1803972 (Refugee)
[2022] AATA 803
•13 January 2021
1803972 (Refugee) [2022] AATA 803 (13 January 2022)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER: 1803972
COUNTRY OF REFERENCE: China
MEMBER:Dominic Triaca
DATE OF DECISION: 13 January 2022
DATE CORRIGENDUM
SIGNED:31 March 2022
PLACE OF DECISION: Melbourne
AMENDMENT: The following corrections are made to the decision:
Date of decision on page 1 incorrectly recorded as ‘13 January 2021’ instead of ’13 January 2022’.
Dominic Triaca
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1803972
COUNTRY OF REFERENCE: China
MEMBER:D Triaca
DATE:13 January 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 January 2022 at 12:11pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – complaint over police corruption – torture in custody – internal relocation – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47
AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48; (2019) 269 FCR 184
Chan v MIEA (1989) 169 CLR 379
CHEN SHI HAI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] HCA 19; 201 CLR 293
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIlhatton v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 1 February 2018 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s. 65 of the Migration Act 1958 (the Act)[1]. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611
The visa applicant applied for a visa on 5 June 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s.36(2) (a) or (aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).
The applicant appeared before the Tribunal on 21 December 2021 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the tribunal has concluded the decision under review should be affirmed.
RELEVANT LAW
The criteria for the grant of a protection visa are set out in s. 36 of the Act and Schedule 2 of the Regulations. An applicant must establish that they are a non-citizen of Australia and that they are either:
(a)A person in respect of whom Australia has protection obligations because that person is a refugee (the refugee criterion)[2];
(b)A person in respect of whom Australia has protection obligations because of other complementary protection grounds (the complementary protection criterion)[3]; or
(c)A member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion)[4].
[2] Migration Act 1994 (Cth), s 36(2)(a)
[3] Migration Act 1994 (Cth), s 36(2)(aa)
[4] Migration Act 1994 (Cth), s. 36(2)(b),(c).
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 protection in that country.[5] 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 they are unable or unwilling to return to that country.[6]
[5] Migration Act 1994 (Cth), s 5H(1)(a)
[6] Migration Act 1994 (Cth), 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 of the Act.
The term persecution is not expressly defined in the Act. The standard Australian dictionary, the Macquarie Dictionary, defines the verb to "persecute" as "to pursue with harassing or oppressive treatment; harass persistently" and relevantly, "to oppress with injury or punishment for adherence to principles".[7]
[7] See Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at [61] to [65] for a detailed discussion of the meaning of persecution.
Section 5J of the Act states that for the purposes of the application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race nationality, membership of a particular social group or political opinion’ and that there is a real chance they will be persecuted for one or more of these reasons in the event they return to their receiving country. The real chance of persecution must also relate to all areas of the receiving country.[8]
[8] Migration Act 1958 (Cth) 5J(1)(c)
In Chan v MIEA[9] the Court, when considering ‘well-founded fear’ for the purposes of the Refugee Convention, held that involves both a subjective and objective element.[10] Mason CJ said at 389:... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. Dawson J said at [397] ‘Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear ‘and at 398 that a “real chance is one that is not remote regardless of whether it is less or more than 50%”.Toohey J said at 407:The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. McHugh J said at 429:...a fear may be well-founded for the purposes of the Convention and Protocol even though persecution is unlikely to occur...an applicant for refugee status may have a well-founded fear of persecution even though there is only a ten per cent chance that he will be...persecuted.
[9] (1989) 169 CLR 379
[10] the meaning of “well-founded fear of persecution”, and “real chance” of persecution were the subject of earlier judicial commentary when the applicable tests were found in the Refugees Convention. Those authorities remain apposite. In AKH16 v Minister for Immigration and Border Protection[2019] FCAFC 47; (2019) 269 FCR 168 (AKH16) (Besanko, Middleton and Mortimer JJ) and AON15 v Minister for Immigration and Border Protection[2019] FCAFC 48; (2019) 269 FCR 184 (AON15)(Besanko, Middleton and Mortimer JJ) the Full Court usefully discussed some of the main authorities.
The Act provides that a person is only considered to have a ‘well founded’ fear of persecution if three elements are satisfied.
(a)They fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;[11] and
(b)There is a real chance that, if they are returned to their home country, they would be persecuted for one or more of those reasons;[12] and
(c)The real chance of persecution relates to all areas of the receiving country.[13]
[11] Migration Act 1958 (Cth), s 5J(1)(a)
[12] Migration Act 1958 (Cth), s 5J(1)(b)
[13] Migration Act 1958 (Cth), s 5J(1)(c)
In the event that a person fears persecution for one or more of the prescribed reasons, the Act imposes the following three further requirements[14]:
(a)The identified reasons(s) for the persecution must be the essential and significant reason(s) for the persecution;
(b)The persecution must involve serious harm to the person; and
(c)The persecution must involve systematic and discriminatory conduct.
[14] Migration Act 1958 (Cth), s 5J(4)(a)(b)(c)
A person will not have a well-founded fear of persecution if effective protection measures are available to the person in their home country or if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in their home country.[15] In determining whether a person has a well-founded fear of persecution, any conduct engaged in by that person in Australia is to be disregarded unless the person satisfies the tribunal they engaged in the conduct otherwise then for the purpose of strengthening their claim to be a refugee.[16]
[15] Migration Act 1958 (Cth), s 5J(2) and (3)
[16] Migration Act 1958 (Cth), s 5J(6)
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 gran 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 consequences 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) & (2B) and extracted in the attachment to this decision.
An applicant is considered not to be at real risk of suffering significant harm in a country if it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm[17],or the tribunal is satisfied that the applicant could obtain protection from an authority all that country such that they would not be a real risk that the applicant would suffer significant harm or the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is less than a real risk.[18]
[17] Migration Act 1958 (Cth), s.36(2B)(a)
[18] Migration Act 1958 (Cth), s.36(2B)(b).
The tribunal has concluded that the decision to refuse the applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:
(a)The delegate’s decision record;
(b)The applicant’s original written visa application;
(c)The oral evidence and arguments of the applicant presented at the hearing;
(d)All written material filed by or on behalf of the applicant in relation to this case;
(e)Other relevant documents on the Tribunal and Department files;
(f)The ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs’[19];
(g)Country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, also mandatory considerations under Direction No. 84.
[19] These are mandatory considerations as prescribed by Ministerial Direction No. 84, a direction made under s.499 of the Act (Direction No 84)
Not all the evidence and material that has been placed before the tribunal is specifically referred to in the tribunal’s reasons set out below. The reasons refer to information that is materially significant to the determination of the issues at hand.
Country Information
The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about China on 3 October 2019. In this case, given the Tribunal has found the Applicant to be an entirely unreliable witness (see discussion below), and has rejected all his claims, it is unnecessary to refer to specific information contained in the DFAT report.
CONSIDERATION OF CLAIMS AND EVIDENCE.
Applicant’s Background.
The applicant is [an age] year old citizen of the People’s Republic of China. He first arrived on a Visitor Visa [in] June 2017. He provided a copy of his passport to the Department corroborating this claim. He does not claim to hold citizenship of any other country. The delegate accepted, as do I, that he has provided sufficient evidence of his identity and as such, I accept that his identity is as listed above.
The applicant lodged his application for Protection (subclass 600) visa and associated Bridging visa on 14 June 2017. He has remained in Australia since that time.
Protection Claims.
The applicant’s original claims are set out in his original visa protection form and set out in the delegate’s decision as follows:
(a)He refused an invitation from a compatriot named [Mr A] to assist at the opening ceremony of [Mr A’s] [business].
(b)As a result, [Mr A] had a grudge against him and led more than ten people to his home. His car’s glass was smashed and his [Relative A] suffered serious injuries.
(c)His family reported the incident to police however the town’s Public Security Bureau delayed filing the case. After one month, he wrote a letter of complaint to the leader of the Ministry of Public Security. The letter offended [Officer A], the Director of the town’s Public Security Bureau.
(d)On 10 November 2012, he was arrested by the police, and then:
·He was searched, detained in a metal cage, beaten and verbally abused by police and not allowed to use the bathroom;
·He was kicked and threatened by police, who demanded the reason for his petition;
·Police placed a long stick on his legs, stood on the stick and rolled it back and forth. As a result his legs were bruised and he lost consciousness from the pain;
·He was handcuffed behind his back and forced to lift his arms while someone stepped on his back;
·Policemen pushed soap into his mouth and forced him to bite down. They stuffed a dirty cloth into his mouth then shocked him with electric batons;
·Policemen locked him in a two square metre cage with water on the floor. He was handcuffed to a sewer pipe and forced to lie on the wet floor all night;
·He was tortured again, before being sent to the local detention centre [in] November 2016;
·His home had been searched while he was detained.
·The town’s government extorted thousands of yuan for his release, however he was still unlawfully sent to a detention centre and persecuted.
(e)He was severely injured, had no food or water for four days and his life was in danger. He was sent home when officials feared he might die at the detention centre;
(f)[Officer A] and [Mr A] planned to kill him. They will not leave him alone and he does not dare to return home;
(g)When his body recovered, he left China.
(h)Police told his family that he was a fugitive and would be sentenced if he returned.
The applicant was invited by the Department to attend an interview with the Department prior to the assessment of the application but did not do so.
The applicant’s evidence at the hearing is summarised as follows:
The applicant is [an age]-year-old citizen of the People’s Republic of China from Shandong Province.
He arrived in Melbourne [in] June 2017. He has resided in Melbourne since that time.
He lodged a Protection visa application on 14 June 2017.
In China, the applicant worked in a [business] supervising the production of [products]. He says he has undertaken various casual employment in Australia. He has worked [in specified roles]. He says he sometimes works 30 or 40 hours per week but this is not always the case.
He has no family in Australia. In China, his family includes his parents, wife and [children]. They live in the Shandong Province, Taian City. His daughters are [ages specified]. They live with their mother.
He says that after his day to day living expenses in Australia, he occasionally sends money back to China to support his family.
He says that he left China due to him being unable to stay there because his relationship with [Mr A], the ‘town bully’ became ‘very intense’. He says that the [Mr A] invited him to attend an ‘opening party’ and he did not go. He said that he understood the bully was intending to ask him to install [a product] at this property and the applicant considered that he was unlikely to be paid for this work. Consequently, he did not attend. This led to a situation in which the [Mr A] perceived the applicant had ‘looked down on him’, leading to a breakdown of their relationship. This incident occurred [in] October 2016.
Shortly thereafter, the [Mr A] sent 10 to 20 people to the applicant’s home. They smashed furniture and smashed the house. They slashed his tires. The applicant says that the [Mr A] led the people to his home.
He says that he was not home at the time of the attack. However, his [Relative A] was at the house and was ‘beaten up’. They beat his [Relative A] because his [Relative A] had observed them smashing the applicant’s car.
He says that his family called the Police, but they were ineffective. He says that he also wrote a letter of complaint to the leader of the Police Bureau.
Approximately 10 days later, the applicant was “taken away by police”. He says that his wife and children were present when he was collected by the police, although they were unharmed.
The police station was approximately 20km from his home. When he arrived, he was, “put in an iron cage”. He says that he was verbally abused, hit with a wooden bar, a belt and electric batons. He says that they told him he was going to die and asked him why he made a complaint about [Mr A]. He claims that he did not “say anything” to them in response. He says that he did not call for help. There was another person screaming in an adjoining room. The ordeal lasted for about 2 hours.
He says that he was beaten the following day. He was then transferred to a detention centre. He says that he was subject to pressure to withdraw his complaint about the [Mr A]. He says he passed out from the pain. When asked why he did not withdraw the complaint, he said that he is stubborn and did not want to ‘bend over’ for them.
He claims that whilst he was in detention, his family paid [amount]RMB. However, he was not released immediately. However, the authorities were concerned that he had passed out and “might die”. They asked his family to take him home.
He says that he was taken to Hospital by his family. He was provided with no medical certificate. He says that it took three months for his injuries to “get a little bit better”. He said that he stayed with a friend about 30 kms away from his home in order to avoid [Mr A].
He says that his photos of his injuries were kept on a computer file, which the police confiscated when they paid him a subsequent visit. He claims that the [Mr A] continued to visit him at his home “every few days” to threaten him. The thrust of these visits was to continue to pressure him to withdraw his complaint. He claims they came to his home between 10 and 20 times. He says that the [Mr A] came himself with 5 or 6 other people. They wanted him to withdraw the complaint.
When asked whether [Mr A] faced any sanction because of his complaint, he said that there was ‘no result’ because the [Mr A] was a friend of the head of the police bureau. He says that due to the continued harassment, he was unable to stay at home and applied for a visa to come to Australia. He obtained a tourist visa and did so through the usual channels.
He says that it took approximately 3 months to recover from his injuries. He says that he applied for a passport in May 2017 and applied for a visa to Australia in June 2017. He says that he stayed with a friend so he could not be found by [Mr A] about 30kms away. He says that he did not apply for the passport until he was recovered from his injuries.
He says that he is worried about returning to China. He says that the police went to his house last month and asked his family when he was to return. They said he should surrender. He says that the [Mr A] remains in his home-town. He retains considerable power.
Analysis of Evidence and Factual Findings.
In this case, the tribunal is satisfied that the applicant is a citizen of China and of his general personal background as described by the applicant in her evidence before the Tribunal, and the delegate and his original protection visa application. In this respect the tribunal finds:
(a)The applicant is a citizen of China.
(b)China is the country of reference for the purpose of assessing his application against the criteria for the grant of a Subclass 866 visa.
Credibility.
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is taken into account in these findings.
The mere fact that a person claims fear of 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[20] Similarly, 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. Although the concept of onus of proof is not appropriate to administrative enquiries and decision making[21], a decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[22] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[23]
[20] MIEA v Guo & Anor (1997) 191 CLR 559 at 596
[21] Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288
[22] Migration Act 1958 (Cth) s.5AAA
[23] MIEA v Guo (1997) 191 CLR 559 at 596
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility[24]. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[24] Minister for Immigration and Ethnic Affairs and McIlhatton v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445 per Foster J at p.482
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt where they are unable to fully substantiate their claims[25]. However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
[25] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3]
The tribunal is not obliged to assist the applicant make their case. Nor is it required to accept uncritically and or all of their claims. It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[26]
[26] Migration Act 1958 (Cth), s.5AAA(2)
Credibility concerns.
I have serious credibility concerns in relation to the applicant and I am not satisfied that he faces a real chance of serious or significant harm in China.
In this case, these concerns are highlighted by the applicant’s evidence in relation to his application for a passport. His evidence was that he was injured so badly when he was beaten at the police station, that he was hospitalised and took 3 months to “get a bit better”. He stated that due to his injuries, he was not able to apply for a passport until he recovered, and he did not do so until May 2017. He later said it could have been April or May 2017.
The difficulty for the applicant is that he arrived in Australia on a passport that was issued [in early] 2017. This contradicts his own evidence which was to the effect that he was violently beaten in November 2016 and unable to physically do much for a period of 3 months, ie. until at least [later in] 2017. I have considered the possibility that the applicant was simply mistaken or confused by the date of his application for a passport. However, I consider it is unlikely the applicant’s contradictory evidence is a result of a simple mistaken recollection of dates. Not only did the applicant confirm that he applied for the passport in May 2017 on multiple occasions in his evidence, but he also confirmed he would not have been able to make such an application during the three-month period he says he was convalescing. It is equally unlikely that the applicant was injured at a different time leading to an error in his recollection of the date of his injuries. He was quite specific in his evidence that his dispute with the town bully first occurred around the time of [early October] 2016 and he said he was arrested a month later.
In these circumstances, I do not accept the applicant’s evidence regarding the timeline of his passport and visa application. I find that the applicant must have made an application for a passport prior to [early] 2017, rather than May 2017 as he claimed and that his evidence, he was unable to do for an extended period commencing in November 2016 is unbelievable. It follows that I do not accept his claims to the effect that he was arrested or beaten in November 2016 on account of a letter of complaint or due to a dispute with [Mr A]. The tribunal does not accept the applicant’s claims in relation to his arrest and the subsequent incident at the police station were ever true.
Further, and in any event, the applicant’s claims do not have the ring of truth to them. For example, he claims that his arrest and subsequent detention, including a violent beating, occurred due to his having written a letter of complaint about [Mr A] to the head of the police. He maintained, that when detained, and on subsequent visits to his home, the Police and [Mr A] pressured him to withdraw the complaint and he refused to do so. Notwithstanding this evidence, he also says that due to [Mr A’s] relationship with the police no action was taken as a result of his complaint. I find his evidence illogical. I consider it is highly unlikely that if [Mr A] was in a position to effectively have the complaint against him quashed by virtue of his relationship with police command, he would be concerned about the complaint and go to such great lengths to exert significant pressure on the applicant to withdraw the complaint as claimed, including visiting his home with 5 or 6 people “every few days”. It seems to the Tribunal that if [Mr A] could simply have the applicant’s complaint dealt with at a higher level, harassing the applicant, including sending people to his home on multiple occasions to pressure him into withdrawing the complaint served no purpose. I certainly do not accept that [Mr A], having faced no consequences as a result of the dispute with the applicant, would remain concerned about the applicant’s whereabouts 5 years after the event. His evidence discloses a case for a protection visa that lacks any credible foundation.
In the alternative, if the applicant was arrested and injured due to his dispute with [Mr A], (which the Tribunal does not accept), the Tribunal is of the view that the harm, or risk of future harm, is localised, and it does not extend to all parts of China, and it would be reasonable to relocate to another part of China to avoid the harm. the Tribunal hearing, the applicant indicated that he went to stay with a friend about 30 km away before coming to Australia. He indicated that he had no difficulties when staying with his friend for a period of approximately one month.
The Tribunal is of the view that the problems he claims he is facing (which the Tribunal does not accept) arelocalised issues. They relate to a neighbourhood dispute. There is no evidence that [Mr A] or [Officer A] have a reach beyond their immediate area. The Tribunal considers that the risk of harm does not relate to all parts of China.
When the Tribunal put to the applicant that he would be in a position to escape harm by living away from this area elsewhere in China, the applicant said that [Mr A] can find him in a different part of China. Given that the applicant managed to travel to Australia, and the Tribunal considers this is a much more difficult undertaking than relocating within China, the Tribunal does not accept that he could not relocate to another part of China to avoid [Mr A] and his associates. As [an age] year-old man, who has demonstrated flexibility and resilience to enable him to move to a foreign country, including the ability to find work, the Tribunal is of the view that he can reasonably relocate elsewhere in China. The applicant’s evidence is that he has found work in Australia in a variety of occupations. Given his age and work experience the Tribunal is satisfied that the applicant would be in a position to gain employment and support himself elsewhere in China. The Tribunal considers it is reasonable for the applicant to relocate elsewhere in China.
In summary, in terms of whether the applicant is a refugee as the Tribunal has not accepted the core factual claims of the applicant, it is not satisfied that he faces a real chance of serious harm, or a well-founded fear of persecution, based on threats and harm from neighbours who want compensation for the closure of their [business] and/or wish to harm him and based on police not investigating his complaint. In any event, none of such claims would be persecution for any of the reasons set out in s.5J(1)(a). Were such core claims to be believed (which they are not), as indicated, the Tribunal considers that the harm is localised and is therefore not satisfied that the harm relates to all areas of China and thus 5J(1)(c) is not satisfied.
Does the applicant meet the Complementary Protection Criterion?
A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the tribunal is satisfied that Australia has protection obligations because the tribunal has ‘substantial grounds for believing that, as a necessary and foreseeable consequence of … being removed from Australia to a receiving country, there is a real risk that [they] will suffer significant harm.[27]
[27] Migration Act 1958 (Cth), s 36(2)(aa)
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
In terms of the complementary protection criterion, given the factual findings on core claims, 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 he will suffer significant harm due to his dispute with [Mr A]. Were such claims to be believed (which they are not) the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk of significant harm (s.36(2B)(a)).
Conclusion
For the reasons set out above, the tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk the applicant will suffer significant harm, 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).
The evidence of the Applicant is unreliable, and the Tribunal does not accept it. No other evidence sustains his claims. Save for the matters that have been specifically accepted above, the Tribunal rejects each one of his claims advanced in both his original application and at the hearing before the Tribunal.
The tribunal is not satisfied that the applicant meets either the refugee criterion or the complementary protection criterion.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
D Triaca
Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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5H Meaning of refugee
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.
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5J Meaning of well-founded fear of persecution
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.
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.
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.
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.
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.
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
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.
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.
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Protection visas – criteria provided for by this Act
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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