1817228 (Refugee)

1817228 (Refugee) [2024] AATA 3525 (17 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Dawei Wang (MARN: 1678399)
CASE NUMBER:  1817228
COUNTRY OF REFERENCE:                   China
MEMBER:Siran Nyabally
DATE:17 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 17 July 2024 at 11:36am
CATCHWORDS
REFUGEE – protection visa – China – religion – Protestant – unregistered house church – written claims abandoned – new claims – compulsory acquisition of land – arrested and detained – appeal by petition to Beijing – refusal to transfer title and rights to business operation – imputed anti-government political opinion – ongoing interest to the city authorities – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
APPLICATION FOR REVIEW
The applicant applied for the protection visa on 16 November 2017. The delegate refused to grant the protection visa on 16 May 2018.
The applicant applied for review of the delegate’s decision on 12 June 2018.
The applicant appeared before the Tribunal on 12 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
CLAIMS AND EVIDENCE
Before the Department
Protection visa application
The applicant claims to be a [age]-year-old citizen of the People’s Republic of China (China), who was born in Shandong, China. In his protection visa application, the applicant claimed to fear harm on the basis of his Protestant faith and his involvement in an unregistered house church. The applicant claimed that his church was raided by the authorities on [date] May 2017, and he was arrested for resisting the security officers. The applicant was jailed for 2 weeks and forced to sign a confession. The applicant left China shortly after, travelling to Australia as a tourist. While the applicant was in Australia, his wife informed him that the authorities had raided his house and obtained pictures of him performing religious activities, and that they now wanted to put him in jail and torture him. He feared that if he were required to return to China, that he would be persecuted by the Chinese authorities.
Supporting documents
In addition to his protection visa application, the applicant provided the Department with a copy of the biodata page of his Chinese passport.
Protection visa application interview
The Department invited the applicant to attend an interview scheduled for 23 April 2018. The applicant did not attend the interview and did not contact the Department to explain his absence.
Delegate’s decision
The delegate refused to grant the visa as it was not satisfied on the evidence before it that the applicant was a Protestant, a member of an underground church, that he came to the adverse attention of the Chinese authorities and/or that there was a real chance or risk that he would be harmed on return to China.
Before the Tribunal
On 12 June 2018, the applicant applied for review of the delegate’s decision and provided the Tribunal with the delegate’s notification letter and decision record.
Pre-hearing submissions and evidence
On 2 May 2024, the Tribunal invited the applicant to attend a hearing scheduled for 12 June 2024.
On 8 May 2024, the applicant appointed a registered migration agent to act as his representative and authorised recipient.
On 7 June 2024 the applicant provided the Tribunal with a written statement (in Mandarin and English) and 6 photographs. In the statement, the applicant raised new 2 new claims for protection. The first claim concerned the applicant’s opposition to the city government’s illegal demolition of his factory in May 2017. The applicant claimed that he was involved in a physical altercation during his attempt to stop the demolition, which led to his imprisonment and detention for almost 2 weeks. The second claim concerned a police raid on his business in mid-August 2017, in which the applicant’s family was presented with a notice of seizure citing charges of ‘illegal mining’ ‘gathering for religious activities’ and ‘dissemination of false information’ against the applicant.
The hearing/post-hearing material
As noted above, the applicant appeared before the Tribunal on 12 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of the applicant’s representative and an interpreter in the Mandarin and English languages.
On 17 June 2024, the applicant provided the Tribunal with 5 screenshots of social media posts with accompanying official translations.
Where relevant, the applicant’s documentary and oral evidence is discussed in the Tribunal’s findings and reasons below.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
The applicant has provided a copy of his Chinese passport. He has consistently claimed to be from China. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of China.
There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that China is his receiving country and has assessed his claims against that country.
The applicant’s personal background
The applicant gave evidence that he was born in [City 1], a city in Shandong Province. His father is deceased, and his mother and elder brother both live in [City 1]. The applicant occasionally speaks to his mother, but their conversations are limited as the applicant does not want to jeopardise her safety. The applicant’s brother cut off contact with him in 2019, after the applicant posted material on his social media which criticized the Chinese government’s response to the COVID outbreak.
The applicant completed high school in [City 1] in [year]. He moved to [City 2] for medical school, graduating in July 1997. The applicant worked as a [Occupation 1] for 3 years before taking over a [business] originally operated by his father in 2000.
Between 2000 and 2017 the applicant was involved in the ownership and/or management of three businesses. The first was his father’s [business], which he began managing in 2000. The second was a small business collective the applicant started in 2002, in which he and other business owners would identify business opportunities to plan, invest in and develop. In 2011, the applicant registered the collective under the name ‘[Business 1]’. The third was a [Operation 1], which the applicant obtained the rights to operate in 2015.
The applicant is married but separated. His wife was also a [Occupation 1], who he met when attending medical school. They were married in 2008, and have one child together, a son born in [year]. The applicant’s son lives with his wife in [Town 1], [City 1].
The applicant and his wife separated in 2021, but are unable to divorce while the applicant resides in Australia. The applicant is in regular contact with his son via WeChat.
The Tribunal accepts the above matters to be true.
The applicant’s claims for protection
Religion
At the hearing, the applicant informed the Tribunal that he no longer relied on the claims contained in his protection visa application. He stated that he was not and has never been a Protestant, he did not attend a house church that was raided, and he did not fear being harmed by the Chinese authorities on the basis of his religion. The applicant claimed that the real reason that he had applied for protection was because of his opposition to the compulsory acquisition of his [business], and because of the charges cited against him during the 2017 police raid on his office.
The Tribunal accepts the applicant’s oral evidence and finds that he does not have a real chance or risk of serious or significant harm on the basis of his actual or imputed religious beliefs, now or in the reasonably foreseeable future.
New claims
The Tribunal raised with the applicant the issue of the credibility of his new claims made at the hearing. It observed that in his protection visa application, the applicant had made claims associated with his Protestant faith and membership of an underground church, whereas he now claimed that he was not a Protestant and feared harm because he opposed the actions of the Chinese authorities. The applicant explained that when he first realised that he could not return to China, he spoke to a friend who arranged for him to meet with a ‘[Mr A]’. [Mr A] knew a lawyer who could submit a protection visa application for $1,500. The applicant asked [Mr A] if the process was ‘legal and dependable’, and [Mr A] responded that ‘everyone does this’. As the applicant could not speak much English, he told [Mr A] about his experiences in China so that the lawyer could complete the application. After the application was lodged, the lawyer told [Mr A] to take the applicant to the Department to conduct his biometrics. After the biometrics were completed, [Mr A] told him that everything had been ‘approved’ and he would be sent a visa. It was only when he received a copy of his Department file shortly before the Tribunal hearing that the applicant learned what had been written in the visa application.
Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred.
On the basis of the detailed explanation provided by the applicant, the Tribunal accepts that he has a reasonable explanation for why he did not present his real claims in his protection visa application and does not draw any unfavourable inferences.
Given its ultimate conclusion that the applicant meets s 36(2)(a) of the Act on the basis of his imputed anti-government political opinion, the Tribunal has only addressed the applicant’s claims that are relevant to its findings.
May 2017 land acquisition
The applicant’s first adverse interaction with authorities occurred in May 2017, during the illegal demolition of his factory. Prior to this interaction the applicant had lived in relative privilege. His father was the owner of [a] private business in [City 1], and had many friends who worked in government. The applicant took over the management of his family business, and accrued wealth and property through investments and collaborations with other local business owners (the collective which later became [Business 1]). The applicant also owned a number of properties, including a 15-acre plantation which he used to build the [Operation 1].
At the end of 2016, the applicant entered into a contract with the city government for the purchase of his factory. The terms of the purchase were agreed between the parties verbally: the government would pay the applicant CNY590,000 (approximately AUD120,071)[1] and provide him with a piece of land equal to the purchased property. The demolition would occur between 1 July and 1 September 2017, and the applicant was to move his items out of the factory prior to the demolition beginning.
[1]
One day in early May 2017, the applicant was eating lunch with his parents. A neighbour came to visit and asked the applicant’s father why things were being taken down in his factory. The applicant immediately drove over to the factory and saw that the demolition had commenced early. The applicant stopped the demolition team, asking them why they were there and telling them that they should not be removing his factory as his contract hadn’t expired. The workers tried to forcibly remove the applicant, who used his hands to push them out of the factory. The supervisor of the workers claimed that the applicant was assaulting them, and a group of them held him down. After a few minutes passed, 2 police cars arrived with 4 or 5 policemen. The policeman told the demolition workers to move back and informed the applicant that they would investigate who ordered the demolition. The applicant believed that the issues would be resolved after this interaction with the police.
On the evening of [date] May 2017, the applicant was playing with his son at his home in [City 3] when 2 police cars arrived. The police officers told the applicant that they needed him to come with them, but that he could return home soon after. The applicant was taken to the [named] detention centre. He was put in an empty room and left alone overnight. Around noon the next day, 3 people came into the room, handcuffed the applicant, and put him in a van. When the applicant asked why he was being handcuffed, he was told that he would know when he arrived.
The applicant was taken to a provincial prison and put in a cell with 4 prisoners. The prison officers told the applicant that he had been transferred to prison because the custody centre had run out of space. While in prison, the applicant was assaulted by his cellmates and his arm was badly injured. The applicant was detained for 2 weeks before being released on [date] May 2017.
After he was released, the applicant’s father told him that the police had allowed him to visit the prison where the applicant was being held. The applicant’s father had seen him injured and performing hard labour. The authorities forced his father to agree to a revised contract for the purchase of their property in order to secure the applicant’s release, in which they would be paid only CNY170,000. The authorities claimed that because he opposed the demolition of the factory and pushed a construction worker, the applicant was guilty of an offence of ‘preventing government attempts at construction’ and of ‘assaulting a public servant’. They deducted a sum of money from the CNY590,000 property purchase price to pay for the public servant’s medical fees, meaning that the applicant and his father would only be paid CNY170,000 for the sale. The applicant’s father received CNY10,000 on the day of the agreement, and the balance of the money was paid prior to the applicant’s release.
The applicant was angered by the revised terms of the purchase. After his release from custody he decided to initiate an appeal by petition in Beijing, rather than in the local government offices. The applicant believed that his decision to bypass the city authorities may have been the catalyst for the September 2017[2] raid on his office.
September 2017 raid
[2] In his written statement the applicant referred to the raid occurring in August 2017, but at the hearing he clarified that this was an error and the raid actually occurred in September 2017. The Tribunal accepts the applicant’s oral evidence.
When the applicant first travelled to Australia his intention was to only stay for a brief period as a tourist, to ‘cool off’ after the May 2017 events. In mid-September 2017, while in Australia, the applicant received a phone call from his family. They told him that [Business 1] had been raided by police in early September 2017. The police had presented the applicant’s father with a notice, informing him that the applicant had committed the offences of ‘dissemination of false information’, ‘gathering for religious activities’ and ‘illegal mining’, and that his family was obliged to report the applicant’s whereabouts to authorities when he returned to China. The applicant’s father was told to sign the notice, which was retained by the authorities.

The Tribunal asked the applicant what the 3 charges related to. The applicant replied that:
·    the first charge stemmed from a photograph he had taken in 2014 of protesting workers demanding their unpaid wages. The applicant had posted this to WeChat with the blurb, ‘the journey to reclaim wages’.
·    the second charge alleged that [Business 1] had a slogan which put in the category of religion. The applicant explained that [Business 1] slogan said ‘[specified slogan]’. The group had a set of standards, and the members would wear formal suits when meeting and uttered the slogan when they arrived. The government characterised those practises as religious.
·     The third charge stemmed from the applicant’s [Operation 1]. In order to commence the [operation] lawfully, the applicant had obtained the rights to [operate] on his property from the government. Those rights were subject to several caveats, one of which was the cancellation of a previous plantation contract at the [City 1] land office. The applicant knew that this had been done correctly, as he had obtained confirmation from the [City 1] authorities that the plantation contract had been terminated, but at the time the charges were presented to the applicant’s father the authorities claimed that the applicant had failed to terminate the contract, and accordingly that the [Operation 1] was illegal.
The Tribunal asked the applicant about the relevance of the charges to the applicant’s fear of harm. In particular, it observed that the applicant’s evidence was that his petition from the May 2017 land acquisition had ben rejected, and queried why the applicant would still be of adverse attention to the Chinese authorities.
The applicant explained that the [Operation 1] was on a lucrative piece of land which the government wanted. A river ran through his [land], and the true value of the sand in the river was only discovered after the applicant began [operation]. The Chinese authorities had acquired land and built [operations] upstream and downstream from the applicant’s [operation]. They planned to acquire the applicant’s [operation] and turn all 3 [operations] into 1 area. Without the applicant’s property the value of the 2 existing areas was diminished: if they were to [operate] downstream then people upstream would be flooded, and if they were to [operate] upstream the value would flow to the applicant’s [land]. However, in order to acquire the rights to the applicant’s [operation] they required his fingerprint to give effect to the transfer. The applicant’s father had been able to transfer the rights to the factory, as this was owned by him, but the [Operation 1] was owned by the applicant alone.
The applicant stated that when his father was still alive, some representatives from the government and the demolition office had visited him to discuss the applicant’s charges. The representatives told his father that if the applicant returned to China, that he would need to transfer the investments made by [Business 1], the land use, and the [operation rights of] the [Operation 1] to the government.
The Tribunal asked the applicant why he had not simply signed over his rights to the [Operation 1] in order to return to China, or rely on his father’s political connections to help address the problem. The applicant replied that this was no longer possible. He had caused people within the city government to ‘lose face’ and the situation had escalated to the point that he could not avoid harm by giving the property to the government. The applicant’s refusal to hand over the [Operation 1] meant that the value of all the quarries in the area were affected. The city officials were prevented from submitting a good result to the provincial authorities[3] and the city’s image had been tarnished. When the applicant’s father was still alive, one of his politically connected friends had told him that the applicant’s incident was big enough that no one could make the problem go away, and the level of power involved was not one that they could reach. The city government had deemed the applicant ‘unforgivable’. His father’s friend had told his father that ‘even if your son returns after 1 year, 10 years or 100 years, if he returns to China then the government will not give up on the chance to re-educate him’.
[3] [City 1] is a prefecture-level city which reports directly to the provincial government. See [Source redacted], DFAT, Country Information Report: People’s Republic of China (22 December 2021) (DFAT Report) at [paragraph].
The applicant told the Tribunal that his wife and son were suffering because of the applicant’s conduct, which was the main reason why his wife had separated from him. The authorities would regularly visit his wife and son to inquire about the applicant’s whereabouts, and their passports were being held by the authorities. His son was applying for high school, but could not attend anywhere outside of [City 1] because the authorities refused to transfer his hukou.
The Tribunal asked the applicant what he feared would happen if he returned to China. The applicant replied that he would be detained and imprisoned for the 3 crimes assigned to him. He did not know how long he would be sentenced for, or even if he will have his life at the end of the sentence. The applicant cited the example of one of his good friends and business partners, [Mr B], who had resisted the government’s acquisition of his land. In about 2018 or 2019 the authorities made an excuse to meet with him, and later that day he was found dead. The police arrived and immediately took his body away, which was suspicious as no-one had called the police. [Mr B]’s widow was later presented with a contract for the acquisition of the land, which she felt compelled to sign. The applicant’s wife was good friends with [Mr B]’s widow, and their relationship began to suffer because his wife was concerned that the same thing could happen to their family.
Documentary evidence
At the hearing the Tribunal discussed the photographs the applicant had provided. The applicant stated that 1 of those photographs was of the 2014 worker protest he posted on WeChat, 2 were of his factory, 1 was of a police van patrolling an industrial area in [City 1] to intimidate protestors, and 1 was of his son at their [Operation 1].
After the hearing, the applicant provided the Tribunal with a translated copy of the 2014 WeChat post the subject of his ‘dissemination of false information’ charge, as well as a series of 2020 WeChat posts he had made in which he accused the Chinese Government of contributing to the death of the ‘COVID whistle blower’ Wenliang Li.[4]
[4] Stephanie Hegarty, ‘The Chinese doctor who tried to warn others about coronavirus’, BBC (7 February 2020),
Country information
The applicant’s claims about the city government’s past interest in his factory and ongoing interest in his [Operation 1] are consistent with DFAT’s findings. The DFAT Report acknowledges that land sales are an important source of revenue for local governments, and corruption in land deals is commonly alleged. Disputes with government may be raised at petitioning offices, but authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means that local authorities are incentivised to retaliate against petitioners.[5]
[5] DFAT report at [3.87]-[3.88].
In 2020, significant reforms were made to Chinese laws regulating the expropriation of land by the state. In order to avoid abuse of the state’s power concerning land expropriation, the Land Administration Law of the People’s Republic of China (“LAL”) was amended to reduce the scope of land expropriation by explicitly defining the circumstances in which the expropriation could occur.[6] Local governments are also required to publish compensation standards to be applied to land appropriation under the revised law.[7]
[6] Dr Oliver Maaz, ‘Land and Housing Policy Reforms in China’, Lexology (8 May 2020), available at
[7] Ibid.
However, property rights protection remains weak. Low compensation standards and weak legal protections have facilitated land seizures by local officials, who often evicted residents and transferred land rights to developers. Corruption is endemic in such projects, as land development is a key source of revenue for local governments.[8]
[8] ‘Freedom in the World 2024 – China’, Freedom House, (2023) available at Section G ‘Personal Autonomy and Individual Rights’.
The applicant’s claim to be of ongoing interest to authorities because of his refusal to transfer the title to his [Operation 1] is also consistent with country information, which states that those who oppose expropriation of land or property are often subject to verbal threats, intimidation, loss of basic services, dismissal from jobs and the use of force and violence by local authorities.[9] Arbitrary arrest and detention is commonly reported in China, especially in cases of political sensitivity and to exercise political leverage.[10] The US Department of State reports that authorities used administrative detention to intimidate political advocates, and forms of administrative detention included ‘legal education’ centres for political activists.[11]
[9] Philip Alston, ‘Report of the Special Rapporteur on extreme poverty and human rights on his mission to China’, UN Human Rights Council (28 March 2017) CISEDB50AD4582, p12, para 49.
[10] DFAT Report at [4.8].
[11] 2023 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang)’, United States Department of State, 22 April 2024, p 12, 20240423144042.
FINDINGS
The applicant has provided detailed information about his life and his experiences in China, including a comprehensive and consistent narrative of his business dealings, the compulsory acquisition of his land and the basis for the city authorities’ ongoing interest him. The Tribunal also accepts the applicant’s explanation for why he is unable to provide evidence of the charges cited against him.
The Tribunal accepts that the applicant was arrested and detained in May 2017 after opposing the illegal demolition of his factory. The Tribunal accepts that the applicant’s father agreed to a revised contract for the acquisition of their property in order to secure the applicant’s release. The Tribunal accepts that the applicant objected to the revised contracted by lodging an appeal by petition to Beijing. The Tribunal accepts that in September 2017 the city authorities raided the applicant’s business. The Tribunal accepts that the applicant’s father was forced to sign a notice acknowledging that the applicant had committed the offences of ‘dissemination of false information’, ‘gathering for religious activities’ and ‘illegal mining’, and that his family was obliged to report his whereabouts to authorities when he returned to China. The Tribunal accepts that the applicant’s father was subsequently contacted by authorities and told that the applicant was required to transfer the investments made by [Business 1], the land use and the [operation rights of] his [Operation 1] to the government. The Tribunal accepts that because the applicant refused to transfer the rights to his [Operation 1], the city authorities were prevented from submitting a good result to their superiors and the city’s image was tarnished. The Tribunal accepts that the city authorities have an ongoing interest in the applicant as they blame him for tarnishing their image. The Tribunal also accepts that the authorities continue to monitor and harass the applicant’s wife and son, including by confiscating their passports and refusing the allow his son to transfer his hukou outside of [City 1].
Is there a real chance the applicant will suffer persecution on return to China?
Taking into account the findings set out above and the country information referred to in this decision, the Tribunal is satisfied that if the applicant returns to China now or in the reasonably foreseeable future, he faces a real chance of serious harm.
The Tribunal has accepted that the applicant remains of interest to the [City 1] authorities on the basis of his refusal to transfer the title to his [Operation 1] and the shame this has caused the city government. In this regard, the Tribunal accepts that the applicant may be imputed with an anti-government political opinion on the basis of his opposition to the expropriation of his [Operation 1] and his petition opposing the May 2017 acquisition of his factory.
The Tribunal has also accepted that there is a real chance the [City 1] authorities will enforce the 3 charges against the applicant as punishment for his refusal to transfer the [Operation 1].
The penalties for the charges cited against the applicant are significant. Relevantly:
·For the charge of illegal mining, article 343 of the Criminal Law of the People’s Republic of China (Criminal Law) states that persons who mine without a mining license in violation of the Mineral Resources Law may be sentenced to a period of imprisonment of up to 3 years and shall also be fined. If the offence causes ‘serious damage to mineral resources’ the offender shall be sentenced to a period of imprisonment of not less than 3 years and not more than 7 years.[12]
·For the charge of gathering for religious activities, article 300 of the Criminal Law states that ‘whoever organizes or uses … evil religious organizations … to undermine enforcement of the state's laws or administrative regulations’ may be sentenced to a period of imprisonment for up to 7 years, and if the circumstances are ‘especially serious’, a period of imprisonment of not less than 7 years.[13]
[12] Article 343 of the Criminal Law of the People’s Republic of China, available at and
[13] Article 300 of the Criminal Law, above n 12.
The Tribunal finds that if the applicant were to return to China, he is likely to be arrested and detained. DFAT states that returnees wanted for outstanding warrants could still be charged on return to China, and that the statute of limitations is 10 years for a crime where the maximum penalty is between 5 and 10 years’ imprisonment.[14] The Tribunal also accepts on the basis of the country information that there is a real chance that the applicant would come to the attention of the city authorities on return to China, given the sophisticated biometric databases in operation throughout the country.[15]
[14] DFAT Report at [5.29].
[15] DFAT Report at [5.31], [5.35].
Further, the Tribunal assesses that the applicant is likely to be seriously harmed in detention and/or prison. The law prohibits the physical abuse and mistreatment of detainees and forbade prison guards from coercing confessions, insulting prisoners’ dignity, and beating or encouraging others to beat prisoners. However, according to the US State Department, there were credible reports that authorities routinely ignored prohibitions against torture, especially in politically sensitive cases. Although prison authorities abused ordinary prisoners, they reportedly singled out political and religious dissidents for particularly harsh treatment.[16] Conditions in administrative detention facilities were like those in prisons, including reports of beatings.[17] The Tribunal accepts that this treatment would constitute significant physical harassment and/or ill treatment of the applicant and would therefore constitute serious harm as defined in s 5J(5)(b)-(c) of the Act.
[16] Above n 11, p 5.
[17] Above n 11, p8.
The applicant’s fear of harm is for one of the reasons in s 5J(1)(a) of the Act, namely his imputed anti-government political opinion on the basis of his opposition to the expropriation of his [Operation 1] and his petition opposing the May 2017 acquisition of his factory. This is the essential and significant reason for the persecution.
This is not a case where the applicant could modify his behaviour. The applicant’s refusal to transfer the title to his [Operation 1] has caused shame to the city authorities, who the Tribunal finds would still pursue him even if he were now to acquiesce to their demands. Further, the Tribunal does not consider it reasonable to require the applicant to modify his behaviour by relinquishing assets which are lawfully his: cf s 5J(3).
The Tribunal assesses that as it is the authorities who are the agents of persecution, the chance of harm to the applicant applies throughout China and effective protection measures are not available to the applicant.
The Tribunal finds that on return to China the applicant would face a real chance of serious harm for reasons of his imputed anti-government political opinion.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Siran Nyabally
Member

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

[2024] AATA 3525

17 July 2024

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