1731739 (Refugee)

1731739 (Refugee) [2021] AATA 4519 (29 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731739
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Booth
DATE:29 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 September 2021 at 8:32am
CATCHWORDS
REFUGEE – protection visa – China – fear of harm from local authorities and police because of compulsory acquisition of land or irregular business debts – business partner detained, beaten and injured – no harm to applicant – vague claims and evidence, and no corroborative evidence – fear of harm disclaimed at hearing – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 29 August 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Pursuant to s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. The Tribunal draws guidance from the judgements of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.
Pursuant to s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Pursuant to s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria set out in either s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The facts are taken from the applicant’s protection visa application as follows. The applicant is:
·a [Age]-year-old male, born on [date] in Wendeng, Shandong Province, China.
·can speak, read and write Mandarin.
·is of the Han ethnicity.
·is a Chinese citizen.
·was married on [date].
In summary, the applicant claims he fears torture from local police because local authorities want to acquire his land.
The applicant:
·arrived in Australia [in] July 2017 on a visitor visa.
·applied for a XA-866 protection visa on 29 August 2017.
CLAIMS
866 visa application
The applicant’s claims for protection are contained in his protection visa application and attached statement. A Department interview was conducted on 20 November 2017. The claims submitted were as follows:
75 I am seeking protection in Australia so that I do not have to return to:
China.
76 Why did you leave that country(s)?
I AM FEARFUL FOR MY LIFE AND SAFTY. PLEASE REFER TO MY STATEMENT.
77 What do you think will happen to you if you return to that country(s)?
I MAY BE UNFAIRLY PUNISHED BECAUSE I REFUSED A LAND ACQUISITION FROM THE LOCAL GOVERMENT. MY BUSINESS PARTNER HAS BEEN BEATEN AND HE IS NOT ABLE TO TAKE CARE HIMSELF NOW. I THINK I WILL BE WITH THE SAME FATE ONCE RETURNED TO CHINA.
78 Did you experience harm in that country(s)?
Applicant selected ‘Yes’.
Give details:
PLEASE REFER TO MY STATEMENT.
79 Did you seek help within the country(s) after the harm?
Applicant selected ‘No’.
Give reasons for why you did not try to seek help:
THE FARM CAME FROM THE AUTHORITY, I AM NOT ABLE TO FIND HELP. LOOKING FOR HELP WILL BRING ME MORE TROUBLE.
80 Did you move, or try to move, to another part of that country(s) to seek safety?
Applicant selected ‘No’.
Give reasons for why you did not try to move to another part of the country(s):
CHINA HAS COMPERHENSIVE HOUSEHOLD REGISTATION SYSTEM. I AM NOT ABLE TO MOVE ANYWHERE WITHOUT PREMISSION OF THE AUTHORITY.
81 Do you think you will be harmed or mistreated if you return to that country(s)?
Applicant selected ‘Yes’
Give Details:
I WOULD SUFFER THE SAME FATE MY BUSINESS PARTNER HAD. PLEASE REFER TO MY STATEMENT.
82 Do you think the authorities of that country(s) can and will protect you if you go back?
Applicant selected ‘No’
Give details about why you think the authorities could not, or would not, protect you:
PLEASE REFER TO MY STATEMENT. THE AUTHORITY BROUGHT ME THE HARM. THEY DID NOT LIKE ME BECAUSE WE REFUSED TO HAND OUR LAND TO THEM.
Do you think you would be able to relocate within that country(s)?
Applicant selected ‘No’
83 Give details about why you are unable to relocate
PLEASE REFER TO QUESTION 80
EVIDENCE AND SUBMISSIONS
The applicant has not provided submissions to the Tribunal.
The applicant provided the following to the Department:
a)Statement of the applicant dated 23 July 2017 in the following terms:
I, [the applicant], Date of Birth [date], Chinese citizen, hereby making this declaration:
I am fearful for my safety if I return to China. My business partner [Mr A] was persecuted, tortured and unfairly deprived of freedom. He suffers from crippling injury. I am fearful and have reasons to believe that if I return to China, I may face the same fate.
[Mr A] and I used to operate a factory ([Name]) which manufactures [product] in Ru Shan City in Shandong, China. Due to the highly competitive market, the business has not been very good. It became difficult for us to borrow money from the banks and other “normal" financial institutes. From time to time, we were forced to raise debt from public. The interest rate is much higher than banks. However, we had to borrow from them to keep the business going.
This constitutes private fund raising, which can be against the law in China. My business partner [Mr A] was captured and locked up by local police [in] May 2017. He was locked up without any formal charges. The vice director of the police station ([Town 1] Police Station) [Mr B] led other policemen and took [Mr A] 's money, mobile phone, watch and other belonging from him. They beat him while he was in hand cuffs. His eye sockets were black and blue, so swollen he could not open his eyes and see things.
The police could not prosecute [Mr A] through legal channels, mainly because they lack of evidence. He remained imprisoned in the local police station without future charges. The wife, son, mother and other relatives went to the station demanded to visit him. They were refused the visit and the people in the station threatened them.
I was frightened when I learned what happened to [Mr A]. I knew that the police wouldn't go easy on me because of our business relationships. I believe the police was working for the government of the town and they are looking for excuses to take the land of the factory. They prosecuted [Mr A] because he was a land owner who refused to comply with land acquisition. Fearful for my life and safety, I escaped to Australia [in] July 2017.
I recently learned that [Mr A] was beaten during the imprisonment. He was not treated by any doctor and recently returned home. He is not able to take care of himself and may be disabled for life. It has been over a month since the incident. His family demanded the police to provide explanation. The police refused and threatened them again. They tried to petition in the state government but were sent back.
I do not wish to end up like my friend. I request the Department of Immigration and Border Protection to consider my circumstance and grant my protection. Please do not deport me back to China because I may face torture or worse.
In summary the applicant’s claims are:
a)He used to operate a [product] factory in Ru Shan City, Shandong with his business partner. The applicant was unable to borrow money from normal financial institutions so from time to time he had to raise money from ‘public’ sources with a higher interest rate than banks. This private funding is illegal in China.
b)[In] May 2017 his business partner was detained without charge. The police along with the vice director of the police station took his business partner’s valuables and beat him severely.
c)They were unable to prosecute his business partner due to a lack of evidence and he remained detained at the station with no one able to visit him.
d)The applicant believes the police were working with the town government to manufacture a reason to take the land of the factory. The applicant’s business partner refused to comply with land acquisition.
e)When the applicant learned what had happened to his business partner he fled to Australia [in] July 2017.
f)He recently learned that [Mr A] was beaten during his imprisonment and was not provided with medical care. He may be disabled for life and the police refuse to answer his family’s questions.
The applicant gave evidence at the hearing, with the assistance of a translator, the substance of which was as follows.
The applicant confirmed that he did not make any claim for protection in Australia on any other basis than that which was in his application.
The Tribunal asked the applicant why he left China and now claimed protection in Australia. The applicant responded as follows: “previously I set up a factory with other people. The government acquire the land when I set up the factory and when the government acquire the land the compensation was too few. Because the compensation is so little my friend was unhappy and he was detained and he was persecuted. Now he is not there anymore just because of the compensation is so small therefore I flee in before I left I was injured, I was harmed, and I flee because I was worried because have the same consequences”. The applicant did not elaborate.
When asked how he was harmed the applicant said “because of the acquisition of the land and the government wants to get back in the compensation was so small and my friend and many people were not satisfied they were detained”.
When asked to explain how and when he or others were detained he said “my partner was detained and heard from people he was cruelly detained”.
He was asked to explain how and when he was harmed. He said “in 2017 my friend was seriously harmed in during the time I was at home and I was afraid and therefore I flee”.
The Tribunal asked the applicant to state whether he had been harmed. The applicant replied “no”. The applicant added “I was not physically harmed just government wanted to acquire my factory”.
He was invited to continue with his evidence. He said “I was not physically harmed but my partner [was] because the government wanted to acquire the land and the compensation was too small therefore my friend was harmed”.
The Tribunal observed that the applicant was repeating his story rather than responding to the questions and invited him to give any further evidence. He said “before I came here I heard from my friend my partner is not there anymore he was serious harm before I left. I cannot get in touch with my friend any more. According to my wife he is not there anymore, I’m afraid of going back”.
The Tribunal asked the applicant to state the name of his friend who was harmed. He replied “[Mr C]”. The applicant was asked to confirm this person was the applicant’s former business partner. He said “yes”. He was asked to confirm that this person was the person who had been detained and injured. The applicant said “yes”. When asked whether this person was known by any other names the applicant said “no”. The Tribunal asked the applicant whether he was sure of this. The applicant said “yes”. The Tribunal observed that this person’s name was [Mr C]. The applicant said “yes”. The Tribunal asked the applicant why he had identified his business partner, the person who was detained and harmed, in his written application for protection as [Mr A]. The applicant replied “perhaps I got wrong memory, it has been years, perhaps I forgot”.

The applicant was asked to identify the name of the business which he conducted with this person. He said “a [product] factory, I forget name”. After some further exchange about an unrelated matter the applicant said “now I can recall the name, [Name]”. When asked whether that was the full name of the business he said “[Full name]”.
When asked how long he had conducted the business with his partner he said “four years”. The Tribunal asked the applicant why he had trouble remembering the name of the business which he had operated with this person for four years. He replied “I don’t want to recall sad things”.
When asked where the business was located he said “Yu Shan”. When asked to identify the province he said “Shandong Province”.
The Tribunal asked the applicant what evidence he produced to corroborate the assertion that he operated this business together with a partner. He said “I don’t have anything now, I don’t have any evidence”.
He was asked who owned the land upon which the factory was conducting the business. He said “don’t understand”. When the question was repeated he said “we bought it”. When asked to identify who had bought it he said “we, too, bought the land”. The question was repeated, he said “[Mr A] and [the applicant]”. The Tribunal asked the applicant why he now referred to this person as [Mr A] when he had previously given evidence that the person’s name was [Mr C]. He said “I got wrong memory, I forget surname”. The applicant was asked whether he had any proof that he and the other person owned land. He said “many information was contained in the previous mobile and lost everything”.
The Tribunal observed that in his statement dated 23 July 2017 the applicant had asserted that he and his partner had raised capital from the public and that was illegal. He was asked why he had not mentioned that fact in the hearing. He said “no one, my materials there is no such information”.
The Tribunal put to the applicant that in fact there was such an assertion in his statement and invited him to comment. He said “I believe there is no such thing in my statement”. The Tribunal read aloud the passages from the statement discussing capital raising from the public. The applicant said “I did not write such thing”. He was asked who wrote the statement. He said “I wrote it myself”. The Tribunal observed that the statement is in fluent English and asked the applicant whether he could write fluent English. He said “I wrote it down and asked people to translate it for me”. He was asked whether he had checked the English language translation. He said “no, I cannot read English”. The Tribunal informed the applicant that it found his responses to be difficult to accept and invited him to comment. He said “after I wrote it down because I write in Chinese it is required in English, if I asked people to translate for me”. He was asked who translated the document. He said “I asked my friend”. He was asked to state the name of his friend. He said “I only know his surname, [Surname 1]”.
When asked when his business partner had been arrested he said “June 2017”. He was asked whether he was sure of the date. He said “we think about it, I am sure between May and June”.
When asked where his business partner was detained he said “in police station, in Yu Shan”. He was asked whether he was sure of this. He said “yes”. The Tribunal observed in his written statement he had identified the police station was at [Town 1] and invited him to explain. He said “in China there are city or country, Yu Shan is a city, [Town 1] is a town”.
He was asked to state the name of the vice director of the police station. He said “I don’t know, my friend was brought there”. The Tribunal observed in the applicant’s statement he had identified the vice director as a person named [Mr B]. He was asked to explain why he now said that he could not identify the person. He said “my friend the name that after seven years perhaps I forget, fact is I did not go to police station”.
He was asked whether the land was acquired by the government. He said “the government wanted to acquire”. When the question was repeated he said “the government wanted to acquire the land”. He was asked again whether the land had been acquired by the government. He said “yes”. He was asked when this occurred. He said “should be in May 2017”. When asked what the acquisition price had been he said “when we bought the land we spent lots of money, when they acquire they gave little compensation”. The Tribunal again asked the applicant how much the government had paid to acquire the land. He said “with exact amount for that it is all been dealt with by [Mr A]”. The Tribunal asked the applicant whether he was contending that he did not know how much the land had been acquired for by the government. He said “according to what my friend told me he said it means police had so much money on buying the land but when we could not get the cost of production”. The Tribunal informed the applicant that it was difficult to accept that the applicant was not informed by his business partner and the applicant did not know how much the government paid in the compulsory acquisition of his land. He was invited to comment. He said “he did not tell me the exact amount but we had 10 Mu on land and only got 10,000”.
The Tribunal asked the applicant whether he had any corroborative evidence to prove that there was a compulsory acquisition of the land. He said “many info was in the mobile and I lost my mobile and I don’t have any information therefore I cannot provide with evidence”.
The applicant was asked what injuries his partner suffered when detained. He said “I heard from a friend he was beaten such that he could not see things clearly, he was beaten to extent he could not look after himself”. He was asked when his business partner was released. He said “he was released two or three days but forget exact date should be in May or June 2017”.
The applicant was asked whether he had spoken to his business partner after that person was released. He said “we talk over the phone. I did not see him there because I was elsewhere”.
The applicant was asked to explain why his business partner was detained. He said “government acquire the land and they don’t agree, then they demolished the plant, I was elsewhere I did not go back”. He was again asked why his business partner was detained. He said “because compensation was so little”. The Tribunal asked the applicant why he was not detained. He said “I was not there, I was elsewhere”. When asked to state his whereabouts during these events he said “where I was anywhere, I forget”. The Tribunal asked the applicant whether he was asserting that he did not recall where he was when these events occurred. He said “I forget where I was, if I was home I would have entertained”. He was asked whether he was accompanied by his family. He said “no”. He was asked where his family were during these events. He said they were “making the product”. When invited to respond to the question he said “my family was at home, we are from Wen Deng”.
When asked whether the government officials had come looking for him at his home he said “yes”. He was asked to explain when this occurred. He said “after my friend was detained, they try to find me therefore I was afraid of going home”. He was asked who informed him that the government officials had attended his home looking for him. He said “the family of my partner”. The Tribunal observed that his own family must’ve told him. He said “yes they told me”. When asked who comprised his family he said “my wife, my son”. He was asked how old his son was he said “in 2017 he was [Age] years old”.
The Tribunal asked the applicant why the detail of government officials attending his home and looking for him was not contained in his statement. He said “I don’t have a reason”.
The Tribunal asked why he did not have any evidence from his wife. He said “what evidence”. The Tribunal asked the applicant why there was no corroborative evidence from his wife as to the government officials attending his home and looking for him. The applicant said “no”.
When asked as to the location of his business partner currently he said “they said he is not there anymore, he disappear”. He was asked when this person had “disappeared”. He said “around two months after I came here”. He was asked whether his business partner’s family still resided in the same place or had they also moved elsewhere. He said “family should still be there”.
The Tribunal asked the applicant why he had no corroborative evidence from his business partner’s family to corroborate the applicant’s assertions. He said “because you do not asked me about it and it’s been a long time perhaps I can get from them”.
The Tribunal asked the applicant why there was no witness statement or any document to corroborate anything that the applicant had asserted in his statement or in the hearing. He said “previously they did not require me to provide”.
He was asked how long after the release of his business partner had he left China. He said “around 10 days”. The applicant was asked why he decided to leave China within 10 days of the release of his business partner. He said “I was worried I might have same consequence as him”.
The applicant confirmed that he travelled to Australia as the holder of a tourist visa. He was asked when he applied for that visa. He said “in September or October”. When invited to state the year he said “2017”. The Tribunal observed that the applicant contended that he left China within 10 days of his business partner’s release, that he had given evidence that his business partner was released in May or June and asked how he could have applied for a tourist visa in September or October 2017. He said “Visa application here when I lodge an application for visa it was in June when my friend had incident”.
The Tribunal asked the applicant whether he asserted that the government officials were looking for him at that time. He said “they went to my home and ask for a while and then did not go there again”. He was asked how many times the government officials had attended his home looking for him. He said “only went once”.
The Tribunal asked the applicant whether he and his partner had been paid the money for the compulsory acquisition of the land. He said “I only got a small amount and when my friend had incident I didn’t know what how much paid exactly”.
The Tribunal asked whether the applicant had complained about the amount of money received for the acquisition of the land. He said “when friend got the incident I came here directly”. When the question was repeated he said “no”.
The Tribunal asked whether the applicant was able to leave China without any hindrance. He said “yes”.
He was asked why he left his family behind. He said “they did not do anything to my family”. When invited to respond to the question directly he said “how should I answer”. The Tribunal observed that it was curious if the applicant needed to leave China extremely quickly that he did not bring his family with him. He was invited to comment. He said “they don’t want to come here”.
He was asked why he did not relocate within China with his family or without them. He said “I did not move”. He was asked why he did not relocate. He said “if I move whole family has to move, if I come out only I have to go”. The Tribunal informed the applicant that it found his response hard to accept and invited him to comment. He said “we have parent on both side they are all people someone has to look after them”.
When asked to confirm that he arrived in Australia on [Date 1] July 2017 he said “[Date 2] July 2017”. He was asked why he did not apply for a protection visa until 29 August 2017. He said “in beginning I did not know, later I heard from a friend that I could apply”. He was asked to state the name of his friend. He responded “[Mr A]”. He was asked to confirm this person had told him about the potential of obtaining a protection visa. He said “no, my business partner”. He was asked again to identify the person who told him about applying for a protection visa. He said “in the beginning I have three months visa, he said I could apply later”. The applicant was again asked to identify this person. He said “what name”. The Tribunal put to the applicant that he was being evasive and that it was not helpful to his case. He said “what was question”. The Tribunal again asked him to state who told him about applying for a protection visa. He said “that was a friend who came here before, I don’t know the name”.
He was asked whether he believed that he would be harmed or threatened with harm if he returned to China. He said “yes in beginning when I allege application I could”. He was asked whether he was asserting that he would not be harmed if he returned now. He said “should be better”. The Tribunal again observed the applicant was being evasive and invited him to respond directly. He said “yes”. The Tribunal asked him again whether he asserted that he would be harmed or threatened with harm if he returned to China. He said “if I go back to China should not be harmed”. The Tribunal put to the applicant that he was now saying that he no longer feared that he would be harmed or threatened with harm if he returned to China. He said “yes”. He was asked why he had not returned to China and why he was persisting with his application for protection. He said “I cannot go back because of current COVID-19”.
The Tribunal informed the applicant that it considered his position now to be completely untenable because he now said that he no longer held a fear of being harmed or being threatened with harm due to his circumstances and that the only reason he was not returning to China was because of the global pandemic. He responded “yes”.
The Tribunal asked the applicant what had been the purpose of the hearing and going through the material. He said “current situation is better but I don’t know exact situation. Now I want to apply for another two years to wait and see”.
When invited to add anything further to his application for review he said “I myself fear if I go back the situation would be better but with regard to exact information plan has not been dealt with and this matter has not been resolved”.
Based upon the applicant’s answers to other questions in the application for a protection visa, the substance of which is also set out above, the Tribunal finds that the applicant:
·is a [Age]-year-old male, born on [date] in Wendeng, Shandong Province, China.
·can speak, read and write Mandarin.
·is of the Han ethnicity.
·is a Chinese citizen.
·was married on [date].
·arrived in Australia [in] July 2017 on a visitor visa.
·applied for a XA-866 protection visa on 29 August 2017.
The country information
In accordance with Direction No.84 made pursuant to s 499 of the Act, the Tribunal also had regard to country information assessments prepared by DFAT. The DFAT report titled ‘People’s Republic of China’ dated 3 October 2019 relevantly stated as follows (footnotes omitted):
SECURITY SITUATION
2.55Gaining support for CCP policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. China’s internal security agencies include: the Ministry of Public Security, which is responsible, inter alia, for the police, border security and household registration (hukou, see Hukou (household registration) system, Health and Children)); the Ministry of State Security, the main intelligence agency; the People’s Armed Police (PAP), a paramilitary force responsible for internal security; and the People’s Liberation Army (PLA), China’s military (see also Military and Police). In November 2013, President Xi established a new National Security Commission to strengthen coordination of both international and domestic security issues.
2.56Security personnel and surveillance technology are ubiquitous throughout China. Increased artificial intelligence (AI) capabilities serve China’s economic and military modernisation interests, while simultaneously enhancing Party stability through increased power to surveil and control the population (see The Social Credit System).
2.57Some reports estimate 170 million surveillance cameras have been installed in cities and towns across the country in the past decade. Everyday street crime and violence in China’s major cities is generally low. Sensitive social groups, including religious organisations, Uighur and Tibetan ethnic groups, Falun Gong practitioners and human rights activists, have alleged that the government uses a range of surveillance methods to monitor their activities. Since 2016, media have reported that Chinese police and security agencies have begun combining photo databases, artificial intelligence and facial recognition technology installed in surveillance cameras to track down criminal suspects and ‘destabilising agents’ in society.
2.58 Since 2010, China’s expenditure on internal security agencies such as the police, the PAP, the courts and the prison system has outstripped spending on the military. In 2016, the gap between domestic security and defence expenditure reportedly reached a record high of 13 per cent, with domestic security expenditure increasing by 17.6 per cent compared to the previous year, to exceed RMB 1 trillion (AUD 209.4 billion), while defence expenditure only increased by 7.5 per cent. However, the actual amount China spends on its military and domestic security is widely debated. Most foreign experts, governments and relevant publications concur that Chinese statistics on security spending do not include some outlays that are standard reporting for most other countries, and note there is no way to verify the accuracy of official figures reported by China.
2.59 Domestic security expenditure across all provinces and regions increased by 215 per cent between 2007 and 2016, and continued to grow in 2018 - particularly in sensitive minority regions such as Xinjiang and Tibet, where security remains volatile due to heightened ethnic tensions and government attempts to curb perceived threats to social stability (see Ethnic Uighurs and Ethnic Tibetans). Over the same 10 year period, security expenditure increased by 411 per cent in the Xinjiang Uighur Autonomous Region (XUAR, Xinjiang), by 404 per cent in the Tibet Autonomous Region (TAR) and 316 per cent in Qinghai (where the population is approximately 25 per cent Tibetan). In February 2018, Xinjiang reported a 92.8 per cent increase in its domestic security spending, from RMB 30.05 billion (AUD 6.3 billion) in 2016 to RMB 57.95 billion (AUD 12.9 billion) in 2017. The increase in security spending in TAR is estimated at 9.3 per cent, although TAR maintains its position as the region with the highest per capita domestic security expenditure of all provinces and regions since 2008, ahead of Xinjiang. Analysts of Chinese security expenditure suggest that per capita domestic security spending in sensitive minority regions is now higher than per capita domestic security spending in the US or Russia (PP adjusted by wage levels).
2.60 In June 2017, China’s National People’s Congress Standing Committee also passed a new National Intelligence Law (2017; amended 2018) which forms part of a national security legal architecture introduced in 2014 which includes the Counter-Espionage Law (2014), Criminal Law (1979; Amended 2015), National Security Law (2015), Anti-Terrorism Law (2015) and Cyber Security Law (2017). The National Intelligence Law calls upon all elements of Chinese society, including individuals, to contribute to national intelligence work. The law inter alia empowers security agencies: to launch intelligence operations in China and abroad; to collect intelligence on foreign bodies ‘engaged in activities that may harm China’s national security or its interests’; to monitor suspects, raid premises or seize vehicles during the investigation of domestic or foreign individuals or groups; to gain priority use of transportation or telecommunications equipment, buildings or enterprises; and to employ ‘technical reconnaissance’ measures with permission. The law explicitly requires security agencies to act in strict compliance with laws relating to the protection of human rights, and states agencies should not exceed their authority or abuse their powers. DFAT is aware of reports of kindergarten children being given homework instructing how they should assist state security officers.
ARBITRARY DEPRIVATION OF LIFE
4.1Article 37 of China’s Constitution states that ‘freedom of the person’ of citizens of the People’s Republic of China is inviolable.
Enforced or Involuntary Disappearances
4.3Chinese law permits security agencies to detain suspects without charge for varying lengths of time during an investigation, with the conditions dependent on the nature of the offence investigated (see Arbitrary Arrest and Detention). Police have broad powers of detention during investigations relating to national security or intelligence matters, as defined by the CCP or state agencies. In the course of the anti-corruption campaign, the CCDI has detained many Party members suspected of corruption, holding some for several months before delivering them to the state criminal justice system (see Corruption).
4.4The authorities' power to restrain the liberty of citizens through a number of legal or extra-legal measures applies to children as well as adults: Then six-year-old Gedhun Choekyi Nyima disappeared with his parents in 1995, after the current Dalai Lama recognised him as the reincarnation of the Panchen Lama, Tibet’s second most senior spiritual leader. The Chinese authorities declared the nomination invalid and installed another six-year-old, Gyaltsen Norbu, as Panchen Lama in his place (see Buddhists). No international observer (diplomatic, media or NGO) has seen Gedhun Choekyi Nyima since 1995. The then 16-year-old son of a ‘709’ lawyer (see Human Rights Defenders (including Lawyers)) was arrested in 2015 at Beijing airport on his way to school in Australia, and again later that year on the Chinese-Myanmar border. In November 2017, he was denied exit from Beijing airport while again seeking to travel to Australia for study.
TORTURE
4.14China ratified the Convention against Torture and Other Inhuman and Degrading Treatments in 1988. Chinese law prohibits the physical abuse of detainees and forbids prison guards from extracting confessions by torture, insulting prisoners’ dignity, and beating or encouraging others to beat prisoners. Amendments to the Criminal Procedure Law that exclude evidence, including confessions, obtained through illegal means, including under torture, took effect on 1 January 2013.
4.15In 2015, the UN Committee against Torture expressed serious concern over consistent reports indicating torture and ill-treatment were still deeply entrenched in China’s criminal justice system (see Torture). In 2016, in its concluding observations on the Fifth Periodic Report of China in January 2016, the UN Committee against Torture also expressed concern over a number of continuing practices that it assessed increased the risk of torture of detainees. These practices include: lengthy pre-trial detention; denial of access to a private lawyer; withholding of information from the detainee’s family in cases deemed ‘endangering state security’, ‘terrorism’ or serious ‘bribery’; ‘residential surveillance’ (see Arbitrary Arrest and Detention); the lack of independence of medical practitioners examining detainees; revisions to laws that prohibit (undefined) ‘conduct that disrupts court order’; lack of judicial or procuratorial oversight of criminal investigations; lack of information on past investigations of allegations of torture by security officials; unexplained deaths in custody; solitary confinement and use of restraints; a lack of information on inspection of detention facilities; exclusion of matters relating to ‘State secrets’ from the government’s reporting on torture; and the broad definition of many offences, including ‘endangering State security’, ‘picking quarrels and provoking troubles’, and ‘gathering a crowd to disturb social order’.
4.16Family members of the ‘709 lawyers’ (see Human Rights Defenders (including Lawyers)) wrote an open letter to world leaders on 1 March 2017 detailing allegations of mistreatment of their family members while in detention. The allegations included: forced consumption of drugs; marathon interrogation sessions and sleep deprivation; beatings; the application of heavy weights on legs; being almost entirely submerged in water for several days at a time; and threats and detention of family members. Individual lawyers detained during the ‘709’ crackdown have also detailed allegations of mistreatment at the hands of the authorities.
4.17Falun Gong practitioners have reported mistreatment in custody including sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding (forced feeding through a tube inserted into the nostril), being forced to drink dirty or salty water, shackling and beatings (see Falun Gong). International human rights reporting continues to document use of psychological pressure against Falun Gong practitioners. Media, human rights groups, members of the international community, and Uighurs have also reported the use of violence and torture of Uighurs in re-education centres in Xinjiang (see Ethnic Uighurs, Muslims).
4.18Media and Uighurs’ reports of physical and psychological maltreatment have included, but are not limited to, interrogation, inappropriate clothing for climate, sleep deprivation, administration of electric shocks, having weights tied to feet, indefinite confinement, forced administration of medication, psychiatric drugs, injections, blood tests, DNA sampling, and medication to stop menstruation, as well as intrusive medical examinations.
4.19DFAT considers allegations of torture, particularly those detailed in cases deemed politically sensitive, to be credible.
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Arbitrary Arrest and Detention
4.20The Ministry of Public Security manages pre-trial detention facilities and procedures. Authorities with the power to authorise the detention of a criminal suspect include (but are not limited to) the Public Security Bureau (PSB), Ministry of State Security, and the Anti-Smuggling Bureau.
4.21Under the Criminal Procedure Law, the term ‘arrest’ refers to the stage of the criminal prosecution process when authorities determine there is sufficient evidence to proceed with prosecution. A suspect can be, though is not necessarily, detained prior to being formally arrested. A detention warrant must be issued to a suspect’s family within 24 hours of their detention. The formal arrest of a detainee must be approved by the Procuratorate, which can take up to 37 days. Unless released on bail, criminal suspects will generally remain detained until the conclusion of the judicial process, including appeals. In practice, the rate of release on bail is extremely low. Bail is not considered a right; under the Criminal Procedure law bail ‘is not an individual right designed to minimize restraints on freedom, but an alternative pre-trial coercive measure. When bail is granted, it is usually on the initiative and for the convenience of the police.’
4.22These procedures are not subject to judicial oversight. The post-arrest investigation period can be up to seven months, and preparation of indictment can take up to six and a half months. The total time required to hear a case and issue a verdict in standard cases ranges from twenty months to an indefinite period. Security agencies can hold individuals for years while they progress through the charge, arrest, investigation, court hearing and sentencing processes. Individuals convicted of an offence do not move into the prison system until their case is finalised, including any appeal processes. Time served in a detention centre is deducted from their custodial sentence.
4.23Amendments to the Criminal Procedure Law (1979; amended 2012, 2018) require the prompt delivery of suspects to detention facilities following arrest. The law stipulates that interrogations must take place in the detention facility, and must be recorded in audio and video. The revised law also requires judicial officials to investigate cases of extraction of confessions under torture.
4.24Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. Police can hold individuals for up to 30 days in criminal detention before deciding whether to pass the case to prosecutors, and for an additional seven days prior to formal arrest. Police detention beyond 37 days requires prosecutorial approval of a formal arrest and notification of family members within 24 hours of detention. The law permits officials not to provide notification if doing so would ‘hinder the investigation’ or for cases pertaining to ‘national security, terrorism, and major bribery’. During periods and anniversaries considered politically sensitive, authorities often detain activists without charge for the full 37-day period.
4.25Administrative detention is regulated under the law on Penalties for Administration of Public Security (2006). Administrative detention is imposed for crimes of a minor nature, and which are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law. It is imposed by public security organs at the local (county) government level. While there are various forms of administrative detention in China with different procedures and time-limits, the maximum period of administrative detention for any one act is 15 days, and where multiple periods of administrative detention are imposed concurrently for several acts, the maximum period of detention is 20 days.
4.26Under the Criminal Procedure Law, police may also detain individuals in ‘residential surveillance at a designated location’ (RSDL) away from their home for up to six months before formal arrest or release. RSDL can be used to detain individuals suspected of crimes endangering national security, involving terrorist activity, or involving serious corruption (see Corruption), or where the suspect or defendant does not have a fixed residence. Authorities must notify relatives of individuals placed under formal arrest or residential surveillance in a designated location within 24 hours, unless notification is impossible. The notification does not need to specify the reason for or location of detention. Suspects do not have the right to meet defence lawyers in these categories of cases. In cases involving national security or terrorism, police are authorised to detain a suspect after arrest for up to an additional seven months while investigating the case. Following investigation, the procuratorate has an additional 45 days to determine whether to file criminal charges of detention, during which time detention can continue. The law explicitly allows detainees to meet with defence counsel before criminal charges are filed but this rarely happens where cases are considered politically sensitive. After filing charges, authorities can detain a suspect for an additional 45 days before beginning judicial proceedings.
4.27RSDL has been criticised for exposing detainees to risk of mistreatment (see Torture) and for enabling conditions of detention that produce forced confessions. While evidence obtained while in RSDL should be able to be excluded in court, rarely is this the case. Human rights groups report RDSL has been increasingly used to detain activists, human rights lawyers and government critics in recent years, and claim police training dormitory facilities have been repurposed for RSDL.
4.28Locations used to enforce RSDL are often referred to as ‘black jail,’ however the term ‘black jail’ more correctly describes short-term detention in rented/owned, run down hotel rooms or similar, often used for petitioners, criminals and those under suspicion of less sensitive allegations, as a coercive measure. The primary distinction between RSDL and ‘black jail’ is that RSDL is a formal feature of the Chinese legal system. RSDL also reportedly often entails treatment more severe than in ‘black jails,’ and occurs in government-run, custom fit for purpose facilities, whereas black jails are quasi-administrative holding centres for petitioners and criminals.
4.29Public security authorities continue to use other forms of administrative detention to suppress political and religious dissidents, sex workers, drug users and petitioners. Authorities also detain family members of dissidents: poet Liu Xia, widow of Nobel Peace laureate Liu Xiaobo, was released in July 2018 after being under house arrest for nearly eight years following her husband’s nomination for the Nobel Peace Prize in 2010 (see Deaths in Custody). Authorities have also curtailed the freedom of family members of ‘709’ lawyers (see Human Rights Defenders (including Lawyers) and Uighur and Tibetan activists (see Ethnic Uighurs and Ethnic Tibetans). The law does not provide for house arrest. Individuals facing this type of detention do not have the right to legal counsel or due process. The Chinese government abolished its ‘re-education through labour’ policy in December 2013, although media and human rights groups claim re-education through labour (including in prisons and linked to Xinjiang-based re-education centres) continued in 2018 and supported production in factories for overseas markets (see Detention and Prison and Ethnic Uighurs).
4.30DFAT assesses that reports that security authorities use extra-legal detention for politically sensitive investigations are credible.
Detention and Prison
Prison
5.19Prison conditions vary significantly among different parts of the country depending on local economic conditions; however, conditions in prisons are generally better than conditions in detention centres. Chinese law provides for prison accommodation to be ventilated, clean and warm with natural light. Prisons are required to provide adequate medical, living, and sanitary facilities. In practice, there is no independent monitoring of the prison system and the lack of transparency into China’s legal system makes it difficult to make generalised assessments of prison conditions.
5.20In general, prisoners are segregated by gender, and four to eight prisoners are allocated to each cell, although DFAT is aware of reports of up to 20 to 40 people in cells. Conditions can be overcrowded, and detainees can be required to sleep on the floor and denied regular exercise. Nevertheless, prisoners generally have beds, shower facilities, access to telephone calls and family visits. However, conditions vary depending on the location, resources available, training of prison or detention guards, and perceived level of political sensitivity and profile of the individual concerned. Foreign prisoners generally receive better treatment in detention than locals receive.
5.21Meals are served regularly, but nutritional quality is poor (often plain rice and vegetables) and quantities are small. Many detainees rely on supplemental food, medicines and warm clothing provided by relatives. Sanitation facilities are limited to buckets and sanitation troughs and/or open toilets. Prison officials sometimes deny these privileges as a form of punishment, particularly for political dissidents (see Torture). Prisoners do not always receive adequate medical care (see Deaths in Custody).
5.22All prisoners are put in the same cells, irrespective of their crime. There is no solitary confinement. Those sentenced to the death penalty are shackled during the day, and locked to a permanent position in the cell at night in the period before execution. Due to shackling, those sentenced to the death penalty have reported they were required to seek the assistance of other non-shackled prisoners to access basic needs like food, water and toilet facilities. Only family members can visit prisoners in China, and prisons generally allow one family visit per month. Women’s prisons are more likely to have better conditions than men’s, and tend to have more psychosocial support services.
5.23Prisoners are generally required to perform work tasks. Prisons operate a merit points system (similar to The Social Credit System), whereby work (such as factory or circuitry work) can be performed to earn points to reduce sentencing, to pay off fines, or supplement inadequate food supplies. In order to be eligible for prisoner exchange, sentences need to be reduced from ‘life sentences’ to a tangible fixed-term sentence of a number of years. However, DFAT is aware it is difficult for prisoners to use work to successfully achieve sentence reductions, and understands working conditions are generally poor. The government formally abolished its ‘re-education through labour’ policy in December 2013. Media and human rights observers claim, however, that forced labour in prisons continued in 2018, supporting production for overseas markets.
5.24Medical facilities in prisons can be comprehensive. Most prisons have a hospital wing, where medical conditions can be treated and monitored. There is at least one prison hospital in each province, and prisoners suffering serious or long-term medical conditions can be transferred to the prison hospital.
Detention
5.25See Arbitrary Arrest and Detention for distinctions between types of detention. Conditions in administrative and pre-trial detention facilities are typically harsh, and often worse than in prisons. Pre-trial detention is highly controlled, and there are no opportunities to work to reduce sentences or for family visitation. Cells in pre-trial detention are approximately 12 metres long and five metres deep, with up to 24 detainees held in each cell.
5.26Detainees are not permitted to leave cells except to meet with investigating and Procuratorate officials, lawyers and consular officials. There is no opportunity to exercise. Meals are delivered to cells three times a day, and detainees are permitted to purchase a limited range of additional food, clothes and personal hygiene items. In pre-trial detention, bright, fluorescent lights are generally switched on 24 hours a day. DFAT is aware of reports of violence and mistreatment in detention centres, with authorities taking immediate action (including shackling violent detainees) to discourage violence.
5.27Hygiene, medical services and food and water provisions are sub optimal and rudimentary at best. Cellmates generally share one open toilet per cell. While detention centres will generally have on-site doctors, they have limited options for treating medical problems.
5.28As in the prison system, national Detention Centre regulations require detainees sentenced to a non- suspended death penalty to be shackled, to prevent self-harm. Detainees subjected to shackling must wear the restraints, which are fixed to an anchor point in the cell, at all times, and require assistance from other detainees for toileting and washing themselves. According to the mandate of pre-trial detention centres, offenders who are sentenced to death are often kept in detention centres (rather than transferred to prisons), thus detained together with pre-trial detainees.
5.29Family visits are technically possible after all judicial proceedings have been finalised and the defendant is sentenced. However, DFAT is aware of reports that family visits to detainees are generally not permitted and, in most cases, families must wait until the defendant has been transferred to a prison and completed their mandatory one-month induction process before they can visit.
5.30Australia has signed, but has not ratified an extradition treaty with China.
Exit and Entry Procedures
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.
Biometrics and fingerprinting is conducted at most airports, and the National Immigration Administration (NIA) has taken over from the bureau of entry and exit and is gradually mainstreaming management of regional airports. This is supported by AI enhanced security and surveillance capabilities (see Security Situation), and a document examination centre at Beijing airport with connectivity to all airports across the country.
STATE PROTECTION
5.1 Article 5 of the Constitution states that ‘no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws’.
5.2 There is no organisation in China tasked with enforcement of the Constitution and courts do not have the general power of judicial review which would allow them to invalidate laws on the grounds they violate the Constitution. The Constitution states the National People’s Congress and its Standing Committee have the power to review laws that violate the Constitution, but, in practice, these powers are rarely exercised, with only one instance of regulations being rescinded.
5.3 Crimes are investigated by public security organs, generally the PSB, but also including other organs such as the Anti-smuggling Bureau, Ministry of State Security and National Supervision Commission, prosecuted by the People’s Procuratorate, and tried in the People’s Courts. All lawyers must be registered with, and operate in compliance with, regulations issued by the All China Lawyer’s Association, which is directly supervised by the Ministry of Justice (see Human Rights Defenders (including Lawyers)).
5.4 The Criminal Procedure Law and Criminal Law regulate arrest and detention. The Criminal Procedure Law sets out the procedures to be followed in the criminal process. It applies prior to a verdict being issued by a court and the Criminal Law is applied after a verdict has been issued. Criminal prosecution can be lengthy, and it can take in excess of one year for a case to progress from initial detention to verdict and sentencing.
Police
5.6 The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. The government no longer publicises the size of its police force, but media estimates place the number at around two million. The People’s Armed Police, a paramilitary force responsible for internal security issues such as riots, terrorist attacks, natural disasters and other emergencies, has an estimated 660,000 members. Police undertake four-year training programs that include courses in procedural law and public order, as well as extensive physical training. Performance is statistics-driven and a national ranking system provides incentives for compliance. Local-level police are generally entitled to receive housing and food allowances as part of their monthly salaries, which are calculated according to local conditions rather than a national standard.
5.7 Maintaining public order and social stability – defined as defending CCP rule – are the key priorities of the police force in China, and outweigh protection of the public from criminal activity. Regular police do not generally carry firearms but can do so in areas of heightened security (such as in Xinjiang and Tibet). Reflecting the power held by the Ministry of Public Security, procuratorate oversight of the police is limited, localised and ad-hoc.
5.8 Chinese citizens have the right to lodge complaints against the police in their city of residence through a telephone hotline, or online complaints website, in person, or in writing to the Public Security Bureau Complaints Office. Local authorities have targeted petitioners (including those with complaints against police) with punishments including arrest and detention (see Protesters/petitioners). Complaints against police rarely lead to disciplinary action and, where investigations are announced, their outcomes are not publicly released (see also Deaths in Custody).
5.9 Police are unable to open a case until the prosecutor is confident there is a high chance of conviction. Police are required to send a brief to the prosecutor seeking formal permission to arrest, and only very clear- cut cases are generally approved, accounting for the 99 per cent conviction rate. When the procuratorate deems there is not enough evidence to justify arrest, it sends the case back for further investigation. Sources report that police are under pressure to obtain confessions prior to trial, and to ensure success in all police investigations. However, China has taken some positive steps to protect individual rights through amendments to the Criminal Procedure Law prohibiting the use of confessions obtained under torture as evidence, and requiring interrogations in major criminal cases to be audio and video recorded. However, these protections do not apply in cases involving national security, which are investigated outside of China’s criminal justice system. In practice, the number of cases in which evidence is not accepted at trial because it was obtained through torture or other coercive means is still very low, and only very few cases of this nature have been reported.
5.10 DFAT has no additional information on the quality of local policing or responsiveness of the PSB to local crime.
Judiciary
5.11 China has explicitly rejected ‘Western notions’ of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. The CPP approves judicial appointments and personnel decisions. Jurors are also appointed to a jury pool by the CCP for a five-year period and therefore serve the needs of the Party. The CCP also exercises direct influence in individual cases through Political-Legal Committees (PLCs) at each level of government. PLCs supervise and direct the work of state legal institutions, including the courts, and are typically staffed by court presidents, the heads of law enforcement agencies, officials of the justice ministry or bureau, and other legal organs. Although PLCs focus primarily on ideological matters, they can influence the outcome of cases, particularly when the case is sensitive or important.
5.12 China’s 2016 White Paper on Judicial Reform includes measures to reduce political influence on courts, improve access to justice, strengthen professionalism of the judiciary, and increase transparency. In an effort to curb local corruption, new policy shifts funding of courts from the local to provincial level and courts have started recording attempts to influence proceedings. Since May 2015 there has been a mandatory nation-wide case filing system, through which courts cannot refuse to hear cases without sound legal justification.
5.13 Enforcement of court judgements remains an issue. However courts now publish many routine judgements online on the Open Trial Network (OTN). The OTN is a case database platform, which increases transparency (for listed cases) to help enforce judgements and parole. If individuals or entities do not comply with fines or fulfil judgements, they can face other restrictions in line with the SCS (see The Social Credit System). Nevertheless, OTN coverage is patchy and not all cases reported in the media are listed. The 709 crackdown cases, for example, are not listed on the OTN. Only final judgements can be viewed on the OTN; intermediary judgements are not always accessible if there is an appeal.
5.14 Articles 183, 274 and 196 of the Criminal Procedure Law require cases involving state secrets, personal privacy, trade or commercial secrets or where the defendant is under 18, to be tried in a closed court. Cases involving trade or commercial secrets are also held in private if any party concerned in the matter requests a closed court session. However, Article 196 requires all verdicts to be issued in open courts.
5.15 Judicial reforms implemented in recent years have led to an increase in administrative law cases, albeit from a very low base, including local cases of official abuse of power. For example, the Shenzhen court has published figures for administrative cases showing 10,133 administrative cases in 2015, compared with 9,167 in 2014 and only 3,840 in 2013. In 2015, the government lost 381 (15.2 per cent) of 2508 lawsuits against it. While improving, these relatively low numbers - even in one of China’s wealthiest and most international cities (Shenzhen has a population of 12 million) - indicate the difficulties faced by ordinary people in pursuing cases against officials.
5.16 A number of special courts also play a key role in the judicial system. The Standing Committee of the National People’s Congress has the power to list the functions and powers of special courts and set up new special courts. Special courts include the military courts, maritime courts, railway transportation courts, forestry courts and the intellectual property courts. The military court, established within the People’s Liberation Army, is responsible for hearing criminal cases involving servicemen and women. This is a relatively closed system without external supervision.
5.17 The maritime court system deals with highly specialised issues related to waters under Chinese jurisdiction. Maritime courts operate in Shanghai, Tianjin, Qingdao, Guangzhou, Wuhan, Haikou, Xiamen, Ningbo, and Beihai, and there are also 39 detached tribunals in major port cities across 15 provinces. Maritime courts have jurisdiction over maritime tort disputes, maritime contract disputes, sea environmental protection cases, and maritime administrative and special procedure cases, including any disputes in this category arising between Chinese and foreign citizens, organisations and enterprises. The procedures of the maritime courts are governed by the Civil Procedure Law (1991; amended 2017), and where there is no provision in the Civil Procedure Law, the Special Maritime Procedure Law (1999) applies. However, maritime courts have no jurisdiction over criminal cases and other civil or administrative cases without a maritime element. In the event of a jurisdictional dispute regarding the existence of a maritime element, the ordinary court at one level higher than the maritime court and the ordinary court seeking to exercise jurisdiction, will determine jurisdiction. The High People’s Court in the locality where a particular maritime court is located has appellate jurisdiction over judgments and orders of the maritime court. Sources claim the maritime court’s remit has, at times, increased to include administrative cases, labour cases involving unpaid workers, shop workers (sailors) and maritime pollution cases. The Maritime Courts connect with port and border authorities, and entry and exit can be prohibited if an Individual has a pending Maritime Court order.
5.18 DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.
INTERNAL RELOCATION
5.31 There are many opportunities for internal relocation in China and movement of people is fundamental to China’s push for continued economic growth and urbanisation. While there are no legal impediments to internal migration, the hukou system presents the biggest administrative impediment to freedom of internal movement (see Hukou (household registration) system). Those who have otherwise come to the attention of the authorities may also face impediments to freedom of movement (see The Social Credit System and Security Situation).
5.32 Linguistic and cultural barriers are not an inhibiting factor for ethnically Han Chinese to move away from their place of hukou registration. Ethnic minorities may face varying degrees of difficulty or discrimination, depending on their ethnicity and their destination (see also Uighurs and Tibetans).
5.33 DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score (see The Social Credit System, Religion, Political Opinion (actual or imputed) and Groups of Interest). People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel (see Security situation and The Social Credit System).
Hukou (household registration) system
5.34 The hukou system ties access to government services, such as education above a certain level and health, to a citizen’s place of birth, or even their parents' place of birth, rather than their place of residence. Only an estimated 35 per cent of urban residents have an urban hukou. Chinese migrant workers (estimated at 282 million) who move away from rural areas for better employment opportunities, are unable to access key services and in some cases, face institutionalised discrimination. An estimated 60 to 100 million children have been ‘left behind’, either in their grandparents' care or alone, while their parents work in cities.
5.35 The Ministry of Public Security reported 28.9 million new urban residency permits issued in 2016, mostly in third or fourth tier cities. The local governments of the largest cities, including Beijing, Shanghai, Guangzhou, Shenzhen, Chengdu, Wuhan and Xi’an, have historically had tough restrictions on granting new hukou permits given the already high populations and overburdened infrastructure in these cities. Lower-tier cities (with fewer than 3 million permanent residents in downtown areas) have been generally more willing to issue hukou, in line with government’s aim to drive economic growth in less developed and less populated regions.
5.36 In April 2019, the National Development and Reform Commission announced the 2019 Urbanisation Plan, which relaxed hukou residency restrictions in small and medium-sized cities. The 2019 Urbanisation plan requires cities with populations between one and three million to end all household registration restrictions under the hukou system. Cities with populations between three and five million will relax restrictions on new migrants and remove limits on key population groups, including graduates of universities and vocational colleges. Small and medium-sized cities and towns of under one million permanent residents have already gradually lifted restrictions on household registration. In addition to loosening hukou restrictions, the plan directs local governments to promote basic public services for permanent residents and further develop urban infrastructure to handle increases in population.
5.37 According to media reports, it will be easier to apply for hukou in big, medium-sized, and small cities (some second-tier and all third and fourth tier cities). China has 13 cities with a population of more than five million in their urban areas, which will not see a relaxation of hukou restrictions under the new policy: Beijing, Shanghai, Guangzhou, Shenzhen, Tianjin, Chongqing, Wuhan, Chengdu, Nanjing, Zhengzhou, Hangzhou, Shenyang and Changsha. Cities that may be affected by the new plan may include, but are not limited to: Xi’an, Harbin, Changchun, Taiyuan, Nanning, Dongguan, Suzhou, Hefei, Jinan, Qingdao, Dalian, Xiamen, Ningbo, Kunming, Shijiazhuang, Nanchang and Fuzhou.
COUNTRY INFORMATION - CLAIMS SPECIFIC
Protesters/petitioners
3.134Protests and petitions occur regularly across China. An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. China Labour Bulletin (CLB) obtained details of 1,287 protests in 2017, and 1,318 protests between January and October 2018, but it estimates this only reflects one tenth of protests that occurred. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. While construction issues account for around 40 per cent of labour issues, in line with changing patterns of migrant work (see Employment), NGOs working on labour issues claim an increasing trend towards protests over service sector work (more than 20 per cent), rather than industry and factory work.
3.135Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices) in 2014, an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT is aware of, but cannot verify, reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.
3.136China’s Constitution and State Compensation Law (1994; amended 2010) enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. Sources report that local officials are encouraged to ensure protests do not reach Beijing. The SCS can be used to restrict movement of people to prevent them from travelling to Beijing to petition the government (see The Social Credit System).
3.137In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise. A series of protests over land appropriation in 2011 in Wukan, a village of 20,000 people in Guangdong province, led to the resignation of local officials and direct elections of village office-holders. While hailed at the time as a sign of greater openness to democratisation, in 2016 provincial authorities arrested the popularly elected local chief, sparking further protests. In contrast to 2011, authorities violently suppressed the 2016 protests and excluded foreign media (including from Hong Kong), some of whom claimed themselves to be victims of police violence while attempting to cover the event. Police blockaded the village, preventing access to goods and services, and local leaders received lengthy sentences (up to ten years in prison) for their role. In November 2017, media reported the village remained under lock-down and a provincial level ‘Wukan Mass Working Group’ had been established, with 100 staff responsible for ensuring stability by marshalling a network of informers, security patrols, surveillance systems and floodlights in the village.
Corruption
2.40China ranked 87 out of 180 countries and territories measured on Transparency International’s 2018 Corruption Perceptions Index. The most prevalent forms of corruption in China are bribery, diversion of public funds, and favouritism by government officials. Bribery, political interference and facilitation payments are common when acquiring public services and dealing with the judicial system.
2.41Of Chinese companies surveyed in 2015, 35 per cent had paid bribes to government officials, and the 2017 Global Corruption Barometer found 26 percent of respondents in China had paid bribes when accessing public services, including education, health care, and the criminal justice system. The common practice of guanxi, a custom for building connections and relationships based on gifts, banqueting or small favours (see Guanxi), can also be considered bribery by foreign companies and by national and international anti-corruption laws.
2.42On taking office in 2013, President Xi launched a nation-wide anti-corruption campaign promising to catch officials of both high and low rank. Authorities conducted 172,000 anti-corruption investigations in 2013, 330,000 in 2015, 527,000 in 2017, and 302,000 in the first half of 2018. By mid-2017, the crackdown had caught over 1,800 officials, including 182 officials ranked at or above the deputy provincial or deputy ministerial level. It had led to the arrest, expulsion from the Party or conviction for corruption of 1,130 officials (including 139 senior officials). Ousted senior officials include provincial Party secretaries, former generals, and former Politburo Standing Committee member Zhou Yongkang. Targets include heads of state-owned enterprise and officials who have fled China with large sums of public money.
2.43The campaign has led to a decline in some corruption-related activities. The 2017 – 2018 Global Competitiveness Index ranked China 49th out of 137 countries for frequency of irregular payments and bribes, and 20th for favouritism by government officials, compared to 67th for irregular payments and bribes and 34th for favouritism by government officials in 2012. Nevertheless, corruption remains widespread in China. The government and Party did not implement the law consistently or transparently and court judgements were not uniformly enforced against Party members, the military, government departments or state owned enterprises.
2.44In March 2018, the NPC adopted the Supervision Law (2018) and established a new National Supervision Commission (NSC), with subordinate Supervision Commissions at the province, city and country level. The NSC is the supreme supervisory organ of the state responsible for investigating corruption within the Party; People’s Courts and Procuratorates; the People’s Congress, their standing committees and subordinate organs; China’s eight ‘democratic parties’; managers of state-owned enterprises, public universities, public research institutes, public hospitals and sports units; and anyone performing ‘public duties.’
2.45Upon its creation, the NSC absorbed the investigative function of the People’s Procuratorate and the entirety of the Ministry of Supervision (which no longer exists), effectively merging with the Central Commission for Discipline and Inspection (CCDI) (the Communist Party’s internal corruption body). The NSC, in conjunction with the CCDI, is thus responsible for conducting graft and ideological investigations against all Party members and public officials. The NSC has the power to detain people under the liuzhi system in residential surveillance at a designated location (RSDL) for up to six months (an initial period of three months, extendable by a further three months), at undisclosed locations without access to a lawyer (see Arbitrary Arrest and Detention and Detention). Conviction rates for corruption cases, as with all criminal cases, are close to 100 per cent (see Judiciary).
2.46The Party Central Committee’s Propaganda Department maintains tight control over media coverage of the anti-corruption campaign and, consequently, state media rarely play a watchdog role. Authorities have detained members of the public, including journalists, who have sought to publicise official corruption beyond that endorsed by authorities. International observers report the government and Party have not implemented the PRC Supervision Law consistently or transparently; however, DFAT notes the law was only passed in March 2018. Likewise, court judgements have not been uniformly enforced against Party members, the military, government departments or state owned enterprises.
2.47Prior to the Supervision Law (2018), anti-corruption confessions were obtained under the ‘shuanggui’ system, a detention system outside of the formal legal system. The ‘liuzhi’ system, a system of extra-legal detention not only for Party members but also for public servants investigated for misconduct (see Glossary), replaced the shuanggui system under the PRC Supervision Law (2018) (for comparison and recent cases see Treatment of Party and public officials).
COUNTRY INFORMATION – SUMMARY

The Tribunal is informed by the country information, in summary, as follows:
a)As to security generally: gaining support for Chinese Communist Party (CCP) policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus.
b)As to the police: citizens can be arrested prior to being charged. Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. The arrest procedures are not subject to judicial oversight.
c)As to State protection: Article 5 of the Constitution states that ‘no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws’.
d)As to the judiciary: China has explicitly rejected ‘Western notions’ of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.
e)As to internal relocation: DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score. People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to relocate internally, due to the Chinese State’s significant surveillance capability and ability to restrict finances and travel.
f)As to corruption: China ranked 87 out of 180 countries and territories measured on Transparency International’s 2018 Corruption Perceptions Index. The most prevalent forms of corruption in China are bribery, diversion of public funds and favouritism by government officials. Bribery, political interference and facilitation payments are common when acquiring public services and dealing with the judicial system.
g)As to protestors and petitioners: An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. Most protests concern land disputes, housing problems, industrial, environmental and labour matters, and government corruption. The central government no longer accepts petitions that should be lodged at local government level and sources report that local officials are encouraged to ensure protests do not reach Beijing. In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. The Tribunal notes that it is a requirement of the Act that the applicant provide details of the applicant’s claim and that it is not incumbent upon the Tribunal to prove the applicant’s case. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The applicant did not produce any documents to corroborate his claims for protection. This is most surprising having regard to the importance of this matter, apparently, to the applicant and the time which the applicant has had to consider and prepare for this application.
The applicant has asserted that his business partner was detained as a result of complaining about a compulsory acquisition of the land which they both owned. The applicant identified his business partner by a different name in the hearing than that with which he had identified him in the written statement in his application. When confronted with this inconsistency he said that he forgot the name of his business partner. That person had been the applicant’s business partner for four years. The Tribunal does not accept the applicant’s explanation. This is given some weight. The applicant initially said that he could not remember the name of the business which he conducted. He said that he did not recall “sad things”. The name of the business was stated in his protection visa application. The Tribunal does not accept the applicant’s explanation. His initial failure to remember the name of the business he conducted with his business partner is given some weight.
The applicant asserted that he purchased the land together with his business partner. This is a critical part of the applicant’s case. He did not produce any corroborative evidence of the acquisition. He asserted that it was contained in a mobile phone which he had lost. The Tribunal does not accept the applicant’s explanation. Further, the Tribunal considers it would be reasonable to expect that such records are available in China and the applicant could have produced such evidence if he chose to. This is given some weight.
The applicant’s protection visa application states that public fundraising led to some of the troubles which followed. He did not mention this in his evidence at the hearing. When confronted about this he said that he did not write those things in the statement. He was vague about who did write his statement. He said that he did not check the translated document because he does not speak or read English. The Tribunal considers it is reasonable to expect a person in the position of the applicant to ensure that a critical statement is correct. The Tribunal does not accept the applicant’s explanation for not doing so. This is given some weight.
The Tribunal identified a different police station from that which he identified in his statement. His explanation for the different names was unconvincing. This is given some weight.
The applicant said that the land was compulsorily acquired by the Chinese government. He produced no evidence to corroborate this. This is a critical part of the applicant’s case. This is given some weight.
The applicant said that he did not know how much was paid by the government. He said that his business partner dealt with this and did not tell him. The Tribunal does not accept the applicant’s evidence. This is given some weight.
The applicant was asked why he had not been detained. He said that he was “elsewhere” but could not recall his location. It is reasonable to expect that the applicant would be able to state his whereabouts during these critical events. The Tribunal does not accept his explanation. This is given some weight.
The applicant asserted the government officials attended his home looking for him on one occasion. He was “elsewhere” but was informed of this event by his wife. This is not mentioned in his protection visa application. He could not explain the omission. This is given some weight.
The applicant produced no corroborative evidence of the government officials looking for him. He could have produced a statement from his wife but did not. He could not explain why. This is given some weight.
The applicant produced no corroborative evidence from his business partner or his business partner’s family as to the events more generally. He could not explain why he did not. This is given some weight.
The applicant was able to leave China without hindrance. Country information suggests that persons of interest to the government will have difficulty leaving China. This is given some weight.
The applicant left his wife and infant son in China. He said that they did not want to leave China. The Tribunal considered that it would be reasonable for the applicant to bring his family to Australia if he had a well-founded fear of persecution. His explanation for not doing so is not accepted. This is given some weight.
The applicant was asked why he did not relocate within China, either with his family or without them. He said that elderly parents must be cared for. The Tribunal considers if the applicant had a genuine fear of persecution he would have relocated within China. This is given some weight.
The applicant said the delay in applying for the protection visa was because he was unaware of his rights in that regard. He said that he was informed of these matters by another person. He was extremely vague on this point and in particular as to the identity of the person who provided that advice. This is given some weight.
Most significantly at the conclusion of the hearing the applicant admitted that he did not fear persecution if he were to return to China. He said that he wanted to stay in Australia for another two years. He stated that his reason for not returning to China was because of the global pandemic. This is given significant weight.
The vague nature of the assertions, the failure to provide relevant details and documents and the failure to provide corroborative testimony compel the conclusion that the applicant’s assertions cannot be accepted. Further the applicant admitted that he did not have a fear of persecution if he was to return to China and that the only reason he had not returned to China was because of the global pandemic. He said that he wanted to stay in Australia for another two years. On his own evidence the applicant has conceded that his case is without any substance or merit. The Tribunal does not accept the matters asserted by the applicant are the basis for his claim for protection in Australia.
The Tribunal has considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s 5J(1)(a) of the Act.
Having regard to the evidence the Tribunal makes the following findings:
a)the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b)the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to China, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c)the Tribunal is not satisfied that there is a real chance of persecution that relates to all areas of China;
d)the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;
e)the Tribunal is not satisfied that the applicant is a refugee in accordance with s 5H(1) of the Act; and
f)the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act.
Complementary protection criteria assessment – s 36(2)(aa)
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 has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or if that harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case must be provided by the applicant.
While the Tribunal is required to adopt a reasonable approach to such matters, the Tribunal is not required to make the applicant’s case out for the applicant. Neither is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. In respect of the Tribunal’s assessment in regard to complementary protection, the Tribunal adopts the findings stated above in relation to the refugee criterion assessment.
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)(b) or (c) 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Booth
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 4519

29 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice