1808355 (Refugee) - [2024] AATA 1398

1808355 (Refugee) [2024] AATA 1398 (13 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1808355
COUNTRY OF REFERENCE:                   China
MEMBER:Sophie Manera
DATE:13 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 February 2024 at 11:01am

CATCHWORDS
REFUGEE – protection visa – China – rented farm appropriated by government authorities and property developers with lower rate of compensation – utilities cut and applicant and family threatened – demonstrated, arrested, imprisoned and beaten – mental health – no harm after initial confrontation, or to wife since departing – inconsistent claims and evidence – application prepared by agent – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 412
Migration Regulations 1994 (Cth), Schedule 2

CASE
WAKZ v MIMIA [2005] FCA 1065

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 26 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Immigration background
[In] August 2017 the applicant arrived in Australia on a valid FA-visitor visa.
On 2 November 2017 the applicant applied for a protection visa.
On 26 February 2018 the delegate refused the protection visa application. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) 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).
On 26 March 2018 the applicant lodged an application with the Tribunal for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal finds that the applicant has made a valid application for review under s 412 of the Act. The applicant appeared before the Tribunal on 18 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
In his application for a protection visa, the applicant claims to be a citizen of China, born on [Date] in Xinxiang, Henan province.
The applicant provided a scanned colour copy of his passport bio-data page in support of his protection visa application. This document states the issuing authority is MPS Exit & Entry Administration.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of China, and as such his protection claims will be assessed against China as the country of reference and ‘receiving country’ respectively.
Application for a protection visa
In his protection visa application form, the applicant made the following claims which are summarised below.
The applicant was a farmer from a village called [Village 1] in the district of Hong Qi, Xinxiang city, Henan province.
Chinese government authorities worked with private property developers to seize the applicant’s farm and demolish the applicant’s house in order to lease the land again.
[In] April 2016 the applicant and his family refused the eviction process. He refused the compensation money offered by the government. The authorities cut the water and electricity and men threatened to kill the applicant, his wife and children.
Other families in the area were evicted from their properties.
The applicant and his family went to live in a tent in the backyard of a friend’s house.
The applicant unsuccessfully petitioned the housing rights authorities for a new house.
[In] May 2016 the applicant went to demonstrate against the demolitions and forced evictions in his area. While at the demonstration, the applicant was arrested by the police and imprisoned for 6 months. While in prison, the applicant suffered harm by the police, including beatings with a metal stick, dousing with cold water, and being forced to sleep naked on the floor. The applicant was not allowed visitors.
The applicant fears returning to China as the government took his home and put his life in danger. The applicant fears the government will kill him.
The applicant cannot move to another part of China where he would not be harmed as he has no house and no job. If he criticises the government he will be killed.
The applicant did not provide any further documents to support his protection visa application.
On 12 February 2018 the applicant was invited to attend a protection visa interview, scheduled for 26 February 2018. The applicant did not attend his protection visa interview. The applicant was properly notified of the interview.
Application for review
A summary of the evidence given by the applicant at the hearing follows. The applicant has lived in Australia since 2017. Prior to arriving in Australia, the applicant lived at [Address in Village 1] in Hong Qi district, Xinxiang city in Henan province. He lived in this village from birth to the time of his arrival in Australia. The applicant is married and has [adult children]. The applicant’s wife currently spends her time living between the family home at [Address in Village 1] and her parents’ home in [Village 2], which is also located in Hong Qi district. The applicant’s children live at university.
When asked about his current and previous assets in China, the applicant confirmed that he still owns the family home at [Address in Village 1]. In the same village, he previously owned a plot of land that belonged to his family. On that land the applicant grew wheat, corn and peanuts.
He previously rented another plot of land from the village committee. His intention had been to make a living from farming the land. The applicant had used his life savings to rent the land for a 30-year period and had also borrowed money to invest in the land and crops.
The applicant provided substantial detail about the rented plot of land. He started renting the land in 2012. The size of the rented land was approximately [number] Mu. On this land the applicant planted about [fruit] trees. He also constructed a building on the land that was approximately [size]. The applicant and his family lived in the building and they also used it for storage. The building had electricity and there was a well on the land.
The applicant claimed that in about 2016 the village committee commenced an industrial development project in the village. The village committee intended to build new factories and residences in the area. The committee sent staff to negotiate the acquisition of the applicant’s land. The applicant was unsatisfied with the level of compensation offered for his rented plot of land. The applicant stated that the amount of compensation due depended on the size and use of the land. He stated that land that was used to farm corn received lower compensation than land used to grow more valuable crops such as fruit trees, or land on which there were structures. The village committee only offered the applicant the standard of compensation applicable to corn crops. They did not offer him the standard of compensation that should have been payable for land containing fruit trees or a building. Village committee staff approached the applicant many times to try and negotiate an agreement, however no such agreement was reached.
The Tribunal asked the applicant why he came to Australia. The applicant said it was because of the issue with his rented plot of land. He said that he had spent a significant amount of time and money readying the land for production. He had planted fruit trees and had electricity connected. He disagreed with the government officials as to the level of compensation he should receive for that land.
The applicant’s other plot of land, on which he grew corn, wheat and peanuts, was also appropriated by the village council. However, the authorities offered the applicant the correct amount of compensation for that land, which he accepted and received.
The applicant said that in April 2016 the power was cut off at the building on his rented land. He said at about 2:00 am [in] May 2016 about 100 people arrived at his front door. They had an excavator and a loader. The applicant and his wife, who were sleeping in the building, were dragged outside and beaten. The fruit trees and the building were destroyed by the earthmoving equipment. The applicant was taken to an office made from sheet metal. He was detained there by gangsters who had been hired by the village authorities. For approximately two days he was kept in the office, where the gangsters tried to persuade him to sign the compensation agreement, and then beat him up when he refused to sign. After approximately two days the gangsters held the applicant’s hand by force, and forced his signature on the compensation agreement.
After the applicant’s signature was forced, he was released. He stated that his freedom to come and go was restricted after his release. He was not allowed to leave Xinxiang. In about July or August 2016 the applicant and his wife tried to petition the authorities. They went to the petition office in Xinxiang city along with members of several other affected households. They were not allowed into the office and were told by the officials that they were asking for trouble. The applicant and his wife did not manage to petition any government officials about what had happened to their land.
The applicant said that he has never been charged with or convicted of any criminal offences in China.
The applicant said that he became depressed thinking about everything that had happened to him. He did not work. He lived off the compensation that had been paid to him and his wife.
The Tribunal asked the applicant whether he feared returning to China. The applicant said that when he was in China he almost had a nervous breakdown. He felt sorry for himself and felt that he couldn’t continue to live in the area anymore. After the 2017 Spring Festival the applicant resumed doing part-time work in order to make a living. He tried to accept what had happened, but found that he could not let it go. He said that if he were in China and saw the land again, the sorrow and sadness would come back and he would think about suicide.
The Tribunal asked the applicant whether it was fair to say that his fear related to his mental state and the hardship he would face to see his hard work ruined. The applicant said that the first half of his life had been ruined as the earnings of the first half of his life were gone.
The applicant was asked whether he had any other fears about returning to China. He said that if he was to go back to China he was not sure about his capacity to avoid depression. He said that while he has been in Australia, the incident has faded from his memory. However, after he was notified to attend the Tribunal hearing, everything came back to him. He said that if he had a better tolerance for pressure then he wouldn’t have left China. He said that in China he was thinking about killing himself or taking revenge.
The applicant was asked why he chose to come to Australia. He said that his wife saw that he was heartbroken. She feared for his mental health. She thought that if he went elsewhere his mental state would improve. She did some research and found an agent who helped him get a visa for Australia. The applicant said that in the year when his Australian visa was issued, there was a friendship travel agreement between Australia and China and so it was easier to get an Australian visa.
The applicant was asked if he could relocate to a different part of Xinxiang city to avoid any problems. The applicant said that he hadn’t really thought about it and that it is hard to make a living in a new place.
The Tribunal put to the applicant that to be entitled to protection in Australia, he must either meet the definition of a refugee or be a person entitled to complementary protection. The Tribunal explained to the applicant that, under Australian law, these terms have specific definitions. For example, in order for a person to have a well-founded fear of persecution, an applicant must fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Furthermore, the persecution must involve serious harm to the person. The Tribunal explained that serious harm includes, but is not limited to, a threat to the person’s life or liberty, significant physical ill treatment of the person, or significant economic hardship that threatens the person's capacity to subsist.
The Tribunal put to the application that his fears seem to relate to his mental health, which is an internal problem, rather than persecution from the authorities or from gangsters.
When asked to comment, the applicant initially said he couldn’t really think of anything. He then went on to say that if he ever went back to China, the township government and developers would see him as an enemy and would fear that he would petition again. He said that they would make trouble for him. The applicant said that if he returned to China then he would petition again. He said that he was not sure of the specific things they would do to him.
The Tribunal asked the applicant whether there was anything else he’d like to say on this, and the applicant said no.
The Tribunal then put to the applicant that his wife was still in China and had petitioned with him, and yet had not come to any harm. The applicant was informed that this may lead the Tribunal to believe that he would not be harmed if he went back. The applicant said that his wife was not the key person involved, she just went to petition to look after him.
The Tribunal put to the applicant that he had initially only disclosed his fears relating to his mental health, and it was only after the Tribunal explained the legal criteria required for a person to be granted protection that the application mentioned fear of harm from the government. The Tribunal explained that this may lead the Tribunal to think that the applicant does not fear harm from the government. The applicant responded that it was the government who orchestrated the demolition and beatings; that the government was behind the gangsters’ actions. The applicant did not explain why he only disclosed his fear of harm from the government after being informed that his fear of impact to his mental health may not entitled him to protection.
Country information
The Department of Foreign Affairs’ (DFAT) 2017 Country Report on China states:
Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT considers credible reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.[1]
¹ Department of Foreign Affairs and Trade, DFAT Country Information Report – People’s Republic of China, 21 December 2017, paragraph 3.76
The Freedom House Freedom in the World 2017 report states:
Property rights protection remains weak. Urban land is owned by the state, with only the buildings themselves in private hands. Rural land is collectively owned by villages. Farmers enjoy long-term lease rights to the land they work, but they have been restricted in their ability to transfer, sell, or develop it. Low compensation standards and weak legal protections have facilitated land seizures by local officials, who often evict the residents and transfer the land rights to developers. Corruption is endemic in such projects, and local governments rely on land development as a key source of revenue. In October 2016, authorities eased limits on the transfer of land-use rights by farmers in an effort to facilitate more efficient agricultural enterprises.[2]
² Freedom House, 'Freedom in the World 2017 – China’, 1 February 2017, NG2A465F539, Section E ‘Associational and Organizational Rights’.

DFAT’s 2017 Country Report on China also states:
China’s major airports have a centralised system with name matching alert capabilities. Facial
recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight.[3]
Under the Passport Law, authorities can refuse passports to people who ‘will undermine national security or cause major losses to the interests of the State’. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish data on passport denials.[4]
³ Department of Foreign Affairs and Trade, DFAT Country Information Report – People’s Republic of China, 21 December 2017, paragraph 5.20
[4] Ibid at 5.28
The US Department of State Country Reports on Human Rights Practices for 2017 states:
Most citizens could obtain passports, although individuals the government deemed potential political threats, including religious leaders, political dissidents, petitioners, and ethnic minorities, routinely reported being refused passports or otherwise prevented from traveling overseas.[5]
⁵US Department of State Bureau of Democracy, Human Rights and Labor, ‘Country Reports on Human Rights Practices for 2017 – China, including Tibet, Hong Kong and Macau'.
A report from the Research Directorate, Immigration and Refugee Board of Canada dated 6 January 2020 states:
3.3 Family Members
The Associate Professor stated that the “greatest threat” used by both local governments and the central government is against protesters’ or petitioners’ “network” (essentially their family), as they threaten family members with “possible violence” or loss of their government job in order to influence protesters and petitioners (Associate Professor 27 Nov. 2019). The same source added that many long-term petitioners tend to be divorced due to the impact on family members (Associate Professor 27 Nov. 2019).[6]
[6] Immigration and Refugee Board of Canada, 'China: Situation and treatment of Chinese citizens who protest their land expropriation at the local level (2017-December 2019)', 06 January 2020, 20201027095757
Analysis, findings and reasons
The Tribunal has considered the applicant’s claims and the independent information described above and makes the following findings.
Claim regarding illegal demolition of fruit trees and building on the rented land
The applicant claims that his rented land on which he had cultivated fruit trees and erected a building was illegally demolished by developers on the instruction of the township government. He claims that he never agreed to the demolition of the fruit trees and building as the compensation offered was too low.
Even though the applicant did not provide any documentation to support his claimed tenancy, the Tribunal accepts that the applicant rented a plot of land of approximately [number] Mu in size, and used the land to cultivate fruit trees and had erected a building of approximately [size]. The applicant provided detailed oral evidence as to the steps he took to acquire the land, the reasons why he decided to rent the land, and his use of the land over an approximately four-year period.
The Tribunal also accepts that members of the village council wished to acquire his land in order to develop a new industrial project in the village. Taking into account the above-mentioned country information, the Tribunal accepts that the local authorities worked with private property developers to demolish the fruit trees and building in order to redevelop the land. The Tribunal also accepts that the applicant was not offered fair compensation for the land. This is consistent with the evidence given by the applicant in his protection visa application form and orally at the hearing.
Claim regarding detention and petitioning
The Tribunal notes that there are many inconsistencies between the information in the protection visa application form and the oral evidence given by the applicant at the hearing. The tribunal accepts that the applicant told his story to a migration agent who then prepared and lodged the application. The Tribunal accepts that the applicant does not know the exact contents of his protection visa application form as he does not understand English, he lost contact with the agent after lodgement of his protection visa application, and he did not know how to access a copy of his application.
In the protection visa application form, it is stated that the applicant was arrested by the police and imprisoned for six months. The form states that while in prison, the applicant was beaten by police, doused with cold water, and forced to sleep naked on the floor. This is different from the evidence given at the hearing, where the applicant stated that he was only detained for about two days by gangsters. The tribunal does not accept the written claim that the applicant was arrested and detained by the police for six months. The applicant admitted that he did not prepare his visa application form, he simply told his story to a migration agent who completed and lodged the application without the applicant’s review. The applicant did not mention in oral evidence that he had been imprisoned for six months. During the hearing the applicant described in detail the accommodation in which he had been detained. He stated that it was an office that had been built to accommodate people involved in the demolition project. The Tribunal accepts the applicant’s claim that he was detained for two days in the demolition office and was beaten when he refused to sign the compensation agreement. The Tribunal also accepts that the gangsters who were detaining him physically forced him to sign the compensation agreement. The Tribunal accepts this based on the applicant’s evidence at the hearing in which stated that he was paid compensation after being forced to sign the agreement, albeit the lower amount of compensation, and that he lived off this money for some months after his land was demolished and he also used this money to pay for his travel to Australia.
The protection visa application form also states that the applicant went to demonstrations against the demolitions in the area and that he was arrested while at a demonstration. In contrast, at the hearing the applicant said that he petitioned the government after he was released from detention, however his efforts to petition were unsuccessful as the petitioners were not let into the government buildings. Again, the Tribunal prefers the version of events presented by the applicant at the hearing. This is because the applicant did not prepare the protection visa application form himself and did not review the form before the application was lodged. The applicant provided far more detail of his petitioning activities at the hearing. The Tribunal accepts that the applicant, his wife and members of other affected households went to various government offices to try and petition officials and were unsuccessful in their attempts.
Claim regarding impact on mental health
The applicant claimed in the hearing that his mental health had been substantially adversely affected by the illegal demolition of his fruit trees and building. The Tribunal accepts that the applicant has suffered mental anguish and severe disappointment upon the demolition of the trees and building on his rented land. In the hearing the applicant looked dejected as he talked about the time, effort and money that he had invested in cultivating his fruit trees. He repeatedly stated that the village authorities were only offering to pay him a lower amount of compensation, instead of the higher amount of compensation that should be paid for fruit trees or structures on land.
The Tribunal accepts that the applicant was aggrieved by the village authorities’ decision to appropriate his land without paying fair compensation. However, the Tribunal finds that his claim of harm to mental health if returned to China does not meet the definition of ‘well-founded fear of persecution’ in section 5J of the Act. The concept of persecution necessarily involves action by government or government agencies or by third parties which government is unable or unwilling to control.[7] The Tribunal finds that the claimed persecution of impact on mental health does not involve any objectively based apprehended persecutory action on the part of the government or any other agencies.
Claim regarding fear of harm from the township government and developers
[7] WAKZ v MIMIA [2005] FCA 1065 at [45].
The applicant then claimed that if he returned to China the township government and developers would see him as an enemy. He also claimed that he would try to petition again. For the following reasons, the Tribunal does not accept that he will pursue complaints or petitions as claimed, or that he will be arrested or harmed for doing so. Furthermore, the Tribunal does not accept that the applicant will not pursue the claims because he fears harm by doing so.
Firstly, the Tribunal notes that this claim was only raised after the Tribunal put to the applicant that his claims as presented by him in the hearing may not entitle him to protection in Australia. The Tribunal asked the applicant on several occasions why he feared returning to China. On these occasions the applicant responded by talking about his mental health and capacity to avoid depression. The applicant said that if he had had a better tolerance for pressure then he wouldn’t have left China. The applicant said that his wife organised his travel to Australia to try to improve his mental health. At no time before the Tribunal put to him that his claims may not entitle him to protection did the applicant raise any fears about future arrest or any other harm from the authorities in China. The Tribunal finds that the applicant only said that he would continue to petition, and that he feared harm from the authorities and developers, for purposes of strengthening his application. Furthermore, his application form did not state that he would continue to petition the government. His application form stated that he fears returning to China as the government will kill him. The Tribunal does not accept this claim as at no time during the hearing did the applicant mention that he feared the government would kill him, and the Tribunal notes that the application form was prepared by the applicant’s agent without review by the applicant. The Tribunal finds that the applicant’s agent has embellished the applicant’s claims in the form.
Secondly, accepting that he may have been detained previously for a period of two days, the applicant was released from detention, was paid an amount of compensation for his appropriated land, and neither the applicant nor his wife were targeted for any other harm. While the applicant stated in the hearing that his movements were monitored after he was released, this did not stop the applicant from petitioning in Xinxiang city. The applicant and his wife did not suffer any harm from attempting to petition government officials. Furthermore, the monitoring and restriction of the applicant’s movements had been lifted by the time of the 2017 Spring Festival and the applicant was able to depart China without experiencing any problems. Since his release from detention in approximately May 2016 until the time he departed China in August 2017, the applicant was not harmed by the Chinese authorities.
Thirdly, the applicant’s land was demolished over seven years ago, and the applicant has been living in Australia for over six years. During this time, the applicant’s wife has been able to live in China, in the family home or at her parents’ village nearby, without any problems. On the applicant’s evidence, there is no adverse interest in his wife, despite her attendance at petitions with him. The Tribunal does not accept the applicant’s evidence that his wife would not come to the attention of the authorities as she was only at the petitions to look after him. The applicant’s evidence was that his wife physically attended the petition and, as such, she would have been viewed as a petitioner. She has not attracted adverse attention from the authorities. This indicates to the Tribunal that the applicant would also not be of interest to the authorities.
For the reasons given above and having considered his claims individually and cumulatively, 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). On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicant will be the subject of ongoing adverse attention from the authorities, is not satisfied he will continue to protest about the unfair compensation paid upon return to China, and is not satisfied his claim of impact to mental health meets the definition of significant harm in s 36(2A). He did not claim harm for any other reasons. Therefore, it is not satisfied that there is a real risk he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to China. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophie Manera
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.
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36    Protection visas – criteria provided for by this Act
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(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.
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