1801251 (Refugee)

1801251 (Refugee) [2024] AATA 1193 (12 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chaofeng Guan
CASE NUMBER:  1801251
COUNTRY OF REFERENCE:                   China
MEMBER:Suseela Durvasula
DATE:12 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 January 2024 at 12:12pm
CATCHWORDS
REFUGEE – Protection Visa – China – land dispute with his neighbour – applicant confirmed the claims in his protection application were not true – acquisition of the applicant’s home – was not of interest to the authorities – no treason charges against him – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 423A, 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 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 Home Affairs on 9 January 2018 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 30 June 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 applicant appeared before the Tribunal on 8 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
Background
The applicant is a [age] year old Chinese national born in Guangyuan, Sichuan Province. He is married, with one son.
In his protection visa application, the applicant states he lived at Address A in Guangyuan City from his birth until his departure for Australia in 2017. His wife and son continue to live at the same address.
The applicant completed schooling to middle school level. In relation to his employment history, he states he was self-employed as a farmer/retailer from September 2002 to March 2017 in Guangyuan. From 1984 to 2002, he worked in a state-owned [factory], doing [specified work].
The applicant arrived in Australia on [date] April 2017 on a visitor visa, traveling on a Chinese passport issued in his own name.
Claims in protection visa application
In his protection visa application, the applicant states he was a vegetable seller and he established a retail store and a farm. He borrowed money from friends to set up vegetable greenhouses and signed several contracts to make a profit in 3 to 4 years.
Not long after the greenhouses were set up, local gangsters told him the father-in-law of the county head controlled the production and wholesale of vegetables in his area and he could not run his farm business. They ordered him to pay a very low price to buy his farm and he refused their offer. People came during the night and destroyed his plants and instruments. He called the police but they took no action. They colluded with officers of the Trade and Industry Bureau to frame him.
Local gangsters often came to his place to threaten, hurt and beat him and smash his furniture. His friends asked him to pay back the money as he had displeased the county head, but he was unable to. If he goes back to China, he fears the county head and local gangsters will find him and hurt him again. They have relationships with the Trade and Industry Bureau, police and local gangs, and he has been threatened that something worse would happen to him.
The delegate invited the applicant to attend an interview on 29 November 2017 but the applicant did not attend.
Change in claims and further evidence provided with review application
On 4 September and 6 December 2023, the Tribunal received translated statements from the applicant through his representative where he made the following claims:
a)His original application was prepared by a lawyer introduced to him by a tenant living in the same landlord’s property. The lawyer claimed she could assist him to get a bridging visa with work rights but it would only serve to delay the process. The applicant did not receive copies of the documents she prepared on his behalf and the contents of the document are unclear to him. This uncertainty led him to file a new application.
b)He is reluctant to return to China due to pervasive corruption and the powerful influence within the Chinese government which has left him without a safe haven.
c)His neighbour, [Mr A], served in the military before transitioning to a government role as the office director in [a] District, Guangyuan City. Due to his extensive connections, a cement road was constructed leading to his home.
d)After the applicant’s father passed away in September 2008, the applicant returned to his family home in Guangyuan City. [Mr A] wanted to extend the main road by 1 km to reach into the applicant’s backyard and pave it with concrete for his convenience. The applicant initially opposed this. However, [Mr A] involved various local officials to persuade the applicant to agree. They assured him the ancestral property would remain his. Eventually the applicant agreed to concreting his backyard.
e)In 2013 the road construction was completed. The applicant approached the Village Secretary about renovating his house. The Secretary suggested that the applicant first seek approval from [Mr A]. The applicant visited [Mr A] at his house the following day. [Mr A] allowed the repairs but forbade any renovation that would obstruct his house, claiming the applicant only had usage rights and did not have full ownership rights.
f)The applicant confronted [Mr A] but he dismissed the applicant’s claim. The applicant then sought help from the Secretary of the [Town 1] Town government. The Secretary suggested the applicant relocate as he only had usage rights and all land belonged to the state. When the applicant expressed his disappointment, the Secretary accused him of being anti-communist.
g)The police immediately came and the applicant was handcuffed, detained and taken to the [Town 1] police station. He was subjected to inhumane treatment and was released with a warning to abide by [Mr A]’s wishes or face further detention.
h)After that, the applicant faced threats from [Mr A]’s circle. He relocated and his wife moved back to her parents’ home. He entrusted his child to the care of a teacher.
i)[Mr A]’s uncle threatened the applicant and his family if he did not accept the situation. For his family’s safety, the applicant withdrew his complaints and returned home for the Spring festival. He discovered that his electricity and water had been cut off.
j)He was told by the Village Secretary that his property was earmarked for a resettlement project and he was offered a 3 bedroom apartment as compensation. The applicant refused this offer.
k)The applicant then secured work with [Company 1] in Guangyuan City [doing specified work]. One day while working in a residential area near Guangyuan City, the applicant suffered an electric shock, due to high voltage currents allegedly placed by [Mr A]. The incident left the applicant injured. The police and ambulance service was called but the matter was left unresolved.
At the hearing, the applicant’s representative clarified there was a translation error in the applicant’s statement and it should have read that a co-worker was injured, not the applicant.
l)Continuous troubles persisted at home until February 2017. A classmate advised him to leave China.
m)After he left China, [Mr A] branded him a traitor and accused him of betraying his country. His dissatisfaction with the government’s handling of his situation, along with his refusal to allow the house demolition, placed him in significant danger.
n)Due to [Mr A]’s widespread influence, he could not get protection by the standard legal process anywhere in China. [Mr A] has declared that the applicant’s return would result in lifelong imprisonment and has labelled him a traitor.
o)[Mr A]’s vendetta against him is further exacerbated by the applicant’s opposition to the government’s demolition plans for his home.
p)[Mr A] locked the concrete entrance to his backyard with iron bars, barring access. He threatened that if the applicant returned, he would not survive. He vandalised the applicant’s house. In defiance, the applicant installed iron sheeting on the roof.
The applicant also provided 4 photographs and a video of his property, the neighbouring property and the nearby road and courtyard. Along with the photographs and video, the applicant’s representative submitted that:
The entrance road has been blocked by the neighbours residing in the brick house. The courtyard and the adjacent timber brick house on the left are the property of [the applicant]. However, he has been denied access to his own property. These neighbours persuaded [the applicant] to construct the courtyard, only to seize control of it upon its completion. They have prevented [the applicant] from accessing his property, have threatened his life, and have allegedly bribed government officials, using their military connections as leverage, to forcibly take over the property.
Applicant’s background
At the hearing, the applicant told the Tribunal about his current personal circumstances and background.
The applicant stated that his wife and [age] year old son currently live at his wife’s home province in Guiyang City. His wife works and his son attends school.
His mother lives with his younger brother and the brother’s family at Address A in Town B (the applicant’s hometown). He calls his mother every month but only has contact with his wife and son every 6 months.
The applicant later said that Address A was the house that was the subject of the dispute with [Mr A] and that no-one was living there at the current time. His mother and brother lived at another property about 10 minutes away.
In relation to his address history, the applicant stated that between 2003 and 2013, he lived and worked in Shenzhen City, Guangdong Province, doing [specified work]. While there, he only returned to his hometown every 1 to 3 years. From 2013 to 2017 he lived in a rental property in [a] Town, Guangyuan City, about 2 to 3 hours drive from his hometown. He has [a trade] licence and was doing a job for [Company 1].
The Tribunal noted that the applicant had not put down the rental address in his protection visa application and had only stated that he had lived at Address A in his hometown. The applicant stated that his application was prepared by a lawyer and he did not know what was in it.
In relation to his departure, he went to Beijing to get a visa and departed China from Beijing. He did not have any difficulties obtaining a passport or visa or departing China.
Applicant’s claims
The Tribunal asked the applicant why he left China. The applicant repeated the claims in his statements to the Tribunal. In 2008, a dispute started with his neighbour, [Mr A]. [Mr A] has a relationship with the local government and had served in the army for 10 years. He did not allow the applicant to renovate his house due to his corruption. [Mr A] built a road between his property and the applicant’s property that encroached onto the applicant’s backyard. Currently the outside of the house remains intact but everything inside is broken and the neighbours made holes on the surface. The applicant asked a friend to lay steel pieces over the roof to protect it. He has some photographs of the property, which the Tribunal viewed at the hearing and discussed with the applicant.
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 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.
Summary of applicant’s claims
The applicant’s claims may be summarised as follows. The applicant claims that in 2008, he had a dispute with a neighbour, [Mr A], a powerful government official, who wanted to build a road between their properties that encroached on the applicant’s backyard. The applicant initially disagreed but eventually agreed to the road being built. He did not claim to protest or petition against the building of the road. The construction was completed in 2013. In 2013 the applicant wanted to undertake further renovations on his property. He claims he approached [Mr A] who objected. He then approached the Secretary of the town government, who also objected. The applicant claims he was then immediately arrested, detained and subjected to inhumane treatment.
Upon his release from detention, the applicant sent his wife and son to his wife’s home province. He then relocated to City G as he feared for his safety. The applicant claims that he continued working in City G for approximately 3 years until his departure for Australia in 2017. He claims he did not have any further contact with [Mr A], but believes that [Mr A] was responsible for a workplace accident where one of the applicant’s co-workers was injured.
The applicant claims that if he returns to China, he fears being arrested and gaoled by [Mr A]. He claims [Mr A] has called him a traitor and accused him of being anti‑communist. He also claims that [Mr A] has damaged his house and blocked access his house and it has been earmarked for a redevelopment project.
As discussed below, the applicant is no longer claiming the matters that were raised in his protection visa application and the Tribunal has therefore not considered these claims.
New claims before the Tribunal
At the hearing, the applicant confirmed the claims in his protection application were not true. He had never owned an agricultural business, it was not destroyed and he was not threatened by local gangsters.
The Tribunal put to the applicant that under s 423A of the Act, the Tribunal is required to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. The Tribunal asked the applicant if he had an explanation for not raising his new claims before the delegate’s decision was made.
The applicant stated that he did not know what his solicitor put in his protection visa application. When he first came to Australia, he was introduced to a solicitor through a housemate. He paid her $1,500 and started trying to tell her his story. She told him she did not want to talk about these things, and it was useless to give her any information. He gave the lawyer some details about his family, employment and address, but she did not want him to tell her about other aspects of his claims. The applicant did not read what was written in the application and did not ask the lawyer to tell him what was in the application.
After the hearing, the applicant’s representative provided a submission stating that the applicant faced disadvantages due to inadequate legal representation, language barriers and lack of understanding of the legal processes in a new country. These factors substantiate the reasonableness of the late submission of his claims and evidence.
The Tribunal has considered the applicant’s explanation and the representative’s submission. The Tribunal has some doubts that the applicant was completely ignorant of what was in his protection visa application and did not consider it was important enough to raise the new claims at an earlier stage. The Tribunal notes that the applicant did provide some biographical details as part of the application form which were correct. He was able to obtain a passport and visa to travel to Australia and find work and accommodation upon his arrival in Australia, indicating he was sufficiently resourceful to manage these matters.
While the Tribunal has some doubts about the applicant’s explanation, the Tribunal is prepared to accept that the applicant has a reasonable explanation for not raising the new claims before the primary decision was made. The Tribunal accepts that the new claims and evidence do not fall within the scope of s 423A.

The Tribunal will now consider the applicant’s new claims below.
Road construction in 2008
The Tribunal accepts, based on the applicant’s evidence at the hearing and the photographs and video submitted with the review application, that the applicant owns a property at Address A in his hometown. The Tribunal accepts there was an initial disagreement with his neighbour, [Mr A], regarding the construction of a road between the two properties. The Tribunal accepts that the road construction took place after the applicant gave his consent. The Tribunal accepts that the applicant wanted to undertake further renovations on his property in 2013, but his neighbour, [Mr A] did not agree. The Tribunal accepts the applicant approached the Secretary of the town government who also did not agree. The Tribunal accepts, based on photographic evidence, that there may have been some damage to his house as the property has been vacant for a number of years.
For the reasons set out below, however, the Tribunal does not accept the credibility of the applicant’s remaining claims.
Claimed arrest and detention in 2013
Firstly, based on the applicant’s own evidence, he did not engage in any protest activities or petitions that would have attracted the attention of the authorities, such that it would lead to him being arrested in 2013.
At the hearing, the applicant stated that in 2008, he went back to his hometown after his father passed away. He stayed for 3 months. At this time, [Mr A] approached him about the road construction. The applicant initially objected but the road was eventually built in 2013. The Tribunal asked the applicant why it took so long to build the road. The applicant stated that he kept disagreeing with them for 5 years. The Tribunal asked the applicant what he did to disagree with the building of the road and how he was able to do this if he was working in Shenzhen at the time. The applicant then stated he did not take any action between 2008 and 2013 as he had to return to work in Shenzhen.
The Tribunal asked the applicant why he did not try to petition to higher levels of government between 2008 and 2013, given that was before the road construction was completed. The applicant again repeated that he went to see the Secretary in 2013 when he wanted to do further work on his property. He had planned to protest and bring the matter to the provincial level of government, but the government officials are not fair towards normal civilians.
Based on the applicant’s evidence at the hearing, the Tribunal finds the applicant did not take any action to protest or petition against the building of the road adjacent to his property between 2008 and 2013. On his own evidence, he was working in Shenzhen at the time and was only in his hometown for 3 months after his father passed away. The Tribunal does not accept that the applicant would have come to the attention of the local government authorities during this time.
Secondly, the Tribunal does not accept the credibility of the applicant’s claims that he was arrested and detained in 2013 immediately following a meeting with the Secretary. At the hearing, the Tribunal asked the applicant for more detail on what happened when he approached the Secretary of the town government. He stated that when he asked about renovating his property, the Secretary accused him of being anti-Communist and supporting the Kuomintang. The Secretary suggested he may want to relocate and the applicant expressed his disappointment. The police then came and he was arrested immediately.
As discussed with the applicant at the hearing, the Tribunal finds it is not credible that the police would immediately be called the first time the applicant approached the Secretary, given that he was merely making enquiries about doing further renovations on his house and had not protested previously. The Tribunal has made this finding in the context that the road construction had been completed, the applicant had consented to the road construction, had not protested or petitioned about the road construction or his proposed renovations, and did not have a profile that would attract adverse attention from the local authorities.
Relocation to City G and workplace accident
Thirdly, the applicant continued to live in City G in his home province without further contact from [Mr A] or the local authorities for almost 4 years after his claimed arrest and detention in 2013.
At the hearing, the Tribunal put to the applicant that this information may indicate that he was not of interest to the local government authorities or [Mr A]. It may also indicate that the applicant did not have a basis for fearing serious or significant harm and had not relocated to City G for that reason.
The applicant responded that [Mr A] still knew he was there. When asked how [Mr A] knew of his whereabouts, the applicant referred to the workplace [incident]. The applicant believed that [Mr A] replaced the electrical cables to cause the accident. When asked what evidence the applicant had to indicate that [Mr A] was responsible and had replaced the cables, the applicant stated that he believed [Mr A] knew he was working there. The applicant called the ambulance and police but the matter was finalised without investigation. He had to pay the medical costs for the co-worker.
The Tribunal has considered the applicant’s explanation but is not satisfied that the applicant has provided a plausible explanation to link [Mr A] to the workplace accident. He could only state that [Mr A] knew he was working in City G, but this was based on speculation rather than actual evidence. He could not point to any evidence that [Mr A] was responsible for the accident. The accident happened to the applicant’s co-worker, not the applicant. The applicant also confirmed at the hearing that he did not actually have any direct contact with [Mr A] or his associates when he worked in City G.
On this basis, the Tribunal does not accept that the applicant moved from his hometown to City G, and his wife and son moved to live with her parents because they feared harm from [Mr A] or local government officials. The Tribunal finds that the applicant moved to rented accommodation in City G for his employment. The Tribunal accepts that there was a workplace accident where the applicant’s co-worker was injured, but does not accept that [Mr A] was responsible or that he intended to harm the applicant.
Redevelopment project
Fourthly, the Tribunal does not accept the applicant’s claim that he is unable to access his property at Address A as it is going to be demolished for a redevelopment project.
At the hearing, the Tribunal asked the applicant how he had been opposing the project if he had been in Australia and why the demolition had not yet occurred if the project was first proposed 10 years ago. The applicant stated the project had not yet started as he kept opposing it and his house was a heritage property.
The Tribunal finds this explanation to be vague and lacking in detail. The Tribunal considers that if the applicant had been taking active steps to oppose the redevelopment project, he would have been able to outline in more detail what he had done.
The Tribunal does not accept the applicant’s explanation as to why the redevelopment has not started, given that it was first proposed 10 years ago. As discussed with the applicant at the hearing, under the Chinese Constitution, rural land is owned by collectives, not individuals. The Constitution allows for the State to expropriate or requisition land for its use, provided that affected individuals are compensated.[1] There continue to be reports that ‘local governments forcibly seized and demolished the homes of citizens without providing adequate replacement housing or financial restitution’.[2] Given the independent country information about the legal basis for land acquisitions and the speed of land acquisitions for redevelopment projects, the Tribunal does not accept that the acquisition of the applicant’s home for a redevelopment project is ongoing, more 10 years after first being proposed.
[1] Constitution of the People’s Republic of China 1982 (amended 14 March 2004), National People’s Congress of the People’s Republic of China, Article 10 (accessed 7 December 2023).
[2] US Department of State, 2022 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau and Tibet), Property seizure and restitution, >
Having considered the applicant’s evidence, the Tribunal does not accept his claim that his property at Address A is going to be demolished for a redevelopment project and he is unable to access his property. The Tribunal does not accept that he has opposed this redevelopment project in the past or that he would continue to oppose it if he returned to China.
Departure from China
Fifthly, the applicant told the Tribunal he did not have any difficulty obtaining his current passport in March 2017 and did not have any difficulties getting a visa to Australia or departing China from Beijing.
At the hearing, the Tribunal put to the applicant that this may suggest that he was not of interest to the Chinese authorities, given that he was able to freely depart China without a problem. Independent country information indicates that entry and exit to/from China is strictly regulated and it is almost impossible to leave China without the authorities’ knowledge. Various government agencies can feed information into databases and the technology may be used to create an exit control list. If a person is on an exit control list, it is very unlikely that they would be able to exit China.[3]
[3] DFAT report at 5.31–5.35
The applicant responded that [Mr A] is very powerful and he would be able to prevent him from leaving China and mess with him. In written and oral submissions, the applicant’s representative stated that the conflict was not raised to such a high level that the national government would have prevented the applicant from leaving China or from obtaining a passport.
The Tribunal has considered the representative’s submission but considers this contradicts the applicant’s own evidence at the hearing that [Mr A] is very powerful and would have been able to prevent him from leaving China. As stated above, various government agencies can feed information into databases to create an exit control list. If [Mr A] was as powerful as the applicant claims, he may have been able to influence the information that was given to government agencies. The fact that the applicant was able to leave China without difficulty leads the Tribunal to find that he was not of interest to the authorities and was not under the threat of arrest when he departed China in 2017.
In summary, for the reasons set out above, the Tribunal does not accept the credibility of the applicant’s claims that he was arrested, detained and subjected to inhumane treatment in 2013. The Tribunal does not accept that he had to send his wife and son to his wife’s home province and relocate to City G as he feared for his safety. The Tribunal does not accept that [Mr A] was responsible for a workplace accident where one of the applicant’s co‑workers was injured. The Tribunal does not accept that [Mr A] has called him a traitor and accused him of being anti-communist or that [Mr A] has damaged his house and blocked access to his house as it has been earmarked for a redevelopment project.
Future harm
At the hearing, the Tribunal noted it had been 6 years since the applicant had left China and asked why he thought [Mr A] remained interested in him. The applicant confirmed he had not had any contact from [Mr A] or his associates since he had been in Australia. He does not know if anyone in his family has had any contact or not and had not thought to ask.
The Tribunal asked the applicant why his family had not had any contact from [Mr A] or his associates if they were interested in the applicant, given that his mother and younger brother lived close to the property in question. The applicant stated that his mother went back to check the old house and it was all closed up and she could not enter.
The applicant stated there were no actual treason charges against him, but [Mr A] claimed he could send the applicant to gaol if he returned to China. When asked how he knew this, the applicant stated that a friend in his hometown told him in about 2021 that he needed to be cautious if he came back as [Mr A] was calling him a traitor and could get him sent to gaol.
The Tribunal put to the applicant its concerns that given the significant passage of time
since the events in question in 2013 (more than 10 years), the applicant may not face serious or significant harm if he returned to China. The applicant repeated his earlier claim that [Mr A] brought up the road construction with him in 2008 and prevented him from renovating his house in 2013.
The Tribunal has considered the applicant’s claims in relation to future harm. In relation to the applicant’s future conduct, the Tribunal does not accept that he would protest and petition against [Mr A] or the local government if he returned to China, given that the Tribunal has not accepted that he protested or petitioned in the past. The Tribunal does not accept that his mother and brother experienced harm from [Mr A] or government authorities, despite continuing to live in the applicant’s hometown. The Tribunal has not accepted that government officials or [Mr A] wanted to arrest the applicant in 2017 when he departed China or that he was of adverse interest to the authorities when he departed.
It follows that the Tribunal does not accept the applicant would be arrested and detained if he returns to China, given the significant passage of time (more than 6 to 10 years) since the claimed events in 2013 and his departure from China in 2017. The Tribunal does not accept he would be convicted of opposing the Chinese Communist Party and imprisoned. Based on his own evidence, the Tribunal finds there are no treason charges against him. The Tribunal does not accept that a friend warned him in 2021 that he needed to be cautious if he came back due to [Mr A].
The Tribunal has accepted that the applicant had a previous dispute with his neighbour and that his house may be in a poor state, given that it has been vacant for several years. However, the Tribunal is not satisfied that this amounts to serious or significant harm for any of the reasons in s 5J(1)(a) of the Act. The Tribunal finds the applicant would be able to return to live and work in City G or other provinces, as he did previously, or return to his hometown without facing serious or significant harm.
Therefore, the Tribunal does not accept there is a real chance that the applicant will face persecution involving serious harm from government authorities or [Mr A], now or in the reasonably foreseeable future, if he returns to China.
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 would be persecuted for any of the 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 and does not meet the refugee criterion in s 36(2)(a).
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) – that is, 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.
The Tribunal takes into account the above findings of fact in relation to the refugee criterion in s 36(2)(a) 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 as an [occupation] or similar trade, live in City G where he previously worked, or live in his hometown, 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.
CONCLUSION
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 any of the criteria 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 1193

12 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction