1727659 (Refugee)

1727659 (Refugee) [2024] AATA 602 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1727659

COUNTRY OF REFERENCE: China
MEMBER:Gabrielle Cullen
DATE:8 January 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 January 2024 at 11:32am

CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – protests – home demolition without adequate compensation – corruption – detention – physical assault – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of China, claims to fear harm on return at the hands of [Mr A] and his associates as [Mr A] lost money when he invested in a [business 1] owned by the applicant and as the applicant protested to higher authorities that [Mr A] arranged that the applicant received low compensation for the demolition of his home.
The applicant arrived in Australia on a transit visa [in] June 2017 and applied for a protection visa, to which this decision relates, on 23 June 2017.
On 18 October 2017 the applicant was interviewed by the Department. The Tribunal has listened to a recording of that interview and, where relevant, the evidence from that interview appears in this decision.
The delegate refused to grant the visa on 26 October 2017 on the basis that the applicant is not credible as to his claims, other than his home being demolished along with others in his village.
The applicant applied for review of the Department decision on 9 November 2017 and attached the decision of the Department.
The applicant appeared before the Tribunal on 23 October 2023 to give evidence and present arguments and, where relevant, the evidence from that hearing appears in this decision. The applicant was assisted by an interpreter in the Mandarin and English languages.
The issues to be considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act?
·Does he meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in Attachment A.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s protection visa application dated 23 June 2017, identity documents and a statement attached to his application outlining his claims for protection.
·Oral evidence of the applicant provided at the Department interview held on 18 October 2017 and the Tribunal hearing held on 23 October 2023.
·Department of Foreign Affairs and Trade (DFAT) Country Report China, 22 December 2021.
·Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
The applicant provided the following statement in his protection visa application dated 23 June 2017 as follows:
My name is [applicant’s name]. I was born [on date] in [County 1], Fujian Province, China. Before going abroad, I has always been an honest people, but because of corrupted local officials, I cannot survive in China. In desperation, I arrived in Australia [in June] 2017. Hoping to live a safe life in Australia.
November [date], 2011, the Chinese central government formally approved [a development plan for our region]. Since then, there has been a large-scale construction of [County 1]. The local old house were all in the plan to be demolished to give way for the purpose of carrying out the construction of [a named road]. Our house of the [Town 1] of [Village 1], was also belonged to the demolition range. According to regulations, each household has the amount of demolition compensation. My home's area was [size] square meters, according to the current policy, the compensation is at least 20,000 per square meters. Therefore, a total of [amount] should be compensated. However, in the end, the government is only willing to give 6000 per square to compensate for my losses.
As a result of the two years of rapid development of the infrastructure in [County 1] coupled with the government's strong investment, the housing price is soaring. Now the basic city of housing prices reached 17 or 18 thousand per square meter. The 6000 per square meter of the compensation cannot help my family to resettle.
We tried to talk to the relevant departments, hoping to resolve the issue. I did not ever thought that all the issue was because I offended some powerful people, so my compensation was intentionally underpaid. Because of this matter, my family and I repeatedly went to the demolition compensation department, however, the issue has not been properly resolved. Later, an internal staff working in the district government, through a friend, told me in secret that the reason was that I offended a person named [Mr A]. I remember this person. Previously, [Mr A] had some business with me. That year, we invested in [business 1s], but later because of national policy changes, our investment was poorly returned. [Mr A] thought it was because I was behind all the failures of the business. That was why he hated me. I was told that he has some family connections working in the demolition department. My house demolition compensation was so low, because he was behind it. I don't understand that doing business and making investment sometimes can be profitable and sometimes can lose money. Why I was to be blamed for this.
I was very angry, so I described how [Mr A] controlled my compensation and wrote everything into a petition letter and I sent it to [Authority 1]. I hope that they can properly solve this matter, give me justice. I never imagined that I greatly underestimated the background of [Mr A], as well as the Chinese government's corruption. All my petition letters falls into the hands of [Mr A]. [Mr A] then instructed the [police agency 1] director [Officer A] to catch me and put me into the [police agency 1] station. I was severely beaten there. I was threatened not to continue to petition.
Because of these tragedies, my family cannot be settled. I have no source of life. I have been caught at the police station for many times. They tortured me. My friend was sympathetic about me and helped me to get a visa to go abroad, so I can now live safely in Australia.
I hope the Australian government can give me security and the right to survive.
At the Department interview held on 18 October 2017 the applicant reiterated his claim that he fears return as he protested the underpayment in compensation for the demolition of his home. He noted that he was also involved with [Mr A] in investing in a [business 1], and they both lost money in the venture. He said [Mr A] thought he took his money. He said while [Mr A] is not a government official he has wide connections with government officials, including through his family members who were involved in the demolition and compensation of his home and about [number] houses to build roads in 2013. He said [Mr A] ensured the applicant only received RMB6,000 for the demolition of his home rather than RMB20,000 like the others because he thought the applicant had taken the money he had invested in the [business 1]. When asked why he will face difficulties on return he said because he took much action to different levels of government accusing [Mr A] of illegal behaviour regarding the low compensation. He said every day he went to those government officials to petition for help, including at the District level, to the disciplinary party committee and the party committee, and he said he went to those who can take disciplinary action against corrupt party officials. He said as a result because of [Mr A’s] connections through government officials they created much trouble for him and asked the local police to detain him. He referred to being detained and tortured and that he was also beaten by the chief of the [police agency 1], [Officer A], on behalf of [Mr A]. He also referred to his family being harassed after his departure.
As to his employment he said that the last job he had before leaving China was in Yunnan Province where he worked in [industry 1] for about 1 to 2 years, and before that in Shanxi working in a [business 1] which he said he had also invested in, for about 2 to 3 years, and before that in Sichuan Province working for a [business 2] for about 2 years.
At the Tribunal hearing held on 23 October 2023 the applicant indicated his mother, his wife and [children] continue to live in [County 1], Fujian Province, in a rental home, and they have lived at the current place for about 1 or 2 years. He was unsure of the address or where they lived in [County 1], despite talking to them regularly. The Tribunal questioned his evidence as it was vague and lacking in detail.
At the time of his departure he said his family was living at a rented home, at [an address in] [Village 2], [Town 2], [County 1] in Fujian Province . He said and confirmed his family had lived there for 6 to 7 years at the time of his departure. He said while he travelled from there to the airport to come directly to Australia, he worked outside Fujian and would come and go. He said he was there for one day before he departed and used to return about 10 days a year at one time. He said he did not return home often as a former business associate would seek revenge when he came home.
As to his travel, he said he travelled from the home in [Village 2] to the airport to travel to Australia. He said he did not travel via [Country 1] but direct from China to Australia. The Tribunal raised with him via s 424AA that it was of concern that his transit visa to come to Australia was issued in [Country 1]. He said he did not go there and a friend helped him obtain the visa.
He said immediately before he left China he worked for 4 years at [a business 2] in Sichuan Province. He said before that he worked for 1 to 2 years in or around 2012 and 2013 in a [business 1] in Shanxi Province and before that in Yunnan.
As to why he fears return he said as he offended a public official called [Mr A] and he will ask someone to find him if he returns as he is a powerful government official in [County 1]. He said when he was working in Shanxi Province he had a [business 1] with others and [Mr A] invested RMB200,000 in that [business 1] but they went bankrupt in around 2015 and [Mr A] was owed money and he thought the applicant had defrauded him. He said he could not pay and that is how he has offended [Mr A].
When asked as to his role when he worked at and owned the [business 1] with others he said he worked there, and the Tribunal asked for more detail; he confirmed he received a salary, and when asked what he did and his role he said that it was different than in Australia and then said he was the boss. He said they went bankrupt and after they went bankrupt [Mr A] accused him of defrauding him and that he had done it on purpose. He said [Mr A] then organised a [police agency 1] official to beat him called [Officer A] and that happened in 2015. When asked if he was badly injured he said he has a scar on his foot as he was kicked again and again. He said many people beat him up at that time, and when asked if they or [Officer A] said anything he replied that he said, “You did this on purpose.” He said that after that whenever he returned home he would be beaten by the police or army and they would find him and hit him. When asked how many times he was beaten he said every time they saw him. He confirmed he departed China as he was repeatedly beaten by [Mr A’s] associates.
When asked if he has anything further to say, he referred to the demolition of his home in 2014 but then said his home was demolished after the [business 1] went bankrupt. He said and confirmed that when the government decided to demolish houses in his area he only received RMB6,000 per square metre despite the housing market booming whereas others received RMB10,000 plus per square metre. He said [Mr A] ensured he only received RMB6,000 per square metre as he thought he had made him lose money with the [business 1] on purpose.
He said he left as a friend saw him being beaten and took pity on him and helped him depart.
The Tribunal asked whether he had anything else to add, and he said no. It asked him whether he had raised all his claims for protection and told the Tribunal all the reasons and details as to why he fears return and he said yes. It asked him whether he had anything else to add and whether he wanted to give more evidence as to the difficulties he faced in China and why, and he responded in the negative.
The Tribunal raised concerns as to the credibility of his claims and referred to inconsistencies in his evidence, which, where relevant, are outlined below. It raised with him, via the process outlined in s 424AA, information that he indicated on his incoming passenger card that he was [an occupation 1] when he arrived and as to his visa being granted in [Country 1]. He said he has never been to [Country 1].
Assessment of claims
Is the applicant credible as to his claims?
On the basis of the applicant’s identity documents, including his passport and evidence provided at hearing, the Tribunal accepts that the applicant is a national of China. Therefore, for the purposes of s 36(2)(a) of the Act, the Tribunal accepts that China is the country of nationality, and for the purposes of s 36(2)(aa) of the Act, the Tribunal accepts that China is the receiving country.
Due to his consistent evidence, the Tribunal accepts the applicant’s home was demolished as part of the [County 1] development.
However, as to the applicant fearing return for the reasons he claims, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness as to the claimed difficulties he faced in China and why he fears return. It finds the applicant’s testimony inconsistent and a fabrication for the reasons set out below. This leads the Tribunal to find that the applicant is not a witness of truth as to his claims for protection and the difficulties he faced in China. It follows it does not accept the following:
·He invested in and worked in a [business 1] which [Mr A] also invested in, which went bankrupt.
·He received a low compensation payment for the demolition of his home due to [Mr A’s] involvement as [Mr A] thought the applicant was behind the failure of the [business 1].
·The applicant complained to and petitioned to higher authorities about [Mr A’s] involvement in him receiving a low compensation fee and the corruption of government officials.
·He faced numerous difficulties and threats from [Mr A] and his associates, including being arrested, detained and beaten by government officials, including the police, army and [Officer A], either due to the failure of the [business 1] and/or as he complained to higher authorities about [Mr A] and the corruption of government officials.
·Due to the difficulties he faced at the hands of [Mr A] and his associates, including the police, [police agency 1] officials and army, he departed China.
·His family continued to be harassed following his departure.
·He will face harm on return from [Mr A] and his associates for the same reasons he faced difficulties in the past in China.
Reason for [Mr A] wanting to harm the applicant
Central to the applicant’s claims is his fear of [Mr A] and his associates as well as government officials on return as he claims [Mr A] and corrupt government officials organised for him to be beaten and tortured by the police, the army and the [police agency 1] director, [Officer A]. However, he has provided different reasons to the Department and to the Tribunal as to why [Mr A] and corrupt government officials organised for him to be harmed in China and why he fears harm on return.
In his statement to the Department, he indicated that after receiving a low compensation amount for the demolition of his home he repeatedly went to the demolition compensation department. He claimed he learned that his compensation was so low as [Mr A] was behind it because he had previously offended [Mr A] in a business deal they did together investing in a [business 1]. He claimed [Mr A] has some family connections working in government. The applicant claimed he was so angry he wrote a petition letter to the [Authority 1] describing how [Mr A] was the cause of his low compensation and requested they solve this matter and give him justice. He claimed all his petition letters he wrote fell into the hands of [Mr A] due to the corruption in China. He claimed as a result he was beaten by the [police agency 1] director [Officer A] and told to no longer petition. He claimed he has been caught at the police station many times and was tortured and as a result left China with the help of a friend.
At the Department interview, he also claimed that when his house was demolished he received very low compensation and this was because of the involvement of [Mr A]. He said other families received compensation of RMB20,000 but he only receive RMB6,000. He said he was not sure [Mr A] was in government but he had family members working there and he ensured the applicant received the low compensation. He said he and [Mr A] had previously invested in a [business 1] and [Mr A] had lost money believing it was the applicant’s fault. He said because of this [Mr A] was offended which resulted in [him] ensuring the applicant only received the low compensation amount for the demolition of his home. The applicant said he then took much action to different levels of government accusing [Mr A] of illegal behaviour and officials of being corrupt, including petitioning at the district level, disciplinary party committee and party committee responsible for disciplinary action. He said he went every day to those government offices to petition. He said as a result local police detained and tortured him, and [Officer A], the [police agency 1 official], detained and beat him. He said even after he left they have continued to harass his family members. He said his house was demolished in 2013 and from 2014 he began to petition.
At the Tribunal hearing, however, when asked why he fears return and why he faced difficulties in China, he did not state, in contrast to his claims to the Department, that it was because he had repeatedly petitioned the government about [Mr A’s] illegal behaviour and the corruption of government officials ensuring the applicant was paid low compensation for the demolition of his home.
Specifically, at the hearing, the applicant stated that [Mr A] invested in a [business 1] with him which went bankrupt and after they went bankrupt [Mr A] accused him of defrauding him. He then claimed that as a result of this event [Mr A] then organised a [police agency 1] official to beat him called [Officer A] and that happened in 2015. He said many people beat him up at that time. He said due to this that whenever he returned home he would be beaten by the police or the army and they would find him and hit him. When asked how many times he was beaten he said every time they saw him. He confirmed he departed China as he was repeatedly beaten by [Mr A’s] associates. When initially asked whether there were any other reasons why [Mr A] wanted to harm him he said just that, but then when next asked if he had any other claims for protection to add, he referred to the demolition of his home. He then said and confirmed that when the government decided to demolish houses in his area he only received RMB6,000 per square metre despite the housing market booming whereas others received RMB10,000 plus per square metre. He said [Mr A] ensured he only received RMB6,000 per square metre as he thought he had made him lose money with the [business 1] on purpose. He said as a result of the beatings he departed. The Tribunal asked whether he had anything else to add, and he said no. It asked him whether he had raised all his claims for protection and told the Tribunal all the reasons and details as to why he fears return and he said yes. It asked him whether he had anything else to add and whether he wanted to give more evidence as to the difficulties he faced in China and why and he responded in the negative.

When the Tribunal raised with him its concern as to the inconsistent evidence as to why [Mr A] and the officials ultimately organised for him to be harmed, referring to the omission in his evidence regarding petitioning government at the hearing, he said it was all the truth. The Tribunal does not accept this response explains the inconsistency. It views his different reason as to why [Mr A] and the government officials wanted to harm him and will do so on return, specifically his involvement in petitioning authorities about [Mr A’s] behaviour before the Department and his omission of this evidence to the Tribunal at hearing, to be significant. This is particularly so as his action petitioning the authorities is central to the reason he claimed he was and would be harmed on return by [Mr A] and government officials to the Department in his statement and at interview.
This adds to the finding that the applicant did not face the difficulties he claims from [Mr A], government officials and his associates for the reasons he claims. It adds to the finding he is not a credible witness as to the difficulties he faced in China which led him to depart in fear and why he fears return. It adds to the finding he is not a credible witness.
[Mr A’s] position
The applicant has also provided inconsistent evidence about [Mr A’s] position with government. At the Tribunal hearing, he stated and confirmed that [Mr A] was a powerful government official in [County 1]; however, to the Department at interview, he indicated that he was not sure of [Mr A’s] role but said he was well connected and had family in government. When the inconsistency was raised with the applicant at hearing he disputed that he had said the latter to the Department. However, the Tribunal has listened to a recording of the Department interview, which is as follows:
Delegate:  Who is this person, [Mr A]?
Applicant via interpreter:          This [Mr A] I never thought he actually had deep connections with the government. He was a powerful person
Delegate:  Is he a government official?
Applicant via interpreter:          Well is he an official, I don’t know but at least some of his family members are and some are actually controlling or working at demolition office that have something to do with my house. Anyway, this [Mr A] has a wide network of connections throughout the government and you know all the petition letters I wrote to the government all ended up in [Mr A’s] hands
The Tribunal does not accept his explanation explains the inconsistency. The Tribunal is of the view if the applicant faced the difficulties he claims for the reasons he claims he would be consistent as to the position held by [Mr A]. It is of the view that if [Mr A] was a powerful government official in [County 1] as claimed at hearing, and he had faced the difficulties he claims and had petitioned the authorities about him as claimed, the applicant would be consistent as to [Mr A’s] position with government throughout the process.
This adds to the finding he is not a credible witness as to the difficulties he faced in China from [Mr A] and his associates for the reasons he claims which led him to depart in fear and why he fears return. It adds to the finding he is not a credible witness.
[Officer A] threats
While the applicant has been consistent in his claims that he was badly beaten by the head of the [police agency 1], [Officer A], under the instruction of [Mr A], he has provided inconsistent evidence as to the threats made by [Officer A].
At the Department in his statement he referred to [Officer A] threatening him not to petition anyone, however, when asked at the Tribunal hearing as to what was said to him, he said that [Officer A] said he did it on purpose, referring to the loss at the [business 1]. When asked if he said anything else, the applicant said that [Officer A] said to him that he made the business go bankrupt on purpose.
When the inconsistency was raised with the applicant at hearing he did not explain the inconsistency. This leads the Tribunal to find he was not threatened by [Officer A] in the manner claimed and adds to the finding he is not a credible witness as to his claims for protection.
Owning and working in a [business 1]
Central to the applicant’s claims is that he invested with [Mr A] in a [business 1] which went bankrupt and that [Mr A] blamed him. However, despite claiming he worked at the [business 1] he invested in with [Mr A] and others, his evidence was vague and lacking in detail as to his role.
Specifically, the applicant repeatedly said at hearing and at the Department interview that he had a [business 1] that he owned and worked in and that [Mr A] and others invested in it as partners with him and it was situated in Shanxi Province. However, his evidence was vague and lacking in detail at the hearing in the manner outlined below as to what he did at the [business 1]:
Tribunal: When you said you worked at a [business 1] in Shanxi you meant in 2012/2013 you were running a [business 1] that you owned. Is that right?
Applicant: Yes, with friends, with other people participating in the management and running of the [business 1].
Tribunal:         What was your official role there?
Applicant: Role, how do I say, like owner of the business and not owner of the business.
Tribunal:         Were you CEO or?
Applicant:       Just like also working there for the business
Tribunal:         Were you getting a salary?
Applicant:       Yes salary.
Tribunal:         What was your role, what was your job?
Applicant:       It was different than in Australia.
Tribunal:         You seem a bit lacking in detail and vague
Applicant:       Just like when people say like a boss
Tribunal:         You were a boss?
Applicant:       Like a boss, but also working and also having a salary
Interpreter”      That’s what he said like a boss, not like a boss
To the Department he said he worked every day [in] the business he worked in and owned.
The Tribunal is of the view if the applicant worked in a [business 1] from 2012/2013, although later saying it was around 2014/2015, which he owned with others for 1 to 2 years he would be able to provide more detailed evidence as to his role than he could at the Tribunal hearing, despite being asked for further detail. This undermines his claim he ever worked in the [business 1] which he invested in with [Mr A]. It adds to the finding he never worked at a [business 1] he claims he also invested in. It adds to the finding he is not a credible witness.
Returning to his home village
The Tribunal views the applicant’s behaviour of returning to his village for 10 days at one time each year when on holiday from his work in other parts of China up until around the time he departed as undermining of his claim of repeatedly being harmed by [Mr A’s] associates, particularly when he did not face harm when working elsewhere in China.
Specifically, the applicant has claimed that he was targeted by [Mr A’s] associates around 2014 or 2015 and was beaten and detained by [Officer A] and the police frequently whenever he went home until the time he left in June 2017 for Australia. Early in the hearing, the applicant said and confirmed that before he departed for Australia in June 2017, he had lived in the same home with his wife, children and mother for about 6 to 7 years in [Village 2], which he would come and go from because he was working elsewhere in China. He said he spent one day there before he departed in June 2017 and that place is not his home, as his home was earlier demolished by the government. He then said that place was his home for him when he was working elsewhere. When asked how often he would return to this home in [Village 2], he said once a year for 10 days. He then referred to them seeking revenge and harming him when he went home. He confirmed he would live there for 10 days.
When the Tribunal raised with him why he would return home for his holiday 10 days each year from 2014 or 2015 if he was being targeted in the manner claimed, particularly repeatedly being beaten and detained, he responded that he had kept saying that is not his home and he rarely goes back there and that the Tribunal kept asking him how often he returns.
The Tribunal does not accept this response as he had said earlier he returns each year for 10 days to his home in [Village 2] when he is not working. The Tribunal is of the view if the applicant faced the difficulties he claims from [Mr A] and his associates, being beaten and threatened, he would not return home for 10 days at one time each year, especially as there is no evidence he faced difficulties in other parts of China where he was working.
This adds to the finding the applicant did not face the difficulties he claims and adds to the finding he is not a credible witness.
Credibility summary
For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to the difficulties he faced in China and why he fears return. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns, the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making these findings, the Tribunal accepts that some information has been consistent over time, including that he received a low compensation fee compared with others when his home was demolished, he was targeted by a man named [Mr A] and beaten by [Officer A] who was with the [police agency 1] at the request of [Mr A] and government officials and that he had previously owned a [business 1] with [Mr A] which went bankrupt and [Mr A] blamed him. However, the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
In making this finding, the Tribunal has considered the scars he referred to as evidence of the beatings he sustained. The Tribunal is of the view there are numerous other reasons why a person could receive such marks and the evidence of such marks does not necessarily indicate that they were received in the circumstances he claims. The Tribunal therefore does not accept that the scars were received for the reasons the applicant claims.
As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept that the applicant ever worked in or owned a [business 1] in which [Mr A] invested, that it went bankrupt and [Mr A] blamed him or was offended or believed he defrauded him or that the applicant did it on purpose. It also follows it does not accept that when his home was demolished he received low compensation as [Mr A] was either a powerful government official or had connections in government or the development committee and ensured the applicant received a low compensation amount. It follows it does not accept that the applicant personally petitioned or wrote letters to any government department complaining about the illegal behaviour of [Mr A] and other government officials and their corruption which resulted in him receiving a low compensation amount for the demolition of his home.
Based on the Tribunal’s finding that the applicant lacks credibility as to his claims, it does not accept he ever faced any difficulties including being arrested, detained, beaten or threatened or harmed by or at the direction of [Mr A] or government officials, [Officer A], who was a [police agency 1] official, the police, army or anyone else. It follows it does not accept he fled China to escape the harm and in fear. It follows, based on these findings, that it does not accept that since his departure or at any time his family have been harassed or threatened.
The Tribunal rejects the applicant’s claims of fear of harm in their entirety and does not accept at the time he departed China in 2017 he and his family were of interest to [Mr A], government officials, the police, army, authorities, [Officer A] or anyone else for the reasons he claims. It follows it does not accept he came to Australia in June 2017 in fear for the reasons he claims, or that he fears return due to the circumstances and the difficulties he claims he and his family faced in China.
Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act or meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the credibility findings above that neither the applicant nor his family faced any of the difficulties he claims for the reasons he claims, it follows that the Tribunal does not accept that were the applicant to return to China now or in the reasonably foreseeable future, he or his family would face any of the difficulties he claims at the hands of or as directed by [Mr A] and his associates, government officials, the police, army or [police agency 1] of [Officer A] for any of the reasons he claims, including investment in a [business 1] with [Mr A], low compensation being paid to him, and the applicant complaining to numerous levels of government about [Mr A] and corrupt officials. It follows that were he to return to China, neither he nor his wife and family will be persecuted, harassed, beaten, tortured, arrested, detained, threatened, or face any of the difficulties he claims.
It follows the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm were he to return to China in the reasonably foreseeable future or that his family will face any difficulties at the hands of or as directed by [Mr A], government officials, [Officer A], the police, army or anyone else for any of the reasons he claims.
Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on his return to China or that his family will face any difficulties at the hands of or as directed by [Mr A], government officials, [Officer A], the police, army or anyone else for any of the reasons he claims.
While the Tribunal accepts that the applicant’s home was demolished for further development in [County 1], on the basis of what is accepted of the applicant’s evidence, it does not accept he faces a real chance of serious harm were he to return to China now or in the reasonably foreseeable future on this basis. Similarly, based on what it accepts of the applicant’s claims, it is not satisfied that there is a real risk that the applicant will suffer significant harm on his return to China as a result of his home being demolished.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) of the Act 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Member

ATTACHMENT A – Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in Attachment B.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in Attachment B.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
…
ATTACHMENT B – 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.
…

[2024] AATA 602

8 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies