1824509 (Refugee)

1824509 (Refugee) [2024] AATA 1565 (13 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  1824509
COUNTRY OF REFERENCE:                   China
MEMBER:Jason Cabarrús
DATE:13 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 February 2024 at 11:08am
CATCHWORDS
REFUGEE – Protection Visa – China – land dispute – grandfather’s house was taken from his family – protest – applicant is not a witness of truth – no real chance that the applicant would be persecuted or face significant harm in China –credibility concerns – second visa application is invalid – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 48, 65, 91, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, a citizen of China, applied for the visa on 11 August 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee or complementary protection criteria in the Act.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether they meet the complementary protection criterion. These criteria broadly require that a person face a real chance of serious harm for specified reasons, or a real risk of significant harm, in their home country. The relevant law is set out in the attachment at the end of this decision.
For the following reasons, I have concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant was born in [year] and grew up in [Village 1] , [Town 1] town, Taishan city, Guangdong province, China. He lived in his grandfather’s house along with his father, mother, sister, grandfather and grandmother. His parents (whom he told the delate were his adoptive parents) and sister moved to [a country] when he was in primary school, leaving him in his grandparents’ care. He married in 2007 and his wife came to live with him in his grandfather’s house. He had a son in [year] and a daughter in [year].
The applicant came to Australia in May 2017. He applied for the protection visa in August 2017. He gave the Department:
a.a copy of his Chinese passport, issued in [2010];
b.his statutory declaration, dated 11 August 2017, in English and Chinese (which I will refer to as ‘his statement’), and a further statutory declaration of the same date, essentially declaring that he understood the nature and content of his protection visa application and that it completely and accurately presented his claims;
c.a document bearing the title ‘Taishan Municipality Detention House Certificate of Release from Detention’, dated [in] 2017, in Chinese, accompanied by an English translation (‘the detention certificate’); and
d.a set of 6 photographs (‘the photos’).
He attended an interview with the Department in April 2018. The delegate refused to grant the visa in August 2018. The applicant applied to the Tribunal for review of that decision later in that month. He gave the Tribunal:
a.a copy of the delegate’s decision,
b.a document bearing the title ‘Guangdong Province Taishan Municipal People’s Procuratorate – Notice’, dated 30 October 2018, in Chinese, accompanied by an English translation (‘the Procuratorate notice’), and
c.a witness statement from his wife, dated 15 December 2023, in Chinese, accompanied by an English translation (‘the applicant’s wife’s statement’).
The applicant appeared before the Tribunal on 9 and 22 January 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 and his representative attended both hearing days. At the end of the second hearing day, the representative requested 14 days to provide any further evidence and submissions in support of the case, i.e. by 5 February 2024.
On 5 February 2024, the applicant provided a set of submissions, signed and dated 4 February 2024 in the form of a declaration (‘the February submissions’).
In making this decision, I have considered the material in the Department and Tribunal files (including the documents referred to above), and the evidence the applicant gave at the hearing. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have also 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 expressly for protection status determination purposes, to the extent that they are relevant.
Findings and reasons on the applicant’s claims
Broadly the applicant claimed that:
a.he grew up living in his grandfather’s house which was a large house on a large block;
b.in October 2016, his family were evicted from his grandfather’s house, which was handed over to [Mr A] (a cousin of the applicant’s village head [Mr B]), to set up a restaurant there;
c.they were given a small shabby house as compensation and had to move there immediately;
d.after this, he complained to various government offices including village, town and city authorities, but nobody helped him;
e.in January 2017 he protested at the opening ceremony for the restaurant;
f.the police came and he was arrested and detained for over 6 weeks;
g.after he was released, he was required to report to the police every week; and
h.he fled China in May 2017, but after this time, the authorities continued to seek him out and harassed his wife.
I questioned the applicant about these events at the hearing.
Applicant’s address and his two houses
The applicant claimed that he lived in his grandfather’s large house until it was taken from them in October 2016 and they were forced to live in a small shabby house they were given as compensation; and that he lived in the small house until he left China in May 2017.
When I asked the applicant about his address in China, he told me his address was number [number] [Village 1] Village, and that he lived at that address from the time he was born to the time he left China. The detention certificate (dated [in] 2017), Procuratorate notice (dated October 2018), and the applicant’s wife’s statement (dated December 2023) include that same address.
When I asked him the address of the smaller house, he told me it was located in the centre of the village, but they didn’t change the address. I asked him to explain how the small house had the same address as his grandfather’s large house, as I would have expected it to have its own address. He said that the address cannot be changed; wherever you move in the village, the address is given; the number does not change, it isn’t given in the order of households like in natural order; once it’s given, you have the same number. His representative added that in the countryside, the number is for the family, not according to the street, it follows the family. I told the applicant that I was having difficulty accepting this because it is not how addresses ordinarily work, and I invited them to provide any evidence to support their claim that this is how addresses operate in the applicant’s home region. They did not provide any further evidence of this.
The applicant also initially told me that his grandfather’s house was outside and in front of the village, which was a large village of 6 or 700 people, whereas the smaller house was in the centre of the village. He then told me that the smaller house was around 60-70 metres away from the smaller house. When I asked him how, a house in the centre of a village of 600-700 people could be 70 metres away from a house outside the village, he replied that it is located in the same village, and next to the smaller one were houses held by rich people, so the smaller house plus those houses could be counted as the centre of the village. When I questioned him further about the small house, he told me that although it was 60-70 metres away from his grandfather’s house and there was a vacant lot in between, it was surrounded by other houses so you couldn’t see it from his grandfather’s house; in the centre is a huge village, and there are lots of houses, and beyond that, more houses.
When I reiterated to the applicant my concerns about his claims that his address remained the same despite having to move house, and about his description of how the two houses were situated in relation to each other, he responded that it’s a fact, where he grew up, the number just followed the household, so if they moved to the centre of the village they just kept the same number.
I do not accept that the applicant has provided a reasonable explanation for how a house that is outside a village of 600-700 people could be 70 metres away from a house in the centre of that village. Nor has the applicant provided a reasonable explanation for keeping the same address despite moving to a different house. An address generally gives the location of a building or a property, to enable that building to be located so that postal and other services can be provided to that location. While the applicant and his representative asserted that the address followed the family in his area, they did not provide any independent information to support this, and I do not accept it to be true.
I find that the applicant has not given truthful evidence about these aspects of his claims. These are major and fundamental aspects, as having to leave his grandfather’s house and being forced to move to the smaller house were the basis for all his other claimed activities that followed.
Complaints to the authorities
In his statement, the applicant said that from October 2016 to January 2017, he went many times to government agencies in [Town 1] town and Taishan city asking them to investigate [Mr A] taking advantage of his cousin [Mr B]’s power to forcedly occupy the applicant’s property, but he could not get help or reasonable compensation; the Taishan City government told him to approach [Town 1] town authorities, and [Town 1] town told him to go to the village committee.
When I asked him for more detail about how he went about making these complaints, he told me: the day after his grandfather’s house was taken, he went to the village committee office; he went there for a few days and argued with them there; he spoke with the village head [Mr B] and a member of the Committee; they tried to avoid the topic and didn’t answer him; [Mr B] did the whole thing himself; the applicant kept on asking them and they’d give him excuses; this continued for a few days. I asked him why he kept returning there and he said it was because he thought it could be dealt with in the village, he didn’t need to go elsewhere, and if you go to the town or the city, you have to be in a queue and take a ticket and wait.
He told me that he then approached [Town 1] town government officials, who told him they weren’t willing to help him because it was beyond their power; he went there 2 or 3 times and criticised them for poor service. I asked why he returned there too even though they told him it was beyond their power. He said he was thinking because it was a smaller matter, if it could be dealt with in the town he’d rather not go to the city, because of a certain mentality; and that because he’d cursed them about this issue they threatened to put him in custody or something like that, as they’d already made it clear to him that they couldn’t help.
He told me that he then went to the city level government; he waited in the queue for a couple of hours; they told him that it was irrelevant to their duties because it was a land dispute and he needed to go to the bureau of land; he thinks they may have been bribed by the boss; he went to the bureau of land in Taishan city the next day; they told him because the land had been allocated to the village, how the village allocates it isn’t up to them, and he should go back to the village committee.
I asked him whether he took the matter further, for example to the Guangdong province government authorities, and he said he didn’t because it’s far and he couldn’t find anyone to talk to. I asked him whether he made a complaint at a ‘letters and visits’ office, noting that I had country information indicating that individuals can raise disputes at petitioning offices or ‘letters and visits’ offices and many complaints are resolved through this process.[1] He initially said that he didn’t think about lodging a complaint because an individual can’t do it, you need to be a group; he later elaborated by saying that he hadn’t because you need at least 3 people and they wouldn’t receive you on your own; he couldn’t go with his grandfather and wife because it’s not local, it’s in Guangzhou city; they usually require a lawyer’s letter and a list of 3 people but he couldn’t find a lawyer willing to provide that letter; he spoke to 3 lawyers but they all told him they couldn’t help because the village head must be connected to government officials and they didn’t have the courage to take up the matter because it was against the government.
[1] See e.g. Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China, 22 December 2021 at 3.86-3.89; China Daily ‘Handling of petitions, complaints standardized’ 14 June 2022 (available at
I put to the applicant that I was finding it difficult to accept his account of his complaints, for a number of reasons, including that I did not understand why:
a.he returned multiple times to the village committee when [Mr B] was head of the village, and nobody was willing to help him there;
b.he did not take the matter further, e.g. to Guangdong provincial authorities in the capital city of Guangzhou, given the significance of having his lifetime family home where he had lived for decades taken away from him; and
c.he did not lodge an official complaint, despite country information showing that there are petitioning offices or ‘letters and visits’ offices available throughout China, at which people can make complaints about the conduct of government officials.
In response, the applicant said that in China in the countryside, the officials say about anything but it’s not like you can talk to them, the law doesn’t apply there. He reiterated a submission to this effect in the February submissions.
I do not accept that the applicant has provided a reasonable explanation for the matters of concern which I raised with him around his claimed actions at this time. In the absence of any independent information to support his assertions that he required multiple complainants and a letter for a lawyer to lodge a complaint at a petitioning office, I do not accept those assertions. I prefer to rely on the independent country information which shows that there are processes for petitioning to deal with disputes and does not mention any such requirements. While I recognise that information shows that those processes are not perfect, the applicant has not provided an acceptable explanation for why he did not seek to use them.
Protest and applicant’s arrest
In his statement, the applicant said that in January 2017 he went to protest at the opening of the restaurant, and stood in front of it openly condemning [Mr A], [Mr B], and the corrupt officials who had occupied his family’s home; he was supported by other villagers who were there to watch the opening ceremony, who stood with him asking the government to provide justice; and he was arrested by police because he was accused of inciting anti-government gathering and jeopardising security. At the interview, he told the delegate that he called police bad names and said they were government officers and used their power to take his property; many people from the village were together with him and they said he was anti-government; when he was calling the government officers bad names they asked the police station to come and arrest him; the police arrested him and beat him up.
At the hearing, he told me: on the day of the opening ceremony, he saw the event was happening when leaving the village; there was entertainment and loud music there; he went back home and made 2 flags with red clothes then went to protest with his grandfather; the crowd of people watching grew to 100 or 200 people; he shouted words like ‘robbers’ and ‘corrupt’, calling the boss of the restaurant a robber and the officials who he saw inside the restaurant corrupt (he recognised the officials because he saw some faces when he went to appeal to the authorities); at least 100 other people or passers-by, including many old people, joined them in this chanting, probably because they thought it was unfair that his house was taken; 4 or 5 old people were helping his grandfather wave his flag; around 100-200 police came in many police cars, fully armed with electronic sticks; they told people that there were troublemakers here and people who weren’t involved should leave as soon as possible; when people kept chanting the police surrounded the crowd; some of the people stopped shouting but the applicant and others kept shouting; a couple of police went to grab the flag from his grandfather; the applicant was worried his grandfather might get hurt so he pushed the police doing that; then he felt something hit the back of his neck and he lost consciousness.
I put to him that I was finding it difficult to understand why hundreds of villagers would join him in chanting against the government, because when I had asked him earlier if he had sought help from other villagers after his house was taken, he said that no villager would want to confront or offend the village head, because it would be a lot of trouble for them in the future. He replied that it’s because if they went with him to the government office then it would be quite an obvious or conspicuous target, but this was in public and a lot of people were joining in so it might not be so threatening or intimidating, because villagers and passers-by joined in the chanting. I do not accept that this is a reasonable explanation, because joining in a public protest chant (particularly in the face of a large force of police) on its face appears more conspicuous and confrontational than helping somebody make a complaint to a government office; and it is also circular, stating that people joined the chanting because there were many other people chanting, but not explaining why any people joined in the first place, when it was just the applicant and his grandfather protesting.
Detention and release
In his statement, the applicant said that he was detained at [a] detention centre for over 6 weeks, he was treated inhumanly, beaten up and tortured by police with electricity and water, and in the beginning refused to admit he had done anything wrong, but later had to surrender to the police under torture. He largely reiterated this at interview with the delegate, adding that he managed to get released because he had no option, he couldn’t put up with it, so he admitted his mistake and two days later they released him; and that in the detention centre he admitted to breaching laws.

He told me that: when he woke up, he found himself cuffed in a room; someone came to question him and told him he was in a detention centre; they told him his behaviour was disrupting the social order and he would be sentenced; he was then given many pages of documents to sign; he read the documents and they said he was doing the wrong thing, it was all his fault, he had already got the compensation for the house and compensation was also given to the village head; he couldn’t sign the papers; he refused to sign the document indicating he had disrupted social rules and order, because if he signed that he’d probably be imprisoned for a couple of years in jail, so no matter how they beat him and treated him in detention he wouldn’t sign it; so they had to investigate that matter; but he ended up signing a document saying he had received compensation, even though he hadn’t; they released him because he got sick with a high fever due to his mistreatment in the water jail and they were worried he might die, so they took him to [a] hospital and asked his wife to pay; his wife then went to the hospital to pay the medical costs.
When I asked the applicant why his account to me was different from what he included in his statement and his account to the delegate, in that he hadn’t previously mentioned being hospitalised or signing some documents but not others, he replied that he was giving details in a more specific way because I was asking him, and that they put this on him otherwise he would not have been sick. When I put to the applicant that I might not accept these aspects of his account due to these changes, he said he signed a document saying he had been compensated but he didn’t receive the compensation, it was just an empty document, and he also added that he signed a document saying the police did not mistreat him in detention but that was also not genuine because he was beaten and mistreated.
I do not accept that the applicant has provided a reasonable explanation for the changes in his account. While I accept that an applicant may provide additional detail in an account on different occasions depending what questions are asked, in the context of the questions the delegate asked the applicant at the interview (including specific questioning about how he managed to get released from detention) it is reasonable to expect he would have told this further information to the delegate if it had been true. The applicant has not provided an explanation for the essential inconsistencies between his descriptions of the events, in that he told the delegate that he was released because he admitted his mistake and admitted breaching laws; whereas he told me that he refused to sign the document referring to a breach of rules, and only signed documents stating that he had received compensation and was not mistreated, and that he was released because he got sick and went to hospital.
Departure from China
In his statement, the applicant said that after he was released in March 2017, he was required to report to police every Friday because he was regarded as a dangerous person with strong anti-government views and was still under investigation; and that many people tried to support him and assist him to escape from China, and he finally had a chance to leave in May 2017. At interview, the applicant told the delegate that he reported to police regularly from March to May 2017 and his case was still being processed at this time; and that his cousin who worked for a travel agent got him his tourist visa, he gave her RMB 50,000 to help him out of China, and she helped him and took him out. When the delegate asked him how his cousin helped him, he said maybe she bribed some people, then he left. At the hearing the applicant told me that: his cousin was a tourist guide with a travel agency and often led tours overseas; when he left customs, his cousin had to bribe RMB 50,000 to buy him out so he could leave successfully.
I summarised and put to the applicant country information indicating that:[2]
a.China has a responsive and well-resourced police force, with access to enormous amounts of data, and police investigate thoroughly and prosecute alleged criminals and share information with border control authorities for use in their exit control database;
b.exit from China is strictly regulated, with laws preventing criminal suspects from getting passports or leaving; and
c.ordinary citizens would find it difficult to bribe border protection agents because of sensitivities to corruption and the professional and comparatively well-paid status of public security officials.
[2] See e.g. Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – People’s Republic of China’, 22 December 2021 at paras 5.3-5.5, 5.31-5.35 and 5.40; Department of Foreign Affairs and Trade, ‘DFAT Country Report – People’s Republic of China’, 3 March 2013 at para 5.5; De Song, L (2022) ‘Exit regulation in the People’s Republic of China: Law, policy and practice’, International Migration, 00, 1-15 (available from: 'China: Whether authorities seize the passports, identity documents, or travel documents of persons who are the subject of a criminal summons, a police investigation, or criminal charges (2021–October 2023)', Research Directorate, Immigration and Refugee Board of Canada, 06 October 2023 (available from
I put to him that in light of that information, I might not accept his account of being of interest to the authorities and bribing his way out China. The applicant replied that the Tribunal had no idea what it’s like in China, 9 out of 10 officials are corrupt, and when he left China he was not on a blacklist because his case was still under investigation and his information had not been put in the system yet, and his cousin was worried that he might be at risk going through customs, which is why she made the payment.
The applicant’s response does not address my concerns in light of the country information. I consider that it is reasonable to expect that if the applicant was of interest to the authorities or under investigation for suspected crimes as he claimed, that he would have already been on an exit control list, and that he would not been able to leave China by paying a bribe, and would have required significant additional assistance (such as help from a highly-ranked official who could assist in getting him out). I therefore find that the applicant has not provided a reasonable explanation for how he was able to leave China if his claims of being of interest to the authorities were true.
Overall credibility of the applicant’s evidence
As noted above, many aspects of the applicant’s evidence lacked a reasonable explanation, or involved changes in or significant additions to his account when he provided it on different occasions, without the applicant providing a reasonable explanation for those changes or additions. These issues with the applicant’s evidence cast significant doubt on the credibility of the applicant’s evidence as a whole, and the presence of several such issues leads me to find that the applicant is not a witness of truth and did not give truthful evidence about his claims.
I therefore do not accept that any of the claimed events happened. I do not accept that the applicant’s grandfather’s house was taken from his family and given to a restauranteur, that they had to move into a small shabby house that they were given as compensation, that he complained to any government authorities about this, that he protested at the opening ceremony for the restaurant, that the police came and beat and arrested him, that he detained for over 6 weeks, that he was tortured or mistreated in detention, that he was required to report to police, or that the authorities have continued to seek him out and harassed his wife.
I also had concerns with other aspects of the applicant’s evidence, but given that I have found that the applicant was not a truthful witness based on the matters referred to above, and have accordingly not accepted the applicant’s claims, I do not need to consider those other concerns any further.
Other documentary evidence
In making the findings above, I also considered the other documentary evidence provided by the applicant, namely the detention certificate, the Procuratorate notice, his wife’s statement and the photographs. I discussed with the applicant my concerns about this evidence at the hearing.
Detention certificate – The detention certificate, purportedly issued by the Taishan Municipal Public Security Bureau Detention house on 10 March 2017, broadly stated that: the applicant had instigated anti-government gatherings and jeopardised social security; he was a dangerous person with strong anti-government ideology; he had to report every Friday to the police station because his case was still under investigation; and they had decided to release the applicant because his case needed to be examined and investigated for evidence. The applicant told me that it was given to him by the detention centre, and that was the only document he received from them.
When I asked the applicant why the document says “attached to this page” (此联附卷) at the bottom, when according to him it was all that he received and it had no attachments, the applicant said that it was only a piece of paper given to him on release. This does not explain why the document says that at the bottom.
I also put to the applicant that I might give this document no weight because country information indicates that document fraud is widespread and highly sophisticated in China.[3] The applicant replied that these are political documents, and no one would dare to make fraudulent documents of this kind, because if they were caught they would be punished with at least 10 years in prison.
[3] See e.g. Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – People’s Republic of China’, 22 December 2021 at para 5.45.
Procuratorate notice – The Procuratorate notice, reportedly issued by the Guangdong Province Taishan Municipal Peoples Procuratorate on 30 October 2018, broadly stated that: the applicant’s case was included in a backlog of cases to be dealt with by a specially formed task force; based on investigations by the Taishan Municipal Public Security Bureau, the applicant gathered people to make troubles at the restaurant in January 2017 and instigated anti-government activities and disturbed the social security, resulting in serious consequences, such that he was detained from January to March 2017; although the applicant was temporarily released on humanitarian grounds, his case was still under investigation so he was asked to report to police every Friday; the applicant showed no remorse, resisted the investigation and fled abroad illegally in May 2017; the applicant had now been listed online as a wanted dangerous person threatening national security; the Procuratorate offers the applicant the opportunity to receive leniency and asks him to surrender himself to the authorities before the end of 2018, and reminds the applicant of the penalties for committing the crime of gathering people to disturb the social security. The applicant told me that the document was sent to his wife.
I put to the applicant country information indicating that the police in China are effective and well-resourced, and asked if he could explain why they would still be investigating his case in October 2018, when the claimed incident at the restaurant happened January 2017, seemed fairly straightforward, and they had already detained him for six weeks at that time (during which time they could have been investigating and gathering evidence). The applicant said that it was because he didn’t turn up to report, then immediately a couple of days afterwards, the police came to his wife asking where he was and why he hadn’t turned up to report and told her that if he continued to be absent the matter would go to court. He also said that it may seem like a straightforward incident, but as far as he is aware, when you pay money things can be done quickly, but when money hasn’t been paid it doesn’t go that efficiently. These responses do not explain the time taken for this police investigation (or why there was a backlog of cases needing to be investigated, or why the applicant’s case was included in that backlog), particularly in light of the country information.
I also put to the applicant that I did not understand why the document asked him to submit himself to the authorities, even though they knew he was already outside of the country, and that I might also give this document no weight because of the country information about document fraud in China, as referred to above. The applicant responded to these concerns along with his response to the concern about the detention certificate, stating that these are political documents, and no one would dare to make fraudulent documents of this kind, because if they were caught they would be punished with at least 10 years in prison.
Wife’s statement – The applicant’s wife’s statement, dated 15 December 2023, broadly stated that: since the applicant left China, the police had been making trouble, interrogating, warning and threatening her; they asked her to confess about how the applicant escaped overseas; they asked her to warn him not to damage the reputation of the Chinese government; they threatened to jail her if they found he had engaged in any activities overseas against China or its government; she received the Procuratorate notice in October 2018; since the end of 2018, the police had visited her home many times, claiming the applicant missed the deadline for him to surrender himself, asking her to draw boundaries from him or divorce him; and she continues to be harassed, warned and threatened by police, while their children have been bullied by people in society.
I put to the applicant that, given his wife is not independent and may be motivated to provide untruthful information, by factors such as her own economic self-interest and loyalty to the applicant, I might give her statement no weight. The applicant responded that it is the fact and his wife remained by his side all along.
Photographs – The applicant also provided a set of photographs. I put to the applicant that I might also give them no weight because there was nothing to confirm the identity of the persons in the photographs, or when and where they were taken. The applicant replied that he was given the small house to live in and the photographs were inside that house, and featured his wife, and from the photographs you could see how bad and damaged the house was.
The applicant’s responses to the concerns that I raised with him about these documents as outlined above did not sufficiently address those concerns. For these reasons, and in light of my concerns about the credibility of the applicant’s evidence overall, I give these documents no weight.
The February submissions
I have also considered the written submissions which he gave to the Tribunal in early February. They broadly raise three matters.
The first is that the applicant had difficulty explaining things through an interpreter, and felt that this interrupted this train of thought and cut communications into pieces. While I am conscious of the difficulties that arise in using interpreters, there is nothing before me to suggest that there were any material errors in the interpreting, and I consider it is appropriate to rely on the interpreting that was undertaken during the hearing of this matter.
The second is that I come from a different background from the applicant and am relying on country information reports to understand the situation in the applicant’s home province of Guangdong, but in the applicant’s view those reports do not reflect the actual situation there, including widespread corruption and a lawless society. At the hearing, I invited the applicant to provide any further independent reports or information for me to consider, and I allowed him additional time after the hearing to do so. He did not do so. In these circumstances I have relied on the evidence available to me, to which I have referred above.
The third is that his wife’s statement was the most important evidence in support of his application. However, for the reasons also given above, I have not given any weight to that statement.
Conclusions
For the reasons given above, I do not accept that the claimed events happened. The applicant has not provided any other reasons why he would face harm in China or be of interest to the authorities there. I therefore find that there is no real chance that the applicant would be persecuted or face significant harm in China now or in the reasonably foreseeable future.
Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jason Cabarrús
Member

ATTACHMENT
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 below.
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 below.
Extracts 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 1565

13 February 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction