1725778 (Refugee)

1725778 (Refugee) [2022] AATA 1258 (1 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1725778
COUNTRY OF REFERENCE:                   China
MEMBER:Rosa Gagliardi
DATE: 1 March 2022
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 1 March 2022 at 9:40am
CATCHWORDS
REFUGEE – protection visa – China – fear of harm from gangsters on behalf of local government – confiscation of land and threats – wife in hiding – credibility and responsibility to specify particulars and provide evidence – vague, inconsistent and unpersuasive claims and no documentary evidence provided – voluntary returns with no harm – no harm to wife or attempt to leave country – application made three days before second applicant’s student visa due to cease – claim of no contact with wife to account for limited knowledge of events – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), (5), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v GUO (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China applied for the visas on 17 January 2017. The delegate refused to grant the visas on the basis the applicants were not persons in respect of whom Australia owed protection obligations.
The applicants appeared before the Tribunal on 7 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant stated that he wanted to undertake the hearing from his car as he was taking a few hours leave from his work at a [Workplace] to partake in the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The first-named visa applicant’s migration history
-[July] 2013 Arrived in Australia on TU580 Student Guardian visa
-[January] 2015 - Departed Australia on TU580 Student Guardian visa
-[March] 2015 - Arrived in Australia on TU580 Student Guardian visa
-[December] 2015 - Departed Australia on TU580 Student Guardian visa
-[January] 2016 - Arrived in Australia on TU580 Student Guardian visa
-17 January 2017 – XA 866 Permanent Protection visa lodged
-20 January 2017 - TU580 Student Guardian visa ceased
The second-named visa applicant’s migration history
-[July] 2013 Arrived in Australia on a TU570 Student visa
-[January] 2015 – Departed Australia on a TU570 Student visa
-[February] 2015 – Arrived in Australia on a TU570 Student visa
-17 January 2017 - XA 866 Permanent Protection visa lodged as dependent
-20 January 2017 - TU570 Student visa ceased
Claims made at the time of application
The first-named visa applicant was asked why he had left his home country, being China, and he wrote:
In China, my family had land disputes with [Mr A], who wanted our land. We strongly disagreed. [Mr A] has very close relationship with gangsterdoms. He asked gangsters to repeatedly harass our family. They confiscated my home, they did that to get our land. Gangsterdoms, it’s hard to go back home, can only live abroad. Dear Australian government, please protect me.
The first-named visa applicant was also asked what he thought would happen to him if he returned to his home country, and he responded, “If I go back to China, the gangsters will continue (sic) my family and beat me, even kill me. I will die in China”. Asked if the applicant had experienced harm in his home country, the applicant responded no.
The first-named visa applicant was also asked in his application to give reasons for why he did not try to move to another part of the country, and he wrote, “No one can run away because the gangster is so powerful. No matter where I go, I will be caught by them”. Asked if he thought he would be mistreated if he returned to his country, the applicant answered, “Yes, if I go back to China, I will be killed by the gangster”. Asked to give details about the harm or mistreatment he was likely to face in China, including the people who would be responsible for the harm or mistreatment and the first-named visa applicant responded, “Yes if I go back to China, I will be killed by the gangster”.
The first-named visa applicant was also asked details about why he thought the authorities could not or would not protect him and he wrote, “The gangster so powerful, almost having the capacity of hide the truth. I can not live in China”.
Asked if he could provide details as to where he could relocate, the first-named visa applicant responded, “No one can run away because the gangster is so powerful. No matter where I go, I will be caught by them”.
The hearing with the first-named visa applicant
The first-named visa applicant confirmed he had come to Australia as his son’s guardian while his son was studying in Australia. Asked the whereabouts of his wife, the first-named visa applicant stated that she was in his home country, but not in their home area. Asked why she had left her hometown, the first-named visa applicant stated that previously they had a contract to hold land from 2002-2016, but the local government took his land and they even threatened him, his wife and their son. Asked if his wife had any family in the local area, the first-named visa applicant responded, “No in order to escape from them she dare not contact her family”.
Asked whether the first-named visa applicant could produce documentation to show that the land had been transferred to gangsters and the local government, the applicant stated it was at home, in China. Pressed about whether he could obtain such documentation, the first-named visa applicant stated that if the Tribunal needed it, then he would provide it for sure.
The Tribunal asked whether it was just land or land and house that the gangsters took and the applicant stated it was land only. When the Tribunal put to the first-named visa applicant that in fact in his application he had written that they had confiscated his home to get his land, the applicant responded that in China he had land disputes. They had asked the gangsters not to harass their family and they confiscated the house to get the land. In terms of the discrepancy, he stated that he did not speak English and had asked the agent to lodge the application. He did not know what had been written.
Asked to give details about the land he stated they had a house on top of the land. It was not the family home but was used for storage of farming equipment, even though it could be lived in also. “They” kept harassing his family and that is why his wife moved to what the Tribunal considers it heard to be Xinjiang (however, the name was not spelt out so the Tribunal accepts this may not be the place the first-named visa applicant was referring to).
The Tribunal asked about the features of the land that would make it attractive for the government to confiscate. The first-named visa applicant stated that after he got the contract he was able to make money from it, so the gangsters “were greedy” and wanted to remove them and worked with the government (to do so). Asked if the farming business had been registered with the authorities, the applicant stated that it had been, and he could provide the evidence once he was in touch with his wife who managed “those sorts of things”.
Asked specifically who the gangsters were, the first-named visa applicant stated that they were just a group of people who are very powerful in society and they were not reasonable people. Asked if the first-named visa applicant’s spouse had been threatened in Xinjiang (?) he responded yes, because they did not want to hand the land over so “they” threatened them at their house that they would do “something quite serious”. Asked if his wife had ever been approached by the gangsters in Xinjiang, the first-named visa applicant stated that she dares not let them know where she is, but they were looking for her everywhere.
The Tribunal queried when the gangsters working in collusion with the government took his land precisely. He responded that it was in 2016. Asked to give further details he stated that it had been a while and was not sure of the month exactly, but probably around March. The Tribunal noted that the first-named visa applicant had written in his application that the gangsters were so powerful he would be caught by them anywhere in China, yet they had not managed to catch his wife. The first-named visa applicant responded that his wife was in a remote village hiding there away from people. The Tribunal noted that if his wife was managing to hide in the mountains then theoretically, he could also return to live with her there. The applicant stated, “But that would affect my ability to pursue the application and that is why I chose to stay in Australia”.
The first-named visa applicant confirmed that he only had one child, the second-named visa applicant. Asked why he and his son had tried to save themselves, but his wife had not left to come to Australia, the first-named visa applicant responded that at that time they had attempted to do so but she did not get the visa. He undertook to provide the Tribunal with evidence about the visa his wife had applied for to come to Australia.
The Tribunal confirmed with the first-named visa applicant that as he stated in his application, he had not experienced any harm in his home country. He responded that there were the threats and they forced them to fear for their personal safety. He stated that the “thing” did not happen until 2016 and at that time his wife told him and his son not to come back because it might impact on their child’s physical and mental well-being. They did threaten his wife and she is afraid that if the first-named visa applicant and her son were to return, they might be harmed as well. The Tribunal noted that if he was in March 2016 in Australia, then he could not have been threatened directly. The first-named visa applicant stated that was correct, but that his wife stated that he would definitely be threatened if he returned.
The Tribunal asked why his family could not approach the police about the threats. The first-named visa applicant responded that the police sided with the gangs. As he had been in Australia at the time, his wife had raised it with the police on multiple occasions, but they did not accept the case. Asked if there were any police records of his wife approaching the police about the matter, the first-named visa applicant responded that it only occurred face to face. There were no written records.
The Tribunal asked who the person he had had the dispute with was exactly, and the applicant stated it was [Mr B] and he was a very powerful person, but he did not like to be reasonable. The Tribunal noted that in his application he has stated that the dispute was with [Mr A]. The first-named visa applicant responded that he thought he had heard his wife say [Mr B] but there were so many people, so he was not sure which person it was specifically, but it was a syndicate. The Tribunal noted that they had taken his land nearly 6 years ago so why would he or his family be of any interest to the gangsters and government given they had achieved what they set out to do, that is, dispossess him of the land he had been contracted to work on. The first-named visa applicant stated that during that period he had been able to use the funds collected from the farm to permit his son to study in Australia. The applicant stated that now they retrospectively wanted to obtain all the money his family had earned on the farm. They were “bullies”.
The first-named visa applicant when asked, stated that in China he had worked for a [company] as a contractor. Asked if the farming business was something he did outside his main work, the first-named visa applicant responded it was his wife who contracted the land. She had no other work. Asked how his wife was supporting herself in the mountains, he responded that she got vegetables from the mountains. He did not send her money to support her financially.
The first-named visa applicant stated that he thought his wife had moved to the mountains in 2017. They had chatted in March 2017 then they lost contact in April 2017. Asked why she had not moved to another country given she had no income, the first-named visa applicant stated that he just feared for her personal safety. Asked about his son and what his son personally feared, the first-named visa applicant responded that he also feared for his personal safety as they threatened the whole family. The Tribunal noted that his son was in Australia when the threats were purportedly made in 2016, so how was it possible for them to threaten his son. The first-named visa applicant replied that it was his wife who received the threats and the gangsters told her the threats extended to the whole family.
The first-named visa applicant again stated that in returning to China he considered that it would have a great impact on the personal safety of his child. He did not have that much money anymore and “they” would be a great threat to them. The first-named visa applicant asked whether his son was currently working or studying in Australia and the first-named visa applicant stated his son did not work so he supported him. He could not study because they did not have any money to support his studies anymore.
The Tribunal asked the applicant to consider all his evidence and to advise, on reflection, whether there was anything else he would like to the tell the Tribunal. The first-named visa applicant stated that their personal safety would be impacted, and he had hoped for his child to remain in Australia. The Tribunal asked whether this was the case for himself. He responded that he missed his partner and that if she could come to Australia, he would be very grateful.
FINDINGS AND REASONS
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all the particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.
Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act, nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v GUO (1997) 191 CLR 559 at 596; Nagalingam vMILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.
Having said this, caselaw also indicates that an applicant is not required to provide corroborating evidence. Nonetheless, the Tribunal considers that where it is reasonable for an applicant to provide information to support their claims, then it would expect that the applicant would make such material available to the Tribunal to support the credibility of their claims.

The Tribunal, in reaching its decision, has taken into account the information provided by the applicants as concerns s.36(2)(a) and s.36(2)(aa) but finds that the applicants’ claims are vague, general and did not persuade the Tribunal that the applicants had ever had their contracted land and house taken by force by gangsters operating in collusion with the government, or that the first-named visa applicant’s wife and mother of the second-named visa applicant, has been threatened or that the applicants will be of interest to unidentified gangsters and the government on their return to China.
The Tribunal found both applicants to be unreliable witnesses. The second-named visa applicant stated that he wanted to rely on what his father had told the Tribunal and could only give vague responses to specific questions about the harm the family had suffered in China. For example, when asked what the second-named visa applicant feared on returning to China, he stated “Because previously we received some threats, it was related to my dad and I was involved as well”, without providing specific details. When the Tribunal encouraged the second-named visa applicant to specify what these threats might have been, the second-named visa applicant stated that there were some messages and his father had told him that the second-named visa applicant could be involved as well. Encouraged to be more specific, the second-named visa applicant stated that it had been over 5 years and his father had been handling those matters. Asked again what personal fear the applicant had in returning to China, the second-named visa applicant responded, that they were the people who had the argument with his father over a land dispute, “But I don’t know what happened recently. I speak to dad but not my mum”.
The Tribunal asked the second-named visa applicant to set out in detail what harm he considered would happen to him if he returned to China, in an attempt to help him set his claims in context so that the Tribunal could understand how the second-named visa applicant was implicated in the threats.
Again, the second-named visa applicant stated he would receive some personal threats. There had been letters saying “they” would look out for them. When the Tribunal put to the second-named visa applicant that his father had made no mention of the letters in the application, the second-named visa applicant dismissed the matter by stating, “He should know, of course he should know”. The Tribunal places no weight on the second-applicant’s inclusion of the matter of the letters being sent to the family, rather it highlights the second-named visa applicant’s lack of curiosity about why precisely his father and he claim to need protection from China in circumstances where it is claimed they fear for their lives.
The Tribunal commented that it was odd that the second-named visa applicant appeared to know little about his and his father’s claims and he confirmed that his own claims were those of his father as they had applied together.
The Tribunal appreciates that the second-named visa applicant at the time of the claimed events in 2016 would have been a minor and that he might not have had a full appreciation of the family’s claimed circumstances in China, and why he and his father could not return, leaving his mother behind. Nonetheless, the Tribunal would have thought that the second-named visa applicant, now being 23 years of age, would have sought details from his father about their particular claims and why there was a real chance that they would suffer serious harm on return to China. Instead, the second-named visa applicant kept referring to the would-be aggressors as “they” without specifically identifying who these people might have been and why, if the land had already been taken along with the house on the land, the applicant and the second-named applicant would continue to be of interest to the authorities or gangsters some 5 years after the claimed sequestration.
The Tribunal asked the second-named visa applicant what he thought would happen to him on return to China and he responded he would receive some personal threats that were letters saying they would look for them. He stated that he could not be sure of the situation in China now and whether there had been changes. He could not be sure.
As the second-named visa applicant was basically reliant on his father’s claims and appeared to have distanced himself from the application process, and could only provide little in the way of concrete information about his family’s claims, the Tribunal will therefore rely, in the main, on the first-named visa applicant’s claims and how they might affect the second-named visa applicant if they return to China.
Assessment under s.36(2)(a) – refugee criteria
In examining the applicants’ claims both articulated and unarticulated, it could be said that the applicants argue they are:
·Members of a particular social group – persons whose contract land and home has been compulsorily confiscated and are being pursued by gangsters and the government;
·They could suffer serious harm on return due to their political opinion, due to their anti-government and anti-state opinion; and
·They could suffer serious harm on return to China due to their imputed political opinion, being anti-government and anti-state.
Like the second-named visa applicant’s account, however, the Tribunal did not find the first-named visa applicant convincing in his statements about the claimed fear of harm. The first-named visa applicant stated that the events amorphously involved “gangsters” on behalf of the government, and that they occurred some-time in 2016 just prior to lodging the application, at which time the first-named visa applicant had arrived in Australia (after a pattern of arriving and departing Australia) on a Student Guardian Visa. The second-named visa applicant had arrived in Australia (after one departure in 2015) on a Student visa but had not departed Australia again at the time of application.
The Tribunal would have expected, for example, that the applicants would have been able to provide information about the location of the land and its coordinates as Google maps and other modern location devices would permit. The Tribunal has little information about the size of the land claimed to have been owned by the applicants, and when asked at hearing, the first-named visa applicant could provide little detail about why his land, in particular, would be of interest to the authorities, only stating that it had been profitable in the past.
Little information was also provided to the Tribunal about the substance of the threats made and in what context they were made.
The applicant stated at hearing that the so-called threats and sequestration of the contracted land and house happened while he was in Australia and that his wife was aware of all the details, including holding the documentation which showed the transfer details to the gangsters and government. He added that now he was no longer in contact with his wife and she was living in a remote location hiding from the gangsters who had taken their land. The Tribunal is concerned, however, that the first-named visa applicant has conveniently stated he and his son no longer speak to his wife to account for their limited knowledge of the claimed events in China some time in 2016.
The first-named visa applicant had been travelling to and from China on several occasions without incident. The Tribunal has concerns, therefore, that the first-named visa applicant fabricated the claimed events involving the gangsters as occurring in 2016 while he was in Australia, to deflect from the fact that he had been coming and going to China frequently and had had no adverse profile previously with the authorities or any other state or non-state actors.
Furthermore, the Tribunal noted at hearing that if the government of China had been targeting him to confiscate his land in 2016 and to cause him, his wife, and his son harm, they would not have let him depart China in January 2016. The Tribunal expressed the view that it was unlikely that the scheme to target him and his family had occurred suddenly without careful planning. The first-named visa applicant responded that in China the government acted quickly and without thought. The Tribunal does not accept, however, that this is the case and rejects the claim that had the first-named visa applicant been of interest to the authorities because they were planning to take his land and harm him to prevent him protesting (broadly) about the matter, they would not have attempted to prevent him leave the country. The Tribunal rejects that actions such as taking land from the first-named visa applicant’s family would not have been in the making well before the applicant arrived in Australia on 21 January 2016. Indeed, the applicant seemed to indicate that the gangs or syndicate had caused problems for him in China prior to his departure to Australia in 2016. These conflicting statements by the first-named visa applicant leads the Tribunal to question the veracity of all of the applicants’ claims and the Tribunal rejects them.
The timing of the applicants’ protection claims also leave the Tribunal with serious doubts about whether the application was lodged for the sole purpose of gaining a migration outcome, when it was clear that the second-named visa applicant’s student visa was due to cease and that consequently, the first-named visa applicant’s options for remaining in Australia were also narrowing.
The Tribunal would have expected that the first-named visa applicant in applying for a visa for him and his son would have asked his wife to provide detailed information about the nature of the threats she had received and why it was important that both the applicants never return to China. The first-named visa applicant was also inconsistent in his own evidence, at times indicating he had been threatened personally, as in his application, but then stating that he had departed China by the time of the threats, when it suited his narrative to explain away why he had been permitted to leave China without incident in 2016.
It is also unconvincing that the first-named visa applicant would permit his wife to remain in China to bear the brunt of the gangsters’ threats. While the applicants are claiming that the first-named visa applicant came to Australia after the threats started, it stretches credulity that the first-named visa applicant’s wife would continue to remain in China without attempting to leave to some other third country. The Tribunal accepts that the first-named visa applicant’s wife might have been refused a Visitor visa to Australia. The Tribunal asked the first-named visa applicant to provide evidence so that it could gauge the timing of the application and whether it coincided with the claimed threats. The first-named visa applicant did not provide such information to the Tribunal but is prepared to accept that the first-named visa applicant had made an attempt either on a Visitor visa or some other visa to reunite with her husband and son in Australia. But the Tribunal is not persuaded that this was because she feared for her life, rather it appears to have been an attempt to reunify the family in Australia. Had the first-named visa applicant’s wife genuinely feared for her life, on being unsuccessful in applying for a visa to Australia, the Tribunal would have expected that she would have continued to apply for a visa to Australia or to some other third country to ensure her safety.
For these reasons the Tribunal rejects that the first-named visa applicant’s wife left their home area to live in a remote place in the mountains subsisting on produce she grew herself to hide from gangsters and any other protagonists acting on behalf of the government, or anybody else.
The applicant stated that he would also try to obtain documentation showing that (a) he and his wife had been contracted land from 2002 until 2016 and had been running a registered farming business in China; and (b) evidence that in 2016 the title/contract of the land and house had been transferred to the government. The Tribunal advised the first-named visa applicant that if he could not provide the documentation then he ought to advise the Tribunal as to why this was the case within a certain reasonable period. The first-named visa applicant has not produced such documentation and did not provide the Tribunal with an explanation for the Tribunal to consider.
In these circumstances, the Tribunal finds that the lack of substantiating documentation is not due to a lack of contact with the first-named visa applicant’s wife, but because no such documentation exists. The Tribunal would have entertained that the applicants had attempted to reach their wife and mother and had been unsuccessful. Instead, the applicants disengaged from the Tribunal and did not provide any explanation for the lack of material that the Tribunal considers could have reasonably been obtained. The Tribunal considers that the applicants’ lack of communication with the Tribunal about these matters to substantiate their claims, fits in with the Tribunal’s findings that the applicants’ claims are not credible, and that the family never had contracted land and a house which was forcibly confiscated by gangsters operating on behalf of the government.
The first-named visa applicant’s claims that his wife had visited the police, but they took no record also undermines the applicants’ claims that they are of interest to the authorities. The Tribunal considers that in a totalitarian state the police would have made a note that the first-named visa applicant’s wife had dared to complain against the authorities and would have reported her to relevant government authorities.
The first-named visa applicant also wrote in his application that he had been in disputes with [Mr A] who wanted the land. It was claimed that [Mr A] had close relations with gangsters. At hearing the first-named visa applicant when asked to provide detail about who the gangsters were and who in particular had made the threat threats, referred to someone other than [Mr A], that is, [Mr B]. The first-named visa applicant then attempted to revise his account and to correct the inconsistency by stating that he thought his wife had told him it was [Mr B] but there were many people involved to form a syndicate. The first-named visa applicant’s vague references to “gangsters” in general, and the first-named visa applicant’s lack of clarity about who he had had the dispute within China, further undermines the applicants’ credibility. It is not plausible that the first-named visa applicant could say little about his would-be attackers, other than they were very powerful and not reasonable people and would be unable to provide details about the main protagonists who he claims intended to inflict serious harm on himself and his family members.
Having regard to the evidence and the claims as they relate to the first and second-named visa applicants, the Tribunal finds that there is not a real chance the applicant will face serious harm amounting to persecution by gangsters, any person called [Mr A], [Mr B], the authorities or any other state or non-state actors, or that they are of interest to the authorities or anyone else for any reason of having had their contracted land and house confiscated, and in the manner set out by them.
The Tribunal rejects, therefore, that:
·The first-named visa applicant, his son and his wife ever had contracted land and a farmhouse forcibly confiscated by the authorities or gangsters acting on the government’s behalf;
·The first-named visa applicant, his son and wife were ever threatened by gangsters, including by persons called [Mr A] or [Mr B], or others in relation to the claimed confiscation;
·The first-named visa applicant’s wife is in hiding from gangsters, the government or any other persons; and
·The so-called gangsters wanted the applicants to pay back any money earned on the claimed land to the local government.
As such, the Tribunal rejects that the applicants have a well-founded fear of persecution on account of their membership of a particular social group or for their political or imputed political opinion or for any other reason under s.5(J)(1) and s.5(J)(5) of the Act.
The Tribunal does not accept that the first-named visa applicant and second-named visa applicants will not be able to live and work freely in China. The first-named visa applicant used to work with a [contractor] and there is no reason he could not resume such work to support himself and his family on return to China. Furthermore, he has been resourceful enough to obtain work in Australia in [an] industry, an industry in which his skills are highly transferrable to the Chinese context.
The second-named visa applicant has studied in Australia for a significant period and his English language skills will stand him in good stead to obtain any work involving interface with the West, for example.
Without limiting the instances that might constitute serious harm, the Tribunal rejects that the applicants are being pursued by gangsters on behalf of the government or that on return to China they would be killed or that they are of any interest to the authorities or anyone else. The Tribunal rejects that the applicants will suffer threats to their life or liberty or that they will suffer significant physical or mental harassment, or significant ill-treatment. The Tribunal rejects that the applicants will experience significant economic hardship that threatens their capacity to subsist or that they will be denied basic access to services, where that denial threatens the applicants’ capacity to subsist, or that they would be denied the capacity to earn a livelihood of any kind, where the denial threatens the applicants’ capacity to subsist. The Tribunal notes that the first-named visa applicant stated that he feared for his child’s physical and mental well-being if he returned to China. Given the Tribunal has rejected the applicants’ claims that they were ever threatened or would face threats, the Tribunal does not accept that on return to China the second-named applicant would suffer any harm to his mental well-being, now or in the reasonably foreseeable future.
This is because the Tribunal has outright rejected the applicants’ claims because they lack credibility and are unsubstantiated.
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Assessment under s.36(2)(aa) – complementary protection criteria
Having rejected the applicants’ claims in their entirety, the Tribunal also rejects that Australia has protection obligations towards the applicants because the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm as defined in s.36(2A) of the Act.
As the Tribunal has rejected the applicant’s claims that they will be pursued by gangsters or agents of the government for any reason, the Tribunal does not accept that the applicants will be arbitrarily deprived of their lives or that the death penalty will be carried out on the applicants. The Tribunal does not accept that the applicants will be subjected to torture by any state or non-state actors or that they will be subjected to cruel or inhuman treatment or punishment, or that they will be subjected to degrading treatment or punishment.
The Tribunal is therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

There is no suggestion that the applicants satisfy 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).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rosa Gagliardi
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.
…

[2022] AATA 1258

1 March 2022

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