1724519 (Refugee)

1724519 (Refugee) [2023] AATA 2003 (6 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724519
COUNTRY OF REFERENCE:                   China
MEMBER:Alan McMurran
DATE:6 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 June 2023 at 10:32am

CATCHWORDS
REFUGEE – protection visa – China – fear of harm from son’s former business partner with criminal connections – son kidnapped and applicant threatened – no appearance at hearing – applicant departed Australia – decision made without taking further action – no approach to authorities – passage of time and no threats or harm to other family members – two voluntary returns – no opportunity to test claims – different information given in son’s application – refusal of son’s visa affirmed and court appeal in progress – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 426(1A)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 lodged 10 October 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant], who claims to be a citizen of China, applied for the visa on 28 September 2016. The delegate did not accept that the applicant faces a real chance of persecution in China, as the applicant’s receiving country, for one or more of the reasons mentioned in s.5J(1)(a) of the Act and therefore did not meet the refugee criterion in s36(2)(a) of the Act and so refused to grant the visa.
The delegate further found that the applicant did not meet the criterion for complementary protection under s36(2)(aa) of the Act.
Identity
The applicant produced a current passport with her application, issued by the People’s Republic of China [in] 2014 and valid to [2024]. The Department record shows there was no identifiable issue with the applicant’s identity records and the Tribunal is satisfied that the applicant is a citizen of the People’s Republic of China and which is her country of origin for the purpose of this application.
Decision
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Tribunal process
The applicant was assisted from the outset on lodgement of her application with the Department, by a registered migration agent. The agent’s appointment ended on 6 September 2019, during the Tribunal process. At the time of the appointed hearing on 5 June 2023, the applicant was unrepresented and the previous agent no longer appears as registered by the Office of the Migration Agents Registration Authority.
Since 11 September 2019, the Tribunal has been communicating directly with the applicant at her given email address. The Tribunal has no record that the address has changed.
On 13 April 2023, the Tribunal sent the applicant an invitation for a 3 hour in-person hearing in the Tribunal’s Sydney office to be held at 10:30am on 5 June 2023, with a Mandarin interpreter. The applicant was sent SMS reminders on 29 May 2023 and again on 2 June 2023. The applicant has not recorded any change of contact details.
The Tribunal is satisfied that the applicant has been correctly notified in accordance with the Tribunal’s process as to the hearing arrangement and in accordance with its details as recorded for the applicant.
No hearing
The applicant did not respond to the invitation or to the SMS reminders. The Hearing invitation includes a request that the applicant provide all documents intended to be relied upon by 29 May 2023.Nothing further has been provided or submitted to the Tribunal since lodgement on 10 October 2017. The only communications from the applicant have related to Medicare ‘confirmation of application’ requests, the last being on 17 October 2021.
On 5 June 2023, the matter was called on as scheduled at 10.30 am, and the applicant did not appear. The Tribunal waited until 11:00am before declaring the applicant had not appeared.
A check of the Department’s movement records for the applicant shows that she departed Australia for China while on a Bridging visa [in] January 2023 and has not returned.
Accordingly, the Tribunal has elected to proceed to a decision under section 426A(1A) of Part 7 of the Act, without taking any further action to allow or enable the applicant to appear before it.
Issue
The issue in this case is whether the applicant is a refugee as defined by the Act and meets the criteria in section 36(2)(a), or otherwise meets the complimentary protection criteria in section 36(2)(aa), as outlined below. This review is in response to the Department decision made 15 September 2017, refusing the protection visa application.
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.
The relevant provisions and applicable criteria provided for by the Act, are extracted in the attachment to this decision. The Tribunal has set out the legislative framework below, and the mandatory considerations and following that, consideration of the applicant’s claims and submissions.
Legislative framework - Refugee
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).
Well-founded fear and ‘real chance’ of persecution
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[1]
[1] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[2]
[2] FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
For the purposes of s 5J(4) of the Act, s 5J(5) provides that the following are instances of serious harm: (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.
Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter his or her political beliefs, conceal his or her true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.
Complementary protection – where not a refugee
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A) of the Act: s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
·where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or
·where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[3]
Relocation
[3] (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180])
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.
The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC[4] and SZFDV v MIAC[5] which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant, and the impact upon that person of relocation within his or her country of origin.
[4] SZATV v MIAC (2007) 233 CLR 18;
[5] SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Mandatory considerations
Subsection 499(1) of the Act provides that the Minister may give written directions to a person or body (e.g. the AAT) having functions or powers under the Act, if the directions are about the performance of those functions, or the exercise of those powers. Sub-paragraph 2A of section 499 requires that a person or body must comply with a direction.
Ministerial Direction Number 84 of 24 June 2019, issued under s 499 of the Migration Act 1958, states that:
Where the Department of Foreign Affairs and Trade has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
Reports take into account relevant and credible open source reports, as well as information obtained on the ground.
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[6] (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[6] DFAT Country of Origin Information Reports (COI) prepared with Department of Home Affairs, Country of Origin Information Services Section (COISS). Dependence
Background
Visa history
The applicant’s visa history shows that the applicant was granted a tourist visa Subclass FA 600 on 2 March 2016. The applicant arrived in Australia for the first time [in] April 2016.
The applicant returned to China [in] June 2016, before travelling back to Australia [in] July 2016 on her tourist visa, due to expire on 1 October 2016. The applicant then applied for the protection visa on 28 September 2016.
There is no information that the applicant has had any compliance issues with the Department over her visa at the time of this decision. The applicant’s Bridging visa A ended on her departure for China on 20 January 2023 and there is no information that the applicant has applied for another visa.
Applicant’s summary – Application information
The information available for this review is found in the:
·application to the Department and the applicant’s attached statement;
·and her passport; and
·a record of interview with a Department officer made 12 September 2017;
·a Department file for a protection application lodged by the applicant’s son[7], [Mr A], and the related Tribunal review of the son’s protection claims[8].
·The Department’s decision and the applicant’s file with the Department[9]
·The Act and the Regulations
·Relevant court decisions
·Department policy and relevant country information
[7] [Department reference 1]
[8] Tribunal case 1705159
[9] [Department reference 2]
Department interview – 12 September 2017
The Tribunal has listened to the recorded interview. The applicant had assistance from a Mandarin interpreter for the interview. The applicant’s claims made in the interview are largely consistent with the claims made in her written statement lodged with the application.
At the interview, the applicant’s attention was drawn to her son’s application, which at that time (September 2017) had already been determined and refused.[10] The Tribunal notes in summary that in the interview the applicant states:
[10] Date of son’s refused protection application was 17 February 2017.
·Her family background about her husband, daughter and grandson living in China, and the fact she was no longer working herself
·Her son’s history and his dispute with a former business partner
·What her son had relayed to her about that dispute occurring in November 2015
·That she had little contact from Australia with her husband, who was ‘not on the same page’ as her about protecting their son from perceived harm
·That she had come to Australia initially on holiday and decided it was a good place and returned to China to endeavour to persuade her son and daughter to come to Australia, which her son did, also in July 2016
·That ‘someone’ had stopped her son and threatened to kill him if he went to police
·That her son had paid a lot of money to his former business partner but had refused to hand over some claimed [intellectual property], for which he was now being harassed and threatened
·That she also might be harassed and threatened if she returned to China to make her reveal her son’s whereabouts and ‘hand him’ over to someone
·That her son’s former partner is corrupt, knows people in government so they would not help her, and gangsters who will threaten and possibly hurt her,
·That no one else in her immediate family including her husband and daughter have been threatened or harmed
·That she had not sought help or protection from the police
Personal statement – (undated) lodged 28 September 2016
The applicant’s personal statement lodged with her application (28/09/2016) set out in full states:
“My name is [the applicant]. My son is [Mr A]. In October 2012, my son established a company called [Company 1] in Nantong City, Jiangsu Province. He also set up a small factory in Shenzhen.
In May 2015, [Ms B], owner of [Company 2] suggested to cooperate with him. She proposed that she provided the fund and plants and my son provided product design and the patent, and they split the profit equally. My son agreed. But my son later found [Ms B] did not cooperate with honesty and sincerity, so he told her that he wanted to quit the corporation in November 2015. [Ms B] said it was ok to leave but my son needed to leave the [intellectual property] to her. Besides, she also requested my son to pay her 1.2 million RMB. My son did not agree, and then [Ms B] detained my son at the office and sent a few rogues to keep watching him. Since he heard of [Ms B]'s background and her heartless and cruel, my son was forced to sign the agreement. Money was borrowed from friends and the car and the house were sold. Finally, 1.2 million RMB was collected and given to her. So my son was set free after being detained for twelve days. My son went to the police to report the incident, but he got no news from the police after that.
One night in later November, my son was stopped and kidnapped by several people in an old poor residential place, where he was abused and beaten a lot by them. These underworld people threatened him if he dared to call the police again, they would kill him and would not leave his family members alone. My son had to appear to compromise with them. He was imprisoned for a week.
My son took some important [intellectual property] away. After that, [Ms B] sent some underground people to look for my son everywhere. As long as they found him, they would kill him. My son had to hide around and moved many times. [Ms B] even sent some underworld people to look after my son in his home town, Nantong. I felt I was often monitored. One day when I went for shopping in a vegetable market, I was followed by underground people. They threatened me to tell them whereabouts of my son. I got scared and was hospitalized for some days. I lived in fear after that.
In April 2016, my son's company accounts were frozen. [Ms B] tried to get my son killed. She made use of her connection with the government and extorted my son and seized his company's assets. She also sent the underground people to revenge him. If the government officials were not corrupted, how could [Ms B] do that? She did all the bad things, but she was still at large. My son and his wife had to flee to Australia. I dared not go back China because I was feared to be revenged by [Ms B]. I urge the Australian government to provide protection for me.”

In summary, the applicant claims that she has a subjective fear of being harmed herself because of her close relationship with her son and his history of a dispute with his former business partner, [Ms B]. She believes she will be harmed because her son was not found by [Ms B].
The applicant believes the dispute has not been resolved. Her son remains in Australia and has lodged a court appeal in respect of the refusal of his protection visa, a decision affirmed by the Tribunal. She states she is afraid to return to China where she will “be revenged” by [Ms B], or at her behest.
CONSIDERATION OF Claims and evidence
The Tribunal has not had the opportunity to test the applicant’s claims in a hearing. Nor has the applicant made any recent submissions to update her circumstances since 2016.
It can be imputed from the applicant’s claims that she does not trust the Chinese government to protect her and does not trust the relevant local authorities who are under the influence of (or imputably, corrupted by) [Ms B]. She does not trust police who she has apparently not contacted, as she believes they will not protect her because of [Ms B]’s influence.
On its face, the applicant’s statement of claims as made may well reflect actual events, or something similar, which may have occurred in or around November 2015 to her son. But without more, the statement requires explanation. Bare faced assertions may be corroborated or at least elaborated upon in a hearing, where questions are asked and explanations sought which may assist the applicant, and the Tribunal’s understanding of what may have occurred, and furthermore, importantly what may be reasonably foreseeable.
The Tribunal comes into the hearing with no preconceived view, and looking for objective information, and without necessarily expecting to substantiate an applicant’s truthfulness or otherwise. Relying solely upon the witness’s credit is often unreliable, fraught with ethical complexity, and unhelpful in the “search for truth”.[11] Hence, the importance of the hearing process itself and being able to test statements and propositions for details such as where, when, how, what, and by whom. Often, the fewer the details provided, the more difficult it becomes to be persuaded as to the assertions and contentions made, particularly where the details concern allegations of prior harm or assault or death threats made and the issue of foreseeability.
[11] See “Credibility, Truth and Representation” by S Roushan , in paper presented to the Immigration Law Conference, Law Council of Australia on 23 March 2023.
Findings in relation to specific claims made, however, determine outcomes. The Tribunal must do its best to be fair and to act reasonably in making factual findings, particularly in refugee claims, where evidence may be hard to come by and where unrepresented applicants face often insurmountable obstacles when relying solely upon bare assertions, and without more. Hearing and discussing the claims is invaluable.
In this instance, what the Tribunal can determine from the available information and without a hearing is that:
·The applicant herself has not been harmed or threatened
·Her close family, daughter, husband and grandson, and parents, have not been harmed or threatened
·She has not sought protection from State authorities
·Nothing has occurred to her or her immediate family since late 2015, and many years have passed since the events asserted in late 2015
·She has returned to China voluntarily on two occasions ( June 2016 and now January 2023). She was able to freely enter and leave the country in June and July 2016, not that long after the alleged events, and without incident from the perceived perpetrators of threatened harm from them.
·There is very little information about the detail of what occurred to her son as relayed by the applicant, and which differs in some important respects from what her son has told the Department independently in his own application. For example:
i.He does not assert that anyone threatened to kill him
ii.He says only that he was detained and asked to pay money, which he did, but was not harmed
iii.He went to lawyer who could not help him unless police were involved and charged the perpetrators for taking his property
iv.He did not go to police because he did not trust them, but remained in China nonetheless with his wife and child, apparently without harassment or harm, before making arrangements to come to Australia in July 2016
The Tribunal makes no attempt here to ascertain the truthfulness or otherwise of the son’s claims, which are now the subject of an appeal.
In relation to the applicant’s claims however, the Tribunal finds it can place very little weight upon the applicant’s claims to fear serious harm that may come to her on account of her son’s personal dispute. It is conceivable that she may genuinely have a subjective fear of harm , but on the available information, such fear does not appear to be well-founded, and is not supported by the applicant’s own history of the events as related to her by her son and her own experiences since 2015, where no harm has come to her or any threats have eventuated.
The applicant asserts that were she to return to China, she would easily be found or located and harassed. This however did not occur when she returned in June 2016, and while her son remained in China for some time after the alleged events in November 2015 and without being ’found’, before he too came to Australia in July 2016.
Findings
The Tribunal finds that the applicant’s subjective fears based on the facts as set out and asserted above are exaggerated and implausible, given the applicant’s lack of personal involvement with the alleged perpetrator, lack of any contact with her or persons on her behalf, the lengthy passage of time, and lack of evidence of any threatened serious harm or harassment to the applicant herself on the occasions she has been in China.
The applicant was not employed by and had no relationship with [Ms B].
The applicant’s husband has not been approached, and no other family member has apparently been threatened.
The contention is that the applicant has not sought help in the form of State protection because of apprehended indifference or corruption. But there is nothing to demonstrate whether or not that is the likely outcome where no report to police has been made or attempted.
Department Policy – Guidelines – Procedural Instruction[12]
[12] 15 November 2022
As referred to in the policy guidelines, there must be a ‘real chance’ of persecution following from the applicant’s claims, and the probability of serious harm, in the applicant’s home region, and which chance is not far-fetched or remote, and which is a real chance of an event (perceived serious threats and harassment and/or likely serious harm in this case ) occurring in the foreseeable future, and with a reasonable degree of likelihood.[13]
[13] DOHA Refugee Law Guidelines at 3.12.1(p.57 of 140)
The Tribunal finds that it is likely in this case, in the absence of evidence of any serious harm in the form of harassment or threats from private individuals, that the applicant would be at a very low risk of persecution in the foreseeable future on account of what is contended happened to her son several years ago in November 2015.
Where there is no evidence as to the applicant’s association with a private perpetrator ([Ms B]) or any agent of the State, or from any local authorities representing the State, or any continuing threats or harassment, the Tribunal can place very little weight upon statements the applicant will be persecuted in the foreseeable future.
DFAT country information report – Republic of China December 2021
From the most recent DFAT country information report, referenced as ‘Report People’s Republic of China 22 December 2021’, the Tribunal has extracted relevantly the following assessment, touching upon the generalised claims of the applicant.
The DFAT report takes into account a “general, rather than exhaustive country overview” and “based on DFAT’S on-the-ground knowledge and discussions with a range of sources in the People’s Republic of China and Australia.”[14]
CORRUPTION
2.20 China ranked 78 out of 180 countries and territories in Transparency International’s 2020 Corruption Perceptions Index (where 1 is perceived to be least corrupt). The 2020 Global Corruption Barometer for Asia found that, while 64 per cent of Chinese citizens considered corruption had decreased in the previous 12 months, 62 per cent still perceived government corruption to be ‘a big problem’.
2.21 Transparency International estimated 28 per cent of public officials accepted a bribe in 2020. The 2020 US Department of State Human Rights Report notes frequent corruption in court decisions, and areas ‘heavily regulated by the government’ such as land-usage rights, mining and infrastructure development. Bribery in healthcare is also reported, for example offering cash for prioritised procedures. See also documentation and fraud and entry and exit procedures.
2.22 What might be considered corruption in the West may be viewed as guanxi in China. Guanxi, (literally ‘connection’) is a system where progress in business or government relies on patronage networks – giving and receiving ‘face’ (mianzi - esteem, prestige) and exchanging favours or gifts. Good guanxi can obtain favourable business, social and legal outcomes, and bad guanxi can make them impossible.
2.23 The government takes corruption seriously as a threat to its legitimacy. Penalties for corruption can include death for serious and high-profile cases. On taking office in 2013, President Xi launched a nation-wide anti-corruption campaign against high and low-ranked corrupt officials. Within five years the crackdown led to arrests of over 1,800 officials, including very senior political figures. Corruption charges can be interpreted broadly. Allegations of corruption by officials are investigated by Party organs in the first instance (the Central Commission for Discipline and Inspection and the National Supervisory Commission). While officials are generally investigated by these organs for alleged crimes related to fraud, financial misappropriation and other activities traditionally defined to constitute corruption, these organs appear also to investigate officials deemed to lack loyalty and ideological purity. Individuals critical of the Party and its leadership can also face detention and other consequences ostensibly for corruption charges.
Police
5.1 The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. These agencies often collectively and individually called the local ‘Public Security Bureau’ (PSB). The People’s Armed Police (PAP) is a paramilitary force organised under the People’s Liberation Army (PLA) responsible for internal security and stability (such as combatting riots and terrorism, but also domestic monitoring of perceived security threats), maritime security and support of the PLA. The PAP is also active in Xinjiang. Regular police generally do not carry firearms and gun crime is rare in China.
5.2 Police maintain public order and social stability, which are overriding priorities for the CCP. Loyalty to the Party is important among police ranks, as it is in all government positions. Police, including at lower levels, can be investigated for corruption (which is a threat to stability and Party legitimacy) and loyalty offences.
5.3 Police carry out day-to-day crime fighting activities and investigate crimes. Day-to-day crime rates are low in China but where crime does occur, DFAT understands that police investigate thoroughly and prosecute alleged criminals.
[14] Purpose and Scope at ch 1; paragraph numbers refer to the extracted paragraphs from the report.
The report makes no reference specifically to resolution of personal claims in the nature of personal and/or civil disputes between individuals, and which are not viewed as refugee claims for those seeking protection from a State perpetrator or agent of the State or on account of indifference or discrimination by State authorities.
The Tribunal has considered this generalized DFAT information aligned against the application in this instance. The Tribunal finds that there is simply nothing other than assertion by the applicant, as to the possible corruption of the applicant’s son’s former employer. There is nothing cumulatively in the context provided by the applicant that might reasonably require the Tribunal to find that the applicant’s fear of corruption might interfere with any assistance she might otherwise expect to receive from State authorities, such as police, to protect her from serious harassment and intimidation or worse.
It may be well-documented[15] that corruption generally is still entrenched in China and remains a possibility in civil disputes between private individuals who seek assistance from police for reason of personal protection. There is however no nexus that the Tribunal can find in this instance on the limited available information, that connects the apprehended lack of protection by State authorities, were it required, with the applicant, who anticipates serious harassment or violence, and because [Ms B] is the potential perpetrator and who may have the necessary ‘Guanxi’ or ‘connection’ to prevent any requested State protection.
[15] E.g. the Transparency International’s 2020 Corruption Perceptions Index as referred by DFAT
The applicant may have a subjective fear of apprehended persecution, but for a fear to be well-founded, there must be a factual or objective basis for that fear,[16] not one that is “all in the mind”.[17]
[16] See Chan v MIEA(1989) 169 CLR 379 at 412
[17] Ibid per Dawson J at 396
The Tribunal finds in this case it is satisfied that there is no evidence to substantiate that the applicant has a well-founded fear of persecution on account of her race, religion, nationality, membership of a particular social group or political opinion. Rather, it is founded on a subjective fear of harm at the hands of a private individual and for which there is no substantive or objective factual basis at all, but rather which exists solely in the mind of the applicant herself.
Complementary protection
Policy points to the likelihood or foreseeability of a real chance of persecution based on the available objective information, and foreseeability of persecution, not only in the applicant’s local area, but anywhere in China.
There is no evidence before the Tribunal that would give rise to a finding that the applicant would be unable to relocate or live anywhere in China she might choose in order to avoid the likelihood of a real chance of persecution in the foreseeable future, were that to arise.
Her only claims relate solely to the applicant’s subjective fear that she may be harassed to ‘hand over’ her son to his former business partner in connection with a private dispute.
There is no evidence that the Chinese government may have any interest in the applicant whatsoever or might become an agent of persecution for one or other of the reasons contained in s 5J(1) of the Act. If the applicant genuinely fears for her personal safety and in order to avoid serious harm to herself, she could easily choose to relocate to another part of the country.
The Tribunal finds on the available information that there is no real chance of persecution of the applicant either in the foreseeable future on her return to her country of origin, either in her local area or anywhere in China she might choose to locate.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alan McMurran
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2003

6 June 2023

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Immigration

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Procedural Fairness

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