.
The applicants arrived in Australia [in] February 2014 as the holders of Higher Education Sector (subclass 573) visas.
On 8 August 2016, the applicants applied for Subclass 866 Protection (Class XA) visas (protection visa).
On 8 September 2017, the delegate of the Minister for Immigration and Border Protection made a decision to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicants were not persons to whom Australia has protection obligations.
This is an application for review of the delegate’s decision.
CONSIDERATION OF THE SECOND-NAMED APPLICANT’S CASE
Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
So far as is relevant to the second-named applicant’s case, s 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.
Movement records held by the Department of Home Affairs indicate that the second-named applicant is not in Australia. It appears that she left Australia [in] June 2022. Pursuant to s 424A of the Act, on 9 March 2023, the Tribunal wrote to the second-named applicant advising that these movement records indicated that she is currently outside Australia and that if she was not in Australia she could not be granted a protection visa. The second-named applicant was informed that if she could not comment on or respond to this information in writing by 23 March 2023, she may ask the Tribunal for an extension of time in which to provide the written comments or response.
The Tribunal has received neither a request for an extension of time nor any comment or response from the second-named applicant.
The Tribunal is satisfied from the circumstances set out above that the second-named applicant is not in Australia. Therefore, the second-named applicant does not satisfy the requirements of s 36(2) of the Act and cannot be granted a protection visa.
Having reached this conclusion, it is not necessary to consider the second-named applicant's substantive case for the grant of the visa.
For the above reasons, the Tribunal affirms the decision not to grant the second-named applicant a protection visa.
CONSIDERATION OF THE FIRST-NAMED APPLICANT’S CASE
The issue in [the applicant]’s case is whether he is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether [the applicant] is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment.
For the following reasons, the Tribunal has concluded that the decision not to grant [the applicant] a protection visa should be affirmed.
CLAIMS AND EVIDENCE
Claims and evidence provided to the Department
Protection visa application
According to information contained in the protection visa application form signed by [the applicant] on 4 August 2016, [the applicant] is a [Age] year old Chinese national who was born in Henan Province in China. Based upon information in that form, [the applicant] was in a de facto relationship on 4 August 2016. However, [the applicant] did not provide any information in relation to his address, employment and educational history and little information in relation to his family composition other than:
·     the second-named applicant was his partner
·     he has a daughter named [Ms A] (born [Date]) who was living in China
·     his parents were Chinese citizens.
In relation to his claims for protection, [the applicant] provided the following information in his application form:
·     The government in China authorised the seizure of their land without proper compensation according to market price. They complained to higher levels of government, but no one seemed to care. They suffered significant harm in the “courts of confrontation” and because their land had been forcibly taken.
·     As they were pursuing their fundamental rights to proper and fair compensation and their political rights to protect their land, authorities and corrupt officials prohibited the applicants from participating in any public gatherings and persecuted the applicants whenever they thought it was necessary without any justification.
·     He has suffered serious harm, assaults, false confinement and has been watched.
·     He did not seek protection from Chinese authorities because his encounters were against the government and other politically corrupt officials.
·     He believes the rights he sought, being fair compensation and the ability participate in public forums to protect his interests, are fundamental and therefore, there is no need to hide. Further, he believes he should be able to exercise those rights publicly and overtly without the fear of being persecuted. But he says that as long as he continues to uphold and exercise his fundamental rights and exposes the corrupted government and officials, the authorities and officials will inflict significant harm or mistreatment upon him and the second-named applicant.
Supporting documents
The applicants lodged the following documents with the Department in support of his protection visa application claims:
·     A copy of the biodata page of a Chinese passport ([reference]) issued to the second-named applicant [in] 2013 which is set to expire [in] March 2023
·     A copy of the biodata page of a Chinese passport ([reference]) issued to the first-named applicant [in] 2013 which is set to expire [in] 2023
·     Department form 866B, ‘Persons included in this application and family composition’, dated 4 August 2016 and received by the Department on 8 August 2016
·     Department form 866C, ‘Personal details for each person included in this application’, completed by the second-named applicant, dated 4 August 2016, and received by the Department on 8 August 2016
·     Department form 866C, ‘Personal details for each person included in this application’, completed by the first-named applicant, dated 4 August 2016, and received by the Department on 8 August 2016
·     Department form 956, ‘Advice by a migration agent/exempt person of providing immigration assistance’, dated 4 August 2016 specifying that Mr Chang Liu, a registered migration agent (MARN 1281423), provided assistance with the application process
·     A letter from Mr Chang Liu of Cathay Lawyers, dated 4 August 2016, submitting that the Department provide an interview before any adverse decision is made.
Protection visa application interview
[The applicant] attended an interview with the Department in connection with his protection visa application on 14 February 2017. The interview was conducted with the assistance of an interpreter in the Mandarin and English languages. The second-named applicant did not attend the interview with the Department.
The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below. However, for the sake of clarity and thoroughness of the claims presented to the Department, the following additional oral evidence was provided by [the applicant] during the protection visa application interview:
·     He separated from his partner about a month before the interview. They obtained an official divorce and he does not know where she is living. He spoke with her approximately two weeks before the Department interview to invite her to attend the interview. He said that he felt confident to be able to speak to her involvement with respect to the protection claims.
·     He lived in the same house in Henan Province with his parents from birth. The second-named applicant moved into the house when they were married. They have a daughter together, who was [Age] years old and living in China with his parents at the date of interview.
·     In July 2012, he received notification that the local government intended to acquire land from his family and approximately 100 other households. They were told to get rid of their crops on the land within two months. He explained that the government offered a land exchange but the replacement land was not suitable as it was prone to flooding and would not produce suitable crops. He further explained that his family relied on the farming land to survive and that he made approximately 5,000 RMB yearly working the farm.
·     On 1 September 2012, local government authorities forcefully took his land with bulldozers. He complained to the local government authority. He said they “did not care” and invited him to appeal. He then lodged an application at the local city court about the matter but the court disregarded his complaint.
·     On 1 March 2013, he went to the provincial government to appeal further. Other affected households did not appeal to the provincial government because they had only lost part of their land whilst he had lost his entire land. He was arrested and returned to his local village by local village police officers. He was taken to a black room in the village government building and beaten up by four policemen. He said the men told him to stop appealing and threatened to beat him again if he continued to appeal. He was released after two days. He then went to the hospital where he received treatment for [number] missing teeth and 16 stitches for a wound to his [Body part]. He said he had medical reports to support these claims but these were in China. He said having the records sent from China to Australia via post may take two to three weeks.
·     On 30 June 2013, he attempted to travel to Beijing to complain to Beijing government officials but was stopped at a local train station and again detained at the village government building. He was beaten again. His attackers threatened that if he continued to appeal he would be beaten again. The delegate sought clarification as to when this arrest occurred and [the applicant] then indicated that this occurred on 30 September 2013.
·     His wife was with him during each period of detention but did not require medical treatment as she only suffered minor injuries when detained.
·     In September 2013, his parents told him that he could no longer continue to live with them because his temper would not permit him to cease appealing against the land expropriation and compensation. He then sought out an agent to assist him in travelling to Australia. The agent charged 60,000 RMB and requested that [the applicant] provide documentation pertaining to his property ownership and educational qualifications.
·     He first found out about protection visas from work colleagues approximately three months before the Department interview. Since arriving in Australia, he has been working in Australia as [an Occupation 1] and occasionally [an Occupation 2]. He has been sending money home to his parents for medical costs and he is capable of earning more money in Australia than in China.
·     If he returns to China, he will continue to appeal against the government’s acquisition of his land.
Following the interview, the Department received a hospital certificate and an accompanying translation via email on 28 February 2016. The date of the certificate is 15 March 2013, two weeks after the date of the first claimed arrest and period of detention.
Summary of the delegate’s decision
The delegate’s reasoning in support of their decision to refuse the application is summarised as follows:
·     The delegate accepted each applicant’s identity as claimed.
·     For the purposes of the protection visa assessment, and without any additional evidence, the delegate found that the second-named applicant was a member of [the applicant]’s family unit.
·     The delegate acknowledged the hospital report and translation provided by [the applicant] following the interview however noted the high degree of document fraud in China and consequently gave no weight to the documents.
·     The delegate did not accept the [the applicant] had a subjective fear of harm because the applicants:
o   remained in China for almost eight months after his last adverse experience with the authorities
o   did not flee China of their own volition but only left at the suggestion of [the applicant]’s parents
o   did not lodge an application for protection in Australia for more than two years following their arrival.
·     For the same reasons, and because [the applicant] stated that the second-named applicant’s claims mirrored his own, the delegate did not accept the second-named applicant had a subjective fear of returning to China.
·     Ultimately, the delegate was not satisfied there was a real chance that either applicant would be persecuted for a refugee reason if they returned to China. The delegate was also not satisfied that, as a necessary and foreseeable consequence of either applicant being removed to China, there was a real risk either applicant would suffer significant or serious harm.
Claims and evidence provided to the Tribunal
The review application
On 26 September 2017, the applicants lodged an application for review of the delegate’s decision with the Tribunal. The application for review specified that the applicants were represented by their registered migration agent, namely Mr Chang Liu of Cathay Lawyers (MARN 1281423), who is also a legal practitioner (LPN 5511465).
Pre-hearing submissions and evidence
The applicants did not provide the Tribunal with any pre-hearing submissions or evidence.
The hearing: supporting documents and oral evidence
On 11 January 2023, the Tribunal wrote to the applicants to invite them to a Tribunal hearing on 10 March 2023. The applicants’ representative responded to the Tribunal on 10 February 2023 and informed the Tribunal that only [the applicant] would be attending the Tribunal hearing.
[The applicant] appeared before the Tribunal on 10 March 2023 to give evidence and present arguments. The second-named applicant and the representative did not attend the hearing. [The applicant] did not provide the Tribunal with any further supporting documents at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, [the applicant]’s oral evidence is discussed in the Tribunal’s findings and reasons below.
Post-hearing submissions and evidence
On 11 February 2023, the representative provided the Tribunal a copy and translation of a medical certificate from [Dr B], [Department] of Surgery, [Hospital] of Luohe City dated 15 March 2013 (medical certificate). According to the translation, the medical certificate:
·     specified that [the applicant] had been diagnosed with “multiple teeth loss”, “bruise injury of soft tissues of [Body part]” and “multiple soft tissue injuries”.
·     specified that [the applicant]’s [Body part] and oral cavity bleeding were “due to external injuries”.
·     detailed [the applicant]’s treatment as follows:
After admitted into hospital, his teeth loss was repaired and the [Body part] injury was debrided and sutured. Meanwhile, he received anti-infective, hemostasis, fluid infusion and other therapies.
CONSIDERATION OF Claims and evidence
Nationality: Country of reference/receiving country
[The applicant] claims to be a citizen of China and provided to the Department a copy of his Chinese passport issued [in] 2013. The delegate was satisfied that [the applicant] was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that [the applicant] is a citizen of China. The Tribunal accepts that China is his receiving country for the purpose of assessing his claims for protection.
Credibility
In determining whether [the applicant] is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the [the applicant]’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or for the reason claimed. Likewise, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is an applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist an applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169–170
[4] Sun v MIBP [2016] FCAFC 52 at [69]

The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and evaluating [the applicant]’s evidence.
In the present case, the Tribunal takes into account [the applicant]’s evident lack of familiarity with the Tribunal setting and his limited English language proficiency. With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked [the applicant]’s responses where necessary.
The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.
The Tribunal did not find [the applicant] to be a credible witness. In reaching this view, regard was had to:
·     internal inconsistencies within his evidence
·     his lack of knowledge of the predicament faced by his fellow complainants in China
·     aspects of his testimony at hearing which appeared implausible
·     discrepancies between his evidence and the country information before the Tribunal.
Internal inconsistencies within [the applicant]’s evidence
Firstly, at interview with the delegate, [the applicant] told the delegate that he had never used the land that the authorities had offered to him in compensation (new farmland) for the land that they had expropriated (old farmland). He said that the new farmland was prone to flooding and unsuitable for farming.
At hearing, the Tribunal explored [the applicant]’s farming activities in China and was initially told that he had never used the new farmland. He stated that the new farmland was four Mu in size, which was about the same in size as the old farmland. However, unlike the old farmland, the new farmland was prone to flooding when it rained. The Tribunal then pressed [the applicant] to explain the timeline surrounding his complaints to the authorities after the old farmland was expropriated in September 2012. [The applicant] then changed his evidence and indicated that that he did use the new farmland and only began complaining to the authorities about its unsuitability after it flooded in February 2013, some six months after he had been given that new farmland by way of compensation.
As it was put to [the applicant] at hearing, the Tribunal was concerned by this inconsistency in relation to his evidence pertaining to his use of the new farmland. The Tribunal then sought an explanation for this discrepancy. [The applicant] responded by stating that the inconsistency might be explained because it happened a long time ago and he did not have a good recollection of the event.
The Tribunal does not accept [the applicant]’s response as a satisfactory explanation for the inconsistency raised above. To use farmland for a period of about six months only to discover that it was unsuitable is not a matter that the Tribunal would expect a farmer to forget, particularly [the applicant] who has claimed to have made official complaints about the new farmland. The Tribunal finds that this discrepancy is indicative of a willingness to exaggerate his claims and then re-frame them when pressed to explain them further, thereby undermining [the applicant]’s reliability as a witness.
Secondly, at interview with the delegate, [the applicant] told the delegate that prior to him ever being arrested and detained, he had complained to local village authorities about the local government’s land expropriation action and unfair compensation offer. The local village authorities rejected his complaint and told him that it was open to him to pursue other avenues for complaint. He then appealed to a local city court but his complaint was disregarded by the court because the court was “protecting” the local village authorities.
At hearing, the Tribunal explored [the applicant]’s complaints history and specifically asked whether he had appealed the matter to any court. [The applicant] stated that he had not pursued his complaints by way of any judicial avenues for redress.
As it was put to [the applicant] at hearing, the Tribunal was concerned by this inconsistency in relation to his evidence pertaining to his claimed history of complaints in relation to the land expropriation and compensation. Concerned by this significant inconsistency in relation to whether he sought judicial redress, the Tribunal sought an explanation for this discrepancy. [The applicant] responded by stating that a long time had passed and he had forgotten about the local court appeal.
The Tribunal does not accept [the applicant]’s response as a satisfactory explanation for the inconsistency raised above. While the Tribunal is willing to accept minor omissions in [the applicant]’s narrative account of his complaints history, the preparation and lodgment of an appeal to a court in relation to a matter which is at the core of [the applicant]’s claim is significant and not a thing which the Tribunal would expect him to forget over the passage of time. No detailed explanation was offered by [the applicant] in relation why such a significant matter had been forgotten, specifically after he had been directly asked at hearing whether he had lodged an appeal to a court. Furthermore, no further detail was provided to the Tribunal about the court matter once [the applicant] had been “reminded” about his earlier evidence on this issue. Accordingly, the Tribunal finds that [the applicant] has embellished his evidence in relation to his complaints history and did not seek judicial redress in relation to the claimed land expropriation and compensation dispute. The Tribunal also finds that the changing nature of [the applicant]’s evidence undermines his reliability as a witness.
Thirdly, at interview with the delegate, [the applicant] explained that when he was detained after first being arrested in March 2013 he had been injured by police officers and that upon his release he sought and received medical attention for the loss of [number] teeth and an injury to his [Body part] where he received 16 stitches to that [Body part].
At hearing, [the applicant] stated that he had lost [number] teeth and his [Body part] was injured as a result of having been beaten during a period of detention in March 2013. However, when asked to detail the treatment he received for his [Body part], he initially stated that the [Body part] was injured and he received seven or eight stitches by way of treatment for that injury. He later indicated that he received more than 10 stitches for that injury. When discussing these injuries at hearing, [the applicant] showed his oral cavity to the Tribunal and gaps in his mouth were observed and he confirmed that he was missing [number teeth]. [The applicant] also showed the Tribunal his [Body part] but it was difficult to observe any obvious scarring.
As it was put to [the applicant] at hearing, the Tribunal was concerned by the inconsistency in his evidence pertaining to the treatment he received after his [Body part] was injured during his first period of detention in March 2013. The Tribunal asked [the applicant] to explain the discrepancy in his evidence relating to the number of stitches he had received to treat his [Body part] injury, noting that his evidence had changed since the interview and even during the hearing itself. [The applicant] responded by stating that a long time had passed and he could not remember.
The Tribunal does not accept the [the applicant]’s response as a satisfactory explanation for the inconsistency raised above. While the Tribunal acknowledges that detail may be difficult for a person to recall over time the exact number of stitches they received during past medical treatment to their [Body part] and is willing to accept some minor discrepancies in the number of stiches, it remains that [the applicant]’s evidence on this point varied greatly such that the number of stiches was about half the number initially claimed and then was altered to somewhere in between. The [Body part] injury sustained by [the applicant] stemmed from his first claimed period of detention and was a significant injury for which medical treatment was sought. At hearing, [the applicant] explained that, apart from losing [number] teeth, this was the only other injury he sustained during any period of detention in China and that he attended hospital twice within a week to obtain treatment for that injury – once to have the stiches inserted and a week later to have them removed. The changing nature of the [the applicant]’s evidence on this issue leads the Tribunal to find that he has a tendency to make inaccurate statements when giving evidence. It also casts doubt as to the severity of that injury as claimed and leads the Tribunal to find that [the applicant] has fabricated, or at the very least exaggerated, aspects of his account of the claimed period of detention in March 2013. In reaching this finding, the Tribunal has considered the medical certificate and notes that it neither specifies how many stitches were required to treat [the applicant]’s [Body part] nor provides a comprehensive explanation as to how and when the injury to his [Body part] was sustained. While the Tribunal is willing to accept that [the applicant] sought and obtained treatment for the injuries specified in the medical certificate, there is no persuasive evidence before the Tribunal to indicate that these injuries were sustained by [the applicant] during a period of detention in early March 2013 as claimed.
Fourthly, at interview with the delegate, [the applicant] explained that after he was apprehended at a local train station by police as he was on his way to Beijing to lodge a further complaint at the national government level, he was arrested and taken to a government building where he was detained and beaten.
At hearing, [the applicant] described this incident such that he was apprehended on a train as he was taking a journey to Beijing to lodge a complaint, taken off the train at Xuchang station and then driven back to his home where he was “forcefully locked inside”. He told the Tribunal that was neither beaten after this arrest nor detained in a government building.
As it was put to [the applicant] at hearing, the Tribunal was concerned by this significant inconsistency in relation to his evidence pertaining to his account of his treatment after he was apprehended by officials while he was making the journey to Beijing for the purposes of lodging a complaint. The Tribunal asked [the applicant] to explain this discrepancy. He responded by stating that he was probably mistaken and confused because the incidents occurred a long time ago.
The Tribunal does not accept [the applicant]’s response as a satisfactory explanation for the significant inconsistency raised above. Again, while the Tribunal acknowledges that detail may be difficult to recall over a time and is willing to accept some minor discrepancies in relation to a narrative relating to a person’s treatment by the authorities after being apprehended, it remains that [the applicant]’s evidence in relation to this incident varied greatly. The Tribunal accepts that [the applicant] may have been confused during the interview with the delegate as to when this incident may have occurred. At one point during his interview, [the applicant] stated that the incident occurred in June 2013. However, at another point during the interview he stated that this incident occurred in September 2013, a date that was confirmed at hearing. However, the Tribunal expects that [the applicant] would be able to accurately recall what happened after this incident in terms of his place of detention and whether he was beaten. The changing nature of the [the applicant]’s evidence in relation to his place of detention and whether he was physically harmed after this arrest leads the Tribunal to find that the [the applicant] has fabricated this incident and casts doubt on whether he ever took steps to travel to Beijing in order to lodge a complaint about land expropriation and compensation.
Fifthly, at interview with the delegate, [the applicant] was asked to explain the circumstances surrounding his departure from China and how he could have paid 60,000 RMB to an agent in China to secure student visas for him and his wife, especially given his claim that he had lost his land in September 2012 and was no longer able to earn money from farming that land and had otherwise relied upon his savings to live. He told the delegate that he borrowed that money from his elder sister who was in a stronger financial position than him because she was married to [an Occupation 3].
At hearing, the Tribunal explored the [the applicant]’s family composition and financial circumstances and was told that his only sibling, an elder sister named [Ms C], was married to [Mr D] who had always worked as [an Occupation 4] for a large state owned enterprise.
As it was put to [the applicant] at hearing, the Tribunal was concerned by this inconsistency in relation to his evidence pertaining to his brother-in-law’s occupation. While apparently minor, the occupation was relevant to the Tribunal’s inquiry in relation to the foundation of [the applicant]’s claim that he had been forced to borrow money from family members in order to escape China and arrange his visas for Australia because his earning capacity had been undermined since his land was confiscated in September 2012. He responded by stating that [Mr D]’s father was [an Occupation 3].
The Tribunal does not accept [the applicant]’s response as a satisfactory explanation for the inconsistency raised above. The Tribunal has listened carefully to the delegate interview and there was no confusion in relation to [the applicant]’s evidence at interview that his elder sister’s husband was [an Occupation 3]. There was no mention of his elder sister’s father-in-law or his occupation at the interview. [The applicant] was clearly unable to reconcile the obvious discrepancy between his evidence at interview and hearing in relation to his brother-in-law’s occupation. The changing nature of the [the applicant]’s evidence on this issue leads the Tribunal to find that [the applicant] was not truthful in relation to how he accessed sufficient funds to enable his departure from China and this casts doubt on his claims relating to the sources of his income and indeed whether he had been deprived of the old farmland as claimed.
Lack of knowledge of the predicament faced by fellow complainants in China
At hearing, [the applicant] stated that approximately 100 other households with neighbouring properties were affected by the land expropriation in September 2012. While they had smaller allotments, some had joined [the applicant] and the second-named applicant in making complaints to local authorities during 2013. However, when pressed to explain who had joined him in making such complaints and what repercussions they had faced or might continue to face in China, [the applicant] was unable to provide further detail. [The applicant] explained that did not know whether his fellow complainants had faced any repercussions since he left China because he had not maintained contact with them.
The Tribunal then raised a concern that his failure to maintain contact with his fellow complainants, or at least take an interest in relation to whether they continued to face repercussions, indicated that he did not hold a genuine fear of harm if he were to return to China. By way of response, [the applicant] sought to distinguish himself from these individuals by explaining that some of his fellow complainants only had small pieces of land and others gave up their protesting and simply became resigned to their fate and accepted their predicament.
Having considered that response, the Tribunal pressed [the applicant] further and expressed its concern that his lack of effort to maintain contact with any of his fellow complainants and obtain information about whether some of them continued to petition or protest, and thereby face the possibility of harmful repercussions, suggested that he may not have a genuine fear of harm. The Tribunal explained that based upon his adverse experiences in China, it would be reasonable to expect that he would have at least made some effort to monitor what happened to his fellow protestors to gauge whether there was a real chance of him being harmed upon return to China. [The applicant] then declined the Tribunal’s invitation to comment on or respond to this concern.
The Tribunal finds that [the applicant]’s unwillingness to maintain any interest in the predicament of his fellow complainants in China undermines his claim that he genuinely fears harm upon return to China. While the Tribunal does not expect [the applicant] to maintain contact with every fellow protestor in China, his failure to maintain, or seek to maintain, any knowledge of their predicament since he left China undermines the credibility of his claimed fear of harm upon return.
Aspects of [the applicant]’s testimony at hearing which appeared implausible
In response to a range of questions at hearing, [the applicant] gave the following evidence in relation to various key aspects of his claims:
·     That officials arrested him on two different occasions while he was travelling on public transport when making his way to lodge a complaint to a higher level government office
·     That on the second occasion when he was traveling by train en route to Beijing to lodge a complaint at the government office but he did not know the address of that office before embarking upon that journey
·     That if he were to return to China he would resume his efforts to make complaints about land expropriation and unfair compensation.
Taking into account this evidence, the Tribunal invited [the applicant] at hearing to respond to the following concerns:
·     That it was difficult to accept the plausibility of his claim that officials arrested him on two different occasions while he was travelling on public transport and making his way to lodge a complaint to a higher level government office because it was difficult to understand how such officials would have had knowledge of his intentions and movements beforehand in order to successfully locate and intercept him on each occasion
·     That it was difficult to accept the plausibility of his claim that he would make a long trip from his village in Henan to Beijing for the sole purpose of lodging a complaint at the national government level without knowing before making that journey the location of the office in Beijing he was seeking to attend
·     That it was difficult to accept the plausibility of the claim that if he were to return to China he would resume his efforts to make complaints about land expropriation and unfair compensation because he had not engaged in such activities since June or September 2013, either in China or Australia, and had indicated at hearing that he had no idea what those efforts might entail.
By way of response to the Tribunal’s first concern outlined above, [the applicant] indicated that the officials must have been spying on him and stated that he was unaware of the extent of the information these officials had. While the Tribunal accepts that the Chinese authorities engage in monitoring and surveillance activities, [the applicant]’s testimony in this regard is merely speculative as he offered no evidence in relation having ever been monitored or surveilled by the Chinese authorities prior to the hearing. Furthermore, had such monitoring and surveillance occurred, it is difficult to see how [the applicant] would have been permitted to exit China in February 2014 based upon country information outlined in the Tribunal’s reasons below.

By way of response to the Tribunal’s second concern outlined above, [the applicant] indicated that his plan was to disembark the train at the station in Beijing and hail a taxi and ask the driver to take him to the relevant government office where he could lodge his complaint. Given his previous experience having been intercepted by officials whilst travelling in March 2013 to complain at the provincial government level, the Tribunal finds it difficult to accept that [the applicant] would not have more thoroughly planned his journey to the xinfang[5] office in Beijing so as to minimise the prospect of interception by officials on that journey.
[5] Xinfang, literally "letters and visits", is the administrative system for hearing complaints and grievances from individuals in China: see Department of Immigration and Border Protection, Background Paper – China: Land Expropriation and Compensation (October 2014), p. 20
By way of response to the Tribunal’s third concern outlined above, [the applicant] insisted that he would investigate what further complaints he might make upon his return to China once it became clear to him that he was no longer permitted to remain in Australia. The Tribunal pressed [the applicant] further by raising its doubts that he would resume any political activity upon his return to China and re-agitate this issue because:
·     he failed to engage in any such conduct during the period of about five to eight months prior to his departure from China in February 2014
·     there was no oral or documentary evidence to corroborate any of his claimed previous efforts in 2012 and 2013 to lodge complaints with local, provincial and national government authorities
·     there was no oral or documentary evidence to demonstrate any other attempts made by him within China or from Australia to petition a xinfang office in a manner that did not require him to attend that office in person such as writing letters, sending emails, making telephone calls and sending faxes.
[The applicant] insisted that his interest in resuming his complaints activity upon his return to China was genuine because he would need to reclaim his old farmland so as to eke out a living in China. After some discussion at hearing about the range of ways in which Chinese citizens could petition the authorities, including by writing letters, sending emails, making telephone calls and sending faxes,[6] [the applicant] accepted that he never knew that he could have made representations to government authorities other than by appearing at a xinfang office in person.
[6] The various methods of petitioning in China are outlined in Articles 2 and 17, Regulations on Letters and Visits 2005 (China), promulgated 5 January 2005 and effective 1 May 2005: see
The Tribunal’s third concern is not assuaged by [the applicant]’s evidence. Despite [the applicant]’s insistence that he would resume complaining upon return to China and provided a motive for doing so, he has demonstrated a very limited understanding of the range of complaint avenues open to him and how these might be pursued. This suggests a distinct lack of interest in the making of complaints and thereby undermines his claim that he intends to resume making complaints upon return to China. Furthermore, while the Tribunal might be willing to accept some period of disengagement with the complaints process had [the applicant] experienced the harm as claimed in China, it remains that [the applicant] has not found out or made any efforts to pursue any further complaints activity whilst safely residing in Australia for a period of almost 10 years, including by way of writing letters, sending emails, making telephone calls and sending faxes during that period.
Evidence surrounding [the applicant]’s departure from China
The Tribunal also has significant concerns about the veracity of [the applicant]’s claims and evidence taking into account the circumstances surrounding his departure from China. At hearing, [the applicant] gave evidence that he did not experience any difficulty at the airport in Shanghai when leaving China in February 2014.
DFAT country information issued in 2015, near the time [the applicant] departed China, provided the following information in relation to entry and exit procedures at Chinese airports and restrictions on foreign travel:
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive.
…
Authorities can refuse to issue passports for people who are believed “will undermine national security or cause major losses to the interests of the State”. According to the US Congressional-Executive Commission on China, in 2013 an estimated 14 million people were affected by restrictions on foreign travel and acquiring passports, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish figures on those who have been denied passports.[7]
[7] DFAT, Country Information Report – China, 3 March 2015, paras 5.16 and 5.24
Other country information issued by the Department of Home Affairs in 2019 indicates that airport security officials have access to the Public Security Bureau of China’s online database of citizens who have been convicted of crimes or are wanted by authorities, also known as Policenet or Golden Shield.[8] Relevantly, the Department of Home Affairs made reference to a country information report published by the Immigration and Refugee Board of Canada in March 2014 which was near the time [the applicant] departed China. This report examines exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerised identity verification, and sharing of information with officials at airports. The report outlines information sharing by Public Security Bureau officials:
In 10 February 2014 correspondence with the Research Directorate, the Executive Director of the Dui Hua Foundation affirmed that airport security officials have access to the Public Security Bureau of China's online database of citizens who have been convicted of crimes or are wanted by the authorities [also known as Policenet or the Golden Shield]. Similarly, the representative of the Laogai Research Foundation stated that reports on "experiences of activists who have been detained while trying to board an international flight provide clear evidence that airport officials are connected to Policenet" (26 Feb. 2014). A colleague of Cao Shunli, who was also prevented from travelling to Geneva for the human rights training in September 2013, later publicized her own experience at the airport in Guangdong (HRIC 11 Oct. 2013). According to the Laogai Research Foundation, the colleague indicates that when her passport was swiped by airport authorities, scanning equipment immediately made noises alerting airport officials that she was wanted by police. She was subsequently detained in the Guangdong Baiyun Airport and told that Shanghai police would not let her leave. She was then transported from Guangdong to Shanghai for detention and questioning. This woman's experience provides concrete evidence of airport officials coordinating with police departments in tracking and detaining a political dissident.[9]
[8] DHA, Standard Q & A Report, China: 20190218152038 – Christianity in Fujian province – Airport departure process, 1 March 2019, pp 7-8.
[9] China: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports (2011-February 2014), Immigration and Refugee Board of Canada, 6 March 2014, CHN104761.E
DFAT country information more recently issued in 2021 indicates that it is almost impossible to exit China without authorities’ knowledge and that an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[10] Furthermore, DFAT has indicated that exit from China is strictly regulated whereby various government agencies, including police, feed data into a database and this this technology is used to create an exit control list. If a person is detailed on this exit control list, it is very unlikely and probably impossible that they would leave be able to leave China.[11]
[10] DFAT, Country Information Report – China, December 2021, paras 3.28, 3.38 and 3.40
[11] Ibid. paras 5.31 - 5.35
Furthermore, the US State Department of State Report issued in 2014, near the time [the applicant] departed China, provided the following information in relation to Chinese citizens being prevented from exiting China:
Most citizens could obtain passports, although those individuals the government deemed potential threats, including religious leaders, political dissidents, petitioners and ethnic minorities, reported routinely being refused passports or otherwise prevented from traveling overseas.[12]
[12] US Department of State, Country Report on Human Rights Practices for 2014 - China (includes Tibet, Hong Kong, and Macau), Section 2d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons, Foreign Travel
I put this country information to [the applicant] and indicated to him that it might lead me to believe that he successfully departed China without incident in February 2014 either because:
·he did petition in China about the land expropriation and unfair compensation issue he faced but he was of no interest to the authorities for that reason; or
·he did not petition in China as claimed.
By way of response, [the applicant] indicated that his issue was with local government authorities and that because he was not a criminal he was of no interest to the Public Security Bureau and therefore was free to depart from China.
[The applicant]’s response does not fully engage with the country information or the Tribunal’s concern. The Tribunal reiterated the country information and highlighted that the exit controls were not necessarily restricted to criminals and included those who had petitioned or were otherwise known to police. [The applicant] was unable to provide a further response to address the Tribunal’s concern.
Accordingly, given the ease of [the applicant]’s departure from China, the Tribunal remains concerned about the veracity of the narrative surrounding [the applicant]’s petitioning in China and the adverse experiences arising out of that activity. There is no persuasive evidence which enables the Tribunal to depart from the country information in this case and serious doubts remain in relation to the credibility of [the applicant]’s claims surrounding his political activities in China and the adverse experiences with police and local government officials he claims to have experienced as a consequence of those activities.
Concluding comments
The Tribunal considered these credibility issues cumulatively. Considered together they significantly undermine [the applicant]’s credibility. The Tribunal does not consider that [the applicant] has been truthful in his claims.
The Tribunal accepts that [the applicant] is aware of the sensitivities around land expropriations, compensation disputes, and the conduct of officials in their dealings protestors and petitioners in China. However, for reasons given above, the Tribunal does not accept that [the applicant] was directly involved in any such dispute, or subject to mistreatment, as claimed. Furthermore, there is nothing in [the applicant]’s background which leads me to form the view that he would be subject to serious or significant harm. The Tribunal is not satisfied that:
·     [the applicant] made any efforts whatsoever to petition, dispute or otherwise lodge complaints with any government official, authority or court in China in relation to a land expropriation or compensation issue
·     [the applicant] was harmed in China because of attempts to petition, dispute or otherwise lodge complaints with any government official, authority or court in China in relation to a land expropriation or compensation issue
·     [the applicant] would attempt to petition, dispute or otherwise lodge complaints with any government official, authority or court in China in relation to a land expropriation or compensation issue if he were to return to China or otherwise attract the adverse attention of the authorities for any reason.
Given these findings, the Tribunal is not satisfied that [the applicant] faces a real chance of serious or significant harm for the reasons claimed.
In summary, the Tribunal is not satisfied that [the applicant] has a well-founded fear of persecution for a reason set out in s 5J(1) of the Act. The Tribunal 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 that [the applicant] will suffer 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. Therefore, [the applicant] does not satisfy the criterion for a protection visa set out in s 36(2)(a) or (aa) of the Act. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c) of the Act, and cannot be granted the visa.
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) of the Act.
For the above reasons, the Tribunal affirms the decision not to grant [the applicant] a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
Peter Papadopoulos
Member
Attachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958
The relevant law
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 below.
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 below.
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.
Extract of key provisions of the 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 1480

24 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice