1800493 (Refugee)

1800493 (Refugee) [2024] AATA 1497 (8 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1800493
COUNTRY OF REFERENCE:                   China
MEMBER:Suseela Durvasula
DATE:8 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 February 2024 at 4:02pm
CATCHWORDS
REFUGEE – Protection Visa – China – land appropriation claims – protest against the county government – applicant does not fear any particular harm – economic reasons – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Home Affairs on 20 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 11 August 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.
The delegate invited the applicant to attend an interview on 20 December 2017, but he did not attend.
The applicant appeared before the Tribunal on 8 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Background
The applicant is a [age] year old Chinese national who was born in Taian, Shandong Province.
In his protection visa application, the applicant states he is married and has one son, aged [age] years. His wife and son reside in China, along with his father and younger sister.
In his application, the applicant states he lived in [Taian], Shandong, from his birth until his departure to Australia in August 2017.
He can speak, read and write Mandarin. He completed 5 years of schooling. He was employed as a worker in a construction company in [Taian], from August 1995 to August 2017.
The applicant departed China on [date] August 2017 and arrived in Australia on [date] August 2017 on a visitor visa. He travelled to Australia on a Chinese passport issued on [date] 2017.
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.
Refugee grounds
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.
The persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c). For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
Complementary protection
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.
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 issues in this case are whether there is a real chance, if the applicant returns to China, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant has provided a copy of his passport to the Department and Tribunal which shows he is a Chinese citizen. The Tribunal finds, based on the applicant’s passport, that he is a national of China and has assessed his claims on this basis.
Land appropriation claims
In his protection visa application, the applicant states he took part in a protest against an unfair house demolition and reported corrupt officials. He faced revenge and persecution. His town government notified him that his hometown area would be demolished and renovated. The developer only offered one third of the market price which would be a huge loss. The applicant strongly disagreed so he and his friend organised a protest with other relocation households. They gathered at the county government building. Shortly after the protest, the police ransacked the homes of the relocation households, including that of the applicant’s friend. The applicant was lucky enough to escape. He had heard that protestors were cruelly tortured in the detention centre. The police knew that he took part in the protest so they wanted to arrest him. He was too afraid to go back to China.
He states that he cannot return to China as he will be arrested, convicted of opposing the Chinese Communist party, imprisoned and abused. Officers colluding with the police will continue to harm him. The whole political system is corrupt and they work together. The situation is the same throughout China and he will be harmed wherever he goes.
At the hearing, the applicant told the Tribunal that he did not know what a protection visa was. He applied for a visa as he was getting used to the life here and wanted to continue working here. He also wanted a Medicare card so he paid a lawyer to lodge an ‘appeal’ for him. He does not know what the ‘appeal’ was about. He communicated with the lawyer by email and telephone and told them that he wanted to stay here for a few more years and work. After that, he would be willing to return to China.
The Tribunal summarised the claims that had been made in the written protection visa application. The applicant stated that he was not aware of those claims and none of that information was true. His house had not been demolished; he did not protest against the county government or report corrupt officials; he did not fear being arrested by the police and he did not fear harm for any other reason related to land appropriation, opposing the Chinese Communist party or corruption.
Based on the applicant’s evidence at the hearing, the Tribunal finds that his house had not been demolished; he did not protest against the county government or report corrupt officials; he did not fear being arrested by the police and he did not fear harm for any other reason related to land appropriation, opposing the Chinese Communist party or corruption.
For these reasons, the Tribunal is not satisfied there is a real chance the applicant will face persecution involving serious harm, for reasons of his membership of a particular social group or political opinion now or in the reasonably foreseeable future, if he returns to China.
Employment claims
At the hearing, the applicant claimed he does not want to return to China immediately as he will not be able to find a good job that will be sufficient for him to support his family. He would be willing to return in a few years after he has earned more money.
His wife does casual jobs working in a local restaurant. His wife lives at his father’s home. His [age] year old son attends university in a different town and lives on campus. The applicant, his wife and father help pay for his son’s education.
The applicant explained that he had completed 5 years of schooling and then did a number of home renovation jobs/construction jobs near his home town in Taian City, Shandong Province. He was always able to find work in his home town, but the jobs were casual jobs and not permanent. He funded his trip to Australia through his own savings. He also worked in [Country 1] for a year in 2015 in construction.
In Australia, he also works in construction jobs. The jobs are casual – 3 to 4 days a week. He earns more money here than he did in China and he sometimes sends money back to his family to support them. His son needs more financial support as he has grown up. The applicant does not fear any particular harm but considers there is very little work for him in China.
At the hearing, the Tribunal discussed with the applicant that his claim that he would not be able to find a higher paying job in China, may not meet the definition of serious harm in s 5J(5) the Act. In addition, the claimed economic harm he fears may not be for reasons of his race, religion, nationality, membership of a particular social group or political opinion. It may arise because of the general different economic circumstances between Australia and China. The Tribunal noted that the applicant had been able to find work throughout his time in China and his wife was also working. If he had to return, he may not be denied of capacity to earn a livelihood, such that it would threaten his capacity to subsist. The applicant stated he had no comment on this.
The Tribunal has considered the applicant’s claims that he will not be able to find a job that will be sufficient for him to support his family if he returns to China. The Tribunal accepts that the applicant has been sending money to his family from Australia which supplements their income. However, the Tribunal does not accept the applicant’s claim that he would not be able to find a suitable job in China that will be sufficient to support his family. The applicant completed some schooling and has broad work experience in the construction and home renovation industries. When he was in China, he was able to find work in his home province in these industries and he also worked overseas. His wife also does casual jobs. He did not spend any significant periods unemployed because of his inability to find work. He was able to save sufficient funds to fund his travel to Australia. The Tribunal is satisfied that given the applicant’s previous experience and skills, he would be able to find work in China in the construction and home renovation industries in his home province.
Based on these findings, the Tribunal is not satisfied that if the applicant returned to China, he would be denied of capacity to earn a livelihood, such that it would threaten his capacity to subsist, within the meaning of s 5J(5)(f) of the Act. Noting that what constitutes serious harm is not limited to the examples in s 5J(5), the Tribunal is not satisfied the applicant fears serious harm, having considered the evidence as a whole.
For these reasons, the Tribunal is not satisfied there is a real chance the applicant will face serious harm if he returns to China, now or in the reasonably foreseeable future. In addition, the Tribunal finds the claimed economic harm feared by the applicant is not for reasons of his race, religion, nationality, membership of a particular social group or political opinion and he does not meet s 5J(1)(a) of the Act.
Overall assessment
The Tribunal has considered the applicant’s claims individually and cumulatively. Having considered the evidence as a whole, the Tribunal is not satisfied that if the applicant returns to China, now or in the foreseeable future, he faces a real chance of serious harm for reasons of his religion or any of the other reasons in s 5J(1)(a) of the Act.
Accordingly, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal is not satisfied the applicant meets the definition of refugee in s 5H(1) of the Act.
Complementary protection
The Tribunal has also 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 he will suffer significant harm (s 36(2)(aa) of the Act).
The Tribunal takes into account the above findings of fact and its view of the applicant’s future conduct and circumstances if he were removed from Australia to China. The Tribunal is satisfied the applicant would be able to live with his family, find a job and would not experience adverse treatment from the authorities. The Tribunal is not satisfied there is a real risk that the applicant will experience significant harm as that term is defined in s 36(2A) of the Act.
The Tribunal is not satisfied, on the evidence, 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 he will suffer significant harm. The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under s 36(2)(aa) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Suseela Durvasula
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 1497

8 February 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction