1811450 (Refugee)

1811450 (Refugee) [2018] AATA 2743 (12 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811450
COUNTRY OF REFERENCE:                  China
MEMBER:Luke Hardy
DATE:12 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 June 2018 at 4:17pm
CATCHWORDS
Refugee – Protection visa – China – Social group – Land expropriation victim – Former Falun Gong practitioner – Property compensation issue – Fear of mistreatment by ex-wife – Credibility issues – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 Immigration on 18 April 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [Mr A], is a citizen of the People’s republic of China. He arrived in Australia on 26 June 2007 on a [temporary] visa [pending] a decision on an associated [temporary visa]. However, on 7 May 2010, [Mr A] was refused a [temporary visa]. He sought review of this refusal in the Migration Review Tribunal on 10 June 2010. His review application having been lodged evidently out of the statutory timeframe, the MRT found on 26 September 2011 that it had no jurisdiction to review the refusal of his [visa] [application]. On 25 October 2011, [Mr A] became an unlawful non-citizen.
[Mr A] was encountered by the former Immigration Department and was granted a bridging visa on “departure grounds” on 30 January 2012. He indicated a willingness and the capacity to depart Australia by the expiry date of that visa: 13 February 2012. A further bridging visa was granted to [Mr A] on “departure grounds” on 13 February 2012 when he satisfied the Department of a willingness and capacity to depart Australia by the expiry date of that visa: 29 February 2012. However, [Mr A] did not depart and again became an unlawful non-citizen.
[Mr A] was located and detained by the Department of Home Affairs on 1 April 2018 and was evidently placed in what the Department calls a “removal pathway”. He sought and was granted, on 4 April 2018, a s.195 extension:
S. 195
Detainee may apply for visa
(1) A detainee may apply for a visa:
(a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply--within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
[Mr A] lodged a protection visa application on 5 April 2018. The Minister’s delegate refused to grant the visa on 18 April 2018.
[Mr A’s] review application was constituted to me on 2 May 2018. I set the matter for hearing as a “detention priority” matter on 24 May 2018. Shortly after setting the matter for hearing, the Tribunal ascertained that [Mr A] had been released from detention after being granted a bridging visa on 18 April 2018. In the meantime, [Mr A] had also engaged a migration agent. The Tribunal contacted the migration agent to confirm that [Mr A] was no longer in detention and to discuss the hearing invitation. The migration agent asked for the “detention priority” timeframe to be relaxed so that he could take instructions from [Mr A]. I agreed on 17 May 2018 to set the hearing within normal statutory timeframe.
[Mr A] appeared before the Tribunal on 7 June 2018 to give oral evidence and present his arguments for a protection visa. He was accompanied by his daughter and his cousin who he offered as witnesses. The applicant did not elect to provide prior written notice on relation to these intended witnesses as provided for under s.426(2) of the Act. I therefore asked him to tell me generally what topics his witnesses might address if called to give evidence. In reply, he said he said his daughter and cousin know everything that has happened to him, particularly in relation to his efforts to support his daughter emotionally through her current illness due to [medical] problems and, in the case of his cousin, what he described as her familiarity with a land expropriation compensation issue affecting him back in China where the state allegedly failed to provide the amount or kind of compensation initially promised due to a perceived link between him and the banned Falun Gong spiritual cultivation movement.
Having regard to [Mr A’s] wishes, as required to do under s.426(3), even though the Tribunal was not formally notified of them as per s.426(2), I kept an open mind to calling the witnesses at some stage in the hearing. However, I disclosed at the commencement of the hearing that, whilst having regard to [Mr A’s] wishes, I might not necessarily call the intended witnesses. I asked him what subjects he expected his witnesses might discuss, and he said he brought them along so that they could help fill in gaps in his evidence. I then ascertained that [Mr A’s] cousin has been in Australia nearly three decades apart from a few trips back to China, and that his daughter has been with him in Australia since he himself arrived, as they came here together. I put to him that in view of their having generally lived here in Australia over the years most relevant to his case, neither relative might be independent witnesses to events in China by which he claims to have been affected, and he did not disagree with this. He did say that his cousin used to talk to their common relatives when she visited China and that she knew from them the problems that had arisen there. Considering this, I put to [Mr A] that I needed to hear from him. The bulk of my questions in this case arose from what he had told the Department about himself. I indicated that I would revisit whether to call the witnesses later in the hearing. There was no opposition to the approach I outlined. I asked [Mr A’s] daughter and cousin to wait outside of the hearing room, so that I could examine his evidence in isolation.
[Mr A’s] migration agent did not attend the hearing, which was facilitated by an interpreter in the Mandarin-English medium.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The issue in this case is whether [Mr A] is entitled to protection in Australia as a refugee or, in the event that he is not, on complementary protection grounds
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
In a statement attached to his protection visa application form, [Mr A] claimed that he used to be a practitioner of the banned Falun Gong spiritual cultivation movement in China. He also indicated that he used to have two properties in China, the second of which was expropriated in 2010 (three years after he came to Australia) without any financial compensation because, he claimed, he was considered by authorities to be a Falun Gong adherent. He said that this expropriation resulted in the eviction of his father. He claimed to have petitioned the Chinese government regarding the compensation issue without any result.
[Mr A] claimed that now that he was in Australia he was free to do what he likes and did his best to participate in “all the activities” of Falun Gong.
He claimed his marriage had suffered difficulties. He appeared to claim that in the event of return to China he would be homeless; however, he also seemed to claim that he has nowhere to stay in Australia.
Evidence considered by the delegate
For the purposes of this review, [Mr A] submitted a copy of the delegate’s decision, the primary decision, on his protection visa application. The record of decision contains a summary of [Mr A’s] oral evidence. It also contains summaries of information [Mr A] provided to Australian officials after his detention in April 2018.
On 3 April 2018, upon his detention, [Mr A] evidently told Australian officials that he wished to depart Australia voluntarily on a ticket that he could purchase himself. Asked if there was anything preventing him from returning to China, [Mr A] evidently said, “No […] should be fine.”
At a 9 April 2018 interview for a bridging visa, which was refused by the Department, [Mr A] reportedly said he had
sought protection to prolong his stay in order to be with his daughter while she completes her education in Australia. He stated that everything is fine in China but he would like to wait for his daughter to complete her studies. [Mr A] initially claimed that he practiced Falun Gong, then claimed his “ex-wife will bash him” if he were to return to China and then again claimed that he wishes to be with his daughter.
In light of this information, the delegate evidently raised concerns with [Mr A] as to whether he genuinely feared persecution in China. In response, [Mr A] evidently said that he wished to stay in Australia to be with his daughter.
The delegate nevertheless looked at [Mr A’s] Falun Gong claims more closely. [Mr A] told the delegate that he began to practice Falun Gong in China in 1990 but ceased practicing it after about two or three months due to Falun Gong having become “restricted” there.
[Mr A] evidently told the delegate also that he had never practiced Falun Gong in Australia as he felt scared, apparently due to the restriction in China, to attend Falun Gong sessions ever again.
[Mr A] evidently went on to tell the delegate that he never suffered any potentially relevant harm in China as he had ceased practicing Falun Gong before the government’s crackdown on the practice.
Asked what harm he feared in the event of return to China, [Mr A] evidently told the delegate, “I don’t know [.] I am not sure.”
The delegate, citing information[1] from the UK Home Office, put to [Mr A] that Falun Gong was not introduced to China or the rest of the world until 1992, long after he claimed to have taken it up and abandoned it. Also, citing information[2] from the Department of Foreign Affairs (DFAT), the delegate put to [Mr A] that the Chinese government crackdown banning Falun Gong did not occur until 1999. This would seem to have been an opportunity for [Mr A] to review his evidence, particularly as to dates. However, [Mr A] evidently adhered to his claims, evidently repeating the position that the crackdown on Falun Gong occurred in 1990.
[1] “Country Practice and Information Note – China: Falun Gong,” UK Home Office, 28 November 2016
[2] DFAT Country Information Report: China, 21 December 2017
[Mr A] evidently told the delegate that his daughter had told him that her mother, his ex-wife, would beat him until he was “disabled” if he did not stay and look after her in Australia. He evidently said to the delegate that he wished to stay in Australia so that he could support her emotionally and financially. Asked why he had not mentioned this claim in his original protection visa application, [Mr A] evidently could not recall.
In dismissing [Mr A’s] Falun Gong claims, the delegate did not believe that he had been targeted in a discriminatory way in the alleged property compensation issue. The delegate did not accept that this issue gave rise to a real chance of persecution or a real risk of significant harm.
The delegate did not believe that [Mr A] faced a real chance of persecution or a real risk of significant harm involving his ex-wife or anyone else.
Independent evidence about Falun Gong
I have had regard to the Li Hongzhi’s handbook Falun Gong[3] for the purposes of identifying Falun Gong precepts, exercises and other teachings relevant to this matter.
[3]
Evidence to the Tribunal
[Mr A] did not question or contest the accuracy of the primary decision record which he had submitted to the Tribunal for the purposes of this review. However, he did say that he had been nervous during the interview with the delegate and that he might not have recalled events accurately.
I reminded [Mr A] that he had told the delegate that he started to practice Falun Gong in 1990 but abandoned it after a few months due to government repression. In reply, he said “Yes.” I repeated to him that he had said these event all happened in 1990, and then he said he could not remember the exact time; he said they occurred “somewhere around that time.”
I put to [Mr A] that Falun Gong was introduced in China in 1009 and was not restricted until its very sudden banning in 1999. In response, he said he joined and abandoned Falun Gong in 1995. I put to [Mr A] that in 1995 there was no repression of Falun Gong: that did not occur until 1999 (very suddenly after a massive public rally of Falun Gong supporters in Beijing on 25 April of that year). In reply, [Mr A] said that because the repression had not yet occurred he was able to join Falun Gong in 1995. I then put to him that there was no evident crackdown on Falun Gong in 1995, putting into question his claim about abandoning the practice due to it having been ‘restricted”. In reply, [Mr A] said that he quit in 1995 because he feared that he would be persecuted at some stage in the future.
I put to [Mr A] that he had evidently told the delegate that he had not suffered any potentially relevant harm in China before he left that country in 2007 (which was just over eight years after the banning of Falun Gong). In reply, he said this was true; he said that the authorities never harmed him physically but treated him differently nevertheless. He said that they did not adequately compensate him for his land due to his past involvement in Falun Gong. I put to him that it was difficult on the information so far to see how inadequate compensation for land appropriation in 2010 was linked to a brief affiliation with Falun Gong back in 1995, fifteen years earlier. In response, [Mr A] changed his evidence: he said that although he quit associating with the Falun Gong movement in 1995 he had continued in China and Australia to practice privately “alone doing meditation.” In this way he implied that he had somehow come to the attention of Chinese authorities after the banning of the movement.
I asked [Mr A] for details about his involvement in Falun Gong. The evidence he provided was of a very poor standard. He said, “Falun Gong is meditation” he said it is just qi gong (spirit cultivation) that requires one to sit and meditate. I asked him if sitting and meditating was all there is to Falun Gong and he said, “I like that part … to sit and meditate.” I put to [Mr A] that according to the Falun Dafa website, sitting and meditating is not, on its own, Falun Gong, and he said that it is. He said he positions his hands in the way that Falun Gong practitioners do to hold, as it were the spiritual “wheel” that is called the “falun”. I asked [Mr A] if he could name this sitting exercise, and he essentially showed that he could not. He did refer to the Falun Dafa’s three precepts of “Truth, Compassion and Forbearance”[4]. The Falun Gong handbook does say that exercises can be performed selectively. However, [Mr A] was not able to identify by name the sitting Falun Gong exercise that he claimed to prefer (it is known as “Reinforcing Supernatural Powers”) and was unable to suggest that the exercise involves many more gestures that merely sitting with the hands, stationary, describing the shape of a “wheel”.[5] When I asked him why this exercise seemed to be the only one he knew (albeit only vaguely), he said he does not like to sit with others in groups. He said there are different forms of Falun Gong but he had one favourite exercise. He did say there are five Falun Gong exercises, but was not able to describe them in any visual or other detail.
[4]
[5] pp. 59 to 64,
I put to [Mr A] that the Falun Dafa movement encourages group exercises wherever practicable. In reply, he said he knew this but had a personal preference for sitting by himself. He indicated that he had not only continued to practice Falun Gong since 1995 but also continued to do so privately in Australia.

I put to [Mr A] that he had claimed to the delegate that he had not practiced Falun Gong in any way at all in since coming to Australia and he changed his evidence, saying that he did so “rarely.” He said he liked to sit by himself even though he had learned all five exercises during the “six months” of his association with Falun Gong in China (a change in his evidence from the “two or three months” originally claimed).
I asked [Mr A] if he could provide any supporting evidence of his involvement in Falun Gong anywhere and he said he had none.
Bearing in mind what [Mr A] described as his idea of Falun Gong, I asked him why he could not return to China and sit and meditate privately, just as he said he does in Australia, with no-one witnessing him. In reply, he said he has no reason to return to China because his property had been confiscated.
I asked [Mr A] for more detail about the property that had been confiscated and he said it had been an old property “given” to him by the state “many years ago”. I asked him to tell me how long ago this had been and he said it had been in the 1960s or 1970s. I put to him that the period he identified had fallen during the Cultural revolution, making it very difficult to conceive that the state had given land to private individuals for them to own. I put to him that what he was describing to me sounded at best like a form of permitted tenancy. He essentially confirmed this when he said that in China people do not have to own property to have some state-provided right to occupy it. We then discussed whether the old property had been given to him in the 1960s or 1970s or to his father: back in the days of the Cultural revolution in the 1960s and 1970s days [Mr A] was either not born or eight years old at the most. However, [Mr A] said it was, and that it was his own name that had been on the deed of the old property. In light of his being an infant, or even not yet born, it seemed reasonable to expect that the land could not logically have been deeded to [Mr A]. He provided no detail as to how he could have become the title holder.
[Mr A] told me that when the state resumed the old property, it offered two apartments as compensation. He then said that the state took back one of the apartments in 2010. He said the authorities evicted his father, who then moved into the other apartment provided to him as compensation. I asked [Mr A] why the state had given his family two properties in exchange for one, and he said that the amount of compensation had been calculated according to land area.
[Mr A] told me he wrote a letter of complaint to the Chinese authorities and sent it to them in China. I asked him if he had ever kept a copy of that letter and he said it was many years ago; then he said he had kept no copy. I asked him of his father never complained about the apartment being taken back and he said his father did not because his father’s name was not on any of the relevant deeds; only his own as, he said, was “common” in China. Essentially [Mr A] said he could provide no documents in support of his claim about inadequate compensation for land resumed from him by the state.
[Mr A] told me that the authorities took the second apartment because “I told them I was Falun Gong.” I asked him to tell me when he told the Chinese authorities that he was a Falun Gong adherent and he said, “I’m not sure. They told me I’m a member of Falun Gong and didn’t tell me the result.” It seemed here that he changed his evidence about telling the authorities himself that he followed Falun Gong, claiming instead that they told him what they had found out about him, and then told him that they had not yet concluded their investigations of this issue. However, when I asked [Mr A] to tell me in detail how and by what means the authorities had told him of their suspicions about him, he changed his evidence again: he now said that a friend passed on to him over the telephone the news that the authorities had found out about him. He said the authorities did not tell him directly. He said this happened in 2011. I put to him that he had now presented three different and factually disparate versions as to how he ascertained that the authorities had become aware of his claimed Falun Gong involvement. In reply, he said that his friend went to a state office to argue the compensation issue on his behalf, suggesting that the authorities told the friend about him on this occasion. This explanation, whilst adding detail to the third version of events did not help to explain either of the first two versions.
[Mr A] said that his relatives in China had been aware since 2011 that he had been involved with Falun Gong and that his cousin, who was sitting outside the hearing room, and who had visited China since 2011 would have heard from them that he had been. I then asked [Mr A] for more information about his cousin who, he said had been living in Australia over 28 years. He said he did not know what visa she had used for her first travel to Australia. he said he did not know why she had come to Australia in the first place or on what basis she had been allowed to stay and return here so many time after visits home. I asked if he could recall that she might have somehow been affected by Australia’s response to the plight of Chinese students in the months and years following the 4 June 1989 repression of the pro-democracy movement in Beijing’s Tiananmen Square. In reply, he said, and later emphatically repeated, that he and his cousin are just relatives and do not discuss “personal stuff” with each other. This information ultimately provided one of the main reasons why I did not call [Mr A’s] cousin to give evidence. [Mr A’s] suggestion that no-one was witness to his claimed Falun Gong practice in Australia provided another reason why it did not seem useful to call [Mr A’s] daughter or cousin.
[Mr A] said he could not remember when he first had problems with the authorities in China, but acknowledged that it might have been in 2010 when the authorities first confiscated his second property (the second of the two apartments). Relevant to this, and having regard to relevant court guidance on the subject, I asked [Mr A] why he did not lodge a protection visa application at any previous time in the preceding eight years. In reply, he said that he had spoken in the past to different migration agents who had all told him they could not do anything. I asked him if he was saying that none of the migration agents he had met had wanted to help him with a protection visa application, and he said that at the time, six years ago, he was advised by an agent (or agents) to apply for a bridging visa. He said the agents had told him that his daughter was eligible to stay but that he was obliged to return to China. I put to him that it did not yet sound from any of what he was saying that the issue of seeking protection in Australia ever arose. He then seemed to suggest that he did not raise the subject of protection with any migration agents in and around 2012 because the Chinese authorities “knew I practiced Falun Gong but didn’t fully know it.” I put to [Mr A] that it was difficult for me to discern in his evidence a reasonable explanation for his delay in seeking protection in Australia, especially given his claimed awareness of the authorities discriminating against him in 2011 because of perceived Falun Gong connections, and his claimed contact with migration agents in Australia as far back as 2012.
[Mr A] added that he had spoken to different migration agents when he was unable to convert his [first] visa into a [different visa]. He said they did not give him good advice. He suggested he did not receive good advice until after he was detained in April 2018, whereupon his cousin found him a solicitor.
I asked [Mr A] why he told an Australian official in April 2018, on the third day of his detention, that he did not fear return to China and that conditions there “should be fine” for him. In reply, he claimed that when he had said that he had been thinking that with President Xi now ruling China there would be less to worry about. I note that he lodged a protection visa application only two days after purportedly relying on this view of President Xi.
I discussed with [Mr A] the claim about his ex-wife beating him should he return to China. He said that it was “not like she’s going to beat me up.” I asked him then to explain why he had previously said that she would, and he said that if something serious should happen to his daughter, who has some chronic [medical] issues, his ex-wife will consider him responsible and do something to him.
I put to [Mr A] in the course of the hearing that I had difficulty accepting that he had ever been involved with Falun Gong and took into account his responses. I put to him also that I had difficulty accepting that he was or could have been in any way involved in the land issue allegedly affecting his father, up to a point, in 2010, let alone that it was his land that had been taken on any occasion, let alone that his name was on any document relating to the properties discussed or that he was a party in discussion or debate regarding the properties and compensation for the same.
I flagged to [Mr A] that in light of what he had said about his witnesses and about not discussing “personal stuff” with his cousin, I was not inclining to call them to give evidence in this matter. [Mr A] did not argue against this proposition. I did not call the witnesses.
Findings in relation to s.36(2)(a) of the Act
I am not satisfied on the confused and largely inconsistent evidence before me that [Mr A] has ever engaged with Falun Gong, either in China or in Australia, whether as an adherent, or by casually practicing it in some limited personalised way, or even out of curiosity. His claims about being imputed by Chinese authorities to have some link to Falun Gong are also inconsistent and far-fetched. I do not believe on the evidence before me that he has ever been so imputed.
It follows that [Mr A] has failed, on credibility grounds, to satisfy me that the disadvantages he claims to have suffered in the property resumption processes he described have anything to do with discrimination, let alone for any reason identified in s.5J(1)(a) of the Act.
Having considered his evidence in its entirety, I find on the evidence before me that [Mr A] has fabricated all of his Falun Gong claims after having been detained pending deportation in April 2018.
Whether I regard his Falun Gong claims as claims relating to “religion” or as claims relating to actual or imputed “political opinion”, I am not satisfied that [Mr A] faces a real chance of being persecuted in China in the reasonably foreseeable future for reasons of his claimed affiliation with Falun Gong.
I can accept that property occupied by [Mr A’s] family was resumed several years ago by the state and that his parents now reside in an apartment provided by the state as a replacement for the land on which they previously resided. The detail about the state initially granting two apartments as compensation and then belatedly taking one back around the time that [Mr A’s] [temporary] visa was refused strikes me as far-fetched. In any event, whatever disadvantage arose for [Mr A’s] family in his version of events, I give weight to the fact that his parents have been living for several years in an apartment they were granted prior to 2010 as compensation for giving up tenancy of the property they previously occupied. I certainly give more weight to this than to [Mr A’s] unsupported and falsely-based claims about discriminatory handling of the matter by the authorities.
In addition, I am not satisfied on the evidence before me that the property dispute described in [Mr A’s] claims has anything directly to do with him, or that to any potentially significant extent he is indirectly implicated. I do not believe, on the evidence before me, that he was the named tenant, or title holder or bearer of the name on any deed pertaining to any actual properties in China, let alone any of those described in his claims. However, I am prepared in the circumstances to accept that [Mr A] lived with his parents until he came to Australia, that they received compensation, adequate in their view or not, and that they now live in an apartment that may or may not be large enough to accommodate him on return.
I do not accept on the evidence before me that [Mr A] has complained to authorities, in writing, or through anyone else or by any other means, about any property compensation matter in China. I give weight to the fact that his parents are accommodated and have not been left homeless as a result of any past land redevelopment ventures in China.
I am not satisfied on the evidence before me that any land redevelopment or compensation issues give rise to a real chance of [Mr A] being persecuted in China in the reasonably foreseeable future, let alone for any reason identified in s.5J(1)(a) of the Act.
I am not satisfied on the somewhat inconsistent evidence before me that [Mr A] faces any potentially significant mistreatment from his ex-wife for any reason in the event of return to China.
I accept that [Mr A] will suffer some emotional difficulties leaving his daughter here in Australia after having been here with her for around twelve years, particularly as she still has studies to complete and is in need of medical assistance for her [medical] condition. On the evidence before me I am not satisfied that any aspect of this particular situation gives rise to a real chance of [Mr A] being persecuted in China in the reasonably foreseeable future, let alone for any reason identified in s.5J(1)(a) of the Act.
Having considered all of the evidence in its entirety, I am not satisfied that [Mr A] faces a real chance of being persecuted in China in the reasonably foreseeable future for any of the five reasons identified in s.5J(1)(a) of the Act. He is not a refugee.
For the reasons given above, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [Mr A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), which requires the Minister to have 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.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
[Mr A’s] complementary protection claims rely on the same facts as his claims to protection as a refugee. As shown above, these claims have failed on credibility grounds and, ultimately, due to their not meeting the “real chance” test”.
In view of my findings of fact above, [Mr A’s] refugee claims can no more succeed as complementary protection claims.
One arguable exception amongst [Mr A’s] claims arises with regard to the suggested emotional impact of being separated from his indisposed daughter in the event of his removal to China.
It is difficult to quantify such suffering in an assessment of this nature but it is easy to imagine that a concerned parent would not want to be separated from a child, even an adult child, in the middle of an unresolved or not yet-controlled medical problem, and that to be so could lead to the experiencing of degrees of personal distress. Whilst this suffering can reasonably be considered to be potentially real, it is a separate matter whether the facts in [Mr A’s] case meet Australia’s complementary protection criteria.
Whereas [Mr A] may argue that he would be or feel harmed in the event of removal to China at this time, due to his daughter’s circumstances, it is fairly obvious that the harm in such a case would not involve the “death penalty” or “arbitrary deprivation of life”.
In addition, I cannot see that it would involve “torture”, or “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” for the purposes of the Migration Act as all three forms of harm must involve intention to harm or intentional infliction of harm and, as far as the present case is concerned, I find no intention on the part of any party to harm [Mr A] in the separation of him from his daughter that would ensue from his removal to China.
On the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [Mr A] will suffer significant harm.
Accordingly, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [Mr A] 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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 2743

12 June 2018

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