1813104 (Refugee)

[2022] AATA 1548

1813104 (Refugee) [2022] AATA 1548 (21 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813104

COUNTRY OF REFERENCE:                  China

MEMBER:Dominic Triaca

DATE:21 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 21 March 2022 at 12:23pm

CATCHWORDS

REFUGEE – Protection visa – China – commercial maritime dispute – seizure of cargo ship – payment of fine – legal proceedings – claimed harassment by border official – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 April 2018 to refuse to grant the visa applicants a Protection (Class XA) Subclass 866 visa under s. 65 of the Migration Act 1958 (the Act)[1]. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.

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

2. The main applicant (applicant) is [an age]-year-old citizen of the People’s Republic of China. The applicant arrived in Australia [in] May 2017 on a visitor visa. He applied for a protection visa on 22 August 2017.

1. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s.36(2) (a) or (aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).

2. The applicant attended an interview with the Department on 15 November 2017 with the assistance of a mandarin interpreter. Where relevant, the evidence from that interview is referred to in this decision.

3. The applicant appeared before the tribunal on 27 July 2021 to give evidence and present arguments. He was assisted by an interpreter.

4. The issues to be considered in this case are as follows:

   (a)Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act?

   (b)Does the applicant meet the protection obligations under the complementary protection provisions of the Act?

5. For the following reasons, the tribunal has concluded the decision under review should be affirmed.

RELEVANT LAW

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

   (a)A person in respect of whom Australia has protection obligations because that person is a refugee (the refugee criterion)[2];

   (b)A person in respect of whom Australia has protection obligations because of other complementary protection grounds (the complementary protection criterion)[3]; or

   (c)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)[4].

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

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

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

2. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of protection in that country.[5] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution they are unable or unwilling to return to that country.[6]

   [5] Migration Act 1994 (Cth), s 5H(1)(a)

   [6] Migration Act 1994 (Cth), s 5H(1)(b)

1. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a well-founded fear of persecution and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA of the Act.

1. The term persecution is not expressly defined in the Act. The standard Australian dictionary, the Macquarie Dictionary, defines the verb to "persecute" as "to pursue with harassing or oppressive treatment; harass persistently" and relevantly, "to oppress with injury or punishment for adherence to principles".[7]

   [7] SEE CHEN SHI HAI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] HCA 19; 201 CLR 293 AT [61] TO [65] FOR A DETAILED DISCUSSION OF THE MEANING OF PERSECUTION.

1. Section 5J of the Act states that for the purposes of the application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race nationality, membership of a particular social group or political opinion’ and that there is a real chance they will be persecuted for one or more of these reasons in the event they return to their receiving country. The real chance of persecution must also relate to all areas of the receiving country.[8]

   [8] Migration Act 1958 (Cth) 5J(1)(c)

1. In Chan v MIEA[9] the Court, when considering ‘well-founded fear’ for the purposes of the Refugee Convention, held that involves both a subjective and objective element.[10] Mason CJ said at 389:... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. Dawson J said at [397] ‘Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear ‘and at 398 that a “real chance is one that is not remote regardless of whether it is less or more than 50%”. Toohey J said at 407:The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. McHugh J said at 429:...a fear may be well-founded for the purposes of the Convention and Protocol even though persecution is unlikely to occur...an applicant for refugee status may have a well-founded fear of persecution even though there is only a ten per cent chance that he will be...persecuted.

   [9] (1989) 169 CLR 379

   [10] the meaning of “well-founded fear of persecution”, and “real chance” of persecution were the subject of earlier judicial commentary when the applicable tests were found in the Refugees Convention. Those authorities remain apposite. In AKH16 v Minister for Immigration and Border Protection[2019] FCAFC 47;  (2019) 269 FCR 168 (AKH16) (Besanko, Middleton and Mortimer JJ) and AON15 v Minister for Immigration and Border Protection[2019] FCAFC 48; (2019) 269 FCR 184 (AON15)(Besanko, Middleton and Mortimer JJ) the Full Court usefully discussed some of the main authorities.

1. The Act provides that a person is only considered to have a ‘well founded’ fear of persecution if three elements are satisfied.

   (a)They fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;[11] 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;[12] and

   (c)The real chance of persecution relates to all areas of the receiving country.[13]

   [11] Migration Act 1958 (Cth), s 5J(1)(a)

   [12] Migration Act 1958 (Cth), s 5J(1)(b)

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

2. In the event that a person fears persecution for one or more of the prescribed reasons, the Act imposes the following three further requirements[14]:

   (a)The identified reasons(s) for the persecution must be the essential and significant reason(s) for the persecution;

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

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

   [14] Migration Act 1958 (Cth), s 5J(4)(a)(b)(c)

3. A person will not have a well-founded fear of persecution if effective protection measures are available to the person in their home country or if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in their home country.[15] In determining whether a person has a well-founded fear of persecution, any conduct engaged in by that person in Australia is to be disregarded unless the person satisfies the tribunal they engaged in the conduct otherwise then for the purpose of strengthening their claim to be a refugee.[16]

   [15] Migration Act 1958 (Cth), s 5J(2) and (3)

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

4. 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 consequences 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) & (2B) and extracted in the attachment to this decision.

1. An applicant is considered not to be at real risk of suffering significant harm in a country if it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm[17],or the tribunal is satisfied that the applicant could obtain protection from an authority all that country such that they would not be a real risk that the applicant would suffer significant harm or the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is less than a real risk.[18]

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

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

1. 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 delegate’s decision record;

   (b)The applicant’s original written visa application;

   (c)All written material filed by or on behalf of the applicant in relation to this case;

   (d)Written submissions prepared by the applicant’s representative;

   (e)Other relevant documents on the Tribunal and Department files;

   (f)The ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs’[19];

   (g)Country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, also mandatory considerations under Direction No. 84.

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

2. Not all the evidence and material that has been placed before the tribunal is specifically referred to in the tribunal’s reasons set out below. The reasons refer to information that is materially significant to the determination of the issues at hand.

Credibility.

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the tribunal must assess whether the applicant’s claims are credible. Credibility is assessed having regard to the individual circumstances of the case and the evidence before the tribunal.[20] In making this assessment, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is taken into account in these findings.

   [20] Department of Human Affairs, PAM 3: “Refugee Law Guidelines:, [15.3]

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[21] Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision making[22], the tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an applicant’s claims. If there is no foundation, the tribunal is obliged to reject those claims. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim^.[23] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[24]

   [21] MIEA v Guo & Anor (1997) 191 CLR 559 at 596

   [22] Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288

   [23] Migration Act 1958 (Cth) s.5AAA

   [24] MIEA v Guo (1997) 191 CLR 559 at 596

1. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility[25]. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [25] Minister for Immigration and Ethnic Affairs and McIlhatton v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445 per Foster J at p.482

1. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt where they are unable to fully substantiate their claims[26].  However, this only applies if the tribunal is satisfied as to the applicant’s general credibility in the case at hand.[27] An applicant is not entitled to have claims accepted simply because there is a mere possibility that they might be plausible.[28] Such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

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

   [27] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107

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

2. The tribunal is not obliged to assist the applicant make their case. Nor is it required to accept uncritically and or all of their claims. It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[29]

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

   Country information.

3. The tribunal has read and had regard to the relevant country information, in particular the most recently published DFAT Country Information Report: People’s Republic of China, dated 3 October 2019. The tribunal has also had regard to the country information contained in the delegate’s decision.

4. The following country information is particularly relevant:[30]

   “A number of special courts also pay a key role in the judicial system. The standing committee of the national People’s Congress has the power to list the functions and powers of special courts and set up new special courts. Special Courts include … maritime court.”

   [30] DFAT China Country Information Report (3 October 2019) at [5.16] p.67

5. “The maritime court system deals with highly specialised issues related to waters under Chinese jurisdiction … have jurisdiction over maritime tort disputes, maritime contract disputes, sea environmental protection cases and maritime administrative and special procedure cases, including any disputes in this category arising between Chinese and foreign citizens, organisations and enterprises… The maritime courts connect with port and border authorities, and entry and exit can be prohibited if an individual has a pending Maritime Court order.”[31]

   [31] DFAT China Country Information (3 October 2019) at [5.17]

6. “Security monitoring capabilities at airports are comprehensive, and departing passengers pass throughout several identity checks (including passport, and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.”[32]

CONSIDERATION OF CLAIMS AND EVIDENCE.
Applicant’s Background.

[32] DFAT Country information (3 October 2019) at [5.40]

Identification

1. The applicant is [an age] year old citizen of China. He provided a copy of her passport to the Department corroborating this claim. He does not claim to hold citizenship of any other country. The applicant provided the Department with sufficient evidence to demonstrate their identity and I find the applicant’s identity is in accordance with the documents provided.

Protection Claims.

1. The applicant’s protection claims are set out in her original visa protection form and summarised in the delegate’s decision as follows (the claims):

   (a)  The applicant worked as a shipping agent in China and provided services to cargo owners. His responsibility was to find shipping companies who could transport the cargo to a location.

   (b)  He worked for two companies –[Company 1] and [Company 2] and has financially invested in both these companies.

   (c)  He previously worked in [another] industry. He began learning about shipping logistics from his cousin [in] March 2002, and his cousin worked in the industry and encouraged the applicant to help in his business.

   (d)  He suffered political persecution in China when a cargo ship he managed –[was] seized by Chinese border authorities at [the] Port in [City 1], China [in] December 2016.

   (e)  The [port] Border Force asked the port not to let the vessel unload its cargo of [product] which was destined for the local [City 1] [Company 3]. The Captain of the Border Force, Captain [A], said the boat was untidy, had rust and also questioned whether the ship had proper paperwork. When the relevant documents and certificates were provided to the Captain, he did not loot at them but took all the paperwork back to his station and asked all the crew to attend the station and make a statement.

   (f)   There was a confrontation between the ships crew, port authorities and the Border Forces, so the applicant repeatedly called and approached the port and border officials in an attempt to resolve the situation.

   (g)  The applicant threatened to take legal action as he knew there was nothing wrong with the ship or cargo. In response, the Border Force also threatened the applicant with legal action.

   (h)  The vessel was not release. Mr. [A] demanded [amount] Yuan (roughly [amount] Australian Dollars) and seized the ship for one month until the amount was paid. The applicant told the Border Force that [amount] Yuan was too much. The applicant later paid [amount] Yuan (just over [amount] AUD) to release the ship and cargo.

   (i)    The applicant described the seizure of the vessel and the demand for payment by the Border Force as an abuse of power, and an attempt to bully the applicant and the crew.

   (j)    [In] January 2017, the [City 1] [Company 3] filed a lawsuit against the applicant’s company for [amount] Yuan for breaching the contract to deliver [product]. The supplier and the applicant both later paid compensation of [amount] Yuan each to the company.

   (k)  The applicant sued the [City 1] [port] Border Force for their unlawful actions against his ship Captain [A] called the applicant and told him to withdraw from the legal proceedings or he would come after his life.

   (l)    The applicant clarified in the interview that the documents for legal action against the Border Force were prepared but legal action was never commenced.

   (m)     Captain [A] found the applicant, and asked the applicant to consider the possible outcomes of legal action against him, including that there would be no future for him in [City 1]. Captain [A] also indicated he had a network in border security if the applicant relocated to another port. Captain [A] told the applicant to be careful with his life.

   (n)  [In] February 2017, the applicant was out with friends for dinner in [City 1]. Captain [A] located him and sent his “goons’ to the restaurant to find the applicant. His friends helped him escape. The applicant was very afraid and realised his life could be in danger.

   (o)  The applicant relocated from [City 1] to his hometown in Fuqing, in Fujian province. The Border Force police found him by searching the household registration system. Captain [name] obtained the applicant’s mobile number through his connections, and called and threatened the applicant.

   (p)  The applicant asked the local police in his hometown to help him; they laughed at him and asked him to “sue them”.

   (q)  The applicant’s wife and sone live in Xiamen in Fujian province, in a new development area but are not safe. This location was safe for the applicant on a temporary basis because it is not listed on the hukou.

   (r)   If he returns to China, the applicant fears harm from Captain [A] from the [port] Border Force. He fears the Border Force will kill him because he sued them and then escaped the country, and in their eyes he is disrespectful.

Applicant’s evidence at hearing.

1. The applicant has resided in Australia since May 2017. He works in [a certain] industry. He is married in China and has a child born in 2006. His wife and child reside in Dalin City. His child attends school in a remote area.

2. In his evidence before the tribunal, he generally restated the matters set out above, with some exceptions that are discussed below.  

3. The stated that he fears returning to China due to the ‘incident with the boat’ but he was uncertain whether the police would look for him. He said that he remains worried about his life.

4. He says that he understands the boat [was] sunk [in] 2019 and at least two people died including the captain. He said in his evidence that in 2019 there was an insurance payment for stock losses associated with the sinking of the ship.

1. When it was pointed out to him that the chances of him being harmed in 2021 were diminished if the captain had died and the ship was no longer sailing, he said that they ‘could still go after me’ and that the matter was not finalised.

2. He stated that he ‘owned the boat’, which contrary to his evidence before the department to the effect that he was not the owner, but a ‘shipping agent’. In his evidence he later stated that he was a shareholder of the ship. He says that he has no documentation confirming the share-holding but it is in a ‘google search’. No evidence of such a google search was produced. The tribunal notes that the applicant did provide untranslated documents to the Department that were said to show his financial involvement in the shipping business, although such untranslated documents were of limited value. However, the tribunal also notes that the delegate placed no adverse weight on discrepancies surrounding the applicant’s involvement in the shipping business and neither does the tribunal. Whether the applicant was, in fact, a shipping agent or an owner of a ship is not material to the application.

3. The applicant referred to “the situation” in China. When asked to elaborate on “the situation”, he generally restated the matters set out in his application, and his evidence to the Department regarding the Ship and the demands he says were made to pay for its release. He confirmed that he had been involved in a dispute regarding the shipment of goods and that the boat had been held by the Border Force. This resulted in the demands that the applicant pay [amount] Yuan for the release of the ship. The applicant said that he would report the ‘blackmail’, which led those associated with the Border Force to engage ‘gangsters’ or ‘goons’ to ‘deal with’ him.

4. The applicant said that he was located by gangsters in a restaurant. He escaped from the restaurant. He says that he 7 or 8 gangsters attended the restaurant. He was able to escape because he was there with friends and ran away. He said that they took photograph of him.

5. He says that he cannot go to the police and the police cannot protect him. He says that the police in his hometown were not helpful. He says that he could not successfully locate elsewhere in China.

6. He says that he was ‘threatened by telephone’ when a gangster, on behalf of Captain [A] telephoned him and asked him if he intended to continue the litigation. He says that he responded in the affirmative. However, his evidence was also that formal legal proceedings were never issued.

7. He says that he is unable to live in China, including his hometown. He says that his wife remains there with his child, but she is afraid. He says that if he goes back home the legal case is not finalised and gangsters will look for him. He stated that his life is not guaranteed.

8. He accepted that he did not really know whether the gangsters were actually looking for him presently. He conceded that he is ‘not sure’ if they will look for him if he returns home.

Does the applicant have a well founded fear of persecution in relation to China and meet the refugee protection provisions of the Act, or does he mee the protection obligations under the complementary protection provisions of the Act ?

1. The tribunal accepts that the applicant was involved in a shipping business in China. Whilst the applicant gave rather confused and vague evidence in relation to the exact nature of his involvement, his evidence was sufficient to enable the tribunal to find that he was involved in the shipping industry as either an agent or part owner of a ship.

1. The applicant’s evidence in relation to the circumstances surrounding the seizing of the [Ship] by border authorities and the request for money to release it was vague and difficult to follow. The applicant has given evidence, variously, that there was a demand for payment of [amount] Yuan, that this request was subsequently negotiated down to a payment of approximately [amount] Yuan, and that he later paid [amount] Yuan for the release of the ship. There is no documentary evidence to support these payments. The tribunal does not accept that the applicant was the owner or the agent of a ship that was seized nor does it accept that he paid [amount] Yuan or [amount] Yuan to facilitate the release of the ship as alleged. The applicant has also referred to legal action threatened against him by the Border Force, but in his initial application stated that he had initiated legal action against the Border Force, and he has also previously stated that [Company 3] was a third-party and that litigation was being taken against the [product] supplier. The inconsistencies in the applicant’s evidence weighs against his credibility and diminishes his credibility as a truthful witness. The tribunal does not accept that the incident whereby authorities demanded payment for the release of the ship occurred as alleged. Even if it did occur, the tribunal considers that the applicant’s evidence is to the effect that the dispute was of a commercial nature and there is no credible evidence to suggest that the applicant’s involvement in a commercial dispute has resulted in any prospect that the applicant is facing persecution or significant harm in his home country.

2. The applicant says that the dispute in relation to the payments resulted in either proposed or pending litigation. The effect of this prospective litigation led him into danger and his life was threatened. It is said that the dispute led to ‘gangsters’ being engaged to search for him and caused him to fear for his life. Essentially, the issue appears to be an imputed claim that he fears harm due to his political opinion associated with a dispute with border authorities. There are several reasons why this claim lacks credibility. Further, the country information suggests that travel international travel may have been difficult for the applicant if the commercial dispute was unresolved. County information suggests that entry and exit can be prohibited if an individual has a pending Maritime Court order.

3. The applicant’s evidence was that the formal litigation process was not initiated, only proposed[33]. As such, it is difficult to see how the situation escalated to the point where the applicant’s life was ever in jeopardy especially due to concerns that the applicant was intending to sue. Even if legal action was commenced, the tribunal does not consider that so doing placed the applicant at risk of harm.

   [33] Delegate’s decision at page 3 confirms that the applicant clarified this was the case.

4. The country information indicates that legal proceedings are not uncommon in China in maritime disputes and that China has a formal and well-established system for dealing with maritime issues. I do not consider there is anything remarkable about a dispute in relation to a payment of [amount] Yuan being litigated. I certainly do not accept that because of proposing litigation to deal with a dispute of this nature that the protagonist’s life would be threatened.

5. The applicant says in his oral evidence that the dispute is ‘not resolved’. However, there is no credible evidence to suggest this is the case and in the absence of any such evidence the tribunal does not accept that the applicant is involved in a current dispute approximately 5 years after leaving China. The tribunal is not satisfied that the applicant has been subject to politically motivated legal action in China in the past. Nor, on the evidence before it, is the tribunal satisfied that there is a real chance that he will be exposed to such action now or in the reasonably foreseeable future.

6. Country information does not suggest that corruption in the Chinese Border Force is of such a nature that government officials are likely to have seized a ship, without cause, and demanded payment. On the evidence before it, the tribunal does not accept that such an incident occurred. If it did, the tribunal does not accept that an incident of this nature would have led to the applicant to fear for his safety or faces a significant risk of harm as a result.

1. On the evidence before it, the tribunal is not satisfied that the applicant is facing any matter that is awaiting legal action. The tribunal does not accept that he will be persecuted if he returns to China. The applicant’s evidence does not satisfy the Tribunal that he is presently of any adverse interest to Chinese authorities, including the Border Force, for any reason or that there is a real chance that he will face serious harm or significant harm for any of the reasons that he claimed. The mere fact that the applicant may have been involved in a commercial dispute or that he is dissatisfied with the outcome of such a dispute does not give rise to a credible claim that he is owed protection, either as a refugee or under the complementary protection regime.

2. Further, even if the applicant was somehow at risk when he left China in 2017, the tribunal considers that his evidence to the effect that the ship in question sunk in 2019, the captain was amongst the drowned there has been a subsequent insurance payout in relation to the ship, indicates that the circumstances have changed since he left China.

1. The applicant has alleged that he was personally threatened in a restaurant by “goons” or “gangsters”.  The tribunal does not accept that this incident occurred. His evidence was to the effect that 7 or 8 persons were sent to a restaurant to attack him, but they could not recognise him as he was with friends. He then escaped by running away. It seems fanciful to the tribunal that he managed to escape from 7 or 8 gangsters from a restaurant or that, if he did escape in such a manner, that the gangsters do not appear to have been able to locate him again.

2. The applicant also stated his concern arose due to his mobile telephone number being provided to or obtained by Border Force agents. He says that at one point he was telephoned by ‘gangsters’ at the behest of the Captain, and asked if he wanted to continue the litigation. He says he responded in the affirmative. The tribunal does not accept that such a telephone call, if it occurred, constituted a threat to the applicant’s safety. It does not accept that there is any basis to find that Border Force agents obtaining the applicant’s mobile telephone number constituted any threat to the applicant’s life as alleged.

3. The applicant’s evidence in relation to his concern about a prospective return to China was vague. He was not sure whether the gangsters are continuing to look for him in China. He was not sure if they would look for him if he were to return. He said that gangsters did not know that he had travelled to Australia.

4. The tribunal finds that the applicant travelled to Australia on a state issued passport through the usual channels. He obtained a visitor visa to Australia. Once here, he applied for a protection visa.  Country information indicates that the Chinese authorities control the border and that it would be difficult for a person who is of adverse interest to the authorities to have left the country. Given this, the tribunal finds that it is unlikely that the applicant will be of any adverse interest to authorities if he returns to China after more than 5 years.

5. The tribunal is not satisfied that the applicant is now of any adverse interest to the Chinese authorities. This includes the Border Authorities and police. It follows that the tribunal is not satisfied that the applicant is at risk due to their political opinion or for any other reason. The tribunal does not accept that the applicant’s alleged involvement in a commercial legal dispute is a dispute with border authorities capable of being categorised as a ‘political opinion’.

6. Having considered all the evidence before it, the tribunal does not accept the applicant has a well-founded fear of persecution of reasons relating to his actual or perceived political opinion, or at all. The tribunal is not satisfied that the applicant is of any adverse interest to Chinese authorities or any other group or individual on account of his actual or perceived political opinion, or any other reason. The applicant has not presented any credible evidence that he is at risk of any harm, let alone serious harm, if he returns to China.

7. The tribunal has also had regard to the applicant’s claim that the Department inadvertently released some of his personal information to an incorrect email address. The information included the applicant’s name, date of birth, address, mobile phone number, citizenship, country of birth, nationality, passport expiry date, bridging visa details, and the fact that he applied for a protection visa. The released information did not include any information about his protection claims, financial situation, health circumstances, contact details in China or any family members.[34]

   [34] The details of the breach release of personal information are set out in the delegate’s decision at [7-8]

8. The tribunal accepts that the applicant’s personal information was released in the circumstances set out in the delegate’s decision. However, given that (a) the tribunal has not accepted the applicant is of adverse interest to Chinese authorities, (b) the tribunal does not accept his claims relating to his political opinion arising out of his dispute with border authorities, (c) there is nothing to suggest that he left China in an irregular manner, or (d) there is nothing to suggest that his details are the subject of a ‘flag’ against his name, the tribunal does not consider the applicant faces any real chance of harm as a result of the release of such information.

9. Complementary Protection

10. The tribunal has also considered whether the applicant is eligible for complementary protection under the Migration Act. Given the above findings of fact and the lack of any credible evidence that Chinese authorities wish to harm the applicant, the tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of removal to China, that there is a real risk he will be subject to significant harm.

11. Having considered all the applicants claims individually and cumulatively and all the evidence the tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life the death penalty will be carried out on him or he will be subject to cruel or inhumane punishment or treatment all that he will be subjected to degrading treatment or punishment if you returns to China now or in the reasonably foreseeable future. Accordingly, the tribunal is not satisfied that there are substantial grounds for believing that, as a necessary in foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined of the act therefore the tribunal finds that the applicant does not satisfy the criterion in the act.

Does the applicant meet the Complementary Protection Criterion?

1. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the tribunal has considered the alternative criterion on s.36(2)(aa). A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the tribunal is satisfied that 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.[35]

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

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. 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 arise where 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; where 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; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

1. The tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).

2. For the reasons set out above, the tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk the applicant will suffer significant harm.

Conclusion

1. The tribunal is not satisfied that the applicant meets either the refugee criterion or the complementary protection criterion.

DECISION

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

Dominic Triaca
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

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

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

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

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

…

1. Protection visas – criteria provided for by this Act

…

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.

…