1732752 (Refugee)

1732752 (Refugee) [2024] AATA 3262 (17 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1732752

COUNTRY OF REFERENCE: China
MEMBER:Amanda Goodier
DATE:17 May 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 May 2024 at 12:22pm

CATCHWORDS
REFUGEE – protection visa – China – land resumption without compensation – physical assault – detention – house demolished – petitions to local government – exit procedures – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
WAKK v MIMIA [2005] FCAFC 225
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 14 June 2017. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant faced a real chance of serious harm for one or more of the reasons referred to in subsection 5J(1)(a) of the Act. The delegate also did not accept that there was a real risk the applicant would face significant harm for any reason on her return to China. A copy of the delegate’s decision was provided to the Tribunal.
The applicant appeared before the Tribunal on 2 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection
The applicant’s claims in her protection visa application are as follows:
I’m [applicant’s name], born on [date]. My parents are all peasants,
residing at [Village 1], [Town 1], Shenqiu County, Zhoukou
City, Henali Province. In September 2016, the Village Head notified the
villagers that our country was promoting the campaign of [campaign name] so the peasants' home would be demolished and residential area
would be taken over by the government. Villagers requested to be shown with
relevant land acquisition documents or demolition permit, but in vain. Village
leaders forced the villagers to sign on the demolition agreements. For those
who did not agree to sign, the village leaders asked the gangsters to smash
their window glass and damage their front doors.
[In] November, village leaders came to our village with a large number of
policemen, construction workers and two diggers to demolish houses. The
villagers tried to stop them but were beaten by them. A dozen of villagers were
injured. My father attempted to stop them but was bashed and injured. They
pulled my father and mother out of home. Others knocked down the house
quickly with digger.
Since my father was hospitalized, I went back home from Changzhou City to
take care of my father. A dozen of villagers and I went to [the local] Bureau of Letters and Calls for petition. The officers from Bureau of Letters
and Calls asked us to visit [Town 1] Government for help. Therefore,
we went to Township Government demanding compensation, which was
refused. On [a day in] November, two villagers and I went to County Bureau of Letters
and Calls to seek help. The officers of Bureau of Letters and Calls still did not
accept our reporting. We criticized them for not helping with civilians' problems.
One officer insulted us and called us psychos. They threatened that we would
be sent to mental hospital if we did not go away. Their terrible attitude irritated
us so we criticized them for disrespect of the appellants. The officers called for
6 securities to bash us. In the end, the securities took control of us and handed
us over to the police. We were detained for five days in the name of
disturbance of public service. The five-day detention life gave me the
opportunity to feel the dark side of the government. Police threatened us not to
appeal. They also asked other prisoners to bash us. I had bruise all over my
body after my release.
On [a] morning [in] January 2017, I went to appeal at Zhoukou City Bureau
of Letters and Calls. However, the Bureau officers said that we bypassed the
immediate leadership and presented our appeals and complaints to higher
levels so they did not take our case. I had an argument with the Bureau officers
and was then detained by securities. The City Bureau of Letters and Calls
informed Shenqiu County Government of my appeal. In the afternoon, the
police of [Town 1] took me away. They took me to Township Police
Station and warned that my parents and I should not appeal again. If I
appealed again, they could detain me for half a month with any simple reason.
They forced me to write a guarantee paper saying that I would not appeal
again. They detained me for [number] days before release.
I was in despair and agony. In China, government officers were corrupted. The
grassroots could not solve problems with fair and justice. In March 2017, I left
China in despair and came to Australia. I dare not go back to China. I beg the Australian government to approve my application for protection visa.
The applicant arrived in Australia on a [temporary] visa [in] March 2017, and applied for a Protection visa on 14 June 2017.
The applicant was invited but did not attend the interview with the delegate.
The applicant listed her parents and [child] as her family members remaining in China.
She indicated her previous addresses in China :
·   [specified year] to December 2004 [Village 1], [Town 1], Shenqiu County, Zhoukou City, Henan Province.
·   December 2004 to February 2014 [Village 2], [Town 2], Wujin District, Changzhou City, Jiangsu Province.
·   February 2014 to March 2017 [another location in] Wujin District, Changzhou City, Jiangsu Province.
The applicant indicated that from May 2011 to March 2017 she was employed as a Manager at [Employer 1] in [Town 3], Wujin District, Changzhou City, Jiangsu Province.
The applicant completed [number] years of schooling in China.
She claims she was convicted of the offence of disturbance of public services on [a day in] November 2016.
At hearing the applicant confirmed she prepared her application for protection herself with the assistance of Google Translate. She told the Tribunal that no-one assisted her, she did it herself, she is aware of the contents which are true and accurate.
Later in the hearing as inconsistencies were discussed with applicant, she told the Tribunal that someone else assisted her to complete the form and they may not have translated correctly. When the Tribunal referred back to her original evidence that she prepared the application herself with the assistance of Google translate, the applicant stated that no-one helped her, she used Google for translation and maybe that was not accurate.
She was born in Shenqiu County, Henan Province where she lived with her parents and [specified family members] until she married her husband and moved about 2004 to Jiangsu Province. She has a [child] who is now aged [age] years and studies at [institution]. She has never lived anywhere else.
Her mother has never worked and her father who passed away about two years after she arrived in Australia, worked in [industry 1]. Her [specified family members] also work in [industry 1]. [One sibling] lives in Henan Province with [their] family but in a city away from their mother and the other in Jiangsu Province. Her husband worked as [an occupation 1] and passed away about two years ago.
The applicant told the Tribunal that she arrived in Australia [in] March 2017, stayed in Sydney for about a month before moving to Melbourne where she still lives. She told the Tribunal that she has never lived in Western Australia before confirming that she had never lived in Western Australia but did visit for a few days. The Tribunal asked why her address was a Western Australian address in her visa application as well as in her documents submitted to the Tribunal? The applicant responded that her friend told her to use that address. She lodged her protection visa application in Sydney but provided her identifiers in Western Australia during a visit with friends. She claimed that she intended to live in Western Australia. The Tribunal put to her that she had never lived in Western Australia but provided a Western Australian address as her residential address that has never been updated the entire period she has been in Australia. The applicant gave her current residential address to the Tribunal which notes that her residential address has still not been updated by the applicant.
The applicant completed the equivalent of [grade] school in China and told the Tribunal she was self-employed for about 5 years selling [products 1] from her own shop in Jiangsu Province. She opened the shop in 2011 while she was married. She has not done any other work in China.
In Australia she has worked as [an occupation 2]. She was unable to provide details of the person who has the contract but told the Tribunal they call her, and she does the work for cash. She also buys Australian [specified products], to send to people in China.
The applicant told the Tribunal that she came to Australia as she did not want to live in China anymore. Her family were forced to move as their house was demolished. In November 2016, the family received notice that the house was to be demolished. She returned to her family home, the house was demolished, and her father injured. The applicant clarified that when she returned home, the house was still there but was demolished about 10 days later. Her father would not allow them to demolish the house so was beaten and injured. She went to lodge a complaint in Zhengzhou City against them because of the demolition and injuring her father. She was then arrested and detained because she made a complaint.
The Tribunal sought clarification of her evidence that she made one complaint and was arrested. The applicant told the Tribunal she lodged two complaints. The first time in Zhengzhou City (capital city of Henan Province)and the second time in Zhoukou District as her county is under this district. The last time she lodged the complaint in January 2017 she was arrested and charged for preventing public affairs and detained for half a month. She then got someone to bail her out. Her husband paid someone to bail her out. Not long after that she travelled to Australia as they told her they would catch and arrest her because she was not the only one to lodge complaints. She continued that [number range] people lodged complaints and of those arrested, she was the only one bailed out. She does not know what happened to the others. She did not dare to go back when her father and her husband passed away as she was afraid they will catch her again.
The applicant expanded on her evidence indicating that in January 2017 she was detained for [period] and charged with preventing public affairs. The detention was punishment and she paid for bail otherwise she would not be able to get out. Her husband arranged for her bail to be paid. The Tribunal referred to her visa application that indicates that she divorced her husband in 2014. The applicant told the Tribunal they were not divorced. She did not know why the form indicates they were divorced and maybe Google Translate filled it in.
The applicant told the Tribunal that she was the only one bailed out and she does not know what happened to the others. She did not dare go back to China when her father and husband died. The applicant told the Tribunal that the government did not pay for her father’s medical treatment following his beating then he died two years later. The authorities told her parents that if she returns to China, they will catch her as she is the leader to lodge the complaints.
When asked why the authorities would be interested in her after all this time, the applicant responded that her father was not the only one injured and they were not compensated for the demolished house. She is still afraid they will catch her. She says there are charges outstanding, preventing public affairs. All the houses demolished have never received compensation. As she led those people to lodge complaints, they want to catch her as they want to catch leader.
The applicant told the Tribunal that she obtained her passport in Changzhou City, Jiangsu Province. She sent her application in to the Passports Office. She obtained her passport without any problems as it was a different city. She left via Shanghai Airport legally.
The applicant told the Tribunal that she was detained for [period] in January 2017.
The applicant told the Tribunal that her parents informed her the house was being demolished and the glass in the windows were broken so she went home to keep them company. After they demolished the house they built a tent-like structure and stayed on the land for about a month as her father was in hospital. After about a month she went to lodge the complaint then her mother and her went to stay with her [sibling] despite her parents not having a good relationship with [the sibling].
The applicant told the Tribunal she went to Zhengzhou City to lodge the first complaint about the end of October 2016 but was told to go to lodge it in Zhoukou District as her county came under this district. Nobody did anything. She lodged her second complaint in Zhoukou in November 2016. In January 2017, she was caught. She thinks she went to lodge a complaint three times, if she remembers, but she was caught in January 2017.
The Tribunal asked what she meant by “being caught”? The applicant responded that the police came to catch her and more than [number] people were caught in her hometown. Her father was still in hospital and her mother at home. They took has because she was the one who lodged the complaint. She was held for [period] and released after paying bail.
As her husband bailed her out, she returned with her husband to their home in Jiangsu Province. Her husband told her to go away as he was afraid, she would be arrested again. She claimed the authorities came looking for her at her husband’s house, but she went to hide. The Tribunal put to her that she applied for her passport in a different province, but this was the same province she lived with her husband. The police came to check that she was home after being bailed.
She is unable to relocate as the police will find her anywhere.
The applicant explained any inconsistencies and discrepancies in her evidence is due to Google translate. The first time she was caught she was released but not detained. She was only detained the second time. In her written statement she was detained for [shorter period] and then 2 days. The Tribunal also referred to her evidence in the application as to her divorce from her husband in 2014 yet she tells the Tribunal she was not divorced. The applicant’s evidence as to her employment was also inconsistent with that in her application for protection. The applicant told the Tribunal that she put her name down to work there but did not work at the factory.
The Tribunal referred to the inconsistencies in the applicant’s application for protection and her evidence to the Tribunal. The applicant responded she was detained as she told the Tribunal.
The Tribunal put country information[1] to the applicant that says China has a very efficient and sophisticated monitoring system of arrivals and departures, particularly of its own citizens. The system is so effective that if the police had any interest in her because she was a leader in a protest and on bail, she would have been identified on departure and prevented from leaving. The applicant told the Tribunal only people on the “people at large list” would be unable to depart the country and she was not on that list. She claimed that before they announced they wanted to catch her she ran away. Being on bail does not mean she was on the list to be caught.
[1] 2021 DFAT Country Information Report People’s Republic of China at [5.31-5.35]

The applicant claims that the police told her parents and her husband before he died that they are interested in her and will catch her when she returns. The authorities are interested in her because people were injured, and some people died, and she was leading the process. The Tribunal put to her this was the first time she had raised someone had died. The applicant responded she did not put it down as other people had died.
She is unable to return as the authorities are interested in her. When she left China, people she was arrested with had not died and now someone has died. The applicant told the Tribunal that they were tortured to death after she came to Australia.
The applicant has no other fears of returning to China.
Country of nationality
The applicant travelled to Australia on a genuine passport issued by the People’s Republic of China. She has at all times stated that she is a citizen of China and have been assessed on that basis by the Department. The Tribunal finds she is a citizen of China and has assessed her claims against China as the country of nationality and the receiving country.
Findings and reasons
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[2] The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm.’ It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[2] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[3]
[3] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal has concerns about the credibility of the applicant’s claims to fear harm if she returns to China. The Tribunal found the applicant’s narrative changed and was not as consistent and flowing as when she was providing her background details. When discussing her claims, the applicant was hesitant and on occasion frustrated with the Tribunal when going through her inconsistencies or asking about matters that did not fit the narrative. Despite telling the Tribunal that she prepared her application herself, was aware of the contents which were true and accurate, the applicant firstly indicated to the Tribunal that someone had assisted her then blamed Google Translate for any differences in her application and evidence to the Tribunal.
The Tribunal found aspects of the applicant’s evidence to be vague and to contain inconsistencies over time about certain significant matters which raised concerns about the credibility of aspects of her claims.
By way of context, the DFAT Country Information Report on China[6] states:
3.88 Land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villages. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation (thus, disputes are generally complaints against local government which may escalate to the national government, as outlined above). China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs,’ who intimidate protesters or cut utility supplies, have been used and are allegedly hired by local governments.
3.89 DFAT assesses that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.
[6] 2021 DFAT Country information Report China.
The applicant claims that she was a leader of a protest against the demolition of houses, including her family home, in her village. She is unable to return to China as the authorities will want to catch her because she was the leader of the protest, and someone has now died after being tortured by the authorities.
The Tribunal has concerns about discrepancies in the applicant’s evidence over time about the protests she claims to have made and the arrests she claims she was subjected to as well as her detention in China due to her activities protesting the demolition of village houses, the developers and lack of compensation.
There were a number of inconsistencies in her evidence to the Tribunal as well as inconsistencies between her written application for protection and her evidence to the Tribunal. The Tribunal does not accept that Google Translate is responsible for all the inconsistencies in her written and oral evidence. The applicant was confident that the contents of her application were true and correct at the beginning of the hearing and that she signed the application as being true and correct. It was only when these inconsistencies were drawn to her attention did she firstly indicate that someone else helped her then blamed Google Translate for the errors. After reviewing the applicant’s evidence as a whole, the Tribunal did not find the applicant a credible witness.
The applicant’s evidence was inconsistent as to her employment. Her application for protection listed her as a Manager at [Employer 1] in [Town 3], Wujin District, Changzhou City, Jiangsu Province for around six years yet when the Tribunal pointed out that was not consistent with her evidence, she told the Tribunal that she had only applied for the job. Her evidence to the Tribunal was that she ran her own [product 1] store in Jiangsu Province following her marriage from about 2011 to her departure from China.
In her application for protection, the applicant indicated she had divorced her husband in February 2014, and he was not included in the details of her family members in China with the applicant only listing her parents and [child]. At hearing, the applicant referred to her husband as organising her to be bailed out and that her relationship with her husband was good until he passed a few years ago. When this inconsistency was pointed out to the applicant, she indicated that Google Translate must have made a mistake.
The Tribunal also notes that despite never living in Western Australia, the applicant has consistently maintained her residential address as an address in Western Australia. The Tribunal does not accept the applicant’s reason as being that her friend told her to put the Western Australian address down and that at the time, she gave her identifiers to the department she was staying in Western Australia with the intention of possibly living in the State. Her oral evidence was that she was only visiting at the time she gave her identifiers to the department. The applicant also gave to the Tribunal her residential address as the Western Australian address despite living in Melbourne at the time. At no time has she updated her residential address with the department or the Tribunal. The Tribunal finds that the failure of the applicant to provide her true residential address on her application form and to the Tribunal, including updating her residential address at any time over the past seven years, goes to her credibility.
The applicant has not been consistent in her evidence as to the number of complaints she made, when those complaints were made, when she was detained or the number of days she was detained.
In her application for protection, the applicant claimed that she returned home to help care for her father after the house was demolished and her father was hospitalised. In her evidence to the Tribunal, she initially stated that she returned to the village after the demolition of the house then clarified to returning home after her parents were given notice of the demolition which then occurred about ten days after her return.
In her written statement, the applicant claimed to have lodged her first complaint in November 2016 when she was charged with disturbance of public places and detained for [shorter period]. She then sought to appeal and was detained for [number] days, made to sign a guarantee not to complain again and threatened to be detained for half a month should she complain again. In her initial evidence to the Tribunal, the applicant claimed to have lodged a complaint in November 2016 when she was arrested and detained. Upon the Tribunal seeking clarification of her evidence, the applicant told the Tribunal that she complained twice, once in November 2016 and again in January 2017 when she was charged and detained for [period]. She claimed to be the only one of about [number] persons who complained and was detained who was released on bail.
Later in the hearing, the applicant told the Tribunal that the first time she complained was in October 2016 then again in November 2016 and she was caught in January 2017. (October 2016 would be prior to her evidence that the house was demolished.) Despite maintaining that she only complained twice for most of the hearing, the applicant towards the end of the hearing told the Tribunal that she thinks she complained three times. Inconsistent with her previous written and oral evidence, the applicant then claimed the police came to the village and caught her in January 2017 with about [number] other people and she was charged and detained for [period] before being bailed.
The applicant claimed that she was able to depart China freely despite being on bail and claiming that the authorities were interested in her. She told the Tribunal that it was not until after she had left China that the authorities became interested in her when somebody died.
The Tribunal does not accept that it was not until someone died after she had left China that the authorities became interested in the applicant. The Tribunal does not accept that someone was tortured to death, died and that is why the authorities are interested in her. The claim was raised late in the hearing and almost as an afterthought rather than a considered claim. The applicant provided no details as to who or when just that someone had died.
The applicant claims to have departed China without difficulty through the airport. As discussed with her, country information indicates that exit from China is strictly regulated and people with certain profiles, including those suspected of a crime and persons of interest on ‘national security grounds,’ may be prevented from leaving the country due to being on an exit control list. Various government agencies can feed data into databases including from to tax, customs, police, or judicial authorities. DFAT asses it is almost impossible to exit China without the authorities’ knowledge.^[7]
[7] 2021 DFAT Country Information Report People’s Republic of China at [5.31-5.35]
The Tribunal assesses that based on the country information, if the applicant‘s claims were true in that she was of interest to the police because she was a leader of the protesters and on bail for charges, then she would not have been able to exit the country unhindered. The Tribunal does not accept her explanation that she was able to depart China because the authorities were not interested in her at that time. According to the applicant’s evidence she was on bail, considered to be a leader of a protest with the police following up that she was at home while on bail. The Tribunal assesses that the much likelier explanation for the applicant’s ability to leave the country freely is that she was not of any interest to the authorities.
In the hearing, the Tribunal put to the applicant that it had concerns about differences in her evidence between her written statement and what she told the Tribunal in the hearing about various matters, which raised doubts about the credibility of her claims. The applicant claimed that Google Translate was at fault.
The Tribunal considers that the number and significance of the discrepancies in the applicant’s evidence about key aspects of her claims, particularly when considered cumulatively, cannot be fully explained by errors made by using Google Translate and raise concerns about whether her claims are truthful. For example, there are differences in the applicant’s evidence about how many times and when she complained, when she was arrested and detained, the length of the detention, whether she was detained when complaining or when the police came to the village as well as the late claim that someone died. This all raises concerns for the Tribunal about the credibility of her claims.
Therefore, for the reasons explained above, the Tribunal does not accept the applicant’s claims about lodging complaints, being arrested and detained by the police due to her activities opposing the demolition of her family home and other houses in the village or lack of compensation. The Tribunal does not accept that the applicant was the organiser of a group of protesters from her village or a leader of a group of protesters or that the authorities are after her for any reason
The Tribunal finds that the applicant is not of adverse interest to the authorities in China for any reason and that there is no real chance she will face serious harm if she is returned to China.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that the applicant would suffer serious harm amounting to persecution from anyone for reasons of her political or imputed political opinion, religion, race, nationality or membership of a particular social group or any other reason, if she returned to China now or in the reasonably foreseeable future.
Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason now, or in the reasonably foreseeable future, if she returns to China.
Complementary protection
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). This requires the Tribunal to consider whether it has 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.
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[8] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm.
[8] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
In view of the above findings, the Tribunal finds that there is no real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to China now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to torture or cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to China now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Goodier
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.
…

[2024] AATA 3262

17 May 2024

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