1808447 (Refugee)

1808447 (Refugee) [2024] AATA 1803 (23 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1808447
COUNTRY OF REFERENCE:                   China
MEMBER:Ben Lumsdaine
DATE:23 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 May 2024 at 7:57am

CATCHWORDS
REFUGEE – Protection Visa – China – fears being harmed by developers and local government – expropriation of the land – inconsistent evidence about whether or not he was harmed in China – applicant was not involved in a dispute relating to compensation for expropriation of that land – applicant does not have a well-founded fear of persecution –credibility concern – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs at the Department of Home Affairs (‘the Department’) on 9 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 17 August 2017. 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 under s 36(2)(a) and s 36(2)(aa) of the Act.
On 27 March 2018, the applicant applied to the Tribunal for review of the delegate’s decision to refuse his application.
The applicant appeared before the Tribunal on 9 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a [age]-year-old man from Shandong province in China. He arrived in Australia on [date] July 2017 on a visitor visa, travelling on a valid Chinese passport issued on [date] 2017. The applicant provided a residential address in Shandong and indicated he had completed post-secondary education [at] [an] Institute. He indicated he owned and operated [a] business in Shandong. The applicant provided a copy of his passport and attended a biometrics interview.
In his application, the applicant made claims for protection that can be summarised as follows:
·    His wife operated a factory and he invested money in this factory.
·    The local government wanted to use the land where the factory was located and did not provide them with any compensation.
·    He and his wife tried to negotiate with developers but the developers colluded with the government and they were threatened with arrest if they did not agree.
·    The applicant and his wife tried to seek help from higher authorities but this failed.
·    He had not experienced harm in China and did not try to move to another part of China to seek safety.
·    He fears being harmed by developers and local government if he is found going back to China.
·    He did not think he would be protected from this harm if he returned to China as governments would work together and with developers and this would also be the case if he relocated in China.
The applicant was invited to an interview in relation to his protection visa application but did not attend the interview. The delegate refused the applicant’s protection visa application on 9 March 2018. The delegate’s reason for refusing the application was essentially that the written material provided by the applicant did not provide a sufficient basis to be satisfied that the applicant was a petitioner in China or faced harm of any kind for this reason on return to China.
Evidence before the Tribunal
The applicant applied for review of the Department’s decision to refuse his protection visa application on 27 March 2018. The applicant uploaded a copy of the Department’s decision to refuse his application with his application to the Tribunal.
On 22 February 2021, the applicant appointed a representative who sent through an appointment of representative form and Freedom of Information request to the Tribunal to which the Tribunal responded on 25 February 2021.
On 14 December 2023, the applicant was invited to a hearing before the Tribunal scheduled for 12 January 2024 at the Tribunal in Sydney. A copy of the hearing notice was emailed to the applicant’s representative. No further evidence was provided prior to the scheduled hearing date. The Tribunal contacted the applicant by text message on 5 January 2024 and 11 January 2024 to confirm they were aware of the hearing. The Tribunal called the applicant’s representative on 10 January 2024 to confirm that they had received the hearing invitation. The applicant’s representative confirmed that they had received the hearing invitation but was unsure if the applicant would attend.
On 12 January 2024, two hours after the hearing was scheduled, the Tribunal received an email from the applicant’s representative indicating that the applicant no longer lived in Sydney and sought to have the hearing either moved to Melbourne or conducted by video conference.
The Tribunal rescheduled the hearing to 9 February 2024 by video conference. The applicant was invited to attend the Melbourne Registry of the Tribunal for this purpose.
On 8 February 2024, the applicant’s representative indicated that they would not attend the hearing but that the applicant would attend.
On 9 February 2024, prior to the commencement of the hearing, the applicant provided photographs in support of his application which purported to show him being beaten by a police officer. These were added to the Tribunal file and considered in the hearing.
On 9 February 2024, the applicant attended a hearing by video conference. The applicant did not attend the Registry but joined the hearing from private premises. The interpreter attended a hearing room at the Melbourne Registry of the Tribunal. The Tribunal confirmed the applicant could hear the interpreter clearly, was in a private place and wished to proceed with the hearing by video conference where he was. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below. Following the hearing, the applicant provided photographs of scarring on his arms and torso. These photographs were subsequently added to the Tribunal file.
No further information or evidence has been provided to the Tribunal in relation to the applicant’s claims.
Independent Information
Land Ownership in China
All land in China is publicly owned.[1] The government authorises private parties to use land for a fixed period while the government continues to own the underlying land.[2] Private parties can own property on the land and land use rights can also be privatised.[3]
[1] Gregory M. Stein, “What Will China Do When Land Use Rights Begin to Expire?”, Vanderbilt Journal of Transnational Law, Volume 50, Issue 3, May 2017, p. 625
[2] Gregory M. Stein, “What Will China Do When Land Use Rights Begin to Expire?”, Vanderbilt Journal of Transnational Law, Volume 50, Issue 3, May 2017, p. 625
[3] Zhenhuan Yuan, “Land Use Rights in China”, Cornell Real Estate Journal, Volume 3, Article 6, June 2004, p.73
Urban land is state-owned whereas rural and suburban land is owned by rural collectives.[4] The PRC government can lease or allocate the right to use state-owned land but transfer of ownership of state-owned land is prohibited.[5] The government can legally expropriate land and buildings for public interest purposes but must pay compensation to the owners in accordance with the law.[6] Under the Chinese Constitution, the Land Administration Law of the People’s Republic of China 1986 (last revised in 2004)[7] and the Property Law of the People’s Republic of China 2007,[8] the state, acting in the public interest, may lawfully requisition land owned by collectives.[9] The government can legally expropriate land and buildings for public interest purposes but must pay compensation to the owners in accordance with the law.[10]
Protestors and petitioners including land disputes
[4] Ding, C and Lichtenberg, E 2011, ‘Land and Urban Economic Growth in China’, Journal of Regional Science, vol.51, no.2, May, Wiley Periodicals, p.302 <CISD9559B11833>
[5] Ding, C and Lichtenberg, E 2011, ‘Land and Urban Economic Growth in China’, Journal of Regional Science, vol.51, no.2, May, Wiley Periodicals, p.302 <CISD9559B11833>
[6] See e.g. Gregory M. Stein, “What Will China Do When Land Use Rights Begin to Expire?”, Vanderbilt Journal of Transnational Law, Volume 50, Issue 3, May 2017, p. 625, Real Estate Law | China | Global Corporate Real Estate Guide | Baker McKenzie Resource Hub
[7] Land Administration Law of the People’s Republic of China, promulgated 25 June 1986 (revised 28 August 2004), Asian Legal Information Institute website, art 2 < Accessed 11 June 2014 <CIS28533>
[8] Also called ‘Real Rights Law’ (物权法). Property Law of the People’s Republic of China 2007 (China), promulgated 16 March 2007 (effective 1 October 2007), National People’s Congress of the Republic of China < Accessed 11 June 2014 <CIS28573>
[9] Land Administration Law of the People’s Republic of China, promulgated 25 June 1986 (revised 28 August 2004), Asian Legal Information Institute website, art 2 < Accessed 11 June 2014 <CIS28533>; Constitution of the People’s Republic of China 1982 (China), promulgated 4 December 1982 (amended 14 March 2004), National People’s Congress of the People’s Republic of China < Accessed 3 October 2014 <CISD49C2F4533>
[10] See e.g. Gregory M. Stein, “What Will China Do When Land Use Rights Begin to Expire?”, Vanderbilt Journal of Transnational Law, Volume 50, Issue 3, May 2017, p. 625, Real Estate Law | China | Global Corporate Real Estate Guide | Baker McKenzie Resource Hub
Land disputes are common reason for protest in China with millions of disputes raised each year, in particular, when local officials try to sell land and evict existing tenants with low amounts of compensation often in collusion with property developers.[11] This leads to complaints against local government that can escalate to national government for example by petitions to ‘letters and visits’ offices. [12] DFAT reports that the local officials are incentivised to retaliate against petitioners including charging them with offences such as ‘picking quarrels and provoking trouble’, hiring thugs to intimidate protestors or cut utility supplies and even forcing petitioners to return to their home area from Beijing.[13] The US State Department also wrote of ‘reports of authorities detaining and harassing displaced residents when they petitioned for compensation’.[14] In some cases, petitioners are also extralegally detained in “black jails”, psychiatric institutions and other sites’.[15] However, while violence and, in extreme cases, deaths are reported, many complaints are resolved through the petitioning process.[16] A similar situation was reported at the time the applicant claims his land was expropriated.[17]
Exit control procedures
[11] ‘2022 Country Reports on Human Rights Practices - China', United States Department of State, 20 March 2023, p. 24
[12] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 22 December 2021, at [3.87–3.88]
[13] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 22 December 2021, at [3.87–3.88]
[14] ‘2022 Country Reports on Human Rights Practices - China', United States Department of State, 20 March 2023, p. 24
[15] Freedom House, Freedom in the World 2020: China, DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 22 December 2021, at [3.87–3.88]
[17] See e.g. DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017, at [3.76-3.78]

Exit from China is strictly controlled. Article 12 of the Exit-Entry Administration Law forbids exit by Chinese nationals in a number of circumstances including where they are sentenced to criminal punishments, are involved in unsettled civil cases or may endanger national security or interests.[18] At the time the applicant left China, DFAT reported:

Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. 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.[19]
[18] IOM, Lili Song, Special Issue Article, Exit regulation in the People's Republic of China: Law, policy and practice”, Received: 23 February 2022, Revised: 24 June 2022, Accepted: 19 August 2022, DOI: 10.1111/imig.13058
[19] See e.g. DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017, at [5.20]

The involvement of different agencies in conducting identity checks prior to exit means bribing officials to facilitate departure while a person is subject to an exit ban very difficult. Further, at the time the is applicant left China, DFAT assessed that it would be difficult to leave China on a forged passport:

DFAT assesses it would be difficult to depart China on a forged passport. Chinese passports use sophisticated technology and Chinese authorities have a high surveillance capability, particularly at train stations, airports and ports. An ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well paid status of public security officials. DFAT is aware of cases where genuine documents obtained by fraudulent means (such as hukou registration, proof of employment, academic transcripts, banking statements and ID cards) are submitted in support of visa applications. DFAT assesses such documents are relatively easy to obtain and are commonly used. DFAT is aware of sophisticated syndicates that provide targeted background stories to support fraudulent documents used in visa applications.^[20]
[20] See e.g. DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 21 December 2017, at [5.30]

There are some reports of people of interest to the Chinese government being able to exit controls, however, these are exceptional.[21]

CONSIDERATION OF CLAIMS AND EVIDENCE

[21] See e.g. ‘China says US should not interfere after human rights lawyer 'deported' back', Laurie Chen, Reuters, 12 October 2023, 20231013123543; ‘Laos deports human rights lawyer who was fleeing state pressure back to China', Dake Kang, AP News, 15 September 2023, 20230918115716; ‘He Fled China’s Repression. But China’s Long Arm Got Him in Another Country.', Tiffany May, The New York Times, 26 August 2023, 20230904104424; ‘Detention of Chinese Lawyer in Laos Highlights Risks of Fleeing China', William Yang, VOA News, 8 August 2023, 20230809100039, ‘Veteran dissident Guo Min arrives in US to rejoin family', Gu Ting, Radio Free Asia (RFA), 9 November 2023, 20231113111731, Man flees China on water scooter, crossing 200 miles of sea to S. Korea', Andrew Jeong and Lyric Li, The Washington Post, 23 August 2023, 20230824130637

Relevant Law

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 (‘the refugee criterion’).

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, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Analysis, assessment and findings

The issue in this case is whether the applicant would face a real chance of serious harm or real risk of significant harm in China. The applicant claims to fear such harm in relation to his protest regarding expropriation of his land and complaints to police about his treatment by police and gang members. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Nationality

On the basis of his Chinese passport and evidence provided to the Department and Tribunal, the Tribunal accepts the applicant is a national of China and considers China is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.

Consideration of applicant’s claims to be a refugee

When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
The Tribunal is mindful 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 Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348).
Was the applicant’s land expropriated?
The applicant claimed in his application for a protection visa that his wife operated a factory and that the local government wanted to use the land where the factory was located and did not pay the applicant or his wife any compensation. The applicant claimed to have tried to negotiate with developers but that the developers colluded with the government, and they risked arrest if they did not agree to move. The applicant claimed he had not been harmed but feared harm in the future over the expropriation of the land where the factory was located. At the hearing, the applicant claimed that Chinese authorities supported by local police and gang members acting on behalf of developers sought to expropriate the applicant’s [farm]. The Tribunal notes that country information cited above indicates that local authorities in China, police and developers often collude to expropriate land and not pay adequate compensation and that those who protest can face intimidation, harassment and physical harm. However, the Tribunal found the applicant’s evidence was neither credible nor reliable in many aspects for reasons set out below. The Tribunal does not accept the applicant’s claims that he ran a [farm] on land that was expropriated. However, the Tribunal accepts his wife ran a [farm] on land that was expropriated.
The Tribunal has serious concerns regarding the applicant’s claim at the hearing that he supervised a [farm] which operated on land that was expropriated. The Tribunal’s main concern is that the applicant provided substantially inconsistent information regarding his education and his employment history in his application and at the hearing about whether he supervised a [farm]. At the hearing, the applicant claimed to have left school after three years of middle school and not to have attended high school. At the hearing, the applicant claimed to have been a [occupation] from the age of [age] or [age] for seven to eight years and then to have started a [farm] in his village until 2017. He described his job at the [farm] as feeding the [animals] and that his wife would help as well. The Tribunal put to the applicant that both the education and employment history he provided in his application for a protection visa differed greatly to his evidence at the hearing. The Tribunal noted that in his application the applicant had indicated that he had completed high school and also completed a three-year [course] at a [institute] whereas at the hearing, the applicant said he had only completed middle school. In response, the applicant stated that he did not consider the [course] to be serious or his high school to be serious as it was a technical high school that anyone could attend. The Tribunal also raised with the applicant that in his application he had stated he owned a [business] for 18 years and then had been the vice general manager at [a] company. The applicant responded that he did not mention this job at the hearing, because he did not consider this a serious job as his friend had introduced him to it. When asked why he mentioned these jobs in his application and not others, the applicant said they were not official jobs but part of his life.
The Tribunal is not convinced by the applicant’s explanation regarding the inconsistency of his evidence at the hearing and in his application form. The applicant’s explanation that he did not mention his post-secondary education because he did not consider it to be serious because the school was easy to get into does not make sense to the Tribunal as it is the highest level of education the applicant has achieved and the most accurate representation of his level of education. It also does not explain why the applicant would mention attending primary school and middle school, which are similarly easy to attend and not his later study. Similarly, the Tribunal does not accept the applicant would consider owning a business for 18 years and being a vice general manager of a [company] as ‘not serious’ jobs just because he had been introduced to these jobs by a friend given the seniority of these roles. Further, if the applicant did not consider those jobs as serious and was in fact a supervisor at a [farm] as he stated at the hearing and considered this to be a serious job, it follows that he would have mentioned that in his protection visa application.
The credibility of the applicant’s evidence regarding his education and employment history are relevant as the applicant’s claims of past harm which he claims are the cause of his fear of future harm relate to his employment. Specifically, the applicant claimed his fear of persecution arose from the expropriation of land that he claimed variously that his wife’s factory was located on and that a factory he operated was located. If the applicant’s past employment was not as the owner or manager of a [farm] as claimed, it brings into question whether the applicant or his wife owned a [farm] or other factory on land that was expropriated.
The starkness of the inconsistency in the applicant’s evidence at the hearing and in his application and the applicant’s unconvincing explanation for these inconsistencies have led the Tribunal to find the applicant attempted to mislead the Tribunal at the hearing about his educational and employment background. In his response to the Tribunal’s concerns, the applicant did not deny that he owned a [business] for 18 years and then had been the vice general manager at [a] company. The Tribunal finds that the applicant has attempted to mislead the Tribunal regarding his role in owning or managing a [farm]. The Tribunal finds that the applicant’s employment was as he stated in his protection visa application, which he confirmed at the hearing and does not accept his evidence that he owned, supervised or managed a [farm]. Consequently, the Tribunal finds that the applicant did not own land that was expropriated as he claimed. Further, the applicant’s willingness to mislead the Tribunal regarding his work and study history also raises doubts about the credibility and reliability in general of the evidence he provided to both the Tribunal and to the Department.
At the hearing, the Tribunal found the applicant’s evidence regarding the claimed expropriation of the [farm] to be vague and unconvincing. For example, the applicant gave evidence that he could not remember when he started having trouble with the [farm] or when it was torn down or when his wife had been harmed or when the [farm] had been torn down. Similarly, when asked about what the land was to be expropriated for, he replied, ‘some building’; when pressed, he said, ‘[it] should be like an office building’ and later mentioned there was a ‘private residential place’ on the former site of his [farm]. When the Tribunal raised this different explanation with the applicant, he replied that [the claim the land was being expropriated for an office building] was just an excuse that was made and it was intended to be a private building.
The Tribunal put its concerns about the vagueness of the applicant’s evidence to him for comment. The applicant’s explanation was that the events occurred some time ago and he cannot remember the details. The Tribunal has considered the applicant’s response to these concerns and accepts that the events the applicant claimed to have occurred would have occurred some time ago and this would affect the applicant’s ability to remember the dates they occurred and, to some extent, the sequence of events. However, even with this in mind, the Tribunal would expect the applicant, who on his own evidence had run a [company] for several years, to be better able to recall events and prepared to provide accurate evidence regarding the timing and sequence of events that are, on the basis of the applicant’s claims, central to his claimed reason for applying for protection in Australia. Even when the applicant’s concern about being unable to recall events he claimed occurred several years ago is considered, the Tribunal finds the vagueness of the applicant’s evidence at the hearing to support a finding that neither he nor his wife had land expropriated in China. Given the Tribunal’s concerns about the applicant’s willingness to mislead the Tribunal and the vague account of the claimed expropriation of the [farm], the Tribunal find the applicant did not own or run a [farm].
While the Tribunal disbelieves the applicant’s evidence that he supervised a [farm] and has concerns with the credibility of the applicant’s evidence, the Tribunal is unable to make a finding with confidence that the applicant’s wife did not run a [farm] that the applicant invested in, which was on land that was expropriated. In making this finding, the Tribunal notes that at the hearing, the applicant was able to provide relatively detailed and plausible answers regarding the size of the [farm] he claimed to own, the number of [animals] on the farm, the number of employees and the income generated by the farm. The Tribunal notes country information that China is a major [animal] producer and the applicant’s state of Shandong is one of [the] main states in which [this] is concentrated in China.[22] The Tribunal notes that country information indicates that expropriation of land in China is common. The Tribunal, therefore, has proceeded to consider the applicant’s claims on the basis on which it accepts that the applicant’s wife had a [farm] that operated on land that was expropriated.
Was the applicant harmed in China?
[22] [Source deleted]
The applicant claimed that he ran into conflict with authorities when people from the local government sought to expropriate the [farm] was on without compensating him or his wife for the expropriation of the land. At the hearing, the applicant claimed that when he challenged people seeking to expropriate the land his or his wife’s [farm] was on, he was arrested and beaten multiple times and tortured while in custody in China. The applicant claimed to be beaten by both police ‘a couple of times’ and gangsters ‘a couple of times’ over a period of weeks in 2017. The applicant claimed that when he was beaten by police, he was attacked with sticks and burnt with cigarettes. He also claimed that he was beaten so badly that he could not walk. He claimed he went to the local police station in [location] and complained about being beaten by police and about his land being expropriated without fair compensation and police promised to investigate it. He claims when he returned to the station, they accused him of making up these claims and threatened him. The applicant claimed to make a complaint to a higher police station at Weihai. The applicant claimed that he was also detained for a couple of days by the head of the police station and that his wife was also beaten. The applicant claimed that the police used ‘electric sticks’ like a taser against him. The applicant claimed he was arrested and put in the police station around five or six times. The applicant also claimed that his father was slapped in the face by the head of the police station when he refused to co-operate with police in handing over the [farm]. He claims the police said to his father that he had ‘better look out for your son’. The applicant claims that after he came to Australia, the [farm] was torn down. The applicant claims to fear being killed by the head of the police station for complaining against him. He claims the former head of [named] Police Station holds a grudge against the applicant and had been promoted since the applicant’s departure to Australia but did not know where he was or what position he held at the time of the hearing.
The applicant’s claims are broadly supported by country information considered by the Tribunal and referred to above that indicates that local police often collude with developers to expropriate land and can retaliate against people who complain about the expropriation by charging them, detaining them or hiring thugs to intimidate them. However, the Tribunal has a number of concerns with the applicant’s evidence in support of his claims that this occurred to him, which are considered below.
The Tribunal found that the applicant had provided inconsistent evidence in his protection visa application and at the hearing in relation to harm he had experienced in the past. In his application for the protection visa, the applicant answered ‘no’ to a question specifically asking if he had been harmed in the past. At the hearing, the applicant claimed to have been beaten, detained and tortured on multiple occasions. When the Tribunal put this inconsistency to the applicant, he responded that he was not aware that he had to include information about his past harm in the application. The Tribunal noted its concern that he had replied ‘no’ in response to a specific question asking him whether he had been harmed. The Tribunal has considered his response and does not accept the applicant’s explanation that he omitted to mention the incidents of harm he faced in the application as he was not specifically asked about it as the application form specifically asks if he experienced harm. The Tribunal has considered the applicant’s limited English, however, it does not accept that this explains the inconsistency. The Tribunal has considered that the applicant did not mention having faced any specific harm in his application other than ‘conflicts with developers’ but there was no indication that such conflict was a form of harm rather than for example a verbal or legal disagreement. The Tribunal also notes that the applicant had engaged a representative before the Tribunal and no further details regarding past harm suffered by the applicant or to correct incorrect answers in the protection visa application had been provided to the Tribunal. As details of the applicant’s past harm are so fundamental to his claims, the lack of provision of further details regarding the past harm provided to the Tribunal or amendments to incorrect answers to the Tribunal, including when given an opportunity to at the beginning of the hearing suggests there were no further details regarding the applicant’s past harm to provide as he had not been harmed in the past. The Tribunal has also considered its findings regarding the applicant’s willingness to mislead the Tribunal at the hearing. The Tribunal finds the inconsistent evidence provided by the applicant in his protection visa application form and at the hearing in relation to whether he suffered harm in the past, supports a finding that his evidence at the hearing regarding his past experiences of harm in China is not credible.
The Tribunal also found the applicant’s evidence in relation to his past experiences of harm and fear of harm, both in his application and at the hearing, has been vague. The applicant provided few details in his application form about whom he feared harm from, referring only to ‘developers’ and ‘higher authorities’ and was similarly vague about the type of harm he feared. At the hearing, the applicant claimed to have been beaten on multiple occasions by police and gang members, to have been arrested on multiple occasions and to have been mistreated in detention as part of an attempt to intimidate him into not protesting the expropriation of his land. In giving his evidence at the hearing, the applicant claimed variously to have been beaten ‘a couple of times’ or ‘a few times’ and provided details about who harmed him beyond broad statements such as ‘the government’ or ‘people from the mafia’, or the circumstances in which the claimed assaults took place, unless pressed by the Tribunal. At the hearing, the Tribunal found the applicant often did not respond directly to its questions, which further gave the impression that he was trying to avoid providing details and seeking further time to think of answers. The applicant was generally unable to provide timeframes with clarity or specificity or even establish a sequence of the incidents the applicant claims occurred and the Tribunal had to press the applicant for details on multiple occasions. The Tribunal formed the impression that the applicant was trying to avoid providing details and that he was not giving evidence from memory but fabricating evidence to respond to the Tribunal’s requests for details. When the vagueness of the applicant’s evidence was put to him, the applicant replied that the events occurred a long time ago and he could not remember. The Tribunal accepts that the events the past harm the applicant claims was inflicted on him would have occurred some time ago and this would affect his ability to remember details. However, the Tribunal has concerns about the applicant’s explanation about why he could not easily remember details, which are set out below.
While the applicant raised the concern that he could not remember the details of what happened to him because of the time that has passed since the events, the Tribunal notes that the applicant had an opportunity to provide further details and evidence in support of his protection visa application not long after his arrival in Australia and did not do so. The applicant was invited to an interview before a delegate in March 2018 but he did not attend the interview. Prior to the hearing, the applicant had not provided any reasons about why he did not attend. When the Tribunal put this to the applicant, the applicant responded that he had limited English and did not pick up the telephone and does not know about the updates and these things. The Tribunal does not accept this explanation as the applicant claimed in his protection visa application and at the hearing to have completed the application for the protection visa himself and had been able to respond to both a request to attend a biometrics appointment and to apply to the Tribunal after the delegate’s decision to refuse his application. The applicant’s evidence that he completed the application form and attended the biometrics appointment demonstrates to the Tribunal that the applicant was able to understand the importance of correspondence from the Department and respond to it. The Tribunal also notes that the letter inviting the applicant to an interview included written information in Mandarin regarding the interview and the importance of attending the interview. In the Tribunal’s view, the applicant has provided no convincing reason for not attending the interview and the applicant’s non-attendance at the interview is inconsistent with the behaviour of a person with a genuine fear of harm seeking protection in Australia. The Tribunal finds that the applicant’s non-attendance at the interview before the delegate supports a finding that he did not have a genuine fear of harm at the time he was invited to the interview and that he was not harmed in China as he claimed at the hearing.

The Tribunal has also considered that some of the harm the applicant claimed to have experienced could, if it occurred, affect the applicant’s ability to present evidence at a hearing. The Tribunal has considered the Guidelines on Vulnerable Persons and in particular the section ‘Impairments associated with torture and other traumatic experience’ and the symptoms that may manifest during the conduct of hearings. The Tribunal notes that these include poor attention and memory difficulties. Given the potential impact of past trauma on the applicant’s ability to present evidence, the Tribunal will consider their credibility in the broader context of other evidence. The applicant has provided no evidence of suffering from trauma or receiving treatment for it. The applicant has also not raised any concerns with his memory other than the events took place some time ago. When the Tribunal’s concerns with other aspects of the applicant’s evidence, in particular its findings regarding the applicant’s willingness to mislead the Tribunal are considered, the applicant’s vague responses to the harm he feared supports a finding that his claim to have been harmed in China is not credible.
The applicant also provided the Tribunal with some photographs shortly before the hearing purportedly depicting him being harmed by a police officer. The Tribunal does not accept the photographs are genuine as they appear to be staged. For example, in one photograph, a man dressed as the police officer depicted in the photographs appears to be smiling while apparently gently touching the applicant with his foot. In another, the applicant is depicted to have blood on his forehead as if he is bleeding from a wound on his head though it does not appear to be emanating from a cut. In another photograph, the man dressed as a police officer is shown holding a cigarette on the applicant’s back. The photographs are taken at angles that allow the photographer to take a picture clearly of what is allegedly happening. To the Tribunal, this appears inconsistent with the applicant’s claims that he was being beaten by police at the time. The applicant claimed that they were taken by his wife when police visited his house. The Tribunal does not accept that the applicant’s wife would have been able to position herself as to take such clear photographs during a violent incident such as those photographs purport to depict. As the Tribunal put to the applicant at the hearing, the poses, facial expressions of people in the photographs and angles at which the photographs were taken give them the appearance of being staged. The applicant’s explanation that his wife took them does nothing to explain the Tribunal’s concerns about what the pictures purport to depict. The Tribunal does not accept the photographs are genuine or reliable evidence that the applicant was harmed by police in China. The Tribunal also finds that the photographs were fabricated to mislead the Tribunal about the harm the applicant claimed to suffer in China.
The Tribunal also put to the applicant that his evidence that he has been in possession of these photographs since the day he applied for a protection visa, and his decision not to provide them earlier raises concerns about whether they are genuine. The Tribunal does not accept the applicant’s response that he did not know he needed to provide evidence as convincing given the information in numerous letters from the Department[23] and the Tribunal indicating the importance of providing supporting evidence. The Tribunal also notes that the applicant has been represented since 2021 and would expect the applicant would be aware of the utility of providing relevant evidence such as the photographs to support his application if they were genuine. The Tribunal finds the applicant’s decision not to provide the photographs earlier supports the finding that they were staged and not authentic evidence of him being harmed.
[23] See e.g. attachment to letter sent to the applicant on 17 August 2017, page 3 of the letter from the Department dated 26 September 2017, and page18 of letter from Tribunal dated 18 March 2018, hearing invitation.
The Tribunal also reviewed photographs provided by the applicant after the hearing purportedly showing scars the applicant claims are the result of being attacked by police officers. The Tribunal accepts that the applicant has marks on his arms, however, in the absence of medical or other evidence, the Tribunal is not satisfied that the scars were caused by burns from cigarettes or that these were caused by police as claimed by the applicant. Given the Tribunal’s findings regarding the credibility of other aspects of the applicant’s evidence, the Tribunal does not consider these photographs to support the applicant’s claims that the applicant was harmed by police in China in the manner he described at the hearing or as depicted in the pictures provided to the Tribunal prior to the commencement of the hearing.
The Tribunal also put to the applicant that his evidence at the hearing that he was able to leave China legally using his own passport suggests he was not of interest to the Chinese authorities. Country information indicates that it would have been extremely difficult to leave China if the applicant had been placed on an exit control list because of outstanding criminal matters or if he was seen as a risk to national security. The Tribunal accepts the applicant’s response that he is not on a criminal list. The Tribunal finds that the applicant was not on an exit control list and is indicative that the applicant’s movements were not being monitored and he was not of interest to the Chinese authorities at the time he departed China.
Harm to family members
At the hearing, the applicant gave evidence that his wife and parents had not been seriously harmed since his arrival in Australia. The applicant’s evidence at the hearing was that his family members had been harmed in relation to the expropriation of the [farm]. He claimed that his father had been slapped and his wife beaten in the past in relation to the expropriation of his [farm]. The applicant also stated that his wife also made complaints about upper levels of government and is in trouble. Given the applicant’s evidence about his wife and parents’ involvement in resisting police attempting to expropriate his [farm] and complaining to government about her treatment, if there was interest in harming the applicant, the Tribunal would expect that the applicant’s wife, and possibly his parents, would have been harmed since the applicant’s departure to Australia. The applicant’s evidence that neither his wife nor his parents have been seriously harmed since his departure from China supports a finding that they are not of interest to police in relation to the expropriation of the applicant’s wife’s [farm]. Given the Tribunal’s concerns with the applicant’s evidence relating to his claims of past harm, the Tribunal also finds the applicant’s claims that his wife and parents were harmed not to be credible and finds that they have not been seriously harmed in the past in relation to the expropriation of the applicant’s or his wife’s [farm].
Risk of harm in the foreseeable future
The Tribunal does not accept that the applicant or his wife or family members were harmed in China. The Tribunal has considered country information that indicates expropriation of land is common in China and that local officials in China retaliate against people who protest against the expropriation of their land or the amount of compensation they receive, including by hiring thugs and in some cases detaining and torturing them as claimed by the applicant at the hearing. However, the Tribunal does not accept that this happened to the applicant as it found the applicant’s evidence regarding being harmed in the past to be neither credible or reliable. Country information also indicates that it is a legal requirement to compensate people for the expropriation of land and that most disputes regarding compensation for expropriation of land are settled peacefully. The Tribunal does not accept the applicant had a [farm] as claimed at the hearing though it accepts the applicant’s wife had a [farm] and that the land on which the applicant’s wife’s [farm] was located was expropriated. However, the Tribunal does not accept that the applicant protested against the expropriation or was harmed for protesting the expropriation of the [farm], or for the amount of compensation received for its expropriation or for complaining to police about being assaulted by police when he refused to move from the [farm].
Central to the Tribunal making these findings are the attempts by the applicant to mislead the Tribunal by providing false information regarding his education and employment at the hearing, and the provision of photographic evidence that is staged in an attempt to mislead the Tribunal into finding he was harmed by police in China. Further, the Tribunal has considered the applicant’s inconsistent evidence about whether or not he was harmed in China, the applicant’s ability to leave China through a major airport, and the applicant’s non-attendance at the Department interview without a reasonable explanation and the lack of harm to the applicant’s family members in China. Given the Tribunal’s findings, it does not accept that the vagueness of the applicant’s evidence in his application and at the hearing regarding his past harm was the result of torture or past trauma or the time that has passed since the claimed incidents occurred.
For the reasons given above, the Tribunal finds that while the applicant’s wife ran a [farm] in which the applicant had invested significantly, and the land on which the [farm] operated was subsequently expropriated, the Tribunal finds that the applicant was not involved in a dispute relating to compensation for expropriation of that land. Consequently, the Tribunal finds that the applicant was not physically harmed by police, gang members or other actors as part of this dispute or in retribution for reporting the violence of police to other police stations. The Tribunal finds that the applicant’s claim that the former head of [named] police would harm him on return to China is not credible. The Tribunal finds that there is no credible evidence before it to indicate that the applicant would face a real chance of serious harm relating to the expropriation of his family’s land, or his complaints about the behaviour of police, gang members or property developers in China.
The applicant has put forward no other reason why he might face a real chance of serious harm on return to China.
For the reasons set out above, the Tribunal is not satisfied the applicant would face a real chance of serious harm on return to China.
Findings on refugee criterion
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
Consideration of applicant’s claims for complementary protection
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion).
As set out above, the Tribunal is not satisfied that the applicant would face a real chance of serious harm for any reason if he returned to China. For the same reasons set out above, the Tribunal finds that the applicant was not harmed in the past for the expropriation of the land on which his wife’s [farm] was located or that he is of risk of harm from the Chinese authorities or any other party in the future for any reason. The Tribunal is not satisfied on the evidence before it that there are substantial grounds for believing that the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to China.
Findings on Complementary Protection
The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ben Lumsdaine
Member

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

[2024] AATA 1803

23 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal