1727531 (Refugee)

[2019] AATA 2481

1727531 (Refugee) [2019] AATA 2481 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727531

COUNTRY OF REFERENCE:                  China

MEMBER:Louise Nicholls

DATE:16 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 16 May 2019 at 11:22am

CATCHWORD
REFUGEE – protection visa – China – Federal Circuit Court remittal – fears serious harm from money lenders – loan sharks – inconsistent evidence – unreliable witness – credibility issues – no substantial risk of significant harm – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 19
Migration Act 1958 (Cth), ss 36, 48, 65, 91, 424, 438
Migration Regulations 1994 (Cth), Schedule 2
Migration Amendment Act 2014 (Cth)
Tribunals Amalgamation Act 2015 (Cth)

CASES
AMA15 v MIBP (2015) 244 FCR 131
MIAC v SZGUR (2011) 241 CLR 594
MIBP v SZVCH (2016) 244 FCR 366
Minister for Immigration and Border Protection v Singh [2016] FCA 1081
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
MZXRE v MIAC (2009) 176 FCR 552

SZEPZ v MIMA (2006) 159 FCR 291
SZGIZ v MIAC (2013) 212 FCR 235
SZRSN v MIBP [2014] FCA 527
SZVCH v MIBP [2017] HCASL 78

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

1. The applicant claims he is a citizen of the People’s Republic of China (China) and is [number] years of age. The applicant arrived in Australia [in] September 2009 as the holder of a visitor visa and as part of a Chinese tour group. He left the tour group on arrival in Australia and made his first application for a protection visa on 9 October 2009. His application was refused and later applications for merits and judicial review were unsuccessful.

2. He made a further protection visa application on 1 October 2013 on the basis that he was eligible to have his claims for protection assessed against the complementary protection criterion. 

3. On 29 May 2014 the delegate refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) on the basis that he did not meet the requirements for the visa. The applicant has sought review from the Tribunal.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Procedural history

5. The applicant first applied for protection on 9 October 2009. The applicant attended a Departmental interview and his visa application was refused on 4 December 2009. The Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 16 March 2010.

6. The applicant did not hold a visa from 23 April 2010 until he made a further application for a protection visa on 1 October 2013 and he was granted an associated bridging visa on 3 October 2013. He attended an interview with the delegate on 17 April 2014. His further application for a protection visa was refused on 29 May 2014.

7. The applicant applied to the RRT for review on 18 June 2014. On 11 August 2015 the applicant attended a hearing at the Administrative Appeals Tribunal (the Tribunal),[1] differently constituted. The Tribunal affirmed the delegate’s decision on 21 September 2015.

   [1] On 1 July 2015 the Refugee Review Tribunal along with a number of other Commonwealth tribunals were amalgamated with the Administrative Appeals Tribunal (AAT). Any applications on foot with the former RRT at the date of amalgamation automatically became applications in the Migration and Refugee Division of the AAT.

8. [In] October 2017 the Federal Circuit Court quashed the decision of the Tribunal and remitted the matter to the Tribunal to be reconsidered according to law. The matter was remitted on the basis that the first respondent conceded that the second respondent denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 and Minister for Immigration and Border Protection v Singh [2016] FCA 1081; (2016) 243 FCR 1, in circumstances where:

   a. a delegate of the first respondent purported to notify the second respondent that s.438(1)(b) of the Migration Act 1958 (Cth) applied to certain documents, and the existence of the notification was not disclosed to the applicant in the course of the review by the second respondent; and

   b.   the documents subject to the notification were relevant, or potentially relevant, to the issues arising on the review by the second respondent.

9. The matter is now before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

10. The application for review was returned to the current Tribunal and the Tribunal held a further hearing for the applicant to give evidence and present arguments on 8 May 2019. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. His agent was not present at the hearing.

11. The Tribunal explained the reasons for remittal and reconsideration and indicated that the evidence given to the previous Tribunals could be taken into account in the review. The Tribunal took further evidence from the applicant on his background, his claims and his current circumstances.

12. With respect to the non-disclosure certificate issued by the delegate the Tribunal notes that the Department has issued a later checklist indicating there are no non-disclosure certificates attached to the file. The Tribunal considers that the intent of the delegate was to remove the previous certificate; however, it is questionable whether this is an effective manner of achieving that result. In any event the Tribunal outlined the nature of the restricted document to the applicant and sought his submissions and comment. The restricted folios contained a letter from the Chinese tour group apologising for the action of the applicant in absconding from the tour group. The letter outlined checks they had made to satisfy themselves of the bona fides of the applicant to show they had acted in good faith.

13. The applicant made no submissions or comments but the Tribunal notes previous evidence of the applicant that he engaged an agent to assist him to leave China and was not aware of the information provided to obtain the visitor visa. In any event, as discussed with the applicant, this information is not relevant to his claims for complementary protection and the Tribunal does not consider the information would be the reason, or part of the reason, for affirming the decision under review.

    How does the Tribunal deal with a further protection visa application made before 28 May 2014?

14. The applicant initially made an application for protection in 2009 and that application was refused. He made a further protection visa application on 1 October 2013.

15. Together with his current application for review the applicant provided a copy of the delegate’s decision record of 29 May 2014. That decision record noted that he had first applied for a protection visa on 9 October 2009. It also noted his application was refused on 4 December 2009.

16. Taking this evidence into account as well as the applicant’s oral evidence in which he agrees that he previously applied for protection, the Tribunal finds that the applicant made a protection visa application in October 2009 and his first application was refused in December 2009. He made a further application for a protection visa on 1 October 2013 and that application is the subject of this review.

17. Where a further application for a protection visa was made before 28 May 2014, s.48A of the Act applies as it was before amendment by the Migration Amendment Act 2014. Before this amendment, s.48A(2) provided that an ‘application for a protection visa’ included ‘an application for a visa, a criterion of which is mentioned in ss.36(2)(a), (aa), (b) or (c)’, which respectively relate to being either a person in respect of whom Australia has protection obligations under the Refugees Convention, a person in respect of whom Australia has protection obligations under the complementary protection criterion, or a member of the same family unit of either such person.

18. In SZGIZ v MIAC, the Full Federal Court held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application.[2] That is, it did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) or the family membership criteria in ss.36(2)(b) or (c) while he or she remained in the migration zone.[3]

    [2] SZGIZ v MIAC (2013) 212 FCR 235 at [38].

    [3] SZGIZ v MIAC (2013) 212 FCR 235 at [43]-[47]. In SZRSN v MIBP [2014] FCA 527 (Rares J, 5 May 2014), the Federal Court appeared to accept that a further protection visa application was barred because it was not ‘materially different’ from the earlier application made on the same criteria. To the extent that this might suggest that a further application made in respect of the same criterion as an earlier application could be valid where there is a material difference in the claims, it is difficult to reconcile with the reasoning in SZGIZ.

19. However, where an applicant has already been assessed against the refugee criterion, the courts have found that neither the delegate nor the Tribunal have any jurisdiction to consider a further application which has been made on the basis of the complementary protection criterion as against the refugee criterion.[4]

    [4] MIBP v SZVCH (2016) 244 FCR 366 per Kenny, Siopis and Besanko JJ at [44] and per Mortimer J at [97] (Dowsett J agreeing); application for special leave to appeal dismissed: SZVCH v MIBP [2017] HCASL 78 (Bell and Gageler JJ, 5 April 2017). See also AMA15 v MIBP (2015) 244 FCR 131 at [48].

20. Applying the reasoning in SZGIZ v MIAC;MIBP v SZVCH (2016) 244 FCR 366 and AMA15 v MIBP (2015) 244 FCR 131, the Tribunal finds it does not have the power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act.

    What material has been provided by the applicant?

21. The applicant lodged an application for protection (Form 866C) which contained his claims for protection. He also provided a copy of the biodata page of his passport.

22. The applicant attended an interview with the delegate on 17 April 2014.

23. The applicant provided a copy of the delegate’s decision record together with his application for review. He attended a Tribunal hearing on 11 August 2015 and the Tribunal has considered a transcript of the evidence given at that hearing.

24. At the Tribunal hearing on 8 May 2019 he produced his current Chinese passport and a copy of his biodata page was taken.

    CONSIDERATION

25. The issue in this case is whether the applicant is entitled to complementary protection.

26. The relevant law is set out in Attachment A.

    What information can be considered on remittal?

27. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[5] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[6] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

    [5] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

    [6] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].

28. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[7]

    [7] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.

29. In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.

    Background

30. The applicant is [age] and arrived in Australia [in] September 2009 on a Subclass 676 Visitor Visa as part of [a group]. He claims to be a citizen of China (PRC) from Hebei Province who has mainly lived in [City 1], Gaocheng, Shijiazhuang, Hebei Province. He attended school for [a number of] years, from [year] to [year]. From 1990 to September 2009 he states he was a self-employed [Occupation 1]. He gave no details of any earlier employment.

31. In his documents and at earlier hearings the applicant claimed he was married in October 1982 and he has a wife and three children who remain in China. He claimed he and his wife were divorced.

32. In the hearing held on 8 May 2019 he stated that he and his wife were de facto partners and had never had their marriage registered. When asked about whether he had paid a social compensation fee for his children he stated he paid a large amount of money before they each started school. He claimed that his children were all married; his son was living in a village not far from the applicant’s home village with his wife and [their] children, his  daughter] is married, works [and] is living in the city of Shijiazhuang and his [other] daughter is married, works in [a company] and is living in Shandong Province.

33. His mother is living with her [sister] in a village not far from his home village. He is not sure where his former partner (or wife) is living.

34. The applicant has been living in Australia since 2008. He claimed that he has not been working since 2015 when he lost his permission to work. He claimed friends have given him money and he supports himself from those financial contributions. He lives in a share house in [Suburb 1], has a [Bank] account and credit card, a mobile telephone and is very cautious in how he spends his money.

    Country of reference

35. The applicant claims he was born in China and is a Chinese citizen. He produced his current Chinese passport at the most recent Tribunal hearing. He has consistently claimed that he is of Chinese nationality; he appears to speak Mandarin fluently and is familiar with the geography and culture of Hebei Province, China.

36. Taking into account the available evidence the Tribunal is satisfied that the applicant is a citizen of China and that China is a receiving country for the purpose of s.36(2)(aa) of the Act.

    What are the applicant’s claims?

37. Essentially the applicant claimed that he borrowed money from money lenders (loan sharks) in China and has been unable to repay the debt and fears he will face serious harm from those money lenders or associated persons if he returns to China. He claimed that his family have been threatened by persons associated with the money lenders.

38. He also claimed that he owned land and a storage facility in his home village. He claimed that his land was compulsorily acquired, his storage unit was demolished and that he did not obtain adequate compensation. He claims that he took certain actions to oppose the acquisition and development of his land and he feared that he would be mistreated by government authorities for reasons of his actions and continued activities if he returned to China.

    Claims and evidence

39. In the application for protection made on 30 September 2013 the applicant claimed he had a [business] and borrowed money from the usurers (the money lenders) for that business. He expected that his business profits would be enough to cover the repayments for the loan however property developers and government officials acquired his fertile farmland with government acquiescence. The applicant is not a skilled person; he has always worked on his farm and his family had been working on the farm for generations. Without the farmland he cannot make money and cannot pay back the debt. If he does not pay back the debt he will be harmed by the usurers and detained by police who have links to the usurers. He will be persecuted by government authorities if he continues to claim proper compensation for the land.

40. He claimed he had been beaten by usurers and their thugs and had been detained by the police for his protests against the authorities.

41. He fears if he returns to China and the debt has not been paid, it will become larger due to compound interest. He claims he will be harmed by the usurers if he cannot repay the debt. As his farmland was used for development he will have no land to live on and will not be able to access adequate compensation. As a result, he will continue to claim his right to the farmland and will be arrested by police. He also claimed that there is a connection between the usurers, government officials and police and he will be punished if he cannot pay back his debt.

42. He claims that the local authorities are corrupt and have colluded with the property developers and will not act to protect him if he returns to China.

43. The applicant attended an interview with the delegate on 17 April 2014. During that interview he stated that he lived for some time in Beijing and some time in Tianjin before he left China in 2009. He visited [Country 1] for one week in February 2009 for a holiday because he felt under pressure and was interested in work and business opportunities. He did not stay in [Country 1] because he did not think it was a nice place.

44. He stated that he owned his home in his village and his mother and son are currently living in that home. He stated he had a storage facility built on that land, but later in the interview he claimed that the government occupied the land and had built a development on it and the storage facility was destroyed.

45. He claimed he borrowed a sum of [specified] RMB (renminbi) for his [business] in 2007. He was making repayments each year after he sold his [products]. In 2008 developers and the government sought to appropriate his farmland and he was unable from this time on to make money from his [business] to repay the debt.

46. From May 2008 he began to experience difficulties with the money lenders who threatened him with harm if he did not repay his debt. They came to his house and pushed him and his wife around. He was beaten up and he injured [himself]. After this he and his wife went to Beijing and he started work in [a different industry]. He did not encounter any problems in Beijing. He stated that he did not return to his village after that. In February 2009 he went to [Country 1] for a holiday.

47. At that time he wanted to leave China. He stated that he does not know what has happened with his loan since 2008. He has not had any contact with the money lenders since then, and is not aware of any family member who has been approached. He said he is not in contact with his family any longer. His wife filed for a divorce after he left China. The applicant referred to having been held in custody for [a while] in May 2008 in relation to his outstanding debt. He said he had a notice of custody but did not bring it with him to Australia.

1. The applicant stated, in contradiction to his evidence to the Tribunal in his previous review application, that he no longer has the [business]. He said his [sibling] has never looked after it for him. His wife does not have the keys to the storage facility.

2. At the first Tribunal hearing held on 11 August 2015 the applicant stated that he was born in a village in Hebei province and this was the village in which his land and home were located. He claimed that he lived in Sichuan province temporarily for business purposes, claiming that for about 10 or 15 years he used to visit there for about 4 to 5 months each year. He also claimed that before he came to Australia he lived and worked in Beijing from February 2009. He claimed he stayed in Beijing until he left for Australia.

3. He claimed that he and his wife were divorced about two or three years after he arrived in Australia. He stated he was not sure where his former wife was living; it may have been one of his daughter’s homes. He stated he had three children; two daughters and one son and they were all married.

4. He stated his daughters were married and do not live in the home village but his son lives in the village with his mother in the family home. He stated he also has [a number of siblings]. [Some] are living in another village and his [other siblings] are living in the home village. He claimed his son was working for other people doing some [specific work]. He claimed that his son had previously been working in [a different job] but the factory went bankrupt and he stopped working there. His son went back to the home village in about the second year after the applicant arrived in Australia.

5. Before the applicant came to Australia he stated he was a [Occupation 1]; he had a [warehouse] and relied on his [business]. He stated he [purchased] [products] from other people and stored it in his warehouse. He explained that once he built his warehouse in 2006 he cut down [trees] that had been on his land.

6. From 2006 his sole business was buying [products] from other people and selling [the products]. His warehouse could store [a large number of products]. He claimed he did not have any additional land after he built the warehouse. He also had a house in the village [some distance] away from his warehouse.

7. The applicant claimed that his warehouse had been demolished in 2008 when government developers wanted to confiscate the land. He stated it was demolished by force in May 2008.

8. He stated that he had a new passport and had no issues or problems in getting a new passport issued in Australia. Before the applicant came to Australia he visited [Country 1] for one week because he was upset during that time and needed to relax. He returned to China because he did not think [Country 1] was a good country. He did not return to his village but stayed in Beijing and Sichuan and had some odd jobs there.

9. His first passport was issued in 2006 and he told the Tribunal that he applied for the passport because he intended to do business overseas but in the end he did not travel overseas on that passport other than for [Country 1] and Australia.

10. He claimed that he was involved in a court case regarding the demolition of the storage warehouse. He stated that at the end of 2007 or the beginning of 2008 the land was confiscated and negotiations with developers started. Everything was then demolished in May 2008.

11. He claimed that he paid for his trip to [Country 1] by doing odd jobs in Beijing and his daughter gave him [number] RMB. When he came to Australia in September 2009 he claimed it cost him [number] RMB. When the Tribunal questioned him about this he agreed that it cost at least [number] RMB and that he obtained [number] RMB from his friend.

12. He stated that when he was working in Beijing one of his friends introduced him to a migration agent whose surname is [named]. He told this person about his hardships and he was sympathetic and the applicant told him he did not want to go home because his life would be at risk if he continued to stay in China. He told the agent about building the  [storage warehouse] and borrowing a large sum of money and when the [storage warehouse] was demolished he was not able to pay off the loan. The ‘underground society’ wanted to find him and kill him and because the legal case was ongoing the developers still wanted to find him. The government wanted to get him as well. He explained he just wanted to escape overseas.

13. He told the Tribunal that he borrowed the sum of [amount] RMB in 2007 from a company which specialised in providing loans to [Occupation 1]. He did not remember the name of the company and explained that he did not have any paperwork confirming the loan. He stated that the usual arrangement for repayment was that he would sell his [products] in April or May and after he sold the [products] he would repay the money and normally it would take 10 or 12 months to repay.

14. He claimed he borrowed the money after he built the [storage warehouse] and used the loan to purchase [items]. He claimed that he used money that he had obtained from his [business] in Sichuan to build the [storage warehouse] but needed the extra money for the purchase of [products].

15. He repaid a part of the loan before the warehouse was demolished but was not able to repay all of it. He claimed that in about February or March 2008 he repaid about [amount] RMB but there was [more] to go and he needed to pay for electricity and other things so he still had [amount] RMB to repay. He claimed that when he left for Australia he owed [amount] RMB in total as a result of the accrual of compound interest. He claims that he became aware of the development proposal between December 2007 and January 2008 and that is when negotiations were started.

16. Several owners of businesses were told verbally about the development project and the developers and government officials were involved in the project. The developers and government were negotiating compensation but the compensation was very minimal and was not satisfactory. He claimed the compensation offered was [amount] RMB. He claimed that amount of compensation was not enough to cover the construction of his warehouse. He claimed he went to court in relation to the illegal occupation of his land and damage to his business in January or May. The Tribunal asked the applicant a series of questions about the sale of his [products] and the repayments but he claimed he could not remember the amounts.

17. He claimed he accepted the compensation offered by the government in May 2008.

18. He claimed that with respect to the legal proceedings they did not want him to continue with those and detained him in [a] Police Station [in] May 2008. He claimed his [relative] was detained along with him as his [relative’s] land was adjacent to the applicant’s. He stated that he stopped the court case and wanted to appeal to the provincial government but he was reported and intercepted by police in May 2008. He claimed he was detained for [hours] by police. They told him to stop appealing otherwise he would get into trouble. These incidents happened after the demolition of his storage warehouse. He claimed police told him to go home and promised that it would be sorted out but they did not do anything.

19. After this he escaped to Beijing because he was not able to repay the loan and the underground society was trying to find him. They were involved with police and wanted to find him and arrest him. He and his wife had been verbally abused and they had come to his house and beat him and he escaped and hurt [himself] at that time. He claimed they came to his house in May 2008.

20. He also claims something happened in March and he was quite upset but he could not remember what happened in March. He said he felt distressed [but] kept thinking he had three children and an elderly mother. He and his wife went to Beijing and his children stayed in Shi Jai Zhuang.

21. He claimed his children married after he came to Australia; one daughter married in 2012 and the other 2013. The Tribunal put it to him that he gave evidence at the previous Tribunal that mentioned one of his daughters getting married in 2008. He stated that was her first marriage and this was her second marriage.

22. Her first marriage took place in the home village in May 2008. He then clarified his evidence and stated that she married in February 2009 and he returned from Beijing to attend the wedding. The Tribunal put to him there were some inconsistencies with the dates relating to his daughter’s marriage and he stated that the information in his application form was included by one of his friends carelessly and he did not think it was important. The Tribunal put it to him she was referring to the evidence he gave to the RRT in 2010 and noted that his evidence kept changing.

23. He stated his second daughter was first married [in] January 2009 and he was present at the wedding, stayed for a while and then left. At that time he was living in Beijing and when he visited he stayed at his wife’s [sibling]’s place. He claimed that his wife returned when their daughter married and stayed in the village. He stated his daughter married in the village and the whole family was present and after the marriage the Spring Festival occurred and everyone came back to their place.

24. After the marriage the applicant returned to Beijing and on the ninth day of the Spring Festival he went to [Country 1]. His wife went to her [sibling]’s place which was 3 km from the village and she stayed there. He claimed she went to her [sibling]’s place because the underground society kept harassing her and she did not want to stay at home. After the applicant returned from [Country 1] she returned to Beijing and found him.

25. During this period he confirmed that his mother continued to live in the family home in the home village. He stated that at the time his son was working in Shi Jia Zhuang and his mother was living alone. He claimed she had problems with the money lenders but could not do anything. They threatened her but she was about [age] years old and could not remember when this occurred.

26. The Tribunal put it to the applicant that it had some concerns with his evidence. It found it difficult to accept that, if he was afraid to the extent that he fled to Beijing and left his elderly mother alone by herself in the village, he would then travel to [Country 1] in February 2009 and spend money to do so when he owed a large amount of money. It was also difficult to accept that his daughter would have her marriage in the home village and all the family would gather for this wedding if they were afraid of money lenders and the harm they may inflict.

27. He stated that at the time of the wedding he found some friends to deal with the money lenders just in case someone came and made trouble. As to his trip to [Country 1], he did not want to stay in China.

28. The Tribunal put it to him that in his earlier application and interview he made reference to an incident in January 2009 and a protest in November 2008. It pointed out there were a number of inconsistencies in his account and he stated he could not clearly remember them when he previously was asked about these incidents.

29. He claimed he was called and asked to join a protest to the provincial government in Shi Jia Zhuang when he was living in Beijing. He went to join the protest in January 2009 and claimed that they were intercepted and detained for [hours] but authorities did not do anything and just harshly warned them. After being held for [hours] he went home.

30. After that he did not engage in any more protest activity. He claimed he did not face any other repercussions from the government after that. The Tribunal put it to him in his previous application he talked about other problems with his business relating to the tax office and business issues. He claimed the tax office problem happened when he was not at home. The tax office asked for [an amount] RMB and he was not able to pay that amount. They came to his home and when his wife refused to open the door they became angry and used a hammer on the door of the [storage warehouse]. They loaded a van with food and then they sold that to get money to pay the tax. This took place in March 2008. At the time he was selling [products] in Sichuan and they took his wife to the police station. His wife explained that they had to wait until they sold the [products] but they were not willing to accept that so they used a hammer to break the lock of the warehouse.

31. He claimed that in May 2008 he was arrested and detained [because] he was not able to repay the loan and they brought him to court and he was arrested. He got help from one of his friends who knew someone from the court and paid [an amount of RMB] for him so he could be discharged. He does not have any paperwork in relation to this and he claimed he was arrested because the police colluded with the developers.

32. He stated that money lenders came to his house in May 2008 and he suffered an injury [when] he jumped from the roof of the house. The Tribunal put it to him that in the previous application he gave evidence that this incident occurred in May 2009 and now he was saying it was May 2008. He stated that in May 2009 there was another incident where police came and beat his dog, because a lot of people came and his dog barked at them and they used batons to beat his dog. He claimed his father was alive at that time and after that his father got sick and he was scared and collapsed and they left. He claimed his father passed away in 2009.

33. In May 2008 he claimed that money lenders threatened they would cut his neck and arms if he did not repay the loan. He stated that since he left his family had not had any contact from the money lenders just a little bit of contact. He claimed they would not know where his daughters lived and that they asked his son about his whereabouts but his son has told them it is nothing to do with him and they should go and find the applicant. His son has not given them any money.

34. He claimed that he is afraid if he returned to China his life would be erased and he would be arrested by the government or detained illegally by the underground society because the government and the money lenders were involved with each other and they would like to make further trouble for him and if he cannot repay the debt he will definitely die.

35. He claims he fears the government as well as the money lenders. The Tribunal asked him whether he had any desire or intention to pursue compensation and he stated he would definitely pursue compensation but it would be impossible because once he returns he will lose his freedom and the construction is complete and the land has been sold. He agreed it would be futile to pursue the compensation and no point for him to do that if he returned.

36. At the end of the hearing the Tribunal member raised the issue of a number of inconsistencies between earlier evidence given by the applicant and evidence he gave at the hearing. The Tribunal indicated that it would write to him and invite him to comment on or respond to that information.

    Invitation to comment on or respond to s.424A of the Act

37. On 12 August 2015 the Tribunal, differently constituted, wrote to the applicant and invited him to comment on or respond to information which would be the reason, or part of the reason, for affirming the decision under review. The Tribunal has extracted the substance of that invitation, which sets out the inconsistencies between evidence given by the applicant in relation to his first application for protection and current evidence:

    The particulars of the information are:

    a.In your previous application for protection made in 2009, amongst the information you gave to the Department and (differently constituted) Tribunal, you said:

    b.Your land was slated for development in March 2008. Villagers banded together to protest about this at the end of 2008, and went to see the local [senior official] but were stopped by local police officers who detained some of them, releasing them the following day.

    c.In your evidence to the Tribunal on 11 August 2015 you said you were first informed about the proposed development in December 2007 – January 2008 and the government began negotiating with you about compensation from then. You said you started legal proceedings against the illegal occupation of your land and business, and you were detained by police in [City 1] [to] discourage you from pursuing the case.

    d.Local government harassed you since that time, accusing you of evading tax and causing problems with other government offices such as the [specified] office. You said the allegation of tax evasion was made after you returned from [Country 1] in February 2009.

    e.In your evidence to the Tribunal on 11 August 2015 you did not initially mention this problem and only when reminded of your previous evidence by the Tribunal, you said officials from the Tax office came to your house about your unpaid tax bill, but you acknowledged it was not related to the development issue or loan issue.

    f.Developers used underworld people to threaten you, calling in on you at night.

    g.In your evidence to the Tribunal on 11 August 2015, you did not make any claim that developers used underworld people to threaten you. You only referred to underworld people in relation to the matter of your loan debt and you said they came to your house in May 2008 and threatened you because of the unpaid debt.

    h.Creditors hired thugs to threaten you because you were unable to keep up with the loan repayments and the thugs called on your home in May 2009, during which your wife was seriously injured.

    i.In your evidence to the Tribunal on 11 August 2015, you said the underground people came to your house threatening you in May 2008 and at that time, they pushed your wife and you injured [yourself] running away from them. You said the incident in May 2009 was another incident, in which the police came to your house and your dogs barked at them and the police beat your dogs.

    j.It cost you RMB [amount] to build the storage facility and that you were originally offered RMB [amount] in loans but that your total loss was RMB [a larger amount]. You told the Tribunal (differently constituted), the loan you originally took out to build your storage warehouse was RMB [amount] with a high rate of compound interest and that you took this loan in 2005 and that you had an outstanding loan of RMB [specified] at the time of the proposed development. You said the government offered you compensation of RMB [amount], in March 2008 but during the course of the year you realised you would only get RMB [lesser amount] from that because of kickbacks and other corrupt practices among officials but that wouldn’t be enough to cover your outstanding debt and this is what prompted you to protest about the land appropriation and inadequate compensation.

    k.In your evidence to the Tribunal on 11 August 2015, you said you took out a loan of RMB [amount] in 2007, after you had built the warehouse, to buy [products]. You said you repaid some [amount] of this loan to the money lenders in March 2008 but still owed RMB [amount] plus interest by the time of the demolition of the warehouse. You said that the government offered you RMB [amount range] in compensation which you eventually accepted in May 2008. You said by the time you left for Australia you owed around RMB [amount].

    l.Regarding your second daughter’s marriage in May 2008, you said the family was too scared to host it in their home.

    m.In your evidence to the Tribunal on 11 August 2015 you said your daughter’s marriage took place in January 2009 at home and all the family attended.

    n.Your [sibling] is looking after the [assets] on your land and uses the income from that to support your mother. The storage unit (warehouse) is not in use but your wife has the keys to it, and she is looking after the legal proceedings which were still ongoing, through a lawyer [at that time, being February 2010]

    o.In your evidence to the Tribunal on 11 August 2015 you said [you] built the warehouse in 2006. You said you stopped the legal proceedings after you were detained for [in] [City 1] as a way to discourage you from continuing. You said the warehouse was demolished in May 2008 by the developers.

    p.At the hearing in February 2010 you said your daughters and son were too afraid to return home.

    q.In your evidence to the Tribunal on 11 August 2015 you said your daughter’s wedding was held [in] January 2009 and all the family attended. You said your son returned to the village the year after you came to Australia, and lives in your family home.

    r.The above information is relevant because, as indicated above, some of your evidence to the Tribunal in this application is significantly different, inconsistent with, and contradictory to the evidence you gave in your previous protection application.

    s.The different, inconsistent, and contradictory evidence about when you were advised about the proposed development, the amount of compensation offered by the government and the actions you took in response would contribute to the reasons the Tribunal may not accept that you have given a truthful evidence about your land and warehouse being subject to a property development and your storage warehouse being demolished. The different accounts you have given about the amount of the loan you took from money lenders, the purpose of the loan and the amount outstanding would lead the Tribunal to have serious doubts that you are telling the truth about taking a loan in the first place. You have also given inconsistent evidence about harm suffered by you and your family at the hands of underground people associated with the money lenders and the police. If the Tribunal does not accept that have given truthful evidence about these matters it would not accept your claims regarding your fear of harm arising from your inability to repay the loan. The evidence you gave to the Tribunal about your daughter’s wedding in January 2009 [is] inconsistent with, and contradicts the evidence you previously gave that she married in 2008 and you were too afraid to host it at home. You also, in this application, contradicted evidence previously given about having [specified] on your land that your [sibling] looked after, and evidence about legal proceedings concerning the property development.

    t.If the Tribunal relies on the above information, these inconsistencies and contradictions in your evidence may lead it to find your evidence to be unreliable and it may conclude you are not credible witness. If the Tribunal made these findings, it would reject your claims in the present application. It would not accept your claim that you took a large business loan which you were unable to repay. It would not accept that you are being sought by underworld people for repayment of this loan. It would not accept that your business and land was appropriated by the government and developers without adequate compensation. It would not accept that you are at risk of significant harm because of your inability to repay money to loan sharks or because past actions to protest land appropriation. The Tribunal would therefore conclude that there are not substantial reasons for believing there is a real risk you will suffer significant harm if removed from Australia to China and it would affirm the decision under review.

1. The applicant did not respond to the invitation to comment or respond.

2. At the Tribunal hearing held on 8 May 2019 the applicant stated that he feared returning to China because he feared being harmed by the loan sharks (money lenders). He claimed his family had been threatened by the loan sharks and everyone was looking for him and his family members had all moved elsewhere.

3. He stated his mother was living with her [sibling] in a neighbouring village, his son was living with his wife and [children] in a neighbouring village and was doing [work] and his daughters were living in Shandong Province and in the city of Shi Jia Zhuang.

4. He claimed that two months ago the loan sharks were still threatening family members but he did not provide any details of the threats. The claim was vague, in the nature of a general statement and unspecified.

5. When asked about his former wife and their divorce, he stated that they actually had never had their marriage registered and they were de facto partners. He stated he was not really sure where she was living.

6. When asked what would happen to him if he returned to China he stated that he would be threatened by gangsters and would possibly die. He could not give the Tribunal any details about the persons he feared. He stated that they were people who were owed money. One person in the gang was a local person who was mean and threatened people.

7. The Tribunal asked him if he wished to comment on any of the evidence or findings made by the Tribunal, differently constituted in the previous decision record. He stated that his lawyer told him the decision was unfair but the applicant could not identify what was unfair about the decision.

8. When the Tribunal pointed to the inconsistent and different evidence he had given he stated that he had been in Australia for a long time, had not been living in a comfortable environment and was worrying about his situation. He may have missed or forgotten some details. The Tribunal pointed out that it was not omissions which were the problem, it was the different evidence he gave regarding significant issues.

   Is the applicant’s evidence credible?

9. The Tribunal’s task in determining whether the applicant is owed protection is to make findings of fact on relevant matters. The task of fact-finding often involves an assessment of an applicant’s credibility.

10. In this context, the courts have made it clear that the Tribunal must be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims, and that the Tribunal should adopt a reasonable approach in making its findings with regard to credibility and for the benefit of the doubt to asylum seekers who were generally credible but unable to substantiate all of the claims.

11. However the Tribunal is not required to accept uncritically any and all claims made by an applicant.

12. In making these findings the Tribunal has allowed for the possibility that discrepancy is arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked. It has also taken into account the effect of passage of time on the applicant’s ability to recount his experiences. The Tribunal is also sensitive to the various cultural differences that can impact an applicant’s response to questioning.

13. However the Tribunal does not accept that any of these factors explain the concerns which, cumulatively, have led it to find that the applicant is an unreliable witness.

14. As set out above there are significant inconsistencies and contradictions in the evidence. The Tribunal has considered these inconsistencies and has come to the conclusion that the applicant is not a reliable witness and has not given truthful evidence as to his claims for protection.

    Does the applicant have an outstanding debt to money lenders?

15. The applicant gave evidence that he borrowed a sum [from] money lenders in July/August 2007 and he borrowed this money after he built his storage warehouse and the money was used to pay for [products]. He claimed that when he came to Australia he still owed the sum of [amount] RMB despite making payments of about [an amount] RMB in 2008. He claimed this was a result of the imposition of compound interest.

100.   He told the RRT in oral evidence that he borrowed [amount] RMB in 2005 and that his outstanding debt in 2010 was [amount] RMB.

101.   The applicant was invited to explain the discrepancy in his evidence and did not provide any explanation either in response to the Tribunal’s written invitation to comment or at the Tribunal hearing on 8 May 2019.

102.   The Tribunal considers that the difference between the evidence given by the applicant is significant. At the Tribunal hearing in 2010 he claimed he borrowed [amount] RMB in 2005 and at the Tribunal hearing in 2015 he claimed he borrowed [amount] RMB in 2007.

103.   When the applicant was asked to explain the inconsistencies in his evidence he stated that he may have missed some details due to his circumstances in Australia. However, the problem with his evidence is not one of omission or forgetfulness; it is the provision of two quite significantly different accounts of the amount of the loan and when it was provided.

104.   This leads the Tribunal to conclude that the applicant was not giving truthful evidence in his evidence in 2010 or in 2015. Accordingly the Tribunal does not accept that the applicant borrowed an amount of either [amount range] RMB from money lenders in either 2005 or in 2007.

105.   Further his evidence that he travelled to [Country 1] on his own for a holiday in 2009 is not consistent with his evidence that he was indebted to money lenders and concerned about his debts in 2009.

106.   It follows from the finding that he did not borrow either [amount range] RMB that the Tribunal does not accept that money lenders or loan sharks are still pursuing him for repayment of any loan. It does not accept that he left China for this reason or that members of his family have been or are still being threatened by money lenders, loan sharks or associated persons.

107.   The Tribunal also notes the following contradictory and inconsistent evidence on other matters which supports the Tribunal’s finding that the applicant is an unreliable witness on material questions of fact.

108.   The applicant gave evidence in his 2009 application for protection that developers used underworld people to threaten him, calling in on him at night. However, in his evidence to the Tribunal on 11 August 2015, he did not make any claim that developers used underworld people to threaten him. He only referred to underworld people in relation to the matter of his loan debt and said they came to his house in May 2008 and threatened him because of the unpaid debt.

109.   The applicant initially claimed that thugs called on his home in May 2009, during which his wife was seriously injured. However, in evidence to the Tribunal on 11 August 2015, the applicant stated that underworld people came to his house threatening him in May 2008 and at that time, they pushed his wife and he injured [himself] running away from them. When the Tribunal, differently constituted, questioned him in August 2015 about his earlier evidence the applicant stated the incident in May 2009 was another incident, in which the police came to the house and his dog barked at them and the police beat his dog.

110.   In his 2009 application for protection he stated his [daughter] married in May 2008, and his family was too scared to host the wedding in their home. In his evidence to the Tribunal on 11 August 2015 he said his daughter’s wedding took place in January 2009 [and] all the family attended.

111.   The Tribunal also notes that the applicant told the delegate in his interview and stated at his 2015 hearing that he and his wife were divorced in China. However, at the 2019 hearing he told the Tribunal that they had not registered a marriage in China and they were actually de facto partners.

112.   The applicant gave evidence that his children are married and have their own careers and families. He gave evidence at the 2019 hearing that his mother and his son no longer live in the family home but live in neighbouring villages. He claims that family members have been threatened from time to time by money lenders or their associates but the Tribunal rejects this evidence. The evidence he gave was lacking in any plausible detail; he made claims which were unspecified and overly generalised.

113.   With respect to overall credibility, the Tribunal does not accept that due to his nervousness or his mental state he missed some details when giving evidence. As discussed with the applicant, the evidence he has given differs significantly in each account and this indicates that his evidence is not truthful.

Was the applicant’s land in his home village acquired by local authorities or developers?

114.   The applicant gave evidence in the 2015 Tribunal hearing that he was verbally advised of the proposed acquisition of his land in December 2007/January 2008. He claimed negotiations regarding compensation for compulsory acquisition took place after that verbal notice. He gave evidence that he was paid the sum of [amount range] RMB in compensation in May 2008.

115.   In his 2009 application for protection he stated his property was scheduled for development in March 2008 and that he was offered compensation of [amount] RMB in March 2008 but he realised he would only receive about [amount] RMB after fees and kickbacks were deducted.

116.   In his evidence to the RRT in 2010 he stated his [sibling] was looking after [his] land and used the income from that to support the applicant’s mother. The storage unit (warehouse) was not in use but the applicant’s wife had the keys to it, and she was looking after the legal proceedings which were still ongoing, through a lawyer [at that time, being February 2010].

117.   In evidence to the Tribunal on 11 August 2015 the applicant stated [he] built the warehouse in 2006. He said he stopped the legal proceedings after he was detained [in] [City 1]. He was stopped as a way of discouraging him from continuing. He said the warehouse was demolished in May 2008 by the developers.

118.   The applicant claimed in his 2009 application that local villagers banded together to protest at the end of 2008, they went to see the [senior official] but they were stopped by local authorities and some were detained overnight and then released. He claimed that in January 2009 he travelled to Shi Jia Zhuang on behalf of other villagers to protest and was taken to the local police station and warned to discontinue his protests. He also claimed he suffered other business problems; he was harassed by local government authorities who accused him of evading tax and causing other problems.

119.   In 2015 he gave evidence at the first Tribunal hearing that he started legal proceedings against the illegal occupation of his land and business, and was detained by police in [City 1] [to] discourage him from pursuing the case. He claimed that the only other action he took part in concerning the land acquisition issue was when he tried to take a petition to the provincial government in Shijiazhuang in January 2009 but was intercepted by police at the station.

120.   In his evidence to the Tribunal in 2015, the applicant said his issues with the tax office was about unpaid tax and was unrelated to the development or loan issue. He has not claimed that he was still being pursued for unpaid tax or that he feared harm for this reason.

121.   The Tribunal considers that the applicant has given different and inconsistent evidence about when his land was acquired, when his storage unit was demolished and how much compensation he was offered and paid. He has provided different evidence about what actions he took when he was advised of the compulsory acquisition of his land. He has also given different evidence on his circumstances and his family situation in China. All of these matters lead the Tribunal to the conclusion that he has not given truthful and accurate evidence regarding the claim that his land was acquired compulsorily, that his storage unit was demolished or that he engaged in protests against the government authorities.

122.   The Tribunal does accept that it is possible that the applicant’s land was acquired for development at some stage and that as a consequence he could not continue to operate the  [business], with which he was familiar, and which he and his family had operated for many years. However the evidence he gave regarding his protests was vague, generalised and contradictory.

123.   Taking into account the evidence before it, the Tribunal does not accept that as a result of the compulsory acquisition of his land, the applicant was inadequately compensated, or that he undertook protests against government authorities and it does not accept he was mistreated by government authorities or other persons for any protest or petitioning activities as claimed.

124.   At the 2015 Tribunal hearing the applicant told the Tribunal that if he returned to China it would be futile to continue any protest or court action because his land had been sold and developed many years beforehand.

125.   The Tribunal does not accept that if the applicant returns to China that he will continue to protest the compulsory acquisition of his land or that he will engage in any petitioning or legal proceedings in relation to his land and storage facility. Accordingly it does not accept that he will face any harm or mistreatment from government authorities for engaging in any protest or petitioning activity.

Does the applicant meet the complementary protection criterion?

126.   The Tribunal has considered whether, on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.

127.   The Tribunal has rejected the applicant’s claims that he will face serious harm or mistreatment from Chinese government authorities for reasons of any continued legal proceedings, petitioning or protest activity in relation to any acquisition of his land by property developers. It has also rejected his account of events and claims of mistreatment at the hands of authorities in the past. The Tribunal does not accept that he has been mistreated for any activities before he departed China in 2009 and does not accept he will face any significant harm in the relevant sense for such a reason if he is removed to China from Australia.

128.   At the hearing held in May 2019 the main focus of the applicant’s evidence was his claimed fear of harm at the hands of money lenders, loan sharks or their associates in relation to an unpaid debt. However, the Tribunal has also rejected this claim for reasons set out above. It does not accept that the applicant will suffer significant harm in the relevant sense for reasons of failure to repay a debt owed to money lenders.

129.   The Tribunal has accepted that there is a possibility that the applicant’s land was acquired by developers at some time in the past and before he departed China for Australia in 2009. As a result the applicant may not have been able to continue to operate his [business] in China. He gave evidence that part of the reason he travelled to [Country 1] for a week in 2009 was to investigate work opportunities but he decided to return to China. This suggests that he was considering other possibilities and opportunities at the time he decided to join a tour group to Australia in 2009 and to remain in Australia.

130.   Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

Conclusion

131.   The Tribunal has considered the complementary protection criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

132.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

DECISION

133.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Louise Nicholls
Senior Member

ATTACHMENT A

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

Refugee criterion

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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

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.

Complementary protection criterion

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 a protection 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 the applicant 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’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.