1812323 (Refugee)

[2021] AATA 5266

1812323 (Refugee) [2021] AATA 5266 (11 November 2021)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812323

COUNTRY OF REFERENCE:                  China

MEMBER:Amanda Upton

DATE OF DECISION:  11 November 2021

DATE CORRIGENDUM

SIGNED:30 November 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

-On page 1, replace the Applicant’s first name ‘[incorrect spelling]’ with ‘[correct spelling]’.

Amanda Upton
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1812323

COUNTRY OF REFERENCE:                  China

MEMBER:Amanda Upton

DATE:11 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 November 2021 at 10:55am

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – Shouters – house church – fear of arrest – evangelising a workplace – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5AAA, 5(1), 5H, 5J – 5LA, 36, 65, 360, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth (1999) 197 CLR 510
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP [2016] FCAFC 52
SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND Overview

Application for Review – Refusal of Protection Visa

1. The Applicant is a citizen of China. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refusing to grant him a protection visa. The Applicant is [age] years of age and is presently residing in New South Wales, Australia.
   
   

2. The Applicant originally applied for the protection visa on 14 November 2017. The visa was refused on 13 April 2018. The Applicant lodged his review application with the Tribunal on 30 April 2018. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicant his visa.[1]

   [1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Division 2 of Part 7 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements being met in this case.

   Type of Visa

3. The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

   Applicable Criteria

4. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia, and either:

   (a)they are a ‘refugee’ (‘the refugee criterion’);[3]

   (b)they otherwise qualify for complementary protection (‘the complementary protection criterion’);[4] or

   (c)they are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

5. A person is a ‘refugee’, and therefore meets the refugee criterion, if the person ‘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.’[6]          
   
   

   [6] Migration Act 1994 (Cth), s 5H(1)(a). Because the Tribunal is satisfied that the Applicant is a citizen of China, the s 5H(1)(b) definition of ‘refugee’ (which applies only to ‘stateless’ applicants) is not applicable in this case.

6. A person meets the complementary protection criterion if there are ‘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.’[7]

   [7] Migration Act 1994 (Cth), s 36(2)(aa).

   Delegate's Reasons for Visa Refusal

7. In his original application form lodged with the Department of Immigration and Border Protection (‘the Department’), the Applicant sought a protection visa claiming that he met the refugee criterion or the complementary protection criterion. The delegate was not satisfied that he met either. The Applicant did not claim to meet the family member criterion. The delegate therefore refused the visa application.      
   
   

8. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicant when he was notified of the delegate’s decision. That notification prompted the Applicant to lodge the present review application. The Applicant also provided a copy of the delegate’s decision record to the Tribunal following lodgement of the review application.

   Issues for Determination by Tribunal

9. The following issues arise for determination by the Tribunal in relation to the present review application:   
   
   

   (a)whether the Applicant meets the refugee criterion;

   (b)whether the Applicant alternatively meets the complementary protection criterion.

   Hearing of Application

10. The Tribunal scheduled a hearing to consider the merits of the review application for 10 December 2020. On 8 December 2020, the applicant contacted the Tribunal by email stating that the Tribunal may make a decision on the information already provided. He stated that; “I just want to emphasize that I am very scared to return to China due to my religious believe, and China is getting really worse than before and I feel hopeless for the government.” The applicant made express reference to the fact that he had already participated in an interview with the Department.    
    
    

11. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
    
    

    Tribunal’s Determination

12. The Tribunal has concluded that the decision to refuse the Applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:   
    
    

    (a)the Applicant's original written visa application;

    (b)the delegate’s decision record;

    (c)the written material filed by the Applicant in relation to his case;

    (d)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department;[8]

    (e)country information assessments relating to China that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[9]  
    
    

    [8] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

    [9] These are also mandatory considerations under Direction No 84.

13. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be material to the determination of the issues in the case.[10]
    
    

    consideration oF APPLICANT’S CASE

    [10] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

    Original Protection Visa Application

14. The Applicant was obliged to complete a form when he lodged his protection visa application. The form requested that he provide details about his personal background, his circumstances leading up to his arrival in Australia, and his reasons for applying for a protection visa.      
    
    

    Applicant’s Background

15. The applicant is [an age] year-old male born on [date] in Fuqing, Fujian, China.
    
    

16. The applicant states that he can speak, read, and write Mandarin. The applicant nominated Christian as his religion and Han Chinese as his ethnicity in the application form.
    
    

17. The applicant states he is a citizen of China by birth and that both his mother and father are Chinese citizens. he further states that he does not hold and has never held, or been entitled to, citizenship or residence in any other country.
    
    

18. The applicant provided the Department with a copy of the identity page of his Chinese passport, issued in China [in] 2017, in support of his claim to Chinese citizenship. The applicant’s passport expires [in] 2027.
    
    

19. The applicant arrived in Australia [in] August 2017 on a FA 600 Tourist Visa, which was set to expire on 23 November 2017.       
    
    

20. The applicant has not departed Australia since arriving on this date.
    
    

Protection Claims

1. The applicant’s claims for protection are located in his protection visa application form, lodged with the Department on 14 November 2017. He also provided two statutory declarations dated 14 November 2017 to supplement the responses in his Protection Visa Application.

2. His claims as asserted in these documents are summarised as follows:     
   
   

   (a)The applicant claims that he is a major activist in the local church and that the local church (also known as ‘Shouters’) is regarded as an evil cult by Chinese Authorities. He states he was evangelised by [Mr A] who worked alongside the applicant [at work venues] (undated) and was a secret attendee of the local church. He was baptised [in] March 2013, at the home of [Mr A] in [a named] Village, [in a named] Town.

   (b)He states that from January 2013 he began attending secret meetings of the local church which were held at the homes of church brothers or church sisters and that he continues to attend local church meetings regularly, three times per week on Sunday, Thursday and Saturday in the evening.

   (c)The applicant claims that in 2015 he travelled [a named] City, Jiangxi Province following [specified] work and his Father’s sister’s husband [Uncle A] and from there they were contracted to work in [Town 1], Hukou County. Whilst there, he and [Mr A] evangelised the other employees working and living [in the work venue] over the ensuing 2 year period.

   (d)He states that in the lead up to 2017, 60-70% of the employees attended meetings that he and [Mr A] organised and held in the worker’s temporary [accommodation at the work venue] daily and in the evenings including a Lord’s Day meeting each Sunday evening.

   (e)The applicant states that his parents have no religious beliefs and that they became very worried about his safety when they became aware of his Christianity and the fact that he had been actively involved in the Local Church.

   (f)He states that because of this it was in 2016 that his father began to consult a friend, [Friend A] to arrange his trip overseas and that his parents anticipated that he could leave the country if he got into trouble with the government.

   (g)The applicant notes that he did not initially consider leaving to be necessary, due to the care he and [Mr A] took in arranging church meetings and the remoteness of [Town 1] (the location of the [work venue] where the applicant lived and worked).

   (h)He further stated that in early July 2017 two workers, who were local residents of [Town 1], were arrested by the Public Security Bureau and that the two workers were activists of their meetings of the local church; that they were accused of spreading the teachings of “Evil Cult” to the people around them and that cruel torture, administered by the police, the two workers quickly confessed everything.

   (i)The applicant states that following the confession of the two workers, the church activities organised by the applicant became a target of the Public Security Bureau and that he and [Mr A] were regarded as major leaders.

   (j)The applicant claims that through a friendship of his father’s sister’s husband, [Uncle A], with a local police officer ([named]), he was able to be tipped off that the police were searching for him. This allowed the applicant to run away, however [Mr A] was arrested by police.

   (k)The applicant claims that he dared not return to his home town and instead went to Xi’an City, Shaanxi Province, to stay with his Father’s friend [Friend A] for about one month. Following this the applicant stayed at the home of [Friend A’s] friend in Hangzhou City, Zhejiang Province.

   (l)The applicant departed China from Hangzhou.

   (m)The applicant claims that the police went to his hometown in Fujian to arrest him, due to his profile as a major leader of an evil cult and that his parents and brother were also investigated by police.

   (n)The applicant claims that he continues to practice his religion in Australia and will be persecuted by police if he returns to China.

   Country Information

3. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about China on 3 October 2019 (‘the DFAT report’).[11] However, for reasons that are explained below pertaining to the Tribunal’s assessment of the Applicant’s credibility, it is unnecessary to refer to any specific information contained in the DFAT report.

   [11] Department of Foreign Affairs and Trade, DFAT Country Information Report: China (3 October 2019).

Analysis of Evidence and Factual Findings

Assessing Credibility of Claims – General Principles

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[12]
   
   

   [12] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’ [15.3].

2. The Tribunal also recognises that applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions. The nature of their claims, if genuine, may cause them some consternation in expressing their fears. Allowing for such considerations, if the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt if they are unable to fully substantiate all of their claims.[13]
   
   

   [13] Ibid [15.4].

3. However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[14] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[15] While there is no legal concept of ‘onus of proof’ that is to be applied by the Tribunal, in the same way that such a concept is routinely applied in courts of law,[16] the Tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an applicant’s claims. If there is no such foundation, the Tribunal is obliged to reject those claims.

   [14] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [15] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

   [16] Sun v MIBP [2016] FCAFC 52.

4. Ultimately, it is for the applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[17] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[18] In this case in particular, the Tribunal is also mindful of its statutory obligation to draw an inference unfavourable to the credibility of a claim if there is no reasonable explanation as to why the claim was not raised originally before the delegate.[19]

   Credibility of Applicant’s Claims in this Case

   [17] MIEA v Guo (1997) 191 CLR 559, 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

   [18] Migration Act 1958 (Cth), s 5AAA(2).

   [19] Migration Act 1958 (Cth), s 423A.

5. In this case, the Tribunal is not satisfied that any of Applicant’s claims are true, as contained in his original application. In coming to this conclusion, the Tribunal has considered the material submitted by the applicant and his Department interview. The Tribunal considers that the claims are not credible for the following reasons:          
   
   

   (a)The Tribunal finds that the answers given by the applicant in his Departmental interview were vague and lacking in the detail. He was unable to provide the detail as would be expected as to his religious practices and that of his church particularly considering the length of time that he asserts to have been practising his religion. He was unable to answer many of the questions that were asked of him in relation to these matters. In fact at times, he in effect refused to answer such questions.       

   (b)Whilst the applicant provided more specificity of information in his written documents the Tribunal considers that when asked questions about such matters he was unable to answer them with the same specificity. Even allowing for a consideration that the applicant may have been nervous in his interview, the Tribunal considers that this inability to answer questions impacts significantly on the assessment of the applicant’s credibility.  

   (c)The Tribunal considers that the applicant’s memory of the claims was so lacking in voracity that it has reached the conclusion that those claims, are untrue.    

   (d)Consequently, the Tribunal is unable to conclude that the applicant is in fact a practising Christian, or that he is on any kind of government ‘watching list’ as he claims. This is particularly so as he was able to leave China on his own passport through an international airport without incident although claiming to have been on this list at the time.     
   
   

6. The Tribunal finds that the Applicant is unreliable and none of his claims are credible. There has been no independent evidence provided that is capable of supporting the applicant’s claims. Accordingly, The Tribunal rejects the Applicant’s claims in their entirety.

   Does the Applicant Meet the Refugee Criterion?

   General Principles

7. Section 5H of the Act defines a refugee as a person who, in the case of a person who 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 return to avail himself or herself of the protection of that country.’[20]     
   
   

   [20] Migration Act 1958 (Cth), s 5H(1)(a).

8. The term ‘persecution’ is not expressly defined in the Act. However, it is commonly understood as referring to ‘an injurious act’ and ‘[a] particular course or period of systematic violent oppression, esp. one directed against the members of a particular religious or political group, race, etc.’[21] Within the context of Australia’s relevant migration and refugee laws, the concept of persecution is limited by the operation of a number of statutory provisions found in the Act. These provisions essentially prescribe the approach that the Tribunal must take when considering whether an applicant has a ‘well-founded fear of persecution’ when assessing their claim of being a refugee.
   
   

   [21] ‘persecution, n.’, OED Online (Oxford University Press, May 2021, type="1">

9. First, the Act provides that a person is only considered to have ‘a well-founded fear of persecution’ if three criteria are satisfied:

   (a)they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;[22] and

   (b)there is a real chance that, if they are returned to their home country, they would be persecuted for one or more of those reasons;[23] and

   (c)the real chance of persecution relates to all areas of the receiving country.[24]

   [22] Migration Act 1958 (Cth), s 5J(1)(a). The term ‘social group’ is further explained in s 5K (where the social group consists of an applicant’s family) and s 5L (where the social group consists of persons other than the person’s family). In relation to the latter, a shared ‘characteristic’ amongst its members, other than a fear of persecution, is what essentially defines a social group.

   [23] Migration Act 1958 (Cth), s 5J(1)(b). The Act refers to an applicant’s home country as either a country of which they are a national or, if they have no nationality, a country of their former habitual residence. Collectively, such countries are referred to as a ‘receiving country’ for the purposes of Australia’s protection visa laws. For ease of reference and understanding, in the present review application the Tribunal considers appropriate to refer simply to the Applicant’s ‘home country’ in its decision.

   [24] Migration Act 1958 (Cth), s 5J(1)(c). 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.

10. Secondly, on the assumption that a person fears persecution for one or more of the prescribed reasons, the Act imposes the following further three requirements:
    
    

    (a)the identified reason(s) for the persecution must be the essential and significant reason(s) for the persecution;[25] and

    (b)the persecution must involve serious harm to the person;[26] and

    (c)the persecution must involve systematic and discriminatory conduct.[27]

    [25] Migration Act 1958 (Cth), s 5J(4)(a).

    [26] Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: 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 likelihood of any kind, where the denial threatens the person’s capacity to subsist.

    [27] Migration Act 1958 (Cth), s 5J(4)(c).

11. Thirdly, the Act prescribes the following circumstances in which a person is taken not to have a well-founded fear of persecution: 
    
    

    (a)if effective protection measures are available to the person in their home country;[28] or

    (b)if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in their home county.[29]
    
    

    [28] Migration Act 1958 (Cth), s 5J(2). Section 5LA(1) states that ‘effective protection measures’ are available to a person if: (a) protection against persecution could be provided to the person by the relevant State or 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 is willing and able to offer such protection. Section 5LA(2) states that such a State, party or organisation 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.

    [29] Migration Act 1958 (Cth), s 5J(3). Such behavioural modifications contemplated by s 5J(3) are specified to not include modifications what would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic of the person. See s 5J(3)(a)-(c).

12. Fourthly, in determining whether a person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Tribunal they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.[30]

    [30] Migration Act 1958 (Cth), s 5J(6).

13. Beyond these statutory prescriptions, determining whether a person has a well-founded fear of persecution involves making a risk assessment as to what is likely to happen in the future.[31] In this regard, conclusions about what has happened in the past may provide some assistance in working out what is likely to happen in the future.[32] In many cases, an applicant will be relying on their own past experiences as founding their claim for a protection visa. The logical starting point for the Tribunal in such cases is to determine whether the events happened as claimed and, if so, whether they constituted persecution.[33]

    Does the Applicant Have a Well-Founded Fear of Persecution?

    [31] MIEA v Guo (1997) 191 CLR 559, 574.

    [32] Ibid, 574-5: ‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’

    [33] See Abebe v The Commonwealth (1999) 197 CLR 510, [82] (per Gleeson CJ and McHugh J), [192] (per Gummow and Hayne JJ): ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’.

14. The Tribunal is not satisfied that the applicant has a well-found fear of persecution because it is not satisfied that any of the applicant’s claims are true.
    
    

15. The Tribunal finds that the Applicant does not meet the refugee criterion.

    Does the Applicant Meet the Complementary Protection Criterion?

    General Principles

16. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal has ‘substantial grounds for believing that, as a necessary and foreseeable consequence of … being removed from Australia to a receiving country, there is a real risk that [they] will suffer significant harm’.[34]  
    
    

    [34] Migration Act 1958 (Cth), s 36(2)(aa).

17. Section 36(2A) provides that a person will suffer ‘significant harm’ if:
    
    

    (a)they will be arbitrarily deprived of their life;[35] or

    (b)the death penalty will be carried out on them;[36] or

    (c)they will be subjected to torture;[37] or

    (d)they will be subjected to cruel or inhuman treatment or punishment;[38] or

    (e)they will be subjected to degrading treatment or punishment.[39]
    
    

    [35] Migration Act 1958 (Cth), s 36(2A)(a).

    [36] Migration Act 1958 (Cth), s 36(2A)(b).

    [37] Migration Act 1958 (Cth), s 36(2A)(c). Torture is defined in s 5(1) as meaning 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 International Covenant on Civil and Political Rights (‘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.

    [38] Migration Act 1958 (Cth), s 36(2A)(d). Cruel or inhuman treatment or punishment is defined in s 5(1) as meaning 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. It 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.

    [39] Migration Act 1958 (Cth), s 36(2A)(e). Degrading treatment of punishment is defined in s 5(1) as meaning an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission.

18. However, s 36(2B) further provides that there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These include if the Tribunal is satisfied that:    
    
    

    (a)it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;[40] or

    (b)the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm;[41] or

    (c)the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[42]          
    
    

    [40] Migration Act 1958 (Cth), s 36(2B)(a).

    [41] Migration Act 1958 (Cth), s 36(2B)(b).

    [42] Migration Act 1958 (Cth), s 36(2B)(c).

19. A ‘real risk’ of significant harm otherwise involves the application of the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ when considering the refugee criterion.[43]

    Is there a Real Risk of Significant Harm?

    [43] Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33.

20. For the same reasons articulated in paragraph 28 above, there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk that the applicant will suffer significant harm.          
    
    

21. The Tribunal finds that the applicant does not meet the complementary protection criterion.

    Summary

22. The Tribunal is not satisfied that the applicant meets either the refugee criterion or the complementary protection criterion. Accordingly, the decision under review must be affirmed.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Permanent Protection (Class XA) (Subclass 866) visa.

Amanda Upton
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.

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receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

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5H    Meaning of refugee

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.

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5J     Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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1. Protection visas – criteria provided for by this Act

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1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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