1731012 (Refugee)

[2022] AATA 1084

1731012 (Refugee) [2022] AATA 1084 (17 February 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1731012

COUNTRY OF REFERENCE:             China

MEMBER:Dr Jason Harkess

DATE:17 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the Applicants Permanent Protection (Class XA) (Subclass 866) visas

Statement made on 17 February 2022 at 2:53pm

CATCHWORDS

REFUGEE – Protection visa – China– follower of Falun Gong – breached Chinese Birth Control Policy – was forced to have an abortion – Buddhist – race – Zhuang minority ethnic group –China’s one child policy has been significantly relaxed – applicant does not have a well-founded fear of persecution– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65

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 dependant.

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Application for Review – Refusal of Protection Visa

1. The Applicants are citizens of China. They seek review of decisions made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refusing to grant them protection visas. The First Applicant is [age] years of age and is presently residing in Victoria, Australia. The Second Applicant is [age] years old and is the spouse of the First Applicant. He presently resides in Victoria with the First Applicant. The Third and Fourth Applicants are [age] and [age] years of age respectively, and are the children of the First and Second Applicants.

2. The Applicants originally applied for the protection visas on 18 May 2016. The visas were refused on 17 November 2017. The Applicants lodged their review application with the Tribunal on 8 December 2017. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicants their visas.[1]

   [1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Division 2 of Part 7 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements not being met in this case.

Type of Visa

1. The specific type of visa the Applicants applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia, and either:

   (a)they are a ‘refugee’ (‘the refugee criterion’);[3]

   (b)they otherwise qualify for complementary protection (‘the complementary protection criterion’);[4] or

   (c)they are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

2. A person is a ‘refugee’, and therefore meets the refugee criterion, if the person ‘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.’[6]

   [6] Migration Act 1994 (Cth), s 5H(1)(a). Because the Tribunal is satisfied that the Applicants are citizens of China, the s 5H(1)(b) definition of ‘refugee’ (which applies only to ‘stateless’ applicants) is not applicable in this case.

3. A person meets the complementary protection criterion if there are ‘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.’[7]

   [7] Migration Act 1994 (Cth), s 36(2)(aa).

Delegate's Reasons for Visa Refusal

1. In her original application form lodged with the Department of Immigration and Border Protection (‘the Department’), the First Applicant sought a protection visa claiming that she met the refugee criterion or the complementary protection criterion. The delegate was not satisfied that she met either. The First Applicant did not claim to meet the family member criterion. The delegate therefore refused the visa application.

2. The Second to Fourth Applicants did not make any claims in the protection visa application themselves. Their claims for protection are founded on being family members of the First Applicant. As the First Applicant’s claims for protection were found not to be accepted, the delegate also rejected their applications for protection visas as a consequence.

3. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicants when they were notified of the delegate’s decision. That notification prompted the Applicants to lodge the present review application. The Applicants also provided a copy of the delegate’s decision record to the Tribunal following lodgement of the review application.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the present review application:

   (a)whether any of the Applicants meet the refugee criterion;

   (b)whether any of the Applicants alternatively meet the complementary protection criterion;

   (c)in the event that only one Applicant meets either the refugee or complementary protection criterion, whether the other Applicants meet the family member criterion.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application on 1 February 2022. The First Applicant participated at the hearing before the Tribunal by phone to give evidence and present arguments in support of their case. The other Applicants did not participate at the hearing.

2. The Applicants’ representative, [name deleted] also did not participate at the hearing. However, upon their request, they were provided with a copy of the audio recording of the hearing that took place on 1 February 2022 at the conclusion of the hearing. An opportunity was then given to file further written submissions by the close of business on 16 February 2022. No such submissions were received.

3. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, who also participated at the hearing by phone.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to refuse the Applicants protection visas ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the Applicants' original written visa applications;

   (b)the delegate’s decision record;

   (c)the written material filed by the Applicants in relation to their case, whether that material was lodged with the Department or with the Tribunal;

   (d)the oral evidence and arguments presented at the hearing;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department;[8]

   (f)country information assessments relating to China that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[9]

   [8] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [9] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be material to the determination of the issues in the case.[10]

CONSIDERATION OF APPLICANT’S CASE

[10] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Original Protection Visa Application

1. The Applicants were obliged to complete a form when they lodged their protection visa applications. The visa applications were lodged on the basis that only the First Applicant was making protection claims. The form requested that she provide details about her personal background, her circumstances leading up to her arrival in Australia, and her reasons for applying for a protection visa.

Applicants’ Background

1. In her application form, the First Applicant stated that she comes from Guangdong, China. She stated that she is a citizen of China by birth. A copy of her passport, which she provided to the Department, corroborated this claim. She further said that she does not hold citizenship of any other country.

2. The First Applicant further stated that she married the Second Applicant on [date] July 2006 and, together with the Second Applicant, have three sons (two of which are included in this review application, being the Third and Fourth Applicants. The First Applicant stated that she belongs to the Zang ethnic group, is a follower of Falun Gong in terms of faith, and is able to speak, read and write Chinese.

3. The First Applicant arrived in Australia on [date] February 2009, having been granted a Subclass 676 Tourist visa which was set to expire [in] May 2009. She applied for a protection visa on 18 May 2016, which was well after the expiry of her Subclass 676 Tourist visa. She has not departed Australia since the protection visa application was made.

4. The Second Applicant arrived in Australia on [date] November 2006, having been granted a Subclass 456 Business visa which was set to expire on [date] December 2006. He then departed Australia on [date] December 2006 before returning on [date] February 2009, having been granted a Subclass 676 Tourist visa set to expire on [date] May 2009. The Second Applicant applied for a protection visa on the same date that the First Applicant lodged her application. He, too, has not departed Australia since the protection visa application was made.

5. The Third and Fourth Applicants were born in Australia and have not departed Australia in their lives.

Protection Claims

1. The First Applicant’s original claims for protection are to be found in answers to questions in her protection visa application form. The relevant questions posed in the form, and the First Applicant’s answers given, are reproduced verbatim (spelling, grammatical and expressional errors included):

   88    I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside in. This includes countries you are a citizen or national of or you have a current visa for)..

   I am the mother of three children and I am a falun gon believer

   89    Why did you leave that country(s)? Provide specific details

   I left the country without my fear of persecution.
   However, I have had since I left China due to my profile in Australia.
   I am a devoted falungong. I Practise in public and at home.
   I have attracted adverse attention from Chinese government
   I have also breached Chinese Birth Control Policy

   90    What do you think will happen to you if you return to that country(s)?

   I will be forced not to engage in falungong
   I will be persecuted on the ground that I knew my conduct to have three children within one marriage is unlawful in China however I chose to have three children

   91    Did you experience harm in that country(s)?

   No¨►   Go to Question 93

   Yesþ►   Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)

   When I had a second child in china, I was physcally forced to have abortion.
   I was not allowed to work in china either in private or state control enterprise

   92    Did you seek help within the country(s) after the harm?

   No¨►   Give reasons for why you did not try to seek help

   Yes¨►   Give details (including the name of the person/organisation/authorities you asked for help, and if they helped you, what they did)

   I spoke with christian special help Group who was very active in assisting the samilar people like me with efforts to escape from china but I was not able to I get passport

   93    Did you move, or try to move, to another part of the country(s)to seek safety?

   No¨►   Give reasons for why you did not try to move to another part of the country(s)

   Yesþ►   Give details (including where you tried to move, why you were unable to move or where you moved to and what happened)

   I tried to get refugee from Malaysia however they want a large amount of money

   94    Do you think you will be harmed or mistreated if you returrn to that country(s)?

   No¨

   Yesþ►   Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)

   I have refused to be co-operative to their investigation tasks
   I have continued to disregard the government’s repeated warning

   95    Do you think the authorities of that country(s) can and will protect you if you go back?

   Noþ►   Give details about why you think the authorities could not, or would not, protect you

   I am their main tasks for investigation

   Yes¨►   Give details as to which authorities you think would protect you

   96    Do you think you will be able to relocate within that country(s)?

   Noþ►   Give details about why you are unable to relocate

   My name has been listed as an questionable person in people’s republic of china

   Yes¨►   Give details as to where you could relocate

2. The First Applicant provided the following further documentation in support of the claims contained in her original protection visa application:

(a)A copy of the First Applicant’s Chinese passport;

(b)A copy of the Second Applicant’s Chinese passport;

(c)A copy of the Third Applicant’s Victorian birth certificate;

(d)A copy of the Fourth Applicant’s Victorian birth certificate.

Interview with Department

1. The First Applicant was invited by the Department to attend an interview to present further information in support of her case for a protection visa (‘the interview’). She attended the interview on 1 September 2017. The interview was conducted by a delegate of the Minister with the assistance of an interpreter of the Mandarin and English languages.

2. The delegate’s decision record refers to several questions that were asked of the First Applicant in the interview, and her responses to those questions. The delegate summarised relevant aspects of that interview, which include the following:

   (a)The First Applicant confirmed that she is the mother of three children, two of whom currently live with her in Victoria, Australia. She said that her first son lives in Guangdong Province, China with his grandparents.

   (b)She expressed concern that she and the Second Applicant would not be able to get jobs to support their children in China if they were to return.

   (c)She also claimed to fear harm in the form of birth control operations based on her previous experiences of having a forced abortion when she became pregnant after giving birth to her first son.

   (d)She claimed that she was Buddhist and not a Falun Gong practitioner. She completed Form 1023 – Notification of incorrect answers – to correct her false claim that she was a member of Falun Gong. She explained the discrepancy as being a misunderstanding between her and her migration agent due to Mandarin dialect differences. She made no claims for protection based on her religious beliefs.

Evidence Given at Tribunal Hearing

1. At the hearing before the Tribunal, the First Applicant gave evidence concerning her claims for protection that was largely consistent with the answers given during her interview with the delegate. In summary, the First Applicant’s evidence in this respect was as follows:

   (a)The First Applicant’s first son was born in [year] in China before she and the Second Applicant came to Australia. Her first son remains in China and is now [age] years of age. He continues to live with his grandparents.

   (b)The First Applicant came to Australia as a result of being forced by local government authorities to have an abortion after she fell pregnant after giving birth to her first son. She was forcibly taken to a hospital by government officials in August [year] when she was about four months’ pregnant. The experience was physically and mentally traumatic for her. She decided to leave China with the Second Applicant as a result of that experience. She said that she was not mentally fit to care for her first son and so left him in the care of his grandparents. The First Applicant said that this was her main reason for coming to Australia – she wished to start a new life out of China.

   (c)The First Applicant does not wish to return to China now for the following reasons:

   (i)She has two more children who were born in Australia. China’s ‘one child’ policy means that she is ‘already over the limit’. She referred to difficulties in getting her children registered under the Houkou system, which would affect their future education and entitlements in the future.

   (ii)She fears being incarcerated, fined, or operated upon again because she has had more children. She referred to ‘warning letters’ that had been sent to her mother’s address after her departure from China. Those letters stated that the First Applicant risked being fined or other kinds of punishment if she were to have more children. The Tribunal raised the point that since she came to Australia and that, if she and her children were to return, she is unlikely to experience that which she fears. Specifically, the Tribunal said that it is unlikely that she will be punished for having had more children and it is also likely that her children will be able to be registered under the Houkou system. The First Applicant admitted that she was aware that the one child policy had changed in recent years but was unsure as to how this would affect her situation.

   (iii)The First Applicant is a member of the Zhuang minority ethnic group in relation to which the government, she says, has a negative attitude. In Guangdong, the First Applicant stated that the Zhuang are treated unfairly. When the Tribunal drew the First Applicant’s attention to the fact that she had not raised concern about her treatment as a member of Zhuang in the protection visa application process until now, she said that her mother is originally from the Zhuang ethnic group. The First Applicant said that people in Guangdong ‘laugh at us’ for having a different dialect and for having different ways of living.

   (d)The First Applicant disclosed no other fears or concerns about returning to China. She did not raise any issue as to her religious beliefs.

   (e)The Second Applicant currently works three days a week in a [workplace].

   (f)The First Applicant said that she and the Second Applicant do not plan on having any more children due to the financial expense involved in raising more children.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about China on 22 December 2021 (‘the DFAT report’).[11]

   [11] Department of Foreign Affairs and Trade, DFAT Country Information Report: People’s Republic of China (22 December 2021).

2. In relation to economic and social conditions in China generally, the DFAT report includes the following information:[12]

   [12] See the DFAT report at [2.6]-[2.16].

   (a)Real GDP grew 2.3 per cent in 2020 in spite of the COVID-19 pandemic while many other major economies recorded negative growth. The World Bank describes China as an upper middle-income country. The United Nations Development Programme (UNDP) ranks China 85th out of 189 countries in its 2020 Human Development Report, in the ‘High Human Development’ category.

   (b)In December 2020, President Xi declared success in establishing a ‘moderately prosperous society’ and eradicating extreme rural poverty. Ensuring the sustainability of these efforts, improving the lives of low income families and addressing widespread inequality are key challenges for the government. Economic development has been uneven, with a large wealth gap between the rich and poor that has been affected over time by large-scale internal relocation from rural to urban areas by people in search of higher wages.

   (c)Social security is limited in China. Traditionally, people rely on family to support them in old age or sickness. Under China’s new Civil Code, which came into force on 1 January 2021, parents have the right to demand support from their adult children if it is not otherwise forthcoming. A subsistence allowance, dibao, is paid to the poor with the rate set by the local municipality. If a person is returned to China without means of family support, DFAT assesses that it would be difficult, but not impossible, to subsist depending on individual circumstances including age, health, ability to work and level of education. Access to social security and basic services can also be impacted by an individual’s registered place of residence.

   (d)According to International Labour Organization (ILO) data, China’s reported urban unemployment rate was consistently around 4.5 per cent between 2011 and 2018 but rose to 5 per cent in 2020 with the impact of COVID-19. The real rate of unemployment is probably higher than official statistics. The official unemployment rate does not fully capture underemployment or unemployment of migrant workers, a 290 million strong workforce.

   (e)The changing nature of work has made it difficult for some low-skilled workers to find employment. Before the COVID-19 pandemic the government focussed on the creation of new urban jobs. Some laid-off factory workers have taken up employment as delivery drivers and shop workers, but these too have been disrupted by the pandemic.

   (f)China’s school system is state-run but decentralised; county-level governments have primary responsibility for school delivery. The standard of education varies considerably from place to place with urban standards higher than rural standards, which may be accentuated by relatively poor infrastructure and household income, and access to qualified teachers in rural areas. The language of instruction is Mandarin.

   (g)China’s adult literacy rate is 96.8 per cent. Despite a nine-year compulsory education policy (six years of primary school and three years of middle school, with another three years of high school possible), children in China attend school for 8.1 years on average (females 7.7 years and males 8.4 years). Along with quality, attendance rates are lower in rural areas and some rural children do not attend school at all. High levels of literacy and education generally mirror higher wealth in large cities and the eastern provinces.

   (h)Average life expectancy in China is 76.9 years; higher in urban areas and lower in rural areas. The top causes of death are non-communicable diseases, such as stroke, heart disease, lung diseases and cancer. High rates of tobacco use and exposure to air pollution are leading health risks. Health care varies significantly between urban and rural areas. Urban centres have better quality healthcare, but only for those with the relevant urban hukou.

   (i)The COVID-19 pandemic has challenged China’s health system. China pursued a zero-tolerance approach to COVID-19 and has made remarkable progress in pursuing its national vaccine roll-out. Government responses included localised lockdowns, movement restrictions, large-scale contact tracing and testing (including through use of health apps that can aid with contact-tracing and certifying the vaccination status and COVID-19 risks specific to an individual), and rapid construction of purpose-built hospital and quarantine facilities. Some aspects of the COVID-19 outbreak, particularly its origins and the government’s early response, are politically sensitive and reporting is controlled but DFAT assesses that government reporting of its subsequent success in controlling the spread of  COVID-19 within China is likely accurate as a result of robust measures to control outbreaks quickly.

   (j)The government has increased investments in mental health services over the last decade but services remain inadequate. A 2019 article by Chinese academics published in the BMJ General Psychiatry journal found a 17.5 per cent prevalence of mood disorders. It found that, despite the high prevalence of disorders, the rate of people receiving treatment was low, in part due to social stigma, and a lack of funding, mental health beds and mental health professionals. Most of those resources were found in provincial capitals in the more developed east coast of the country.

   (k)Although demand for mental health services is growing, many people remain reluctant to seek help due to stigma associated with mental illness. According to a study conducted in Tianjin and published in BMC Psychology in 2020, about 45 per cent of participants thought most people would not accept a former mental health patient as a close friend, 70 per cent thought that most young women would not date a man who had been hospitalised with a serious mental health condition, and almost 55 per cent of participants would not employ a person who was a former mental health patient.

3. In relation to hukou and family planning, the DFAT report includes the following information:[13]

   (a)Since the late 1970s China has enforced laws that limit the number of children people can have. Over time, these laws have liberalised from initially allowing one child per family to control population growth, to recent changes in the law that allow three children as China’s population ages and its economy develops. In 2016 the national government ordered all local governments to register children with a hukou, even if they were born ‘out of plan’. In-country sources told DFAT that increased discretion was being afforded to local governments to decide whether or not to charge out-of-plan fees to parents even before the 2016 reforms. This was especially true in rural areas.

   (b)In 2021 the law was changed to allow couples to have three children. Social compensation fees levied against people with ‘out of plan children’ were abolished. This reflects an overall de-prioritisation of the policy by a government that is now concerned with declining birth rates and an aging population.

   (c)The likelihood of enforcement or penalties for non-compliance, both before and after the new rules were implemented, varies from place to place. DFAT understands that Fujian, for example, does not enforce its family planning policy strictly and penalties have not been imposed in some years. People who give birth overseas would have their children counted as if they were born in China and the policies of the place they return to in China would apply. Children born to single mothers might also be considered ‘out of plan’. Enforcing child limits has become a low priority for government.

   (d)Hukou is a household registration system rooted in an ancient system that has parallels in other parts of East Asia such as Japan and Vietnam. In modern China, hukou registration with the local government entitles a resident to use government services such as education or health services in that local government area. In practice it might be a better reflection of their place of birth or even their parents’ place of birth rather than their place of residence.

   (e)It is very difficult to get a hukou in one of China’s major cities like Beijing or Shanghai, which have quotas for new residence permits. A points system to apply for a hukou exists in some cities (over 5 million people) where good employment records, education and housing might be an advantage. Reforms in 2019 have made it easier to get a hukou in medium-sized cities (1 to 3 million residents) and removed limits on key population groups, including graduates of universities and vocational colleges. This means that urbanisation and its associated development benefits may continue without putting additional pressure on megacities like Beijing and Shanghai.

   (f)Migration away from cities to regional areas also occurs but much less commonly. The very high cost of living in some large cities and demanding working culture in corporate China has forced some young people to return to their family and home regions. Former emigrants might be enticed back by improved infrastructure and services in rural areas that has accompanied China’s rapid development.

   [13] See the DFAT report at [3.117]-[3.121], [5.25]-[5.27].

4. As the delegate’s decision also noted, with reference to country information sourced from Canada, Guangdong province has delinked fines and hukou registration.

5. In relation to ethnic minorities, the DFAT report includes the following information:[14]

   (a)The Han ethnic group makes up 92 per cent of the population and is socially, politically and economically dominant. The government recognises 55 other ethnic groups, some of which live in ‘autonomous regions’. China has long emphasised ethnic diversity, first as part of its revolutionary politics and later as part of its identity as a nation. Hundreds of delegates from ethnic minorities attend the National People’s Congress (NPC) and ethnic groups have historically received preferential treatment in birth planning, access to education, loans or employment. In practice, these concessions are limited. The NPC only meets once a year and real political power is held in the Politburo Standing Committee.

   (b)Preferential treatment of minorities is unevenly implemented and has been wound back in recent years. The political narrative has changed to one of ‘ethnic unity’ and emphasis is placed on prioritising a unified national identity, which is tantamount to assimilation into the Han majority . The state sees that unity as critical to national security. Some Han Chinese have complained that they have been treated unfairly in the context of growing wealth inequality that has caused many to struggle with the cost of living.

   (c)The government announced in January 2021 that some local regulations that allowed ethnic minority schools to teach in minority languages were incompatible with the Chinese Constitution and the use of ethnic minority languages would be rolled back. A prominent example is a change in policy in Inner Mongolia from August 2020 that changed the language of instruction in some subjects from Mongolian to Mandarin, which sparked protests.

   [14] See the DFAT report at [3.1]-[3.3].

Analysis of Evidence and Factual Findings

Assessing Credibility of Claims – General Principles

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[15]

   [15] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].

2. The Tribunal also recognises that Applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions. The nature of their claims, if genuine, may cause them some consternation in expressing their fears. Allowing for such considerations, if the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt if they are unable to fully substantiate all of their claims.[16]

   [16] Ibid [15.4].

3. However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[17] An Applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[18] While there is no legal concept of ‘onus of proof’ that is to be applied by the Tribunal, in the same way that such a concept is routinely applied in courts of law,[19] the Tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an Applicant’s claims. If there is no such foundation, the Tribunal is obliged to reject those claims.

   [17] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [18] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

   [19] Sun v MIBP [2016] FCAFC 52

4. Ultimately, it is for the Applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an Applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[20] It is the responsibility of the Applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[21]

Credibility of Applicant’s Claims in this Case

[20] MIEA v Guo (1997) 191 CLR 559, 596’ Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

[21] Migration Act 1958 (Cth), s 5AAA(2).

1. In this case, the Tribunal is generally satisfied that the account of the personal circumstances in China leading to the First Applicant’s departure is credible. In particular:

   (a)The Tribunal accepts her account of becoming pregnant with her second child in [year] and that she was forced to have an abortion. This is what led her to leave China.

   (b)The Tribunal accepts that the First Applicant fears returning to China because of that traumatic experience.

2. However, the Tribunal makes the following further findings:

   (a)Given the significant revision of China’s one child policy since the First Applicant’s arrival in Australia in [year], it is very unlikely that she will face any repercussions if she were to return to China with the Third and Fourth Applicants now. The Tribunal notes that the First Applicant only referred to her mother receiving ‘warning’ letters after leaving China. Nothing beyond that, such as actual fines or notices of imprisonment addressed to the First Applicant, have been adduced in evidence.

   (b)Given that she made no mention of it at the hearing, the Tribunal does not accept that the First Applicant fears returning to China for reasons of her religious beliefs (whether Falun Gong or Buddhist). In this respect, the First Applicant’s claims are rejected in their entirety.

   (c)The Tribunal does not accept that the First Applicant faces any prospect of significant discrimination in China as result of her Zhuang ethnicity. There is no information in the DFAT country information that specifically concerns the Zhuang ethnicity. While the Tribunal accepts the First Applicant’s claim that she is a member of this ethnic group, there is nothing to suggest that she faces the prospect of significant harm because of that ethnic background upon her return to China. By her own account, her complaint goes no higher than being treated differently because of this background. She disclosed nothing in the nature of serious or significant harm arising as a consequence of her ethnicity.

   (d)The Tribunal accepts it would be difficult for the First Applicant to move with her family back to China, having now lived in Australia for the last 13 years or so. The Tribunal also accepts that it will be difficult for her children to make the transition into a new culture, given that the children have never lived anywhere else apart from Australia. However, having regard to the country information, it is not an insurmountable task. Furthermore, there is nothing to suggest that the Applicant and her family would suffer a significantly greater psychological and economic burden than other Chinese citizens who are repatriated to their home country in similar circumstances. That conclusion is reached even having regard to concerns raised by the First Applicant. The country information suggests that, as citizens of China, they will be able to access Houkou system, albeit with initial difficulties that might be expected of citizens who have been absent from the country for such a long period. It is evident that both the First Applicant and her husband are resilient, having settled in Australia and supported themselves to date. That resilience is likely to prevail if they were to return to China.

Do the Applicants Meet the Refugee Criterion?

General Principles

1. Section 5H of the Act defines a refugee as a person who, in the case of a person who 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 return to avail himself or herself of the protection of that country.’[22]

   [22] Migration Act 1958 (Cth), s 5H(1)(a).

2. The term ‘persecution’ is not expressly defined in the Act. However, it is commonly understood as referring to ‘an injurious act’ and ‘[a] particular course or period of systematic violent oppression, esp. one directed against the members of a particular religious or political group, race, etc.’[23] Within the context of Australia’s relevant migration and refugee laws, the concept of persecution is limited by the operation of a number of statutory provisions found in the Act. These provisions essentially prescribe the approach that the Tribunal must take when considering whether an applicant has a ‘well-founded fear of persecution’ when assessing their claim of being a refugee. This includes a requirement that persecution must involve ‘serious harm’ to the person who is seeking protection.[24]

   [23] ‘persecution, n.’, OED Online (Oxford University Press, Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: (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 likelihood of any kind, where the denial threatens the person’s capacity to subsist.

Determining whether a person has a well-founded fear of persecution involves making a risk assessment as to what is likely to happen in the future.[25] In this regard, conclusions about what has happened in the past may provide some assistance in working out what is likely to happen in the future.[26] In many cases, an Applicant will be relying on their own past experiences as founding their claim for a protection visa. The logical starting point for the Tribunal in such cases is to determine whether the events happened as claimed and, if so, whether they constituted persecution.[27]

First Applicant Not a Refugee

[25] MIEA v Guo (1997) 191 CLR 559, 574.

[26] Ibid, 574-5: ‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’

[27] See Abebe v The Commonwealth (1999) 197 CLR 510, [82] (per Gleeson CJ and McHugh J), [192] (per Gummow and Hayne JJ): ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’.

1. For reasons that have been explained in paragraph [37] above, the Tribunal is not satisfied that the First Applicant has a well-founded fear of persecution. While the Tribunal accepts that the First Applicant subjectively fears returning to China for the reasons that she has articulated, the Tribunal is not satisfied that these personal fears amount to a well-founded fear of persecution. That is because the Tribunal is not satisfied that there is a real risk of her suffering harm of a kind that attracts Australia’s protection obligations.

2. Accordingly, the Tribunal finds that the First Applicant does not meet the refugee criterion.

Does the Applicant Meet the Complementary Protection Criterion?

General Principles

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal 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 [they] will suffer significant harm’.[28]

   [28] Migration Act 1958 (Cth), s 36(2)(aa).

2. Section 36(2A) of the Act provides that a person will suffer ‘significant harm’ if:

   (a)they will be arbitrarily deprived of their life;[29] or

   (b)the death penalty will be carried out on them;[30] or

   (c)they will be subjected to torture;[31] or

   (d)they will be subjected to cruel or inhuman treatment or punishment;[32] or

   (e)they will be subjected to degrading treatment or punishment.[33]

   [29] Migration Act 1958 (Cth), s 36(2A)(a).

   [30] Migration Act 1958 (Cth), s 36(2A)(b).

   [31] Migration Act 1958 (Cth), s 36(2A)(c). Torture is defined in s 5(1) as meaning 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 International Covenant on Civil and Political Rights (‘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.

   [32] Migration Act 1958 (Cth), s 36(2A)(d). Cruel or inhuman treatment or punishment is defined in s 5(1) as meaning 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. It 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.

   [33] Migration Act 1958 (Cth), s 36(2A)(e). Degrading treatment of punishment is defined in s 5(1) as meaning an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission.

3. However, s 36(2B) of the Act further provides that there are certain circumstances in which there is taken not to be a real risk that an Applicant will suffer significant harm in a country. These include if the Tribunal is satisfied that:

   (a)it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;[34] or

   (b)the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm;[35] or

   (c)the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[36]

   [34] Migration Act 1958 (Cth), s 36(2B)(a).

   [35] Migration Act 1958 (Cth), s 36(2B)(b).

   [36] Migration Act 1958 (Cth), s 36(2B)(c).

4. A ‘real risk’ of significant harm otherwise involves the application of the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ when considering the refugee criterion.[37]

Is there a Real Risk of Significant Harm?

[37] Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33.

1. For the same reasons articulated in paragraph [41] above, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk that the First Applicant will suffer significant harm.

2. The Tribunal finds that the First Applicant does not meet the complementary protection criterion.

Summary

1. The Tribunal is not satisfied that the First Applicant meets either the refugee criterion or the complementary protection criterion. There is no material before the Tribunal to suggest that the First Applicant meets the family member criterion. Accordingly, the decision under review must be affirmed.

2. Because the Second to Fourth Applicants seek protection visas as family members of the First Applicant, their claims for protection are rejected as a necessary consequence of the Tribunal not accepting the claims of the First Applicant.

DECISION

1. The Tribunal affirms the decisions not to grant the Applicants Permanent Protection (Class XA) (Subclass 866) visas.

Dr Jason Harkess
Member