1730593 (Refugee)

1730593 (Refugee) [2022] AATA 3919 (30 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1730593

COUNTRY OF REFERENCE: China
MEMBER:Mark O'Loughlin
DATE:30 August 2022
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 August 2022 at 12:29pm

CATCHWORDS

REFUGEE – protection visa – China – political opinion – online protests against the government – environmental protests – political protests in Australia – fugitive from the police – fear of detention – fear of torture – harassment by criminal gangs – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 13 July 2017. The delegate refused to grant the visa on the basis that the applicant’s evidence about having been harassed by the authorities and driven into hiding was not credible.

3. The applicant appeared before the Tribunal on 8 November and 17 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant appointed a representative after the November hearing. The representative was present to assist the applicant on 17 March.

Criteria for a protection visa

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. 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).

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

9. 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.

Summary of Considerations and Conclusions

The applicant claims that he has a well-founded fear of persecution and faces a real risk of serious harm if he is returned to China.
The reasons for these fears are various but can be reduced to a few important propositions.

The Chinese Authorities Were Pursuing Him Before He Left China

The applicant claims that local or national authorities in China believe he has some evidence on a hard drive that was compiled by his father. He says that the police were pursuing him in China.
It is not clear to the Tribunal whether or not the applicant has ever had such evidence.
The applicant’s evidence about his dealings with the police has been variable. In his evidence he claims that the police “came to speak to him” several times and that they made threats to him.
In his evidence in the second hearing he said that they did not actually speak to him at all.
He claims that he moved from Jinan to Beijing in early 2015 due to a deteriorating situation but does not say how matters deteriorated or how he came to know that they had. His evidence is that the police did not approach him at all when he was living in Jinan. He also said that the police did not locate him in Beijing when he was living there from February to December 2015.
The applicant also said that he had been involved in online protests against the government since 2008, which may have drawn their attention to him.
Country information makes it clear that if the Chinese authorities were concerned about the applicant, he would not have been allowed to leave China.
The Tribunal is not satisfied that the applicant was being monitored or persecuted by Chinese authorities before he left China.

The Applicant’s Online Activity in Australia

The applicant also claims that he has been involved in political protests while he has been in Australia. Those protests include participation in online chat groups.
His evidence about this is inconsistent. On one hand he insists that the Chinese government have interfered with his online activities. On the other he says he has deliberately maintained a low profile out of fear for the safety of his father who still lives in China.
The Tribunal is not satisfied that the applicant’s online activity has attracted the attention of the Chinese authorities and gives rise to a real chance of persecution or a real risk of significant harm.

Sundry Other Claims

The applicant says that he has been in Australia for more than four and a half years and is out of touch with China so he could not return. He has not supported that assertion with oral or other evidence. He has been asked why he cannot return to China but has not raised this matter. The Tribunal is not satisfied that the applicant faces a real chance of persecution or a real risk of significant harm by reason of being out of touch with China.
He has claimed that he has medical problems but has not demonstrated what those problems are and has not explained why they prevent him from returning to China.
He has claimed that he has associations with Christianity which may cause him problems. He has not identified those problems but in any event the Tribunal is not satisfied that the applicant does have relevant links with Christianity.

CONSIDERATION OF Claims and evidence

The issue in this case is whether, based on what is accepted of the claims made or arising on the evidence, the applicant is a person to whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has relied on the protection visa application of 10 July 2017, and the delegate’s decision of 17 November 2017 (a copy of which the applicant provided to the Tribunal).
The Tribunal has also relied on the applicant’s various written submissions referred to below and the annexures as set out.

Protection Visa Application

The applicant’s Protection Visa application dated 10 July 2017 included a statement setting out his initial claims. Broadly speaking, the statement says:-

In 2014 [Business 1] started operating a [factory] close to his family home in Yucheng County (this was apparently [in] Yuncheng County in Shandong Province).
The applicant and his wife were working in Jinan at the time and their son was living with his parents near the [factory].
Testing in August 2014 suggested that the factory’s activities had caused lead poisoning in children living nearby. There was a local outcry and the applicant’s father organised a protest [in] August 2014.
The applicant’s father was arrested and sent to “[detention Centre 1]”, a detention centre. He was mistreated while being held there.
The education centre was run by [a named] Police Bureau.
That detainees were given drugged food and water which made them suffer headaches, swollen eyes, fatigue, breathing problems, chest pain, irritability, and anguish.
That people were forced to give up compensation by physical punishment.
That the police subjected detainees to sleep deprivation and beatings.
That the applicant’s father was beaten and forced to put his thumb print to a document.
That the police sometimes use the threat of incarceration to prompt payments by family members.
That officials suspected that the applicant had evidence of their crime and repeatedly visited his residences in Jinan and Yuncheng.
The statement does not say what the crime was nor does it say what the evidence was.
They hired a triad to harass and blackmail his family. The statement says that the applicant left China after his father was caught and that he and his family wait for his father’s release.
No one will accept the family’s complaint.
The [Business 1] continues to pollute.
The city leaders have assisted the company by refusing to release the protesters who were arrested.
Because of his hasty departure from China, the applicant’s only option was to go to [Country 1] as he did not need a visa to do so.
He could not get a long term visa in [Country 1] so he fled to Australia when his [Country 1] visa expired.
He had not broken any Chinese law and had paid his tax every year. Officials have been using various methods to get his personal information, often terrorising and harassing his family.
He also says there were people hired by officials to watch them. They pretended to be insurance traders to try to get personal information from the family.
He says that they spread rumours that he was a fuguitive and they used his [age] year old son to threaten his family in order to get him to return to China. He says that officials told his family that in China children are often lost and sold or have their organs sold. The Tribunal notes that there is no suggestion that any such action has been taken against the applicant’s child despite the fact that he has not returned. If these threats were made they do not appear to have been serious. In any event, the applicant’s return to China can only lessen any risk to his child.
He says that when his family visited his father, they found him weak and almost dead.

Departmental Interview

The applicant was interviewed by a representative of the Department on 15 November 2017.
He said that when he came to Australia he had been told by an unscrupulous agent that he had a business visa and believed that he would be staying in Australia. In fact the agent had only arranged a transit visa.
He said that he had been running a company of his own in [Country 1] selling [specified products].
He said that at the time of the interview his father was still in custody in China.
The applicant said that his father had been arrested [in] August 2014 because of protests in which he had been involved.
He said that his father had been in 5 or 6 protests before he was arrested. The first protest was in June or July 2012 before the building of the plant had started.
He said that at first the residents did not know what sort of factory was being built but when big machines were installed the protests were aggravated. People, including his father, were concerned about the pollution and the health of the residents.
On the day of his father’s arrest there was a protest involving about 1,000 people. The protesters were met by armed police and a riot squad. Many of the protesters left but a few, including his father, stayed. His father got into an argument and was taken away.
The applicant said that while in custody his father was questioned about data files including internal memos and video of scuffles with the protesters. The applicant said he believes one of the protesters told the police that the applicant’s father had these files.
The applicant said that his father still had the items but did not discuss it much. The applicant said that he had seen a bit of the footage. He said that some of it was put on his computer when he was away in Jinan and he still has some of the material.
He also said that he had made some copies of the material.
The applicant said he had not been involved in the protests himself but he had some evidence on a hard drive and had made copies of it.
He said that he cannot return to China because they know that he has the information.
He said that he took the hard drive with him when he went to [Country 1] and it is in safe keeping there.
The applicant advised that the material on the hard drive depicted pollution being created, but nothing more.
He said that, although the fact of the pollution is not a secret, it affects the government’s interests and some people in local government would like the information destroyed.
The applicant was asked whether he returned to his home in Jinan after his arrest despite the attention of the authorities. He said that he did to retrieve his passport.
He continued to live in Jinan from August 2014 to February 2015 and said that nothing happened to him in this time.
The applicant said that despite this he was worried about what might happen and that he could be killed or beaten up. He did not say there was any particular threat in February 2015 in Jinan. This is inconsistent with some of his later evidence.
He said that after that he went to Bejing where he tried to hide but he was almost caught there.
The applicant was asked why he would still be of interest to the authorities given that it was 3 years since his father had been arrested. He said that his family pay an informer and had been advised that his father’s foot had been injured. The applicant was asked whether there was anything to suggest that he was of interest to the authorities rather than his father.
The applicant said that the authorities would be interested in him because he has seen the information and has copies of it.
He said that his mother and child are living in Yuncheng but not near the factory. He agreed that they are still living in the same place they have lived all of their lives and trying to avoid local authorities by using false names. He said they would like to move away but the surveillance is nationwide and moving is pointless.
The applicant was asked how he knows that he was almost caught in Bejing. He said that someone he lived with told him that plain clothes police were looking for him.
He said he understands the police were looking for him in February, June and July of 2016 in Bejing and in other places.
He said that the authorities did not know he had gone to [Country 1] so they came to look for him in Bejing which is how he was nearly caught.
He said that he left Bejing in December 2015 and they came looking for him about a month later.
He said that he was not sure if the local and federal authorities in China share information so they may not have known he had already gone to [Country 1].
He was asked why he did not leave China earlier and said he did not think of it until the situation deteriorated. The applicant had not said that there was any deterioration. In any event, the Tribunal notes that the alleged enquiries by the authorities did not take place until a month after the applicant had left for [Country 1].
The applicant said that he did not apply for protection in [Country 1] because he did not realise that he could, and his agent did not tell him about it.
He said that the agent told him he could get a visa to Australia but did not tell him it would only be for 3 days. He said he believes he is a victim of his agent’s fraud.
He said that he did not find out that he was in Australia on a transit visa until he was checking the website, which was also when he found out that he could apply for a protection visa.
He said that the delay of 4 months after he arrived (despite his assertion that he believed he was on a 3 month visa) was because it took him some time to work out what was going on.
The applicant said that his first agent disappeared, so he contacted another one who told him that his visa had expired which made him scared. He could not remember the names of either of the Australian agents.
He said that he was reluctant to contact the department because he was scared of being sent back to China.
The interview was concluded by the department representative noting that there was nothing to corroborate the applicant’s evidence that his father had been imprisoned and asking him whether there was more evidence. The applicant said that he could only get the evidence of secondary witnesses which he did not think would be helpful. He was told that anything he could submit would be considered.
No such evidence has been submitted.

First Hearing 8 November 2021

The applicant told the Tribunal that he understands the delegate’s decision.
He gave evidence that he went to [Country 1] at the end of December 2015.
He said that he went to [Country 1] to run away from China because the local authorities were trying to find him.
He said that he left China on a Chinese passport and went to [Country 1] because they did not require a visa. He said it was the quickest way he knew of to get out of China.
He said that he had read online and heard from other people that he would not need a visa to go to [Country 1] from China.
He said that when he arrived in [Country 1] he got a stamp in his passport which he understands was a visa for 4 months.
The applicant said that he found an agent who got him working rights in [Country 1] so he got work and later he started a business there.
He said that he went to [Country 2] in early 2017 for about a month because his [Country 1] visa had nearly expired. He said that he considered trying to get it extended but decided not to because he got the feeling that the local Chinese people in [Country 1] were not friendly and he did not think that the [Country 1] government would protect him.
He said that his agent told him that the [Country 1] government does not have a protection visa. He said that he only spoke to one agent in [Country 1].

He said that he did not explain his whole background to the [Country 1] agent because he did not trust the agent and did not know what to do.
He told the Tribunal that he arranged the trip to Australia via [Country 2] himself, but with the help of the agent.
He said that when he was in [Country 2] he felt homesick and missed his son so he decided to return to China. He said that he had to go home via Australia so he got a transit visa.
The Tribunal notes that this is not consistent with his departmental interview. He said in that interview his agent had told him he had a travel visa. He also said that because he thought he had rights to stay in Australia for an extended period, he did not know that his original transit visa had expired.
He said that the agent applied for a visitor visa rather than a transit visa and as a consequence he was charged much more. He believes that the agent cheated him.
The Tribunal asked him to clarify this evidence. The applicant said that he did not know how to by a ticket or arrange to go to Australia because his English was not good enough.
He said that the agent told him that if he wanted to return to China he should do so by going to Australia first. The applicant could not explain why that was, but said he followed the agent’s advice.
He then told the Tribunal that the agent got the visa for him but did not say what sort of Australian visa it was. Then the agent told the applicant that it was a holiday visa and the applicant bought connecting tickets to go on to China via Australia.
The Tribunal pointed out to the applicant that there was an inconsistency in his evidence about whether he or the agent applied for the visa and what sort of visa the applicant believed he had.
He said that at the beginning it was the agent who made the application, that the applicant had no idea about how to buy a ticket and his English was not good enough. He said that he relied on the agent. He did not reconcile this with his earlier evidence that the agent merely provided some advice and he obtained the visa for himself.
The applicant said that when he got to Australia he spoke to the agent again and at that stage the agent told him that if he is in Australia he could apply for a protection visa.
He said that after that he looked at his visa and realised that it was not the visa the agent had said he was going to get for him.
The Tribunal asked the applicant to clarify what he was trying to do at that time. The applicant said that he missed his family and his child and had decided to return to be with them in China.
He said that he later realised that he could get a visa for Australia and decided to do that instead.
The applicant said that he stayed in Western Australia when he first came to Australia. He stayed until about January or February 2018 when he established a romantic relationship with someone in Adelaide through a dating site. That relationship has now ended.
The applicant told the Tribunal that he was born in Yuncheng and lived there until he went to university in Jinan when he was 18. He said that Jinan is about 200 kilometres from Yuncheng.
He was at university for 3 years studying [a specified subject]. He said he then did a series of jobs, mainly related to [his studies]. He worked on [specified jobs].
He said that he stayed in Jinan for work but would visit his family in Yuncheng if there were university holidays or a long weekend.
He said that he got married while he was in China.
His wife divorced him in about 2017.
He said that his ex-wife looks after his son and that he has sent them money several times.
The applicant told the Tribunal that the Yuncheng [factory] was built in about 2013 and started operating in 2013 or 2014.
He agreed that that was [number] years after he left Yuncheng to go to university.
He said that his wife (who was from Yuncheng) and his son lived with his parents and that he would see them when he visited. After 2007 he did not visit as often as he was working and did not have university holidays. He said that he would sometimes only visit 3 or 4 times a year between 2007 and the end of 2015.
He said that his father became concerned about the factory in 2011 or 2012 or perhaps 2013.
He said that he and his father discussed it often, although not every time he visited.
He said that at some time in 2014 or 2015 his father was arrested and locked up. He said he found out about that in 2015 and that he wanted to leave China after that.
He said that the police came to see him in Jinan and told him that they understood he had some videos and photographs.
He said that they came to see him 2 or 3 times.
He said that he did not know their names but he believes they were from Yuncheng.
He said that they did not threaten him at the beginning but later threatened to kill him, find the materials and punish his family.
He did not mention these visits in his departmental interview when he said that nothing happened to him in the time after his father was arrested. He told the department that the closest the police came to him was in Bejing where they missed him by a month.
Further, when the applicant gave evidence about the same issue in the hearing on 17 March 2022 he told the Tribunal that the police came to see him several times but he never met them face to face.
The Tribunal is not satisfied that the applicant met with police at any time in China.
He told the Tribunal that the information was still in his possession and that it was on the hard drive which a friend in [Country 1] was keeping for him.
The applicant told the Tribunal that he believes his father was released in about 2018 or 2019.
He said that none of his family were harmed other than his father who was incarcerated.
He said that the information on the hard drive was videos of pollution and of protesters being beaten.
He told the Tribunal that when he was in [Country 1] he did put the information online but that it was quickly taken down.
He was not sure whether the police have asked his father about the material since he has been out of prison.
In relation to his claim to fear harm from the authorities, the applicant clarified that he fears the Yuncheng and Heze authorities, not those from Jinan as suggested by the delegate[1]. He said he does not know if the various authorities share information or act together in these matters.
[1] Delegate’s decision 17 November 2017 Page 2 Part 4: Protection Claims, first bullet point.
The applicant said that he does not know whether the authorities obtained the material and he does not know whether what was on his computer was the whole of the information that his father had. He also said that he believes other associates of his father’s had the information and they may have given it up.
He said that he moved from Jinan to Bejing in the second half of 2015. He was approached by police in Jinan. As already mentioned, this is not consistent with evidence he gave elsewhere.
He said he was not approached in Bejing although his family told him that the police were looking for him there.
He understands that his friends in Bejing saw undercover police in 2016. He believes that they may have asked his friends about him, but he had already left China. He said he is not sure what they discussed with the police. The applicant’s evidence on this matter was vague and unconvincing.
The applicant said that the police arranged for gangsters to come to his family home and scare them with threats to kidnap the applicant’s son. There is no suggestion that the applicant’s son has been directly threatened and the Tribunal is not satisfied that these threats were made.
When the Tribunal asked him how he knows he will be tortured if he returns to China he replied that it is obvious. He did not offer further explanation. The Tribunal finds this answer vague and unconvincing.
He said that he hates the authorities responsible for the [specified] factory and he also hates the Chinese government.
He then told the tribunal that he has now lost the information on the hard drive. This was inconsistent with his earlier evidence that the hard drive was being held by a friend in [Country 1].
He said that if he returns to China there is a possibility that he will be tortured the same way his father was. He may be beaten, tortured, and forced to take poison.
He understands that some of the people who protested with his father were held for a long time and is not sure whether they were all released.
He said that he thinks the risk for him has increased since he left. In support of that he said that one of his [social media accounts] was closed. He said that he believes that that was because of him publishing information from his father’s computer in late 2020 and in 2021.
The applicant also claimed that he joined online chat groups in which people discuss current affairs and politics. He said that some members of these groups have been arrested. He said the groups started before 2010.
The Tribunal asked the applicant whether he had raised this earlier in his application. He said that he had tried to raise it at the departmental interview but was told by the departmental officer or the interpreter not to talk about it.
There is no apparent reason that the applicant would have been told not to raise these issues before the Tribunal. In any event, he could have raised them in his initial claim or in subsequent written submissions.
The Tribunal is not satisfied that members of chat groups that included the applicant were arrested.
The Tribunal is not satisfied that the applicant had drawn himself to the attention of Chinese authorities because of his online political comments.
The Tribunal suggested to the applicant that, given the circumstances of the matter it is unlikely that he would be arrested if he returned to China. He replied that he does not challenge that, but is still concerned because he believes he is risking his life if he returns to China even if that risk is very small.
He said that he has been increasingly outspoken about the Chinese government and believes that this means he would be arrested if he is sent back.
The Tribunal asked if he had any evidence of his comments. He said that the accounts have been closed but he has a few photos and some videos. The applicant showed the Tribunal his phone with some screenshots of what appeared to be Chinese script but no translation was available.
He said that he had some videos. The Tribunal asked what they show. He said they show police engaged in rough dealings with street vendors. He was unable to explain their relevance other than providing general support for his assertion that the Chinese authorities can be aggressive.

Post Hearing Submissions 13 November 2021

The applicant sent an email to the registry on 13 November 2021. The email purports to support the assertion that the applicant has publicly opposed the Chinese government and what he says will be the consequences of him being returned to China.
The applicant raised what appear to be some new claims in this email.
In the second paragraph he says that the Chinese Communist Party and the Chinese Government are afraid that some people will reveal the truth and expose evidence of the government’s crimes. He says that they will arrest and persecute and kill people who expose the truth although as he is in Australia, they can’t do that to him.
He claims to have been reported by someone to a website used by the Chinese government to collect evidence of political crimes. He was offered the opportunity to support this claim but has not provided any evidence. He has not provided evidence of the website or of any relevant reports. The Tribunal is not satisfied that the applicant has been reported as he claims.
He said that he has probably been collecting and publishing evidence of crimes committed by the Chinese Communist Party and the Chinese government since 2008 or 2009. He does not specify the crimes to which he refers. This is a new claim for the purposes of s 423A. However the Tribunal is not satisfied that the applicant has been publishing evidence of governmental crimes and further is not satisfied that he has come to the attention of the Chinese authorities for doing so.
He also claims to have reported “something” to the Home Affairs website, though he does not explain what it is or how reporting it would affect him. This assertion does not establish a claim and is not relevant. In any event, the Tribunal is not satisfied that it is true.
He says that he discussed the criminal evidence with friends in China and Australia and was insulted by some friends who support the Chinese Communist Party. He does not say what discussions he had or what effect these discussions will have on him if he is returned to China. This claim does not suggest that the applicant will suffer relevant persecution or significant harm and does not give rise to protection obligations under either the refugee criterion or the complementary protection criterion.
He says he is wanted by the Chinese Communist Party and repeats his testimony that his internet posts have been deleted and his family in China threatened. He says that the authorities have spread rumours in his community. The Tribunal accords this claim no weight as it does not suggest that the applicant will suffer relevant persecution or significant harm and does not give rise to protection obligations under either the refugee criterion or the complementary protection criterion.
He says that he has collected a lot of criminal evidence about the Communist Party and government and that he is therefore liable to be persecuted. He does not say what the evidence is or to what it relates. If he has collected evidence this alone will not subject him to persecution. This assertion would not establish a claim if it were true.
The applicant says that his girlfriend does not support his return to China and that she would have trouble relocating to China. He says she would be implicated in his own problems with the government there. He expressed concern that she would be affected if he has to return to China. The Tribunal accords this no weight as it does not suggest that the applicant will suffer relevant persecution or significant harm and does not give rise to protection obligations under either the refugee criterion or the complementary protection criterion.
The applicant finishes the email by saying that he had tried to retrieve the criminal evidence that he had stored on his Huawei phone but found that it had gone. He says that nothing else is missing and suggests the possibility that the Chinese Communist Party is responsible. This is speculative and the Tribunal is not satisfied of its truth.

Submissions prepared by Representative 8 March 2022

By letter dated 8 March 2022, [Representative A] advised that he had been appointed by the applicant. He attached a document entitled “Submissions” and a document entitled “Grounds of Appeal”.
The document entitled “Submissions” responds to findings in the decision of the delegate. There is no further evidence attached to it. It comprises numbered submissions in relation to nine matters.
The first submission is about the delay between the applicant’s arrival in Australia [in] March 2017 and his application for a protection visa on 13 July 2017. The submission is that the applicant was suffering from depression because his wife had advised him she was seeking a divorce and he faced the prospect of not seeing his son again.
The submissions say that due to his depressive syndrome, he had trouble making a decision, but was considering returning to China in order to see his son again. The submissions say that he was concerned that if he obtained a protection visa before he went to China he may be treated more harshly by the local authorities if he had to return, so he did not apply.
The submissions say that he did nothing until July 2017 at which point he lost contact with his wife and realised that he would not find his son even if he went back to China. The Submissions say that he checked the immigration website and hastily applied for a protection visa.
No evidence is offered in support of the claim of depression or of depressive syndrome. The submissions do not explain the inconsistencies in the applicant’s evidence about what sort of visa he thought he had when he arrived in Australia and what his reasons for going to Australia were.
The second submission relates to the fact that the applicant did not claim asylum in [Country 1] because he feared being repatriated by the [Country 1] government. This appears to be a new assertion. It is inconsistent with the applicant’s evidence that he did not know [Country 1] offered a protection visa. On balance Tribunal does not count the delay in seeking a visa against the application so this is not relevant.
Points 3 and 4 of the submissions refer to discrepancies in the number of protests participated in by the applicant’s father as discussed at paragraph 3 on page 4 of the delegate’s decision. These submissions are not relevant to the Tribunal’s considerations.
Submission five relates to the applicant’s statement in his interview that he decided to leave the hard drive in [Country 1], for reasons that the delegate describes in the second paragraph of page 5 of the decision, as “unclear”.
This is not relevant to the Tribunal’s considerations and does not count for or against the application.
Submission six relates to the delegate’s decision at paragraph three on page 5. That paragraph relates to the applicant’s allegation that his family were harassed by gangs and the authorities in China and the fact that his written claims and his statement were inconsistent about this.
The submissions say that the applicant did not have access to reliable information about the activities of his family in China at the time of the interview. The submission also says that the applicant was concerned about his telephone calls to his family being monitored so he avoided contacting them.
The applicant appears to resile from the claim in his interview that his family were in hiding in China. He says that he did not have access to information about where his family were and was relying on vague memories of what he had been told on the telephone by his wife.
The seventh submission relates to the delegate’s discussion of the applicant’s hiding in China and moving to Bejing. The submissions state that the applicant went to Bejing to lodge a complaint regarding pollution from the [factory] but that he did not have the right connections and became fearful that he would be arrested.
This is a new claim. It is not supported by any evidence. It is not sworn and it is not therefore evidence itself. It is not supported in the applicant’s subsequent evidence. The Tribunal is not satisfied of the truth of this submission.
Submission eight relates to the fifth paragraph on page 5 of the decision. It addresses the delegate’s suggestion that the applicant had more than one passport. The Tribunal is satisfied that the number written above the [Country 1] visa in the applicant’s passport is not evidence that the applicant held an earlier passport. The Tribunal is satisfied that the applicant did not hold an earlier passport.
Submission nine refers to the delegate’s conclusion that the applicant is not of interest to the authorities in China. The submission states that the applicant and his family have been targeted by local authorities in Heze (the prefecture level city where Yuncheng is) rather than by the central Chinese government. No evidence is provided and it is a mere repetition of the applicant’s earlier assertions.
The submissions go on to say that the local authorities could easily trace him anywhere in China by using his Identity Card number. The Tribunal is not satisfied that the applicant had attracted the attention of local authorities that might operate independently of national authorities.
Even if Chinese local authorities do operate as the applicant says, the Tribunal is not satisfied that they have done so in this case.

“Grounds of Appeal” dated 8 March 2022

This document was prepared by the applicant’s then agent and is a combination of factual assertions and submissions.
The first ten paragraphs are generally a restatement of the original claims made when the application was filed.
At the eleventh paragraph the document sets out the applicant’s allegations about his departure from China and him going to [Country 1] then [Country 2]. It also refers to the applicant’s wife’s advice that she was divorcing him to protect herself and their son. The submission says that the applicant was granted an “employment visa” for a year, which appears to be inaccurate but is not relevant to the application. The other assertions in this paragraph are dealt with elsewhere in this decision.
In the twelfth paragraph the document says that the applicant went to Perth where he learned that the divorce proceedings had been started. The document asserts that the applicant stayed in Perth for about four months with “depressive syndrome”. There is no medical evidence of any such diagnosis and the Tribunal is not satisfied that the applicant was suffering from a relevant medical condition at that time.
The applicant also repeats the claim made in his evidence in November 2021 that at the interview he was prevented from giving evidence about persecution he would suffer in China because the interpreter told him it was irrelevant and not to continue talking about it. The Tribunal discussed this with the applicant and is not satisfied that it happened.
In paragraphs 13 to 15 of the document, submissions are made on the applicant’s behalf to the effect that he has been posting comments condemning the Communist Party of China on [name], a popular Chinese social media and messaging platform.
The submission states that the applicant had posted criticism of the Chinese government’s spreading of false news, control of free speech, giving a false account of the orgin of COVID – 19, monitoring Chinese nationals both in China and abroad, and detaining, re-educating and brainwashing.
The submission asserts that it was due to the applicant repeatedly posting anti Communist Party of China comments that his [social media] account was blocked. In support of this the applicant has provided a screenshot and a translation of a notification that account [number] has been permanently frozen “for spreading pornography, violence, and sensitive information”
The notice is undated and does not make it clear why the account was suspended. It does not make it clear what the applicant was suspected of spreading. The Tribunal is not satisfied that it supports the application.
The submissions further say that the applicant will be “arrested and detained for trial of being hostile to his country” if he is returned to China. The applicant submits that China has a “long tradition” of detention of protesters without trial.
The applicant does not provide further evidence of his alleged protests or of any official attention being paid to them.
The applicant has provided evidence of the arrest of some high profile protesters. The Tribunal is not satisfied that the applicant has undertaken any relevant public protest.
The further allegations made in this document are repeats of allegations made elsewhere.

Hearing of 17 March 2022

The hearing resumed on 17 March 2022.
The Tribunal again asked the applicant about his understanding of the delegate’s decision. The applicant said that it had been explained to him in Mandarin since the November 2021 hearing. He said he had not read it before the previous hearing because his English is not adequate.
The applicant advised that his father was detained and tortured in China. He said he had found that out from a friend who is in contact with his family members. He said he is not in close contact with this friend and did not have any more information from him.
The Tribunal asked the applicant about the hard drive containing the evidence that his father had compiled and which allegedly made the applicant a target of the authorities.
The applicant said that he had kept a computer at his family’s home in Yuncheng even though he was living two hours away in Jinan. The information had been put onto that computer. It depicted the [specified] company’s pollution and the mistreatment of protesters.
The applicant said that he took the hard drive from the computer after his father was arrested. The Tribunal notes that was in about August 2014. He took the hard drive with him when he went to Beijing in February 2015 and to [Country 1] in December 2015. He said that he left it there with a friend.
The Tribunal reminded the applicant that he had said at the earlier hearing that he had lost contact with the person who was holding the hard drive for him in [Country 1] and he no longer had access to it. He had said that he lost contact with this person in 2018.
The applicant replied that the hard drive should still be with his friend. He said it has videos of polluting by the [company] and videos of protesters being beaten by thugs.
The applicant repeated his claims that the Chinese authorities would target him if he returned, to stop him from releasing the information on his hard drive.
He said that the authorities were asking about him in Beijing. He said that he believed that they were police from Yuncheng City.
He gave evidence that they came to speak to him at least 3 or 4 times although he did not actually speak to them face to face. He was told this by a friend. He said this happened in 2016 after he had left China.
The applicant also spoke about the matters he had posted on his [social media] account, the account that had been frozen. He said that it included a “huge amount” of evidence including how the authorities treat normal citizens, police beatings, harassment of hawkers by city management, and a person having their car smashed.
The applicant said that he was involved in chat with other people about the Chinese government and that he promoted his view of justice in this chat. He said that it was because of his posting of sensitive information that his account was shut down.
The Tribunal asked him how he knows the reason for the account being closed. He said there is a notice saying his account had been shut down because he had posted sensitive information.
He also said that several accounts were closed this way and that he had observed that any comment suggesting lying by the Chinese government would result in that account being closed. He has not provided corroborative evidence of other accounts being closed. The Tribunal is not satisfied that other accounts have been closed by the Chinese government.
The applicant also said that several people in the chat group were arrested, which he had found out when he asked someone to recover part of the chat history. He said that he has been aware of this for some time but when he tried to raise it in the interview, the interpreter told him not to talk about it. The Tribunal is not satisfied that the applicant was restrained from discussing this at the interview as he says.
He said that he had not provided the chat histories to the Tribunal because he had not had time.
The applicant was asked why he had not provided corroborative evidence such as chat histories or the evidence of political crimes to which he had referred, such as the material on the hard drive.
The applicant said that he had sent evidence to the Department. When asked to describe the evidence, he said he meant “background” rather than evidence. When asked what he did submit he said he did not submit the evidence because it was in [Country 1].
His answers about this were evasive and unconvincing. He claimed to have submitted something to the department but was unable to describe what he had submitted.
He gave evidence that the hard drive was in safe keeping in [Country 1]. He did not explain why he has not provided this evidence to the Tribunal.
He said that he assumes he will be arrested if he goes back to China. He believes they will want him to sign a pledge, but he will not be able to do so given his current political views.
The Tribunal put to the applicant that his own protesting had taken place while he was in Australia. The applicant agreed and said he was careful not to be obvious because he was worried about his father’s safety. His evidence that he has been careful not to be obvious is inconsistent with his evidence that he has been open in his protesting.
He said that he had sent a link with some evidence of posts he had made along with his email of 13 November 2021. The applicant was advised that if he wanted the Tribunal to consider the link he would need to explain why it is relevant and what use he wants the Tribunal to put it to.
The applicant was invited to confer with his agent during a break to consider that. No further submissions were made about it. The Tribunal has not had regard to the link.
The Tribunal noted that most of the applicant’s protest activity has been while he has been in Australia. The applicant agreed that it was essentially after the Immigration Department interview, but he had not raised it earlier because he did not know who to advise about it.
The applicant was told that there would be an opportunity for him to provide any evidence that he had not yet provided after the hearing.
The Tribunal also discussed the submission made by the applicant’s representative, that the applicant had been suffering from depression, which had hampered his provision of evidence.
The applicant said that he did not go to a doctor, but he did feel extremely depressed.
He said he could not really explain why he did not go to a doctor but that it may be fear of getting a diagnosis and being labelled. He said that there is a big stigma attached to mental health diagnoses in the Chinese community.
The Tribunal told the applicant that it was one thing to say that he was very sad but if he wanted the Tribunal to accept that he was disabled by depression he would need to provide evidence. None has been provided and the Tribunal is not satisfied that the applicant has suffered from depression.
The Tribunal advised the applicant that it had considered the DFAT Country Information Report – People’s Republic of China of 22 December 20221.
The applicant was told the report states that if a person is wanted by authorities, it is unlikely that they would be able to leave China[2].
[2] Par. 5.33
The Tribunal noted that this was inconsistent with the applicant’s evidence that, despite being wanted by authorities and being pursued for questioning, he was granted a passport and allowed to leave China.
The applicant said that the authorities that were pursuing him were local Shandong authorities and that exit control is performed by central authorities.
The Tribunal asked whether that means that the harm he faces in China is restricted to the area of his family’s home. The applicant said that the authorities that were pursuing him were able to do so all across China.
The applicant then said that even when he was in Beijing the authorities from his home could arrest him. He said he had just suddenly remembered this during the hearing but that he had heard about it in about 2020 and had advised the Immigration Department. The applicant’s evidence about this was most unconvincing.
The Tribunal asked when he had advised the department and he said that it was before the end of October 2020.
The Tribunal asked whether he did it in his name and he said he did it anonymously. He was unable to assist further as to this alleged notification.
The applicant’s answers were unconvincing, and the Tribunal is not satisfied that the applicant was wanted by local authorities but not by the national government.
For the avoidance of doubt, the Tribunal is not satisfied that the applicant was wanted by either the local or the national authorities at the time he left China.

Correspondence of 29 March 2022

The applicant had been told that he should provide any corroborating evidence he had about his claims, as the objective evidence available to the Tribunal was scant. He was advised that he would have at least a few weeks before the decision would be ready.
On 29 March 2022 he sent the Tribunal an email being a request for an extension of time within which to submit supplementary material, a summary of the further information being sought, and some attachments.
The submissions indicate that he had terminated the instructions of his representative, [Representative B], whom he believed is linked too closely to the Chinese Government.
The submissions do not suggest any claims or otherwise support the visa application. The evidence supports the request for further time to make submissions. The applicant has had comfortably more than the one month he sought to get the further information.

Submissions of 7 April 2022

The applicant made further submissions in a letter received by the Tribunal on 7 April 2022.
The applicant raises 12 matters.
The first is that Chinese people are obliged to praise the CCP or the Chinese Government daily or risk threats from “little pinks” and “wolf warriors”.
The applicant says “This is intolerable to me, and I stick to my ideas and spread the seeds of democracy and freedom.”
The applicant refers to “annex 1” to his submission which is purportedly a translation, apparently of screenshots from the applicant’s mobile phone that show a chat thread or similar.
There are several exchanges which are dated. They are translated, although the provenance of the translation is not provided and its accuracy cannot be assessed. In any event, the first page shows a discussion allegedly from [a day in] December 2018.
The thread suggests a political argument in which the other party claims to be a policeman who has the applicant’s identity number and telephone number.
It is not clear why the person claiming to be a police officer would identify himself to the applicant particularly given that his stated intention is to have the applicant arrested when he returns.
The applicant advises that he is not in China, which the other person did not seem to know. The other person ultimately threatens the applicant with death if he returns to China.
The Tribunal finds this evidence to be implausible. If the Chinese police wished to arrest and punish the applicant, they would not warn him of their intentions in this way. To the extent that this evidence is presented as evidence of a death threat made to the applicant, the Tribunal is not satisfied that such a threat has in fact been made.
The Tribunal is also concerned that this threat which was allegedly made in December 2018 was not raised until April 2022.
The next page is dated [in] February 2020. It suggests that the applicant warned someone to be careful and that person responded that they were arrested and detained for 15 days and as a result they do not use certain applications any longer.
The remaining pages are dated [in] May 2020 and [in] October 2020. Generally they comprise political discussion with a certain amount of low abuse being directed at the applicant.
On the 4^th page the final entry is apparently by a 3^rd party suggesting that the applicant will be arrested “when he wakes up”. This appears to be a mere empty threat.
The Tribunal is not satisfied that the evidence of the chat threat establishes a real chance of persecution or significant harm as contemplated by the refugee and complementary criteria respectively.
The next issue raised in the letter of 7 April 2022 is that the applicant’s [social media account] is blocked and he has problems with his mobile phone, which he says proves that he has been monitored.
The Tribunal notes that [his specified] account is a social media account based in China.
The applicant says that the official blocking of his account “glorifies ideological restraint”. He asserts that he was banned for posting anti government remarks. He says that if he was in China he would have been arrested.
The Tribunal notes that the notice provided by the applicant’s representative [Representative A], as annexure A to his submissions of 8 March 2022, states that an account was frozen for allegedy spreading pornography, violence and sensitive information. This does not suggest that the applicant could be arrested.
He provides documents in “annexe 2” to the submissions comprising an item from a news source about a man in China who was detained for 9 days for sending a meme deemed offensive to police and another article from September 2013 saying a young man had been detained for posting a “rumour” that was critical of Chinese police.
There is no suggestion that the applicant is at any such risk or that the “crackdown” referred to in the 2013 article is ongoing.
The Tribunal notes that the article suggests that the online communities are “censored, yet often surprisingly critical”.
The Tribunal is not satisfied that the applicant will be arrested for his online remarks if he is returned to China.
The third issue that the applicant raises in his letter of 7 April 2022 is that he was scared to speak out in 2021 and before because his family in China were “like hostages”. He poses the question “what would happen if I stood up against the Chinese government, questioned the Communist Party, and connected my online life with real life?”
The Tribunal observes that at points 1 and 2 of the letter he claims to have done just that. There is no suggestion that there has been any ramification for his family.
He goes on to say that he has been changed by life in Australia and he became more outspoken until he was reported by someone. The Tribunal has already found these assertions to be implausible.
He makes assertions about his opposition to the Chinese government’s stance on the Russian-Ukranian war and says that he was afraid of the persecution of the autocratic government but has now had enough. He does not say how this will manifest and the Tribunal is not satisfied that he has evinced a compulsion to protest that will give rise to relevant persecution or significant harm, if indeed that is what he is asserting.
At paragraph 4 of the letter the applicant complains that the Department has treated his claim poorly by getting the gender of his child wrong in the refusal letter and by confusing a customs stamp with his passport number. It does appear that these two errors may have been made. Neither is relevant to the Tribunal’s decision.
The applicant also seeks to clarify the evidence he gave about being “wanted” in China. He said that the Yuengchen County police have not issued a warrant but have tracked him.
He does not say how he knows this. His evidence about his contact with the Yuencheng police has been inconsistent. The Tribunal is not satisfied that he has been tracked as he claims.
The applicant says that they have used the ID card system to track him and harass him wherever he went.
The Tribunal is not satisfied that that is the case.
The fifth matter that the applicant raises is that he cannot go to any other country than Australia. For the purposes of this decision the Tribunal has assessed the the applicant’s claims against returning him to China and these submissions are not relevant.
The sixth point suggests that the Chinese government has kidnapped and terrorised dissidents living overseas. The applicant suggests that only Australia can protect him. He provides a document, Annex 6, in support.
The provenance of that document is not clear but in any event it suggests that “involuntary returns” mapped to Australia number 9, which places Australia fairly high in the ranking of countries from which Chinese citizens have been subjected to “involuntary return”. The document does not suggest that Australia is much safer than many other countries.
The Tribunal is not satisfied that the applicant has demonstrated that this claim gives rise to protection obligations being owed by Australia to the applicant.

The seventh matter raised in the letter of 7 April is that the applicant has come to believe that the CCP is a cult because it does not allow freedom of religion. He further suggests that they encourage war. He says that since he came to Australia he posted a lot of criticism of China on the internet.
The Tribunal has already found that it is not satisfied that the applicant is at risk of relevant persecution or harm due to material he has posted on the internet. This submission does not prompt the Tribunal to change that finding.
The eighth matter the applicant raises is his association with Mormonism starting from when he was in [Country 1]. This is a new claim. There is no evidence of any association with any Mormon or other Christian churches. There is no evidence of any reason that the applicant could not have raised this issue before. The Tribunal finds that it is obliged to draw an inference adverse to the credibility of the claim by reason of s423A of the Act.
The Tribunal is not satisfied that the applicant has any relevant association with Mormonism or Christianity and is not satisfied that he has a well held fear of persecution or a real risk of significant harm by reason of any such association.
The ninth matter to which the applicant refers is a need for medical treatment arising from treatment needed because the applicant “broke his butt”. The Tribunal is satisfied that the applicant has been having ongoing medical treatment for some type of wound or wounds to his buttock.
The applicant does not suggest that adequate medical treatment is not available in China. The Tribunal is not satisfied that the applicant has made or established a relevant claim by this allegation.
The tenth matter to which the applicant refers is the suspicious behaviour of his former agent. No specific allegations are made. The applicant’s assertions do not raise a relevant claim.
The eleventh matter is a repetition of the applicant’s assertion that he will be persecuted by the government because of his actions in Australia. The Tribunal has already found against the applicant in that regard.
The applicant goes on in the same paragraph to say that the police have been persecuting his family in China. He says that his father was imprisoned for refusal to pay a bond. He does not say to what that bond relates or whether or not it was justified. He says that when his mother prevailed upon his father to pay, he was released. The Tribunal is not satisfied that this suggests relevant persecution or significant harm. The Tribunal finds that no relevant claim is established.
The twelfth matter that the applicant raises is an affidavit by his girlfriend dated 6 April 2022.
The affidavit is in the nature of a character reference but does not provide any relevant information. It does not assist the Tribunal in making a decision.

Submissions of 2 May 2022

In these submissions the applicant repeats his assertion about his need for ongoing surgery and provides 56 pages of notes prepared by nurses who attended to dress some wounds on the applicant’s left buttock.
Those notes cover the period from early April 2020 to 6 December at which point the wounds have been described as having scant serous discharge (4 December 2020 – page 56). The wound assessment on 8 November 2022 at page 26 of the notes suggest a single granulating wound measuring 1mm by 4 mm. It is described as “small”, “serous”, “haemoserous”, and “healthy”.
The applicant reports no pain.
The notes do not support the applicant’s assertions about need for ongoing surgery.
The notes do not suggest that there was any treatment after 4 December 2020.
The Tribunal is not satisfied that any medical condition from which the applicant may be suffering gives rise to a reasonably held fear of persecution or a real risk of significant harm if he is returned to China.

Refugee Criterion

The Tribunal has considered the matters set out above and is not satisfied that the Applicant has a reasonably held fear of persecution if he is returned to China.

The applicant does not, therefore, satisfy the refugee criterion.

Complementary Protection Criterion

Pursuant to s36(2)(aa) of the Act, the applicant will meet the Complementary Protection criterion if the Tribunal is satisfied that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk the applicant will suffer significant harm.
In MIAC v SZQRB [2013] FCAFC 33, the full Federal Court of Australia held that the test in considering whether a non-citizen faces a “real risk” of significant harm for the purposes of s.36(2)(aa) establishes the same threshold as the “real chance” test in s.36(2)(a) in relation to a well-founded fear of persecution[3].
[3] Paragraphs 245 and 246,
The Tribunal is satisfied that the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of him being returned to China. The Tribunal has found that the applicant is not of interest to the Chinese authorities and he will not be subject to arrest, torture or harassment if he is returned to China.
For the avoidance of doubt, the Tribunal has assessed the applicant’s claims to fear significant harm by reason of the protest activities he says he has undertaken in Australia. The Tribunal is not satisfied that the applicant faces a real risk of significant harm for this reasonl
Further, the Tribunal is not satisfied that if the applicant is removed to Chinese society he will be unable to re assimilate.
The Tribunal is not satisfied that the applicant has medical problems that will result in him suffering significant harm if he is returned to China.
The Tribunal is not satisfied that the applicant has had any association with Christianity during his time outside China will result in him suffering significant harm as defined.

Conclusions

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) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

decision

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

Mark O'Loughlin
Member

Attachment - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H Meaning of refugee

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3919

30 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction