1725192 (Refugee)

1725192 (Refugee) [2023] AATA 2393 (4 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Billie Wei Shi (MARN: 9792783)
CASE NUMBER:  1725192
COUNTRY OF REFERENCE:                   China
MEMBER:Alan McMurran
DATE:4 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 May 2023 at 3:10pm

CATCHWORDS
REFUGEE – protection visa – China – political opinion – petitioned local government after inadequate compensation offered for demolition of house – goods smashed and family threatened by demolition team – no dates, details or supporting evidence provided – multiple departures and returns on genuine passport – family remaining in home country – consent to decision without hearing – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), (aa), 65, 425(2)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASES
BKT17 v Minister for Immigration [2020] FCCA 1337
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 16 October 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] a [Age] year-old citizen of China, applied for the visa on 12 July 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a refugee under s 36(2) of the Act, because the available written material did not support such a finding.
The applicant was invited to attend a hearing in Sydney, where the applicant is residing at the time of this decision, on 28 April 2023, in person, for an estimated 3 hours with an available interpreter.
The applicant informed the Tribunal by hearing response emailed on 24 April 2023, that he would not participate in the hearing, and consented to the Tribunal making a decision on the papers, without taking further steps to allow him to appear.
The Tribunal has proceeded to determine the matter without a hearing and on the information available at the time of this decision, and in accordance with the provisions in the Act dispensing with the hearing[1].
[1] S 425(2)(b) of the Act
The applicant was represented in relation to the review. The representative has not sought to provide any particulars or make submissions and has not requested any additional time to do so.
Issue on review and outcome
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). The review is in response to the Department decision made 27 September 2017.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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.[2]
[2] 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’.[3]
[3] 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. It would not apply 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 statutory provisions are extracted in the attachment.
‘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:
a.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;
b.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
c.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.[4]
Relocation
[4] (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[5] and SZFDV v MIAC[6] 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.
[5] SZATV v MIAC (2007) 233 CLR 18;
[6] SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
CONSIDERATION OF CLAIMS AND EVIDENCE
In this case the available information and evidence consists of the following:
a.The application (12 July 2017)
b.Department request for personal identifiers to be produced – with Checklist - personal attendance requirement (1 August 2017) – applicant attended
c.Department request to attend interview over claims, with Checklist (4 September 2017) – applicant did not attend
d.The applicant’s passport – travel document
e.Appointment of authorised person Form 956
f.Appointment/ withdrawal of authorised person Form 956A (11 July 2017)
g.Bridging visa grant notice
h.The decision record (27 September 2017)
i.There are no written (or oral) submissions and there was no recorded interview
The applicant’s claims are set out in the application[7]. He contends:
a.He cannot return to China
b.His reasons state:
“I SUFFERED PERSECUTION BY CHINESE GOVERNMENT BECAUSE I MADE PETITION TO REVEAL THE GOVERNMENT'S OFFICIALS' CORRUPTION. I HAVE AN OLD HOUSE IN MY HOMETOWN AND THE LOCAL GOVERNMENT NOTICED US THAT OUR HOUSE WOULD BE DEMOLISHED, BUT OUR COMPENSATION ONLY HAVE HALF PRICE OF THE MARKET PRICE. SO I AND OTHER RESIDETNS DISAGREE TO SIGN THE DEMOLITION AGREEMENT. ONE DAY THE DEMOLITION TEAM CAME TO MY HOME TO REMOVE, THEY SMASHED ALL GOODS OF HOME AND THREATEN US. I AND MY FAMILY REFUSED TO SIGN THE DEMOLITION AGREEMENT, WE WERE BEATEN BY THEM. AFTER THAT, WE CALLED THE POLICE, BUT THE POLICE IGNORE OUR CASE. SO I AND OTHER RESIDENTS WROTE COMPLAINT LETTER TO SUBMITTED TO CITY GOVERNMENT, TO HOPE THAT GET A REASONBALE EXPLANATION. HOWEVER, AFTER THE OFFICIALS KNEW OUR BEHAVIOUR, THEY SENT POLICE TO CATCH US. I WAS SO SCARED, ESCAPE CHINA AND FLED TO AUSTRALIA. PLEASE PROTECT ME.
[7] See pages 19-20 of the Application
He further claims:
a.He moved to another part of the country to seek safety.
b.In answer to where he moved, he states: “THE WHOLE SITUATION OF CHINA WAS THE SAME. THE GOVERNMENT WAS CORRUPTION. THEY COLLUDED WITH THE POLICE. THEY ONLY CARE THEIR OWN BENEFITS.”
c.In answer to what will happen to him he states: “IF I RETURN TO CHINA, I WILL SUFFERED PERSECUTED BY THE POLICE. ONCE I WENT INTO PRISION, I WILL DIE.”
d.He claims he will be harmed or mistreated on his return. He states: “IF I WENT TO CHINA, I WILL BE PERSECUTED BY THE POLICE. ONCE I WENT INTO PRISION, I WILL SUFFERED PERSECUTION ON MENTAL AND PHYSICAL.”
e.He claims authorities in China will not protect him because “THE CHINESE GOVERNMENT WAS CORRUPTION. THE GOVERNMENT OFFICIALS ARE COLLUDED WITH THE POLICE. THEY ONLY CARE THEIR OWN BENEFITS”.
f.He claims he cannot relocate within the country because: “THE WHOLE SITUATION OF CHINA WAS THE SAME. THE GOVERNMENT WAS CORRUPTION. THE POLICE WAS COLLUDED WITH THE GOVERNMENT'S OFFICIALS. THEY ONLY CARE THEIR OWN BENEFITS”
The applicant provides no particulars of these claims and assertions. The statements and conclusions drawn are not substantiated with relevance to the claims asserted. There are no independent statements from witnesses or documents provided in support of the claims and no other corroborative material.
The Tribunal can only deal with the information before it. The applicant has made very little information available for this review and has not appeared when invited either to the Department interview, or a Tribunal hearing, where oral evidence could be taken and discussion had concerning the protection claims and the applicant’s fears. The Tribunal has the same material that was provided to the Department.
The Tribunal also has regard to other available general information including reports from the Department of Foreign Affairs and Trade[8] (DFAT), Guidelines’ prepared by the Department of Home Affairs, court authorities and various sources from the internet. The Minister has further determined that certain information must be considered.
[8] DFAT Country of Origin Information Reports (COI) prepared with Department of Home Affairs, Country of Origin Information Services Section (COISS). Dependence
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[9] (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[9] DFAT Country of Origin Information Reports (COI) prepared with Department of Home Affairs, Country of Origin Information Services Section (COISS). Dependence
Other information considered relevant to the issue(s) in consideration by the decision-maker may also be referred to and is not excluded.
Relevant country information
DFAT country information report – Republic of China December 2021
In accordance with Direction No.84 made pursuant to s.499 of the Act, the Tribunal has had regard to country information assessments prepared by the Department of Foreign Affairs and Trade with the assistance of COISS.
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 assessments, 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.”[10]
[10] Purpose and Scope at ch 1; paragraph numbers refer to the extracted paragraphs from the report.
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
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.79 Article 35 of China’s Constitution states that citizens of the People’s Republic of China enjoy the freedoms of: speech, the press, assembly, association, procession and demonstration. In practice a wide ranging number of topics are considered sensitive and are censored, with those raising them liable to punishment. Sensitive issues include commentary on: political issues and events (including the policy direction of the CCP and nation and sensitive anniversaries); serious economic, health (including COVID-19 origins and the government’s handling of the outbreak); land rights and property or environmental issues; labour rights; religious or ethnic issues; or legitimacy of central authorities and the CCP. The sensitivity of topics can change quickly and it is impossible to make a comprehensive list of sensitive topics.
3.80 Criminal punishment can include a period of deprivation of ‘political rights’, which might include denial of freedoms such as expression or assembly. These deprivations in practice make it difficult to find employment, to travel, or to obtain a residence or accommodation. The families of political activists may also find their rights similarly circumscribed.
3.81 The implications of political opinion are wide-ranging in China and the following sections on activists and civil society, protesters, media and the social credit system provide further detail.
Groups of Interest
Activists and civil society
3.82 Civil society in China is restricted. CSOs and their activities must be registered by the government with local authorities. In practice, some CSOs, particularly large organisations, are required to work closely with the government and are quasi-government bodies. All NGOs must have a government sponsor to be registered. Foreign-linked CSOs (including those based in Hong Kong, Macau, or Taiwan) are subject to particular scrutiny and may be unable to register or re-register. Few foreign CSOs exist in practice. If an organisation does have government support and its aims align with government priorities, it can be successful in achieving its aims or raising awareness (for example women’s and environmental NGOs) but it depends on the organisation and its goals, history and relationships.
3.83 People who advocate for human rights and their families are subject to surveillance, threats, and detention. DFAT is aware of human rights activists who work in areas such as gender or labour rights who have been detained for their activism. Families of activists have been threatened with the loss of jobs if they speak out. Those who speak out about their treatment by authorities face further detention, limiting the number of available sources and information about the treatment of activists.
3.84 Some private criticism (for example among friends and family) of government is generally tolerated. If the criticism is more widely disseminated, for example on an online platform or deemed too inflammatory or in relation to a particularly sensitive subject, authorities might reprimand the individuals involved.
3.85 High-profile activists and critics are particularly targeted but DFAT is also aware of examples of low-profile but outspoken activists being targeted. Profiles of those who may be affected are difficult to predict accurately. DFAT assesses that high-profile activists are at high risk of official discrimination in the form of detention and imprisonment. The hidden nature of low-profile activists and reluctance to speak out make it difficult to assess the risk to day-to-day critics, but those who criticise the government on sensitive issues can come to the attention of authorities. Any discussion on social media is visible to authorities. A person that has been active in protests outside of mainland China (including Hong Kong) against the Chinese Government is likely to attract the attention of government, especially if they are high-profile, but interest in a lower-level protester is not impossible.
Protesters and petitioners – including land protests
3.86 All gatherings of more than 200 people must obtain approval from public security authorities. The Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges. Public demonstrations are rarely approved. Spontaneous protests sometimes occur. Common protest themes are related to labour disputes, environment, land disputes and local corruption. Recent estimates on numbers of protests are not available, but DFAT understands they have become much less common under President Xi.
3.87 Disputes with government may be raised at petitioning offices, also called ‘letters and visits’ offices, a type of government service office. Millions of disputes are raised every year. Local authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means local authorities are incentivised to retaliate against petitioners, which might include charges such as ‘picking quarrels and provoking trouble’. According to the 2020 US Department of State Human Rights Report, local governments have sent personnel to Beijing to force petitioners in the capital to return home. While examples of violence and, in extreme cases, deaths are reported, many complaints are resolved through the petitioning process.
3.88 Land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villages. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation (thus, disputes are generally complaints against local government which may escalate to the national government, as outlined above). China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs’, who intimidate protesters or cut utility supplies, have been used and are allegedly hired by local governments.
3.89 DFAT assesses that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.
ARBITRARY ARREST AND DETENTION
4.8 Arbitrary arrest and detention is commonly reported, especially in cases of political sensitivity and to exercise political leverage. This may, in instances, take the form of enforced disappearance, as family and friends may not know that a person has been taken into detention. Safeguard Defenders, a Spanish human rights NGO, alleged in a 2020 report that some detainees were forced to take false names to further obscure their location from friends, family and the public.
4.9 Residential Surveillance at a Designated Location (RSDL) is sometimes used to detain activists, human rights lawyers and government critics, as well as people accused of national security or terrorism crimes or serious corruption. It may also be used if a suspect does not have a fixed place of residence. RSDL may be used to detain people for up to seven months before their formal arrest or release.
4.10 The primary distinction between RSDL and ‘black jail’ (a secret, extra-legal detention facility) is that RSDL is a formal feature of the Chinese legal system. RSDL also reportedly often entails treatment more severe than in black jails, and occurs in government-run, custom fit-for-purpose facilities, whereas black jails are quasi-administrative holding centres for petitioners and criminals.
4.11 Administrative detention is imposed for crimes of a minor nature that are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law. It can involve detention in one’s home, an apartment rented by police, a hotel or other premises. It is imposed by public security organs at the local (county) government level. While there are various forms of administrative detention in China with different procedures and time-limits, the maximum period of administrative detention for any one act is 15 days, and where multiple periods of administrative detention are imposed concurrently for several acts, the maximum period of detention is 20 days.
4.12 Party members might be dealt with under disciplinary proceedings known as liuzhi, which might also amount to arbitrary arrest and detention. Liuzhi replaced the old system, shuanggui, in 2018 and has a focus on corruption as part of a wider corruption-fighting campaign instituted under President Xi. The 2020 US Department of State Human Rights Report quotes a provincial official who said the average time spent in liuzhi was 42.5 days before detainees were transferred into the criminal justice system.
STATE PROTECTION
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.
5.4 Police are subject to little oversight, having the ability to issue their own warrants without the involvement of a court (or ignoring regulations where this is required), for example. According to the US Department of State Human Rights Report, while investigations into police killings are often announced, the findings of those investigations are often not announced. DFAT is not able to verify this. Freedom House’s 2021 Freedom in the World report describes police impunity as ‘the norm’. 5.5 Police have access to enormous amounts of data and other evidence. Social media is monitored and an unprecedented number of closed-circuit television cameras have been rolled out during the COVID-19 pandemic as part of efforts to control the virus. 5.6 For information related to criminal procedure, see Arbitrary Arrest and Detention.
INTERNAL RELOCATION
5.24 Internal migration has been a key feature of Chinese economic and social life for decades. Migration to cities in the wealthy eastern provinces is particularly popular. A third of the population live in a place other than where their residence is registered with a local government. Urbanisation has been a key feature of China’s rapid economic development. There are no legal impediments to relocation, but the hukou system may limit freedom of movement in practice. As Mandarin is spoken throughout the country, DFAT assesses that Han Chinese have little difficulty in resettling in different parts of the country (see Race/Nationality).
HUKOU (household registration) system)
5.25 Hukou is a household registration system rooted in an ancient system that has parallels in other parts of East Asia such as Japan and Vietnam. In modern China, hukou registration with the local government entitles a resident to use government services such as education or health services in that local government area. In practice it might be a better reflection of their place of birth or even their parents’ place of birth rather than their place of residence.
5.26 It is very difficult to get a hukou in one of China’s major cities like Beijing or Shanghai, which have quotas for new residence permits. A points system to apply for a hukou exists in some cities (over 5 million people) where good employment records, education and housing might be an advantage. Reforms in 2019 have made it easier to get a hukou in medium-sized cities (1 to 3 million residents) and removed limits on key population groups, including graduates of universities and vocational colleges. This means that urbanisation and its associated development benefits may continue without putting additional pressure on megacities like Beijing and Shanghai.
5.27 Migration away from cities to regional areas also occurs but much less commonly. The very high cost of living in some large cities and demanding working culture in corporate China has forced some young people to return to their family and home regions. Former emigrants might be enticed back by improved infrastructure and services in rural areas that has accompanied China’s rapid development.
TREATMENT OF RETURNEES
5.28 DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear. See the relevant section of the report for information on treatment of specific Groups of Interest.
5.29 Those wanted for outstanding warrants could still be charged on return to China. The general statute of limitations for crimes is five years (for a crime where the maximum penalty is up to five years in prison), ten years (where the maximum penalty for a crime is five to 10 years in prison), 15 years (where the penalty for a crime is not less than 10 years in prison) and 20 years (where the maximum penalty is life in prison or death). In practice, a person who flees from prosecution and then returns is likely to be arrested.
Exit and entry procedures
5.31 Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.
5.32 National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list. DFAT is also aware of instances where members of certain ethnic minority groups have been denied passports.
5.33 If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons. There is a legitimate risk that family members of an individual under investigation by Chinese authorities could be subject to an exit ban. This is not only for sensitive charges but also economic charges such as fraud.
5.35 DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.

According to more recent commentary, “Beijing has implemented some important reforms to the household registration system but has been unable to keep up with wave after wave of rural migrants”.[11] The implication from this research article is that large numbers of the local population continue to move freely and relocate within the country.
[11] Eduardo Jaramillo Centre for Education and International Studies Washington DC-"China's Hukou reform in 2022: they mean it this time?"
Relevant country information - summary
The Tribunal understands the following from available country information and research, namely that:
a.Those Chinese citizens with a high profile and who are effectively activists critical of the State face a high risk of official persecution and repression. Some private criticism, however, is ‘generally tolerated’.
b.High profile political activists as well as critics of the Chinese Communist Party and the government may be targeted and monitored and may come to the attention of authorities through their activities and may be at high risk of detention and imprisonment.
c.A new civil code is in place since 1 January 2021.Generally, many complaints and compensation claims are now resolved by the petitioning process; outcomes may vary however, according to individual circumstance.
d.Petitioners in local areas may also be at high risk from thugs of brutal assault and intimidation and for receiving inadequate compensation, without protection from local authorities. Local Police are concerned to maintain peace and order with minimal disturbance. Police do not adjudicate disputes but may arrest arbitrarily to prevent breaches of the peace or public displays of civil unrest. The Chinese population generally is aware of the risk of arbitrary arrest and detention if involved in a public dispute.
e.The Chinese government does not condone corruption which it attempts to regulate, and can severely prosecute perpetrators and public officials, even though such action may be inconsistent and randomised and vary within local (particularly rural) areas.
f.Civil disputes tend to be localised. Citizens are easily able to relocate to other areas within China, removed from the area of dispute. It is possible for the majority of Chinese citizens internally to move freely and without restriction and notwithstanding that residential registration may not be possible in all areas or locations.
g.It would not be possible to freely depart China if the applicant was a person of security interest or concern or named on a ‘control list’.
Department Policy – Guidelines – Procedural Instruction[12]
[12] 15 November 2022
The Department’s Procedural instruction, in the interests of consistency in approach, guides all Protection visa decision makers assessing whether a person seeking protection in Australia, will engage Australia’s protection obligations because the person is a refugee in accordance with the provisions in the Act. The Tribunal, where relevant, must have regard to such guidelines, but is not bound to follow them where to do so might lead to an inconsistency with the Act or Regulations.
As referred to in the policy guidelines, there must be a ‘real chance’ of persecution following from these claims, and 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 (likely detention and imprisonment) occurring in the future, and with a reasonable degree of likelihood.[13]
[13] DOHA Refugee Law Guidelines at 3.12.1(p.57 of 140)
It is likely in the absence of evidence of any continued complaint by the applicant to Police or other authorities, that (also in accordance with the policy guidelines), the applicant in this instance would be at a very low risk of persecution in the foreseeable future on account of what had happened prior to lodgement of the application and at least 6 years ago.
Where there is no evidence as to the applicant’s association with any political activists who may criticise the State or the local authorities, or any continuing petitioning or compensation activities by the applicant or anyone on his behalf since 2017, the Tribunal can place very little weight upon statements where he contends he will be persecuted in the foreseeable future for that reason, and suffer serious harm, without the applicant himself taking some further action upon his return to China to rekindle his dispute.
The Tribunal has considered the guidelines aligned against the application in this instance but found nothing cumulatively in the context provided by the applicant that might require the Tribunal not to be guided by policy in consideration of the Tribunal’s decision.
Policy requires consideration of the likelihood or foreseeability of a ‘real chance’ of persecution based on the available objective information, and foreseeability of persecution and serious harm, not only in the applicant’s local area, but in this instance, anywhere in China.
Findings - facts
As noted above, on the information available to the Tribunal, there are no particulars provided such as when the asserted persecution took place, who was involved, where it occurred, and what specific action was taken by the applicant, such as who he notified, when, where, and how that was done, identifying who responded, and where he attempted to relocate, and what then occurred.
The applicant has not demonstrated that he suffered serious harm. He may heave a subjective fear of persecution, but any such fear does not appear to be well-founded on the basis of the scant information provided.
The Tribunal must take into account in the hearing process the applicant’s unfamiliarity with legal process, fears and anxiety, language difficulties, the fact there is no representative there to assist him. As pointed to by Feutrill J, the decision-maker is required to acknowledge the “manifest disadvantage” of applicants in person and to “provide the assistance necessary to ensure that the appellants had not, because of a lack of legal skill, failed to put forward arguments in support of their application for judicial review.” [14] To fail to take such things into account may amount to a lack of procedural fairness by the decision-maker.
[14] BKT17 & Anor v Minister for Immigration & Anor [2020] FCCA 1337 at [35]
The Tribunal was unable to explore any factual details in a hearing, or to assist the applicant where such disadvantages were manifest. Despite being invited to do so, the applicant, who was assisted at the outset, has made no attempt since to update his personal circumstances over the past 6 years since raising his claims. It is undoubtedly the case, for example, that his family circumstances and the circumstances of his previous location and the local community may have changed. The Tribunal however can have no regard to absent information and cannot speculate or assume the current circumstances, relevant at the time of decision and absent a reasonably sound and objective factual basis.
The Tribunal finds there is insufficient evidence to support any of the claims as set out above. The finding is therefore that none of the claims are made out as asserted (or at all). The Tribunal cannot make findings on the unsubstantiated and unexplained statements made in the application alone.
The Tribunal finds that for these reasons that the applicant’s claims are not made out. The Tribunal agrees with the findings by the delegate in the decision that:
“The applicant does not provide dates for any of the events in his statement nor any documentary evidence to support his claims, in the form of paperwork in relation to the house acquisition, the letter of complaint he authored, nor an arrest warrant or summons. The applicant also does not explain how he was able to depart China on his genuine passport.”
The Tribunal finds for these reasons on the available information that there is no ‘real chance’ of persecution of the applicant in the foreseeable future on his return to China, either in his local area or anywhere in China he might choose to locate.
Relocation – findings
The applicant simply says he cannot relocate anywhere in the country because the “whole situation of China was the same”. No particulars are given of whether he attempted to relocate, where or when or what happened to him.
Apparently, the applicant’s family, his wife and son and his parents have remained in China, and there is no information about what may have happened or what may be happening to them, or whether the applicant has even communicated with them at all about circumstances where the family continues to live.
The Tribunal finds accordingly that without information to the contrary, the applicant could return to his home location and family safely should he decide to do so.
Otherwise, in accordance with the current country information from DFAT, the applicant would be able to safely relocate elsewhere in China without difficulty, should he choose to do so and in the event he fears returning to his family home, and in order to escape the localised persecution he subjectively fears.
The Tribunal finds that there is no evidence available that demonstrates that there would be any impediment to the applicant relocating, and the Tribunal accepts the information in the DFAT report as accurate and correct.
The application, together with the applicant’s passport information, shows the applicant has freely left and re-entered China on multiple occasions in 2016 to visit [Countries 1-5], and without any interference or interest from Chinese authorities who carefully monitor those entering and exiting the country.
The Tribunal finds it is satisfied that the applicant is not a person of interest to Chinese authorities and could live anywhere in the country he might choose.
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).
Complementary protection - finding
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), as set out above. The Tribunal has found that the applicant can safely relocate elsewhere in China, should he choose to do so.
The Tribunal is not satisfied therefore 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 2393

4 May 2023

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Statutory Interpretation

Legal Concepts

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Procedural Fairness

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