1725830 (Refugee)

1725830 (Refugee) [2023] AATA 4322 (20 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chang Liu (MARN: 1281423)
CASE NUMBER:  1725830
COUNTRY OF REFERENCE:                   China
MEMBER:Alan McMurran
DATE:20 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 September 2023 at 12:55pm
CATCHWORDS
REFUGEE – protection visa – China – land appropriation – inadequate compensation – petitioning over land claims – left country without hindrance – not charged with any offence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 23 October 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 October 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). There are no non-disclosure certificates on the Department’s file.
The applicants are [the first named applicant] (“the primary applicant”) and [the second named applicant] (“the secondary applicant”, as spouse and member of the family unit of the primary applicant, who both claim to be citizens of The People’s Republic of China (“China”). The applicants applied for the visas on 9 March 2017.
The delegate refused to grant the visas on the basis that the available information did not show the primary applicant could satisfy the requirements of s 36(2)(a) of the Act. It was also found that the complementary protection criteria assessment under s 36(2)(aa) was not met. Overall, the delegate was not satisfied that the applicant was a petitioner who had made a complaint to Chinese government authorities about land appropriation.
The applicants have established their citizenship and country of origin information from their passports, which information from the Department records is consistent with their narrative and biometrics. The Tribunal accepts the applicants’ claims as citizens of China and the Tribunal has assessed their claims against China as the country of nationality and their receiving country.
The secondary applicant answered “no” to the question in her application form whether she was raising her own claims for protection. The secondary applicant is therefore dependent for her visa on the outcome for the primary applicant as a member of his family unit, noting that all applicants must satisfy the primary criteria[1].
[1] Regulation subclause 866.221(3) applies
The primary applicant (also referred to herein as “the applicant”) appeared before the Tribunal on 4 September 2023 in Sydney to give evidence and present arguments. The Tribunal received oral evidence and argument from the primary applicant alone, as the secondary applicant did not appear.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, Mandarin being the applicant’s first language. No issues were raised or detected concerning any interpretation. The applicant indicated he was ready and willing to proceed, having lodged a hearing response with the Tribunal on 10 August 2023.
The applicants were represented in relation to the review by a registered migration agent who did not appear.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
Legislation
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.
Refugee
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a).
In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Well-founded fear of persecution
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of their race, religion, nationality, membership of a particular social group or political opinion, and 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]
Real chance
[2] Ibid - Chan’s case
Furthermore, the decision-maker in considering the application of the ‘real chance’ test, as it is referred to, needs to pay regard to the “reality not the appearance” [3] of a real chance, meaning careful consideration of the factual material available and the individual circumstances and context, the information submitted, and any credibility issues arising from the presentation of submissions and argument.
[3] Per Mansfield J in SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723 at [30]; see also BEQ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 621 per Farrell J.
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’.[4]
[4] 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).
Serious harm
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.
Modification of behaviour
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 does 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, and alter or conceal his or her true political beliefs.
Complementary protection
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’).
Significant harm
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.
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 exhaustively defined in ss.36(2A) and (2B) of the Act, which are extracted in the attachment to this decision.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants can meet the refugee criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
The issues arising from the relevant provisions that are required to be determined by the Tribunal are as follows:
(a)Is the applicant a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?, that is:
(i)Is the applicant outside his country of nationality?;
(ii)Does the applicant have a ‘well-founded’ fear of persecution (s.5J)?; and
(iii)Does the real chance of persecution relate to all areas of China, being the applicant’s country of origin (s.5J(2))?
and, if not,
(b)Is the applicant a person in respect of whom Australia has protection obligations on complementary protection grounds, that is:
(i)Are there substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm?
and, if so,
(ii)Would it be reasonable for the applicant to relocate to an area of China where there would not be a real risk that the applicant will suffer significant harm?
or,
(iii)Could the applicant obtain from an appropriate authority in China, protection such that there would not be a real risk that the applicant will suffer significant harm?
or,
(iv)Is the ‘real risk’ one faced by the population of China generally, and not faced by the applicant personally?
and if none of the above applies,
(c)Is the applicant a member of the same family unit as a person in respect of whom Australia has protection obligations, as a refugee, or on complementary protection grounds, and does that person hold a protection visa of the same class?
In considering these issues, the Tribunal notes that the fact that a person claims fear of persecution and consequent ‘serious harm’ for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ and therefore is a ‘real chance’ of arising, 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.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts. Reliable fact-finding creates an objective basis for decision-making as opposed to unsubstantiated statements, speculation, or assumption, all of which carry little or no weight.
The Tribunal notes and has regard to the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
“The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.”
In order to reach a ‘requisite level of satisfaction’ as to whether the 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. It is also necessary in a case such as this, where the evidence relied upon is entirely oral, that the Tribunal form a view as to the applicant’s credibility.
The decision-maker is also informed by resources such as available country information and refugee guidelines but is not obliged on the basis of those inquiries to make a case for the applicant. In determining the basis of a claimed ‘well-founded’ fear, the Tribunal is mindful of the need to have an objective basis for doing so. The High Court has noted that:
“The use of the adjectival expression ‘well-founded’ must be taken as qualifying in some way the ‘fear of persecution’. It is hard to conceive of a fear which has no objective foundation at all as well-founded, no matter how genuine the fear might be. If the test were entirely subjective, the expression ‘well-founded’ would serve no useful purpose.” [5]
[5] Chan Yee Kin v MIEA (1989) 169 CLR 379 per Toohey J at [21] (Chan’s case)
In this instance, in considering the issue of the applicant’s claimed fear of persecution, and in the search for a reliable ‘objective foundation’ to draw its conclusions, the Tribunal has available the Department file and the applicant’s oral evidence from the hearing. The file consists of the submitted application form. The applicant did not attend an interview with a department officer offered on 10 October 2017, and so lost an opportunity then to put forward arguments and explanation and to further his claims on that occasion.
The Tribunal has reviewed the file and the available information including the oral evidence considered in its reasons for this decision set out below.
The applicant’s claims.
The application form is the starting point, where the applicant’s claims are contained in his answers to the formal questions. The claims are inelegantly expressed and vague and in summary say:
a.The applicant’s home was demolished
b.The applicant petitioned and made a complaint
c.His mother had called him when demolition crews bulldozed a piece of his house
d.His father was injured and went to hospital when he tried to stop the demolition continuing
e.The applicant saw his father in hospital where his father’s condition became ‘worse’
f.He complained to Police and gave details about what happened and was told to wait, but heard nothing back
g.He found out that a relative of a government official wanted his land and he made a complaint about corruption which he gave to the city government
h.Police were sent to ‘catch us’; his father was caught and persecuted physically and mentally’
i.His mother paid a fine to have his father released
j.The government official was reported and resulted in Police pursuing the applicant and looking to ‘catch’ him
k.The applicant and his wife decided to escape from China for their personal safety from Police, and want protection from the Australian government.
l.The applicant will not be safe from Police pursuit, anywhere in China, and the Chinese government is ‘corrupt’ and colludes with Police.
Background
Personal and Visa history – Summary from the hearing
The applicant was asked if he had any further information or documents he needed to provide. He responded that he had provided what he wanted and did not need any opportunity to provide further information or documentation and he was ready to proceed. He agreed that his spouse, the secondary applicant, had no submissions to make for herself. Neither applicant has made any other visa applications and none are pending.
The Tribunal commenced asking the applicant about his background and to help establish his personal profile. The applicant confirmed his identity as a [age] year old married man from Fujian province. He is a citizen of the People’s Republic of China (PRC) and has no other nationality. He speaks, reads and writes only Mandarin. He arrived in Australia [in] January 2017. He has no other relatives in Australia, and all his family including his children and other relatives have remained in the PRC.

His spouse is the secondary applicant, also a national of the PRC, whom he married in 2011. The applicants have two children aged [age] and [age] respectively and who are living in China in Fujian Province in Fuzhou city with the applicant’s parents. He said they are safe and he speaks with his parents and children every 1 or 2 days on WeChat. He said his wife’s mother had gone to work in Africa in [Country 1], last year, and had been ‘kidnapped’ when there, and had not returned.
The applicant is the only person to give evidence and the secondary applicant did not appear for the hearing and has made no separate submissions.
The applicant had been employed in ‘sales’ in China. He had completed Middle School but has no other qualifications. He has been living and working in Sydney since arriving. He is currently working in [Industry 1] which he described as “[specified work]” and where he learnt ‘on the job’. He has set up two companies where he is the principal, [Company 1] (currently trading) and [Company 2] (now deregistered). No particulars were provided about these entities and the applicant’s current employment. He said he works with a business called ‘[Business 1]’ currently doing club renovations.
The applicant was very vague when describing what he does and who he works with, or for, and what exactly he is doing to support himself. He said he has a universal ‘white card’ issued to him and which is recognised and permits him to do work anywhere in Australia. He produced the card to show to the Tribunal. He said he was not interested in other employment records or ‘formal paperwork’ for insurances or superannuation, which he thought was not important. The Tribunal suggested that work records and details were important, and he should ask for advice about working legitimately in Australia, and although not relevant to his refugee status, was necessary to avoid any issue being raised by the Department about his work, which in turn might affect his visa status. He agreed it might be appropriate for him to ask for advice and to ensure his work status was in line with Australian laws, and which he argued would be done when or if he obtained the right to remain in Australia.
The application and claims at the hearing
The applicant was asked questions about how he came to prepare his application for protection so soon after arriving. He explained that he had been referred to a person, [Ms A], whom he had met and who had prepared his application. He did not have a copy, he did not remember what it said, and she had not contacted him about the Department offer of an interview scheduled for 5 October 2017, which is why he had not attended. He had also not received the Department’s decision from the representative and said his new representative, whom he had engaged in 2019, told him about this review hearing “two weeks ago”. He said he had done no preparation for the hearing, but did not require further time to do so.
The Tribunal explained the Tribunal process and reason for the hearing and the need for him to establish why he is a refugee and that his spouse is making no claims for herself and is dependent upon his outcome for her visa. He indicated that he understood. He explained that he and his wife had travelled to Australia separately, as he wanted her to leave first while he borrowed some money to meet travel costs. He said that they had left their 2 children with his parents. He said since arriving in Australia [in] January 2017, he has remained, and prefers to stay in Australia with his wife. He said she would not want to return to China without him or stay there by herself.
The applicant was asked why he wanted to remain in Australia and about his claims as set out in the application form. As he did not remember what had been said on his behalf, he was asked to explain in his own words. He started by saying if he went back to China, he would “definitely make protest” and lodge an appeal against his ‘unfair treatment’. He said he has rights, and he will ask to be respected and for ‘fair and reasonable treatment’. He said even though it may put him at some risk, he would go ahead anyway, and which is why he prefers to stay in Australia where he faces no ‘risk’.
He said in China developers forcefully demolished his property and attacked his father. He has not been given any “fair and reasonable solution yet”. He said his land is very valuable in the coastal region where he lives. He is seeking payment of compensation. He said if you have “connections” you can receive the right amount, but otherwise what is paid is way below the market rate. He has no “connections” in the government and so expects only a very low rate.
He said in 2016 he heard “rumours” from his neighbours on the same street that they would receive a certain amount of money from the government for their property. He said the neighbour’s offer was 5 times higher than what they were offered. This was in 2016, but he could not remember when in 2016. A local government official then came to their house and made an oral offer, providing nothing in writing. The official was from Fuzhou city. The applicant was not at home on the day so it was his father who spoke to the official. He thought it may have been sometime in September 2016. The offer was made with a threat that if the offer was not accepted, something would happen. The offer was around RMB 200,000. He said his father did not accept. They had an argument there and then, and there was some form of altercation between his father and the official. The applicant said it was his house but his father could refuse on his behalf because the offer was unfair. The applicant said he would not have accepted it either, and that a fair offer would be more like RMB1,000,000.
He was asked if he did anything about the proposed compensation himself. The applicant said he attended the land acquisition office for Fuqing city after his father told him what happened, and demanded an explanation and reasonable treatment, and explanation why his father had been attacked. He said the argument when the official came to the house and resulting altercation was “not very serious”, just “pushing”. But a few days later, they came to the house to forcefully start the demolition. The applicant’s father tried to stop them. The applicant could not remember all the details and what happened and what his father, or his mother, had told him about the incident. The applicant appeared uncertain about the details when relaying this information to the Tribunal.
The day after the incident, the applicant said he went to make a complaint. He later corrected this to say it was a week or two later. He went alone firstly to the land acquisition office for his city. He then said he also went to the office for local government which is specifically set up to deal with complaints. He could not remember if it was the same day as it was “long ago”. He said at first that a friend helped him to make a written complaint, but then corrected that, when pressed, and said on reflection that he thought it was an oral complaint, not in writing. He said he was told to go away and to wait for a response. A few days later they saw a bulldozer working around their home. He said the developers usually wait until no one is at home, and then they demolish. He said their neighbour contacted the applicant’s father to tell him that the machines had begun demolition work on their property and his father rushed home. The land acquisition office sent a lot of people including security guards to the site. He said there were several dozen people, at least 50. It was the applicant’s mother who told him afterwards what had happened as he was not present. She told the applicant that his father and uncle rushed to stop them but they were dragged away onto the street where they were punched and kicked. The applicant said he was working in the city when it happened and he rushed home himself when his mother contacted him. He told her to call the police first, which he did as well, and then went home. He said he was working about an hour away. When he got home, the police were not there, and “I saw my father and uncle lying on the ground in front of a machine”. They were trying to stop the machine operating, but he saw that their home had already been totally destroyed. The applicant said he spoke to a security person still present. He said he was very angry and threatened to kill the person responsible. All their personal possessions were destroyed and put into the rubbish. The applicant lost his motorcycle, his clothes, computer, everything he owned as well as his parents’ possessions. The applicant’s uncle and father attended a medical clinic in their village afterwards. The applicant took them there in the family car. His father was treated for wounds, cuts and bruises and then they left. His uncle was not hurt, but had his clothes ripped.
Afterwards, he said they went to stay with a relative who lived a short distance away. The police did not attend the site after he had called. The next day however, when he attended the site and tried to stop the continued demolition, this time the police were called and came. The applicant said he tried to drag the machine driver out of his cab. The applicant was arrested and taken to the Police station and they took his statement. The police gave him a warning and told him not to cause trouble. The applicant was soon after released on bail by a village official who came to get him released. The village official also told his father that perhaps the developer had made some arrangement with the government because he had influence and made “a dirty arrangement” and intended to pay a very low rate for the properties in their street. The official told his father that another neighbour in their street who had connections had made a more favourable agreement with the developer. But because their property was in a very good position in the street, the applicant believed the developer wanted to make an example of them as a warning to others what would happen. If they did not accept the compensation offered, they would be beaten.
The applicant was asked if they received any response from the land acquisition office. He said all they do is say they “will investigate” and are very formal. But “on the side” there are people whom he does not know who called him and made threats to him not to continue his complaint. He said the threats were to his reputation, work, and even his life if he continued, or other physical harm such as “break your leg”. The threats continued almost every day by phone for around 2 months. He thought as the demolition plans started in September 2016, and their property was demolished in October, this was when the threats were made. He was unclear as to the timing. He said it happened a long time ago and his memory was not clear. He said he did not know who was making the threats or who was engaged to make them for the developer, but it might also have included people from the land acquisition office as well. He said the police were not making threats, as they had just given him a warning.
He was asked about the compensation. He said they had refused to accept what was offered and as a result they have still not received anything. He believes this is the case even though he has not been there since January 2017.
Since the events in late 2016, he was asked what else had happened. He said he had first been to the Municipal complaint office in October, and as he had received no response, he then went to the Provincial complaints office. He was unable to remember when but thought it might have been in November. He thought he may have given something in writing to the Provincial complaint handling office, but was unsure. When he returned he received another warning from the local police, and from the local township level authority, because he had gone over them to the Provincial office with his complaint. He said he was told by police and town officials if he continued, they would arrest him and charge him for “picking a quarrel”, which is a formal charge. He said after that he was upset and felt hopeless and again received nothing back from the Provincial complaint handling office.
The applicant said he had not kept a record of these events which had occurred in November 2016. He was asked if anything else had happened since November 2016, and responded that “nothing happened after that”. He was not arrested. No one else was arrested or threatened, but for about 2 years after that he said up until 2018, people were still coming and telling his father that the applicant should accept the offer and not make trouble. He said that is because the applicant’s land is still sitting there vacant and has not been developed, whereas other development in the same street has already been completed. He believes the developer wants his agreement and his father’s “co-operation” because he still has title documents which show who really owned the land, which one day he may be able to use against them. He said he has done nothing tp pursue compensation since coming to Australia, but if he returns, he will not accept the compensation offered and will continue to make appeals and to ask for more reasonable treatment, even if it means he might then be in trouble and arrested. He said despite threats to harm him, he will still take action to pursue more reasonable compensation.
The Tribunal put to him that it might not accept that he would deliberately put himself and his family at risk if he genuinely believes he might be harmed, imprisoned or killed as a result. He said he has rights to protect his property and his interests. He said no matter how serious the threat he would do what he believes is right. The Tribunal put to him that if he returned and made no trouble what did he believe would happen. He said that will not happen because he has all the responsibility for his family to protect their rights.
He did not accept the proposition that he could return and do nothing or that he would be able to safely return if he caused no trouble. In that scenario, the Tribunal suggested to him that he would be unlikely to be arrested or harmed. The applicant responded that because his land remains undeveloped they will come after him and still pursue him regardless, because they want to develop his land, so that will not happen and he would not be left alone to do nothing, especially once he returns to China.
The Tribunal put to him that he could take reasonable steps to protect himself if he returns, including living somewhere else in China, leaving the land vacant, and not causing trouble, just as he had been doing since coming to Australia. He responded that he could take steps not to cause trouble, but “trouble will definitely find a way to come to me” wherever the applicant might go in China. He said once he returns, they will find out because the PSB will identify him when he re-enters the country. He said there are corrupt officials who will learn from others where he is and the developer will seize that opportunity to “solve their problems”. He was asked why he thought police might be interested in him when he had caused no further trouble, and he answered by referring to the developer whom he believes would still be interested. He said agricultural land is given to people who are the only ones with rights to use the land and that is why the developer could not use his land even though they had demolished the house on it. He does not believe police would protect him from the developer as was evidenced when they did not come on the day when the home was demolished. Rather, he believes the police will pursue him and his subjective fear is that he will be arrested and punished.
He was asked about the claim in the application that his father had been arrested, which he said was not true. He was also asked about the claim that a fine had been paid to have his father released, which he said he could not remember. He agreed he had given those instructions for the claim when it was prepared. But he could not remember the details as it was a long time ago.
The Tribunal put to the applicant relevant country information about land ownership and development in China and that village land was collectively owned and government controlled, not privately. And further that the government was cracking down on corrupt developers and their practices. The applicant did not agree saying that was not “real life”. Whatever he does and wherever he goes, he will be in trouble because of the developer and corrupt officials and police will not protect him. This is so, he believes, notwithstanding that nothing has happened to his family since the demolition event in late 2016. He said that his father is regularly asked when the applicant is intending to return, but his father does not say anything. He agreed he was freely able to leave China in January 2017 as was his wife and without any interference when they had separately departed within a week of each other.
At the end of the hearing, the Tribunal put to the applicant a summary of his claims. He made some corrections, saying it was 1 or 2 weeks after the official had first come to their home before the demolition team arrived to start demolishing. He also thought on reflection the timeline more correctly for the event which happened and then his complaint and reporting occurred between October and December. He was unable to recall who had made the in-person threats to him as he did not know those people. He could not offer any more details about those assertedly threatening him in person, after the event, or when or where that occurred. It was the constant threats however that caused him to believe that he should escape. He made no reference to having reported a public official or that police had been sent to “catch him” as was claimed in the application, or that police were still pursuing him. Rather, he claims that police will be interested only if he returns and causes trouble over the compensation claim, and will not protect him. He maintained that the documents, photographs and recordings of the threats made against him, which he had delivered with his complaint, were no longer available and he had not kept them.
The applicant did not request any time to provide further information for the Tribunal’s consideration.
Consideration
The applicant’s claims for protection explained in his oral evidence, concern his fear he will be seriously harmed on his return to China because he has refused to accept an inadequate compensation offer for his land.
The fear of harm is of possible action as threatened by unknown persons acting assertedly on behalf of the developer, and possibly corrupt officials, including police, and because of his own determination to pursue reasonable compensation on his return, which may in turn cause trouble and lead to his arrest for “picking a quarrel”.
In considering the applicant’s evidence, touching upon the generalised claims, the Tribunal has had regard to information about China provided from publicly available sources and from the Department, as set out below.
Country information
The most recent DFAT country information report, referenced as ‘Report People’s Republic of China 22 December 2021’, takes into account a “general, rather than exhaustive country overview” and is “based on DFAT’S on-the-ground knowledge and discussions with a range of sources in the People’s Republic of China and Australia.”[6]
[6] Purpose and Scope at ch 1; [paragraph numbers refer to the extracted paragraphs from the report.]
The Tribunal has extracted relevantly the following assessments from that report.
[Land disputes]
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.
[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.
[Police/PSB]
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.
5.4 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.
[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.
5.33 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.
[On Internal relocating]
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).

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’.
Findings
The Tribunal has listened carefully to the applicant’s answers and his arguments. These have been compared with the applicant’s initial claims which he acknowledged had been prepared on his instructions and which at the hearing, were substantially revised.
In his application the applicant has focussed on what he fears that police will do on his return. He claimed police were looking for him and had persecuted him because he had made a complaint about compensation to a local official. He fears police were still looking for him when he was able to leave the country in January 2017, and until recently, and were still inquiring as late as 2020 as to his whereabouts.
At the hearing however, his focus was on what the developer and hired enforcers threatened do to him, rather than police, if he petitioned for compensation. He was concerned that police will not protect him and may be influenced by the developer and corrupt local officials if he continues to complain.
The Tribunal finds it is satisfied from relevant country information that police are under pressure to preserve peace and good order and do not randomly pursue citizens who may have complained to a local official over compensation, unless there is a risk those persons are “picking quarrels” and thus disturbing good order, or there is some corruption involved, or a breach of the law.
In this instance, the applicant’s evidence is speculative as to the reasons behind his feared persecution from police. There is nothing provided which corroborates his concern that he is of any interest to police. He speaks to family frequently and left the country without hindrance. His wife as the secondary applicant has no fears or concerns for her safety and makes no independent claims for protection. His family still living in China have not been arrested or harmed. The applicant himself was arrested but released shortly after with a warning from police following an on-site altercation with a developer. He was not approached by police before he left China in January 2017, when he attempted to leave the country, and has since received no further information since arriving in Australia. He has had only anecdotal reports from his parents that there had been police inquiries about his whereabouts up until 2020. The applicant was never charged with any offence in China and there is no claim for an outstanding warrant for his arrest.
Having listened to the evidence, the Tribunal is not persuaded that there is any interest in the applicant at all from Chinese authorities or police on account of his asserted compensation claim. The law in China, amended with a new Civil Code in 2021, since the applicant left the country, permits petitioning over land claims in a formal environment. The applicant’s claims in the written application form about police are exaggerated and according to the applicant now, untrue. The Tribunal does not accept the applicant is facing a risk of arrest and detention by police who are threatening to “catch” him, as asserted in the application, and those claims are rejected in their entirety.
The applicant has claimed that the issue of his compensation cannot be resolved. He claims he received no response from official complaint bureaus both in Fuqing city and in the Province about the inadequacy of what was offered. The only response he adverted to was from police, after he had been arrested and who told him not to make trouble. Chinese law provides for a remedy for dissatisfied petitioners about inadequate compensation. Millions of Chinese every year are involved in such disputes, the majority of which are resolved. There is no evidence from the applicant that any attempt has been made by him to resolve his dispute formally and using available Chinese law in the process.
As to the applicant’s credibility, the Tribunal found much of his evidence was vague, speculative, and lacking in details and based upon accounts from others. He was not present when his father and uncle confronted the developer. He could not identify anyone from the village authorities who may have been present at the time from the local compensation office or who may have been threatening him personally. He did not know any of the other persons involved. He did not identify the neighbour who warned them in the first place about what was going to happen, and was unclear in his recollection of when the events unfolded. He explained his uncertainty on the basis it occurred a long time ago, and he could not remember.
The Tribunal does not accept that explanation and gives no weight to the explanations offered as to why the applicant is fearful. The secondary applicant expresses no such fears and the applicant’s claim is unsupported.
The applicant speaks to his family including his parents nearly every day, and could have sought their assistance to recollect the claimed events where they were present, and to provide particulars as to what happened and what has happened since. There is nothing current in the information provided at the hearing by way of update as to any action by the developer. The applicant relies upon speculation as the reason for his current fear of returning home and being harmed either at the behest of the developer or the police.
The Tribunal further does not believe the applicant would put the safety of his family members including the secondary applicant and his children, and his parents at risk by causing trouble over a land claim. The applicant’s evidence is that he has done nothing for nearly 8 years to pursue compensation. Upon his return he could safely wait for a further period, as he has already done, until a further law change, or a better time arrives for him to pursue the matter. Police are not interested in him, unless he were to cause trouble. The Tribunal finds his fear from police is entirely subjective, unrealistic, and exaggerated.
He believes the developer cannot use the land without his consent as he has proof of ownership which he believes will assist him. In light of relevant country information, the Tribunal places very little weight on this claim as there is no right to private land ownership in China and the developer has already demolished their home and commenced other developments and shown no prior regard for the applicant’s rights as he asserts them. The developer can proceed with support from local officials and without the applicant’s ‘consent’ and this claim is rejected.
The applicant for his part has a right to compensation which he can pursue according to Chinese law and as is the right of all Chinese citizens. The applicant speculates as to what he might do. His actions however, in coming to Australia where he has remained for many years since 2017, do not demonstrate a conviction to pursue compensation. The Tribunal rejects the claim that on his return the applicant would risk “causing trouble” other than by taking legitimate steps to petition in accordance with Chinese law, and in which circumstance according to relevant country information, he is able to be protected by police against corrupt officials.
The Tribunal places no weight upon the applicant’s claim that because it is his family duty, he would pursue compensation in China regardless if there is a risk to himself and his family. The applicant’s continuing inaction over many years and his on-going subjective fear of arrest and punishment if trouble erupts creates a more probable scenario of continuing inaction by him, rather than the one of more determined action which the applicant foreshadows.
The Tribunal concludes on the available evidence and information that the probability of persecution and serious harm arising in the foreseeable future is very low.
The Tribunal finds that the applicant’s claims as to what might happen to him are unsupported by any objective material, by the relevant country information available or from the applicant’s very vague and generalised recall in his evidence. The Tribunal is reminded that it cannot make the applicant’s claim for him, and needs to reach a requisite level of satisfaction as to the criterion set out in s 36(2).[7] The Tribunal finds on the available information for the reasons expressed above that it is not so satisfied.
[7] See reference in par 35 above to BZADA v MIC and RRT [2013] FCA 1062
The Tribunal makes the following findings, in summary:
a.Claims in the written application form at q 89 are untrue. As regards those written claims, following the applicant’s evidence at the hearing, the Tribunal finds:-
i.The applicant did not make a petition
ii.The applicant was not persecuted by police
iii.His father was not seriously hurt
iv.The applicant did not write a letter to Fuqing city government
v.The police were not looking to ‘catch us’ and his father was never ‘caught by police’ and arrested
vi.His mother did not pay a fine to have his father released
vii.His father was not persecuted by police
viii.The ‘official’ was not reported
ix.Police are not looking to “catch’ him
x.He could safely return to China
Having made those claims which he concedes were made on his instructions, but which he now seeks to correct, reflects poorly on the applicant’s credit as a witness and the Tribunal finds that his evidence accordingly is unreliable, unsubstantiated and generally untrue.
Section 423A of the Act provides that the Tribunal is to draw an unfavourable inference to the credibility of a claim or evidence if the Tribunal is satisfied the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made. The Tribunal has not accepted the applicant’s explanation that ‘it was a long time ago’ and he cannot remember. There was only the one event to remember in late 2016 concerning the developer demolishing their home and not paying reasonable compensation, his father’s assault and injury, and the applicant’s arrest at that time. To make claim that his father was arrested when it was in fact him, and that police were after him to arrest him when he now concedes that was not the case, the Tribunal finds are more than just inaccuracies from memory loss and the new version of the claims put forward at the hearing leads to an adverse inference, unfavourable to the applicant’s credibility.
b.Secondly, the applicant was unable to give details other than vague recollections about the claimed history. The answers about fear from police catching him and from the developer were speculative, not realistic in the circumstances described, and inconsistent with the claims at first instance, and for which reason the Tribunal does not accept the applicant was an entirely truthful witness, as opposed to a simply forgetful one.
c.Thirdly, relevant country information shows that many millions of Chinese since 2021 successfully use local law to resolve compensation claims, something which the applicant has not attempted. The Tribunal rejects his claims that the applicant has pursued local and provincial government officials with his complaint. He has no evidence or accurate particulars to support such a claim. Furthermore, the information is and the Tribunal accepts, that the Chinese government has stepped up action against corrupt officials. The applicant is able to seek protection accordingly from localised corruption.
d.Fourthly, the applicant has never been harmed or himself threatened, other than been given a warning by police not to cause trouble in the future, after his arrest. He has followed that warning and there is no reliable evidence he would not continue to do so. His fear of further police pursuit and serious harm arising from State perpetrators in the foreseeable future, and thus persecution for a refugee reason, is not well-founded, and is not supported by any available objective material. Similarly, the applicant’s fear that the developer may cause trouble is not supported, is entirely speculative, and reflects the applicant’s subjective view. The developer has never harmed the applicant and there are no current threats reported from that entity. The developer has already seized the land and it is improbable that in the foreseeable future the applicant would be harmed where police protection is available and the applicant can pursue any civil claim against the developer or the local authority, as the case may be, and in accordance with Chinese civil law.
e.Fifthly, the applicant is able to freely return to China and live anywhere in the country he may choose in order to stay safe, if he believes he should do so. He has not asserted otherwise or that he would be unsafe anywhere else in China and there is no evidence that the PSB or police have any continuing interest in the applicant, such that his movements would be monitored for that purpose.
For these reasons the Tribunal rejects the applicant’s claims and it is not satisfied that there are substantial grounds for believing that there is a real chance that the applicant will suffer serious harm for reasons relating to the demolition of his family home or non-payment of compensation.
The Tribunal is not satisfied, having considered the applicant’s claims individually and cumulatively, that there are substantial reasons for believing there is a real risk the applicant will suffer significant harm if removed from Australia to China. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusion
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.
There is no suggestion that the applicants, or either of them, 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, neither applicant satisfies the criterion in s.36(2).
It follows that the applicants are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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 4322

20 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing