1804941 (Refugee)

1804941 (Refugee) [2021] AATA 633 (9 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1804941

COUNTRY OF REFERENCE: China
MEMBER:Paul Noonan
DATE:09 February 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 February 2021 at 04:05pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – questioning by the local police – detention – debts to the government – fear of loan sharks – travel restrictions – employment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 13 October 2017. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection.
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 (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.
The most recent report from DFAT is the Country Information Report for China dated 3 October 2019 (DFAT report), which the Tribunal has considered. The Tribunal has also considered the previous DFAT Country Information Report for China dated 21 December 2017.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is, whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant provided the Department with a copy of his Chinese passport, which satisfied the delegate as to his identity and Chinese citizenship.
On the basis of such, and in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of China and that his identity is as he claims it to be. The Tribunal accepts that China is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Migration history and identity
The applicant first arrived in Australia [in] July 2017 as the holder of a [temporary] visa. On 13 October 2017, he applied for protection and was granted a bridging visa in connection with this application.
In his written application to the Department, the applicant declared he was born in Weifang, Shandong, China on [date] and that his ethnicity is Hainan Chinese and religion is Fa Lun Gong. The applicant declared that he can speak, read and write Mandarin. He stated that he is married and declared a spouse and son as members of his family unit not included in his application who are currently residing in China. He has also listed his father and mother as family members currently residing in China.
The applicant noted he completed middle school education in [year] in China. He stated that he was self employed as a farmer from [that year] to July 2017 in Weifang, Shandong, China.
Claims for protection
The applicant’s written claims for protection were lodged with the Department on 13 October 2017, in which he stated, in summary, that he left China as he and his father practiced Falun Gong and were persecuted by the Chinese Government. The applicant stated his father practiced Falun Gong for more than 10 years and that [in] March 2016, the village head visited his father at home and questioned his father about his practice. The village head asked his father to move away from the village because he was causing him trouble. The applicant stated that after the village head left, the police arrived and his father was taken to the police station and interrogated. The police asked for his contacts and information about his activities. The applicant stated that his father did not cooperate and was taken to a detention centre and detained for 10 days. The applicant stated that his father was an example for him and he became interested in Falun Gong and began to read books about it and started practicing with his father. The applicant stated that [in] October 2016, the police returned to his house again and both he and his father were questioned about their practice. The police told them that they were defying the Communist Party by continuing their practice and they directed them to hand over their books or else they would be taken to a forced labour camp or sentenced to prison. The applicant stated that he and his father did not cooperate, and after their house was ransacked by the police, they were taken away for interrogation. During the interrogation, the applicant stated that the police demanded information about their contacts and activities and that he was tortured. After being detained for a week, they were released with a RMB 4,000 fine. The applicant travelled to [Country 1] to avoid persecution but as he was unable to stay there, he came to Australia for protection.
The applicant stated that he did not seek help or try to move to another part of the country because the Chinese Government persecuted Falun Gong practitioners.
The applicant stated that he did not think the authorities would protect him on return as all Falun Gong practitioners want people in China to know about the evil of the Communist Party.
The applicant did not attend the protection visa interview scheduled by the Department for 5 February 2018. No reason was provided to the Department for non-attendance. The Department’s delegate found that the applicant is not a refugee as he is not at risk of serious harm for one or more of the reasons set out in s.5J(1)(a); and that he is not owed complementary protection as they were not satisfied that there is a real chance the applicant would suffer serious harm due to his imputed political opinion; and also found that there is no real risk of the applicant facing significant harm as defined in s.36(2)(aa) if the applicant returned to China. A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Tribunal hearing
The Tribunal hearing was conducted on 19 January 2021 in person at the Melbourne offices of the Tribunal. The Tribunal was assisted at the hearing by an interpreter in the Mandarin and English languages. The applicant was not represented at the hearing and gave evidence on affirmation. The Tribunal confirmed with the applicant that he could understand the interpreter, to which he confirmed that he did. The Tribunal was satisfied that the applicant understood the interpreter and the questions put to him during the course of the hearing, and notes that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding the Tribunal during the hearing.
The following is an outline of relevant evidence given by the applicant during the hearing.
In China he owned and ran a [company] making [specified products]. He used to own a factory. He has always done that work. His father is a farmer in China. All of his family including his brother, parents, wife and child reside in his home village in China. His wife and child live in a rental in Shandong.
The Tribunal referred the applicant to his written claim for protection. The applicant proceeded to purport to withdraw his claim to fear harm from the Chinese authorities due to his association with the spiritual movement know as Falun Gong. He stated that he has not suffered harm in the past from the Chinese authorities for this reason. He stated that his written claim was wrong and his father has never suffered persecution due to being a member of Falun Gong and has never been a member of Falun Gong. He stated that his former legal adviser had made out his written claim incorrectly and it was only lately that he had become aware of this. He has forgotten the details of his former adviser and they only used to communicate on WeChat. He then claimed that he feared harm because he owes money to the government in China after borrowing money from them. The harm feared is that his movements will be restricted by the government because of this. The Tribunal put to the applicant that there is no credible country information before it that may indicate the government would lend money in this manner to a private individual and accordingly, the Tribunal may doubt the credibility of this claim. The applicant then stated that he owed money to a loan shark, however they were associated with the government and were basically the same entity. He borrowed for his business and child’s education costs around RMB [amount] and now owes RMB [larger amount] due to high interest. He submitted that in the past the gangsters would come to his house if he had not made his repayment. They trapped him, punched him and threw him in the river. He has not been paying the debt while in Australia. He confirmed his family are safe. The gangsters are just waiting for him to return home. His overall prospects in China are bleak. His child needs money to study and his parents need money from his earnings in Australia as well.
With respect to the applicant’s claim to fear harm due to monies owed to gangsters and/or the government and his partial retraction of his claims with respect to Falun Gong, the Tribunal asked the applicant why he did not ensure his written claims were correct. The Tribunal noted that it is required to disregard new claims not made before the original decision maker where it is not satisfied the applicant has a reasonable excuse for not previously including them. The applicant blamed his previous unnamed adviser and stated he simply relied upon them. The Tribunal put to the applicant that it may not consider this to be a reasonable excuse as the written claim is quite detailed, indicating that he had significant input. The Tribunal put to the applicant that it may have overall credibility concerns due to the high levels of inconsistency in his claims and the lack of overall detail he has provided with respect to his claims.
Later in the hearing the applicant again raised Falun Gong as a reason to fear harm in China because he stated that he is afraid the government might find out he is now a follower. He stated that he may consider actively practicing Falun Gong here in Australia.
The applicant also stated that he may struggle to find a job as the economy is weak and he needs money to support his parents and his child’s education costs. When asked if there is any reason he could identify that he would be denied a job, the applicant only stated the economy is generally weak. The Tribunal confirmed with the applicant that he could not identify any reason why someone would intentionally deny him a job. Further, the Tribunal noted that the applicant is relatively young and has been able to be gainfully employed in the past in China and again in Australia indicating he would have reasonable prospects of further employment. The Tribunal also put country information (set out below) to the applicant about the economy, indicating the economic situation appears reasonable and accordingly his prospects for employment may also be viewed as reasonable. The applicant stated that the country information put to him is wrong and is “fake news”. The Tribunal noted that the DFAT report draws upon many sources, both official and NGO based, which may therefore constitute a reasonable and credible basis upon which to assess the economic situation in China.
The Tribunal asked the applicant about past harm in China and he then stated he had been barred by the authorities from moving outside his village. He stated money owed was a factor, however he had also given up his Communist Party membership as required by Falun Gong. The government had found out about this and banned him from travelling. He had relinquished his Communist Party membership in either 2012 or 2013 after he had travelled to [Country 2] and been introduced to Falun Gong there. The Tribunal noted that country information indicates that the Chinese authorities maintain strict border controls and are unlikely to issue a passport to a known Falun Gong follower.[1] The Tribunal put to the applicant that the fact he has been able to travel freely to and from China on several occasions may lead it to doubt the credibility of his claim to have been identified as a Falun Gong follower and banned from travelling.
[1] DFAT Country Information Report, China, 21 December 2017, p.20, p.40
The Tribunal asked the applicant to describe his practice of Falun Gong. He stated that he does not actively practice but occasionally watches a video on the internet about Falun Gong. When asked about his knowledge of Falun Gong, the applicant was unable to explain the exercises undertaken as part of the movement, simply stating that he had forgotten. When asked how many chapters there are in the main Falun Gong text, the applicant stated there are dozens (there are nine)[2]. He knew who founded Falun Gong, being Li Hongzhi, but could not remember when this occurred (1992) or when Falun Gong had been declared illegal in China (October 1999)[3]. The Tribunal noted that generally the applicant’s evidence indicates a very low level of interest and engagement with the Falun Gong movement. The applicant then stated that he is afraid the Chinese authorities will now find out about his Falun Gong activities due to his WeChat history and shared videos. He confirmed that he had not practiced Falun Gong in China, only in [Country 2] when he had been there for six months in 2012. He then stated that he had attended one Falun Gong meeting in 2013 in China. The Tribunal asked the applicant about his subsequent two trips to [Country 1]. He stated these trips had been for holidays and were not due to fear of persecution.
[2] ZHUAN FALUN-INDEX (falundafa.org)
[3] DFAT Country Information Report, China, 3 October 2019, p.33
The Tribunal also noted that the applicant was invited to an interview with the Department which he had not attended. The applicant submitted he had not received the invitation to the interview. The Tribunal noted that he was lawfully and correctly notified of the interview. He then stated he had recently changed his postal address, which was at the office of his lawyers. He could not remember who his lawyers were.
THE TRIBUNAL’S FINDINGS
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that 'if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, 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.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers.
The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
For the reasons set out below the Tribunal finds that the applicant is not a credible witness. The Tribunal considers that he has concocted his claim to be a follower of Falun Gong and to have borrowed money from the Chinese authorities and/or a loan shark. Accordingly, the Tribunal does not accept that the applicant has been harassed or threatened or been banned from travelling, or harmed in any way, for reason of past borrowings or an association with Falun Gong. The Tribunal has reached this conclusion for the following reasons, considered cumulatively.
Firstly, the applicant’s evidence with respect to his claims to fear harm with respect to Falun Gong are highly inconsistent and contradictory with significant omissions when compared to his written claims. He claimed that neither he nor his father has suffered harm in the past from the Chinese authorities due to an association with Falun Gong and that his father had in fact never been a member of Falun Gong. This is in direct contradiction to his written claims. The applicant submitted this contradiction was due to his adviser, however the Tribunal found this explanation unconvincing. The Tribunal accepts the applicant’s submission that his adviser was legally qualified despite him not retaining records of the adviser. The Tribunal does not accept as reasonably plausible that the applicant’s contradictory evidence about past harm during the hearing, variously claiming no past harm due to Falun Gong and then later that his movements had been severely restricted by the government, which is a claim omitted in his written claims, is attributable to adviser error. This is because an applicant who truly fears harm for a particular reason would reasonably be expected to disclose those reasons, including accurately recounting past harm to their legal adviser. This is especially the case as lawyers would ask specific and targeted questions during a client interview. The Tribunal finds the applicant’s contradictory evidence about past harm to be not credible as it would expect he would consistently recount any past harm experienced, such as movement restrictions, for these reasons.
Secondly, the applicant introduced a highly implausible and inconsistent claim, for the first time at the Tribunal hearing, that he feared harm from the government as he had borrowed money from it. When the Tribunal noted that there was no credible country information that indicated the government lent money in this manner, the applicant modified the claim to include fear of harm from gangsters. The applicant then attempted to conflate the government and gangsters as one and the same and introduced examples of past harm such as being assaulted by the gangsters. The Tribunal simply does not accept the applicant’s claim as reasonably plausible that his claimed former adviser had omitted this claim to fear harm or examples of past serious harm from his written claim. Had these events occurred the Tribunal would expect the applicant and his lawyer would have ensured the claim was made out in his original claim and that his account of who he feared harm from, and why, would be clearly and consistently made out in both his written claims and his verbal evidence to the Tribunal. The fact that he has not done so, and has jumped from claiming to have borrowed money from the government and then from gangsters (after having the credibility of his initial claim to have borrowed money from the government questioned), further serves to undermine the overall credibility of his claims.
Thirdly, the applicant gave significantly contradictory and implausible evidence about his travel to and from China. He gave evidence that, after travelling to [Country 2] in 2012, he had begun to follow Falun Gong and had consequently renounced his Communist Party Membership and that this had come to the adverse attention of the Chinese authorities, resulting in him being banned from travelling. However, the applicant has subsequently travelled on two occasions to [Country 1] for what he confirmed were tourist trips and then to Australia. As noted, country information indicates that the Chinese authorities maintain strict border controls and that Falun Gong followers will find it very difficult to obtain a passport or travel overseas. The Tribunal considers that the applicant’s travel history reflects that he has not at any stage been subject to a travel ban by the Chinese authorities and rejects as not credible his claim that he came to the adverse attention of the authorities for reason of his claimed Falun Gong adherence or renouncing of his Communist Party membership for reason of this claimed adherence to Falun Gong.
Fourthly, the Tribunal has significant doubts about the genuineness of the applicant’s claimed conviction with respect to his adherence to Falun Gong. This is because he gave evidence that he has not actually practiced Falun Gong since a brief period of practice in 2012 while in [Country 2] and attending one subsequent meeting in China in 2013. He gave evidence that he has since then viewed the occasional video about Falun Gong on the internet and engaged in some online chats. When asked questions about basic details with respect to Falun Gong, the applicant demonstrated only a basic level of factual understanding of Falun Gong, which is a level of knowledge the Tribunal considers is reflective of his low level of engagement with Falun Gong, as reflected in his evidence to the Tribunal. The Tribunal considers the totality of the applicant’s evidence about his engagement with Falun Gong, both in China and since being in Australia, reflects that the applicant’s claimed level of conviction is not genuinely held and further undermines the credibility of his claim to be an adherent of Falun Gong who fears persecution for that reason.
The Tribunal has found the applicant’s claims to fear harm due to his adherence to Falun Gong, and because he owes money to the government and/or gangsters, to be not credible for the above reasons. Accordingly, the Tribunal rejects the applicant’s claim that he has been a follower or is now a follower of Falun Gong or that he will seek to practice Falun Gong should he return to China as not credible. The Tribunal also rejects the applicant’s claim that he owes money to the government or gangsters and that he has suffered past harm because of this as not credible. The Tribunal therefore finds that there is no real chance that the applicant will suffer serious harm should he return to China for these reasons either now or in the reasonably foreseeable future.
Economic concerns
During the hearing the applicant also raised a new concern that he may not be able to find a job and needs money to support his parents and his child’s education. The Tribunal accepts that the applicant wishes to remain in Australia because he can earn more in Australia than he can in China and accepts that he would like to be able to earn additional money to assist his family. As put to the applicant, there is nothing before the Tribunal to indicate or suggest that he would be denied the opportunity to work or would be unable to find any work in China. Further, he is relatively young and has been able to be gainfully employed in the past in China and again in Australia, indicating he would have reasonable prospects of further employment. While the Tribunal accepts the applicant may have less disposable income available to him if he returned to China, the Tribunal does not accept that he faces a real chance of suffering persecution involving serious harm for one or more of the five reasons mentioned in s.5J(1)(a) of the Act if he returned to China.
The Tribunal also notes, as discussed at hearing, that China’s economic situation appears reasonable. The Tribunal noted that the 2019 DFAT report states that:
China is the world’s second-largest economy (after the United States), the largest exporter of goods, the second-largest importer of goods and has averaged around 10 per cent in recent years. The World Bank ranks China as an upper middle-income country. The United Nations Development Programme ranks China 86th out of 189 countries in its 2018 Human Development Report, in the ‘High Human Development’ Category. China was the first developing country to meet the UN Millennium Development Goal of halving the number of people living in poverty before 2015. China’s major cities have per-capita income levels comparable to some lower income OECD member countries.[4]
[4] DFAT Country Information Report, China, 3 October 2019, p.9
Given these above considerations the Tribunal finds that there is no real chance the applicant would suffer significant economic hardship that threatens his capacity to subsist; and/or would be denied access to basic services, where the denial threatens his capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s.5J(5)(d)–(f) of the Act), for one or more of the reasons mentioned at s.5J(1)(a) of the Act, should he return to China. He therefore does not have a well-founded fear of persecution due to the state of the Chinese economy.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).
For the reasons set out above, the Tribunal has not accepted there to be a real chance that if he returns to China the applicant will be targeted for harm due to his claimed association with Falun Gong, because he owes money to the government or a gangster or the claimed poor state of the Chinese economy now or in the foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[5] For the same reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis.
[5] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]
Further, as noted during the hearing, complementary protection obligations are concerned with acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person. The applicant did not suggest that any person or group will seek to harm him for any reason relating to the economic situation in China. He gave no evidence that he has ever been discriminated against or otherwise prevented from obtaining work. Accordingly the Tribunal finds that any economic hardship the applicant might experience, if removed to China, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s.36(2A) of the Act, if he is removed from Australia and returned to China. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
Member

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

[2021] AATA 633

09 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction