1825025 (Refugee)

[2024] AATA 1278

1825025 (Refugee) [2024] AATA 1278 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825025

COUNTRY OF REFERENCE:                   China

MEMBER:Dr Greg Weeks

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 9:47am

CATCHWORDS
REFUGEE – protection visa – China – political opinion – protests against corruption – bribery – petitions against a local official – corrupt conduct in land purchase – torture in prison – credibility issues – exit procedures – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13
SZBQJ v Minister for Immigration and Citizenship [2005] FCA 143
SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 16 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is [age] years old and is a citizen of China. He was born in Fuqing City, Fujian Province in China. Since he was 16, he predominantly resided in Guizhou Province for work purposes.

3. The applicant obtained a visitor visa to enter Australia [in] June 2017 and arrived in Sydney [in] July 2017. The applicant came to Australia with the intention of seeking a protection visa. The Tribunal has been provided with a copy of the applicant’s application for a protection visa dated 1 October 2017 (PV application).

4. The applicant appeared before the Tribunal on 18 December 2023 (first hearing) and again on 6 February 2024 (second hearing) to give evidence and present arguments.

5. Both hearings were conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was not represented in relation to the review after 9 December 2023.

6. The hearings were conducted by video link with [Prison 1], where the applicant is currently being held pending sentencing on charges relating to the importation of a commercial quantity of a border-controlled drug (the criminal charges). He was held on remand from November 2022 and has since pleaded guilty to the criminal charges. The applicant has informed the Tribunal that his sentencing hearing will be held on 16 February 2024.

   Procedural history

7. The applicant attended an interview with the delegate on 27 April 2018.

8. The delegate refused to grant the visa on the basis that she found the applicant’s claims not to be credible and that she did not accept that he faces a real chance of persecution if returned to China. The reasons for the delegate’s decision were provided to the Tribunal by the applicant.

   Claims for protection

9. In a statutory declaration dated 1 October 2017 and attached to the PV application, the applicant made the following claims for protection:

   (i)In January 2003, the applicant travelled from his home in Fuqing, Fujian Province to start working at a [business] run by ([Mr A]) in Jinping County, Guizhou Province;

   (ii)The applicant worked at this [business] for nearly 13 years until he set up his own [business] in Liping County, Guizhou Province in November 2015;

   (iii)A reason for starting his own business was that the applicant needed to make more money in order to meet significant medical expenses incurred in the care of his [children];

   (iv)Officials from various government agencies in Liping County, including [various named agencies] forced the applicant to give them free [goods] and extorted money from him on certain holidays;

   (v)In January 2017, the applicant returned with his family to Fuqing for Chinese New Year and instructed the staff of his [business] to continue to “satisfy those corrupt officials and police as far as possible in order to guarantee normal running of my [business]”;

   (vi)The applicant was unable to return to Liping County as planned in February 2017 because he needed to take his [children] to see doctors;

   (vii)While he was in Fujian, the applicant learned that “the local officials and police frequently made troubles with my [business] as they were not satisfied with the money contributed to them by my staff”;

   (viii)The applicant instructed his staff to guarantee to the local officials and police that he would “satisfy” them on his return to Liping County;

   (ix)The applicant had “almost spent all of my savings for getting medical treatments” for his [children] when he returned to Guizhou in March 2017 and had no money to satisfy the local officials and police;

   (x)The officials and police forced the applicant to close his [business] and refused his requests in the following weeks to be allowed to re-open it;

   (xi)On [a day in] March 2017, the applicant organised his staff to “hold a sit-in protest in front of the [specified agency], urging the government to protect my basic human rights, investigate those corrupt officials and police and allow me to re-open my [business]”;

   (xii)The protest was joined by members of the public and between 400 and 500 people took part;

   (xiii)The protest was regarded as a serious anti-government activity and suppressed by the authorities;

   (xiv)The applicant was arrested and detained from [March] 2017 to [May] 2017;

   (xv)While he was detained, the applicant was “subjected to inhuman torture by the police with various cruel methods”, was forced to do punitive jobs and was denied legal assistance;

   (xvi)The applicant was told that the PSB wanted his treatment to be an “example” to “warn or threaten other small private businessmen” against protesting “against the PSB”;

   (xvii)[Mr A] came to Liping County and “spent a great deal of money to bribe the police” in order to save the applicant;

   (xviii)The applicant was released [in] May 2017 but remained under police surveillance as a leader of anti-government activities;

   (xix)The applicant decided to escape from China because he “knew that I would be persecuted to death sooner or later”;

   (xx)[Mr A] assisted the applicant to leave China on a flight from [City 1] [in] July 2017;

   (xxi)The applicant’s family has been “harassed, warned and threatened by the police from Guizhou and Fuqing” since his departure; and

   (xxii)If returned to China, the applicant “must be subjected to persecution and suffer from significant harm”.

10. The applicant raised additional claims in his interview on 27 April 2018, which the delegate recorded in the reasons for her decision:

    (i)Other business owners in Liping County were forced to pay bribes to local officials in a similar way to the applicant;

    (ii)While in detention after his arrest, drunken guards carved two characters into the applicant’s back;

    (iii)After his release, the applicant stayed in Liping County for about 10 hours and then travelled to Jinping County with [Mr A] to stay at [Mr A’s] house;

    (iv)In May 2017, the applicant gave his passport to [Mr A], who arranged his Visitor visa to enter Australia;

    (v)[Mr A] drove the applicant on the [time duration] journey from Jinping County to [Airport 1] to board the flight to Australia;

    (vi)The applicant flew out of [City 1] because [Mr A] had connections there;

    (vii)[Mr A] had prepared packets of money for bribes and bribed officials during the journey to [City 1];

    (viii)[Mr A] bribed officials at the checkpoint entering Hunan Province who had asked the occupants of [Mr A’s] car to get out and present their NICs;

    (ix)The applicant was “wanted throughout the internet” at that time and the Chinese Communist Party (CCP) were “determined to arrest” him;

    (x)At [the] airport, the applicant had his passport stamped by a Customs official but was then questioned in a room about his travel destination and told to “get out”;

    (xi)[Mr A] escorted the applicant through Customs again and “nodded” to a person who stamped the applicant’s passport for a second time, allowing the applicant to proceed; and

    (xii)The applicant did not know he would be travelling to Australia until he reached the airport.

11. The applicant has a [child] born in [year] and [two children] born in [year] and [year]. The applicant gave evidence in the hearing that his [two of his children] both have significant illnesses.

12. The applicant’s [Child 1], who is now about [age] years old, has type 1 diabetes and has been dependent on receiving as many as seven injections of insulin daily since [age]. The cost of [the] treatments is between 2,000 and 3,000 RMB per month. [This child] faces restrictions on [food] and drink and on [the level of] exercise, which the applicant stated is “getting worse” and is causing [discrimination] at school. The applicant stated in the hearing that, if he is granted a protection visa, the first thing that he will do is to bring his [Child 1] to Australia because [their] “situation will be better” here.

13. The applicant’s [Child 2], who is now about [age] years old, has congenital spina bifida. There are no regular costs associated with his treatment but [they] will need surgery in the foreseeable future.

14. The applicant gave evidence that his family has no medical insurance to meet the costs associated with treating the medical issues faced by his children.

15. The applicant got married in 2009. He gave evidence that, after his arrest in Sydney, his wife could no longer “bear the economic burden” of caring for her family and has moved away. The applicant’s children are in the care of his parents, who are both over [age] years old. He stated that his mother works at two jobs to support his family, at [one job] during the day and at [another] at nights, earning between 5,000 and 6,000 RMB per month in total. The applicant gave evidence that his father is in the final stage of [specified cancer] and can no longer work outside. He picks up occasional casual work near to his house.

16. The applicant stated that, prior to his arrest, he sent money home to China in order to support his family. Since he has been on remand pending trial on the criminal charges, he has not been able to contribute financially to the care of his children.

17. The applicant supplied a copy of his passport with his PV application which states that it replaces a passport previously issued to the applicant. The applicant could not recall when his first passport was issued other than to say that he had applied before he was married in 2009. He stated that, at the time, he had savings and wished to travel but ultimately did not do so.

18. He obtained his second, current passport [in] 2016 because the first passport had expired. The applicant stated that he applied for his current passport by attending the offices of the Exit and Entry Administration Bureau, where he was photographed and fingerprinted. The passport was then mailed to him within two weeks. He stated that [Mr A] assisted him by taking his old passport and arranging a certificate which stated that the applicant has no criminal record in China.

    CRITERIA FOR A PROTECTION VISA

19. 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.

20. 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.

21. 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).

22. 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.

23. 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

24. 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 (the Department), 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

25. The issue in this case is whether there is a real chance that the applicant will face persecution in China or a real risk that he will suffer significant harm if removed from Australia to China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Credibility

26. I have significant concerns regarding the credibility of the applicant’s evidence. In reaching this view, I have had regard to: the fundamental differences between the claims raised in the PV application and the interview with the delegate on one hand and those raised in the hearing on the other; additional internal inconsistencies in the applicant’s evidence; the applicant’s central claim that he will be imprisoned on his return to China because of offence caused by lodging petitions against a local official; the applicant’s evidence with regard to obtaining his passport and subsequently leaving China; and the applicant’s motivation for coming to Australia.

    Fundamental differences in claims

27. The applicant gave evidence before the Tribunal that his first job in China was in a [business] owned by relatives in Guiyang City, Guizhou Province. He stated that he first started working for [Mr A] in 2006 or 2007, having met him three or four years previously when the applicant delivered [goods] to a construction site at which [Mr A] was working. The applicant gave evidence that he worked for five or six years as a paid employee helping [Mr A] to manage a number of [businesses] in Jiping County in which [Mr A] had an interest.

28. The applicant stated in the hearing that he worked in Liping County for two years after the period of time that he worked in Jiping County. He stated that [Mr A] was his business partner at that time. The applicant stated in the hearing that he wished to acquire vacant land on which to build a [business] in Liping County (the Liping venture). The applicant had found the land in question and [Mr A] was to provide financial backing for the venture. The applicant did not provide further details of the nature of [Mr A’s] involvement. The applicant was no longer working elsewhere once he started arranging the Liping venture.

29. The applicant stated in the hearing that he was to contribute 2 million RMB to the Liping venture. This sum included [amount] RMB from his own savings, to which his parents added [amount] RMB from the proceeds of selling some land and [amount] RMB that they borrowed. The applicant borrowed the remainder from friends, which must have been between about [amount] and [amount] RMB. On this account, the applicant and his parents had each borrowed substantially to invest in the Liping venture.

30. The applicant stated that, including land taxes, the land that he wished to acquire should have cost between [amount] and [amount] RMB. His evidence to the Tribunal was that the land he sought to acquire was in several parcels owned by various individuals. One parcel of land that the applicant wished to acquire was 4 mou (a little more than a quarter of a hectare) held in the name of the mother of a local official. The applicant stated that the official asked a price of [amount] RMB for land that should have cost between [amount] and [amount] RMB.

31. When asked why he did not simply walk away from the deal when faced with the official’s high price, the applicant replied that he had already bought and paid for all of the land that he sought to acquire apart from the parcel held in the name of the official’s mother. He stated that he had used an intermediary to offer the official between [amount] and [amount] more than the price paid for the other parcels of land but that this offer was refused. The applicant stated that his “financial status” was insufficient to pay the price that the official demanded for the land.

32. The applicant claimed that he had offended the official in their negotiations over the sale of the land held in the official’s mother’s name. The applicant gave evidence in the hearing that the official was further offended because the applicant had lodged a petition against his conduct in Guizhou. He claims to have lodged this petition either at the end of 2015 or during 2016. After lodging the petition, the applicant claimed to have been detained at the local police station but released on bail the same day. At the second hearing, the applicant clarified that this detention was informal; he was invited to “have tea” with the police. Although he did not state that there was an explicit threat to this effect, the applicant claims that he has offended the official so badly that he fears that the official will imprison him.

33. The applicant repeated before the Tribunal his claim in the PV application that [Mr A] came to Liping County and “spent a great deal of money to bribe the police” in order to have the applicant released from detention. The applicant stated in the hearing that [Mr A] had also spent a great deal of money on the official from whom the applicant had sought to buy land while the applicant was in hiding.

34. The applicant stated that, immediately after he was released from detention, he travelled to Beijing to lodge a further petition against the conduct of the official. He then returned to Guizhou and “hid here and there waiting for news”. The applicant stated in the hearing that he was in hiding “here and there” from the time of his release from detention until he left for Sydney [in] July 2017. [Mr A] accompanied him on [a duration] car journey from Guizhou to [Airport 1].

1. The Tribunal heard evidence that [Mr A] has died since the applicant arrived in Australia.

2. The applicant’s account before the Tribunal of the persecution that he suffered in China and fears upon his return is entirely different to that which the delegate recorded in her reasons. I put to the applicant in the second hearing that the claims he made in his PV application and in his interview with the delegate were inconsistent with the evidence he had given before the Tribunal. I asked the applicant whether he wished to comment on the possibility that the inconsistencies in his evidence might cause me to make adverse findings as to his credibility. He did not make any substantive response.

3. The applicant did not raise or press before the Tribunal several of the claims that had formed the basis of his account in the interview with the delegate and were recorded in the delegate’s reasons. These include that his business was subject to extortion from local officials and police, that his business was closed because he failed to pay the necessary bribes, that he organised a protest attended by over 400 people and that he was considered a leader of anti-government activity. The applicant did not press those claims before the Tribunal. They are wholly inconsistent with the applicant’s evidence in the hearing which is set out above between paragraphs ‎27 and ‎32 inclusive. Consequently, I do not accept the factual basis of the claims set out above in paragraph ‎9‎(iv)-‎(xiii) and ‎(xvi) and paragraph ‎10‎(i).

4. The applicant’s claims that he was at risk of being “persecuted to death sooner or later”, as set out in paragraph ‎9‎(xix) above, and that he “must be subjected to persecution and suffer from significant harm” if returned to China, as set out in paragraph ‎9‎(xxii) above, were made in reliance on the claims in the PV application that I have rejected. I do not accept those claims.

5. The applicant was invited to discuss his family in China in the hearing and did so at length. He did not repeat before the Tribunal the claim set out at paragraph ‎9‎(xxi) above that his family has been “harassed, warned and threatened by the police from Guizhou and Fuqing” since his departure. I do not accept that claim.

6. The applicant adhered to the claims in the PV application in his interview with the delegate, as the delegate’s reasons for her decision record. The extent of the differences between the applicant’s claims at that stage and the evidence given in the hearing supports a finding that the applicant’s evidence in general is not credible. When I asked the applicant to explain the differences between the PV application and his evidence at the first hearing, he replied that he had told his migration agent only generally about what had happened to him and had left out some matters that he didn’t want to mention. At the second hearing, he characterised the differences in his evidence as the result of “exaggeration” by his migration agent. When I asked in the first hearing whether, to the extent that the applicant’s evidence to the Tribunal was different to the statutory declaration attached to his PV application, the contents of the statutory declaration were not true, the applicant replied only that there “may be variations” between the two.

7. The differences between the applicant’s account of why he left China that was considered by the delegate and the account that he gave at the hearing are more than mere “variations”. The former account cannot be dismissed as a mere “exaggeration” of the latter. The extent of the differences amounts to the applicant having made an entirely new set of claims before the Tribunal. The essence of the applicant’s claims considered by the delegate was that he had opened a [business] in Liping County but was a victim of official corruption by several government agencies; he organised a protest against that corrupt activity with the consequence that he was arrested and subsequently suffered police persecution. By comparison, the essence of the applicant’s claims before the Tribunal related to offending a powerful official over an unsuccessful attempt to purchase land in order to build and open a [business] in Liping County.

8. The applicant’s evidence in the hearing did not merely differ from his previous claims in respect to the amount of detail that the applicant provided or because it covered issues that were left out of the PV application. Rather, the applicant’s account of his experiences in China as set out in the PV application is entirely different from the account that he provided in the hearing. I do not accept the applicant’s explanation for the differences between his PV application and the evidence that he gave before the Tribunal. The extent of the differences between the claims considered by the delegate and the applicant’s evidence before the Tribunal is such that it reflects adversely on the credibility of the applicant’s evidence in general.

   Other internal inconsistencies

9. There are additional inconsistencies between the applicant’s original claims, made in the PV application and in his interview with the delegate, and those made in the hearing apart from those that directly cast doubt on the credibility of his account as a whole. These inconsistencies fortify the impression that the applicant’s evidence is not credible.

10. First, the applicant’s evidence in the hearing that his first job in China was in a [business] owned by relatives in Guiyang City, that he first started working for [Mr A] in 2006 or 2007 and that he met [Mr A] three or four years previously is inconsistent with the claim set out in paragraph ‎9‎(i) above.

11. Secondly, other than to say that the local police hate him, the applicant gave no evidence in the hearing that he had been mistreated while he was detained at the police station or that he had been under police surveillance after his release. As set out in paragraphs ‎9‎(xiv), ‎(xv) and ‎(xviii) and ‎10‎(ii) above, the applicant made claims about significant mistreatment and police surveillance in the PV application and in his interview with the delegate. Their omission before the Tribunal is inconsistent with the applicant’s previous statements.

12. The applicant pressed the claims above in his interview with the delegate but each of them is inconsistent with his evidence before the Tribunal. I put these inconsistencies to the applicant at the second hearing and asked whether he wished to comment on the possibility that the inconsistencies in his evidence might cause me to make adverse findings as to his credibility. He did not make any substantive response.

13. Consequently, I do not accept the factual basis of the claims set out in paragraphs 9‎(i), ‎(ii), ‎(xiv), ‎(xv) and ‎(xviii) and 10‎(ii) above.

14. Thirdly, the PV application stated, as set out in paragraph ‎9‎(ii) above, that the applicant worked for [Mr A] at a [business] in Jiping County for nearly 13 years and then set up a [business] of his own in Liping County. The applicant’s evidence in the hearing was that he worked for five or six years as a paid employee helping [Mr A] to manage a number of [businesses] in Jiping County in which [Mr A] had an interest. The applicant also stated in the hearing that he wished to acquire vacant land on which to build a [business] in Liping County. The applicant’s account of the Liping venture and the persecution that he fears for having offended the official depends heavily on the fact that the land in question did not have an operating [business] on it at any time. I do not accept that the applicant set up a [business] in Liping County.

15. I put these inconsistencies to the applicant at the second hearing and asked whether he wished to comment on the possibility that the inconsistencies in his evidence might cause me to make adverse findings as to his credibility. He did not make any substantive response.

16. I do not accept the factual basis of the claim set out in paragraph 9‎(ii) above.

17. These inconsistencies are not completely irreconcilable with the applicant’s PV application in the same way as is true for the claims that I have rejected above. However, they further support my finding that the applicant’s evidence is not credible.

    Petitions and detention

18. The central claim that the applicant made before the Tribunal was in essence that an official attempted to extort money from him in relation to the purchase of land and that, when the applicant complained, the official was so offended that the applicant fears that the official will imprison him.

19. The applicant stated that the official was acting corruptly in asking so high a price for the parcel of land that the applicant wished to purchase. That conclusion does not necessarily follow from the applicant’s evidence, which is consistent with the official taking advantage of his relatively stronger bargaining position. The applicant appears to have left himself vulnerable to such an approach by acquiring the rest of the land before he reached an arrangement with the official. The applicant gave no other evidence of corruption in respect to the negotiation over the price of the land. I am not satisfied on the evidence before the Tribunal that there was anything improper about the official’s conduct of the negotiations over the sale of his mother’s land. I do not accept that the applicant was the victim of corrupt conduct by the official with regard to the negotiations over the purchase of that land.

20. The applicant stated in the hearing that he has no reason to fear persecution if he is returned to China other than having offended the official. I asked the applicant how he had managed to cause such great offence to the official over a commercial land acquisition that had failed to settle on price that he faces persecution upon his return. The applicant did not explain how he had caused that level of offence to the official other than by saying that, if he goes back to China, he “will have nothing” because he cannot recover the money that he spent on the failed land acquisition as part of the Liping venture. That response did not address the question put to the applicant although, as I discuss below, it indicates that his reasons for leaving China are not entirely due to his fear of imprisonment.

21. Country information indicates that the process of raising a petition is relatively common, with millions of disputes arising under this system every year. Incentives are in place for local authorities to encourage petitioners to have their disputes handled locally but they can subsequently be taken to provincial petitioning offices and, after that, to the national level in Beijing. The petitioning process resolves many complaints. Examples of violence by local authorities in retaliation against petitioners have been recorded, in extreme cases even causing death.[1] However, these are not commonplace.

    [1] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [3.87].

22. The applicant did not explain in response to questions put to him during the hearing how having raised petitions to resolve his dispute with the official could have provoked such a disproportionate response from the official. Such a misuse of power by the official is difficult to understand given that it would carry significant risks for the official. While public corruption remains a significant issue in China,[2] President Xi has personally led a campaign opposing corruption at all levels of government for over a decade. The penalties for officials found guilty of corruption are potentially extremely heavy.[3] I find that the applicant’s evidence about the extent of the official’s offence and the extremity of the consequences that he feared as its result are not credible.

    [2] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [2.20]-[2.22].

    [3] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [2.23].

23. The applicant gave evidence in the hearing that [Mr A] had spent a great deal of money on the official from whom the applicant had sought to buy land while the applicant was in hiding. The applicant did not explain why [Mr A], who had a financial interest in the Liping venture, did not simply pay the money he spent on the official to acquire the official’s land. The applicant also did not say what that expenditure by [Mr A] was intended to achieve, given that his evidence was that [Mr A] was at about the same time paying large amounts of money to allow the applicant to leave China from [City 1]. I do not accept the applicant’s evidence that [Mr A] was spending a great deal of money on the official.

24. The applicant stated that the official had not imprisoned him by the time that the applicant left China and that, aside from less than a day in informal police detention (“having tea”), he had never spent time in prison while he lived in China. The applicant’s evidence indicates that he lived in Guizhou for many months, albeit in hiding, after the petitions were lodged and was not found or imprisoned by the official during that time.

25. The applicant’s evidence about how and why he caused offence to the official does not support his claims that the official sought to imprison him or that he would continue to face that risk if returned to China. I find that the evidence related to these claims is not credible. I do not accept that there is a real chance that the applicant will be imprisoned upon his return to China as a result of his dealings with the official. Further, the applicant did not claim, and I do not accept, that he was previously threatened with serious harm other than imprisonment in relation to lodging petitions. The applicant did not claim, and I do not accept, that there is a real chance that he will suffer serious harm other than imprisonment in relation to lodging petitions if he returns to China.

    Passports and departure from China

26. The applicant claimed, as set out in paragraph ‎10‎(iv) above, that [Mr A] helped him to obtain the visa under which he legally entered Australia. The applicant also stated that [Mr A] had assisted him by taking his old passport and arranging to obtain a certificate which stated that the applicant has no criminal record in China. However, the applicant added that he did in fact have no criminal record and that his passport is entirely genuine. I asked what [Mr A] had contributed to the process of obtaining the new passport but the applicant did not directly address that question. Given the fact that the applicant did not explain [Mr A’s] contribution to the process and in keeping with my general findings about the applicant’s credibility, I do not accept the claim set out in paragraph ‎10‎(iv) above.

27. The applicant’s claim to have been in hiding from the time he was released from detention until he left for Sydney [in] July 2017 is difficult to reconcile with his evidence to the Tribunal that he lodged the first petition either at the end of 2015 or during 2016 and that his detention and second petition immediately followed that event. Taken at face value, it indicates that the applicant was able to live in Guizhou for over a year without his fear of being imprisoned at the behest of the official being realised.

28. I asked the applicant at the second hearing whether he would like to comment on the possibility that I might conclude that he could have remained in Guizhou and been safe from harm. He answered that he was never officially detained (as noted at paragraph ‎32 above) but made no other substantive response to my concern.

29. The timeline proposed by the applicant is also difficult to reconcile with his evidence before the Tribunal on a second issue. The applicant gave evidence that he was detained after lodging his petition in Guizhou, then released, then went to Beijing to lodge a further petition and only then applied for his passport in or about [2016], after which he hid until leaving China some ten months later. I asked the applicant why he waited so long to leave China after he obtained his passport but he did not directly answer that question.

30. I asked the applicant again at the second hearing why a person who feared persecution in China would delay his departure for so long after obtaining a valid passport. He answered that “it takes time to get a visa” but declined to expand upon that response. The applicant obtained his visa to enter Australia [in] June 2017, nearly four weeks before he arrived in Australia [in] July 2017.

31. Given my general findings about the applicant’s credibility, I do not accept that the applicant’s evidence about the period between his release from “having tea” with the police and his departure for Sydney is accurate.

32. The applicant’s claim, as set out at paragraph ‎9‎(xvii) above, that [Mr A] came to Liping County and “spent a great deal of money to bribe the police” in order to have the applicant released from detention is consistent with the relative speed with which he was released from detention. In the absence of further detail and consistently with my findings about the applicant’s credibility, I do not accept that the applicant was released from “having tea” with the police because the police were bribed.

33. The delegate’s reasons record the applicant’s claim, set out at paragraph 10‎(iii) above, that the applicant stayed at [Mr A]’s house after being released from “having tea” with the police. However, in the absence of further detail and consistently with my findings about the applicant’s credibility, I do not accept that the applicant stayed at [Mr A]’s house at some time after he was released from his brief informal detention with the police.

34. The applicant stated in the hearing, as he had in his interview with the delegate, that [Mr A] assisted him to leave China and accompanied him on the [time duration] car journey from Guizhou to [Airport 1]. These claims are set out in paragraphs 9‎(xx) and 10‎(v) above. I accept that the applicant made that car journey although, as I discuss below, this does not address the larger issue of why a journey of that length was necessary. The applicant’s evidence regarding [Mr A] and his involvement in the applicant’s affairs was generally unconvincing. I have rejected above several of the applicant’s claims with regard to [Mr A]. Given my findings about the applicant’s credibility in general, I do not accept the claims set out in paragraphs 9‎(xx) and 10‎(v) above.

35. The applicant claimed, as set out in paragraph ‎10‎(vii) and ‎(viii) above, that [Mr A] paid a substantial sum of money in bribes on the journey from Guizhou to [City 1], including to officers at the checkpoint entering Hunan Province who asked to see the NICs of the occupants of [Mr A’s] car. The applicant stated in his interview with the delegate that he was not carrying his national identity card (NIC) when he was arrested and did not have it with him when he left Guizhou to go to [City 1].

36. Country information from DFAT states that citizens of China over the age of 16 are required to apply for a NIC, which contains data including the cardholder's name, sex, ethnicity, date of birth, residential address, work history, educational background, religion, police record, medical insurance status, landlord’s telephone number and reproductive history. Each NIC has a unique 18-digit ID number and colour photograph of the cardholder.[4] NICs are issued and managed by the PSB, which is effectively the police force. They are very hard to counterfeit and are required in order to conduct a wide range of essential and important transactions, including plane travel.[5]

    [4] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [5.36]-[5.37].

    [5] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [5.38].

37. I asked the applicant at the first hearing how he was able to travel across multiple provinces and board a plane without his NIC, especially given his claim, set out at paragraph 10‎(ix) above, that he was actively being sought by the CCP for arrest. The applicant’s response was “at that time, I had my ID picture in my mobile [phone]” but he did not elaborate further. That would not appear to be enough to do the many things which require a valid NIC in China,[6] nor would it provide to an authority which asked to see the applicant’s NIC the range of data encoded on every NIC, as described above.

    [6] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [5.37]-[5.38].

1. I asked the applicant again at the second hearing to explain how he was able to travel without his physical NIC. When the applicant made no substantive response to that question, I suggested that his mobile phone might have had an app which contained the information on his NIC. The applicant made no substantive response to that suggestion.

2. I do not find the applicant’s suggestion that a mobile phone image of his identification picture was an adequate substitute for holding a valid NIC to be credible. The applicant was unable to explain that contention in the face of country information that NICs are required to be held by Chinese citizens over the age of 16 and are necessary for conducting a wide range of essential transactions.

3. The applicant’s account of being able to travel such a great distance and repeatedly avoiding arrest at checkpoint stops while not holding a valid NIC is hard to understand in the context of his claim that the CCP were “determined to arrest” him. Acceptance of the applicant’s claim that [Mr A] paid a substantial sum of money in bribes on the journey from Guizhou to [City 1], including to officers at provincial borders, might explain how the applicant was able to travel through China without holding a valid NIC. However, the country information considered at paragraph ‎77 below means that it is highly unlikely that [Mr A] could have bribed border protection agents to allow the applicant to board a plane without showing a valid NIC. The applicant’s evidence on this issue was unconvincing. On that basis, and in keeping with my findings about the applicant’s credibility in general, I do not accept the claim set out at paragraph ‎10‎(ix) above that the applicant’s arrest was actively being sought at this time.

4. While it is possible that a person who was not holding a valid NIC may have arranged to get safely from Guizhou to [City 1] by the regular payment of substantial bribes, the applicant never explained to my satisfaction why it was necessary for him to take a journey where that issue arose. My general concerns about the credibility of the applicant’s evidence cause me to find that these claims are not credible. I do not accept the applicant’s claims in paragraph ‎10‎(vii) and ‎(viii) above.

5. The applicant claimed, as set out in paragraph ‎10‎(x) and ‎(xi) above, that he was initially turned away from boarding the plane to Sydney by a Customs official. His passport was stamped but that stamp was crossed out. At that point, the applicant claims, [Mr A] intervened and caused the applicant’s passport to be stamped a second time. He was then allowed to proceed.

6. Country information indicates that it is almost impossible to leave China without the knowledge and approval of the authorities. The government employs multiple systems to prevent unauthorised departures, including artificial intelligence, facial recognition software and biometric databases. An exit control list is created from these sources and a wide variety of government authorities which also contributes data.[7] It is difficult to bribe border protection agents, who are a professional and comparatively well-paid sector of the public security infrastructure,[8] operating within a country that has become increasingly sensitive to official corruption.[9] In addition, increased reliance on technology and algorithms means that human officials do not make all of the decisions which affect people attempting to leave China.

   [7] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [5.35]-[5.42].

   [8] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [5.35].

   [9] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [2.23].

7. Exiting China is heavily regulated, in at least three ways.[10] First, China places significant restrictions on legally obtaining a passport. This affects the capacity of persons who have been arrested for, or suspected of, criminal conduct or have served a prison sentence to obtain a passport. Secondly, Chinese citizens who have been granted a passport may nonetheless be placed on an exit control list and prevented from leaving the country on national security grounds. In practice, exit bans are imposed simply by one or more of a wide range of government authorities (from local to national) recording a person’s details in the border control database; individuals typically only learn that a restriction is in place upon being prevented from leaving China by the border control authority.[11] Thirdly, unauthorised departure, without holding a valid passport, is criminalised; the relevant law (article 322 of the Criminal Law) has been invoked to seek the extradition of people whose refugee status has been recognised.[12]

   [10] Lili Song, “Exit regulation in the People’s Republic of China: Law, policy and practice” (2022) International Migration (doi: 10.1111/imig.13058), 2.

   [11] Lili Song, “Exit regulation in the People’s Republic of China: Law, policy and practice” (2022) International Migration (doi: 10.1111/imig.13058), 8.

   [12] Lili Song, “Exit regulation in the People’s Republic of China: Law, policy and practice” (2022) International Migration (doi: 10.1111/imig.13058), 9.

8. The applicant applied for his second passport after the time that he claims to have lodged his petitions and was detained. The applicant’s claim is that he was wanted for arrest after those incidents. I asked the applicant to comment on how he was able to leave China on a validly issued passport in his own name if he was wanted for arrest. He did not directly answer that question but said that people who accept bribes would not admit that fact publicly. He then stated that he had invested all his and his parents’ money in Guizhou and had got nothing back. That part of the applicant’s response did not address the question put to him. As I discuss below, it is another indication that his reasons for leaving China are not entirely due to his fear of imprisonment.

9. I have rejected the applicant’s claim, set out in paragraph 10‎(ix) above, that he was actively being sought by the CCP for arrest. In any event, I find that the applicant’s account of how he was able to leave China despite being “wanted throughout the internet” at a time that the CCP were “determined to arrest” him is not credible. I do not accept the claims, set out in paragraph 10‎(x) and ‎(xi) above, that the applicant was able to exit China through [Mr A’s]influence over the Customs officials at [Airport 1]  at a time when he was wanted for arrest. Those claims are inconsistent with the country information provided above. When asked, the applicant offered no explanation as to why that country information does not apply to the facts of his case.

10. The applicant claimed, as set out in paragraph ‎10‎(vi) above, that he flew out of [City 1] rather than a closer airport because [Mr A] had connections at [Airport 1]. I asked the applicant how a businessman from Guizhou had such influence in [City 1] and he responded that [Mr A’s] sisters had studied there. He added that the two stamps in his passport “may explain everything”. However, those responses did not address my concern with believing that [Mr A] had such influence in [Airport 1] that he was able to arrange for the applicant to leave the country while actively being sought by the CCP. I do not find the claim set out in paragraph ‎10‎(vi) above to be credible.

11. While it is possible that [Mr A] purported to have connections at [Airport 1], I do not accept the applicant’s claim, set out in paragraph 10‎(vi) above, that he flew out of [City 1] rather than a closer airport because [Mr A] actually had connections there who were capable of allowing the applicant to exit the country while wanted for arrest. That distinction is a further basis for rejecting the claims set out in paragraph ‎10‎(x) and ‎(xi) above.

12. The applicant claimed, as set out in paragraph ‎10‎(xii) above, that he did not know he would be travelling to Australia until he reached the airport. This claim does not fit easily with the applicant’s evidence at the hearing that he obtained his second passport in order to seek protection, that he obtained that passport many months before leaving and that he obtained a visitor visa to enter Australia almost a month before his departure from China. In light of my general findings about the credibility of the applicant’s evidence, I do not find that claim to be credible. I do not accept the claim set out in paragraph ‎10‎(xii) above.

13. I find that the applicant’s account of how he departed from China is not credible. That finding further supports my finding above that the applicant’s evidence is generally lacking in credibility.

    Motivation to travel to Australia

14. The applicant gave evidence that his financial situation in China was fraught for a number of reasons, including the costs associated with his children’s health. This is consistent with the applicant’s claim, set out at paragraph 9‎(iii) above, that one reason he wished to start his own business in Liping County was that he needed to make more money in order to meet the significant medical expenses incurred in the care of his [children]. I accept that claim as it relates to the applicant’s motivation, although I have rejected above the applicant’s claim that he had an operational business in Liping County.

15. The applicant was asked at the hearing how he had managed to cause such great offence to the official over a commercial land acquisition that had failed to settle on price that he faces persecution upon his return. He answered by saying that, if he goes back to China, he “will have nothing” because he cannot recover the money that he spent on the failed land acquisition as part of the Liping venture. It is noteworthy that, when asked about the risk of persecution that he faces in China, the applicant’s response addressed only his financial situation.

16. I asked the applicant at another point how he was able to leave China on a validly issued passport in his own name if he was wanted for arrest. He did not directly answer the question but part of his response was to say that he had invested all his and his parents’ money in Guizhou and had got nothing back.

17. The fact that the applicant answered questions about central aspects of the claim for protection that he made in the hearing with statements of concern about his financial situation raises doubts that his claim to fear harm from a corrupt official or the CCP is credible.

18. I asked the applicant whether his purpose in coming to Australia was to make money rather than to seek protection. He responded that he had not been able to send much money back from Sydney and that it only covered his parents’ and children’s living expenses. He went on to say that he “really likes life in Australia” and hopes he gets the opportunity to stay so that his [Child 1] can receive better medical treatment than is available in China. He stated that he has been thinking since arriving about bringing his children to live in Australia. The applicant’s response to my question did not address at any point the necessity of obtaining a protection visa to avoid persecution by the official or the CCP if returned to China.

19. The applicant’s evidence overall indicates that the main reasons that he wishes to remain in Australia are because of his financial situation in China and the better outcomes potentially available to his children rather than because he perceives that he will face a real chance of persecution if returned to China. Those reasons for wishing to remain in Australia cast doubt on the credibility of the applicant’s claims that he does not want to return to China because he fears persecution if returned.

20. The applicant was invited at the first hearing to give evidence about his financial circumstances and the current arrangements for his children’s care in China. He did so at length. That evidence indicated that the financial situation of the applicant and his family is poor, sufficiently so that it prompted his wife to leave. It did not indicate that the applicant’s economic hardship is so significant that it amounts to serious harm by threatening his “capacity to subsist”, in the terms of section 5J(5)(d)-(f) of the Act. That phrase has been interpreted to refer to a level of economic hardship that challenges the ability of an individual “to continue to exist or remain in being”[13] in fact, rather than as a mere possibility. I understood the applicant’s claim that he “will have nothing” if he returns to China to refer to the failure of the Liping venture because he only made the claim in that context. I do not accept that the applicant claimed that he will actually have “nothing” on his return to China or that there is a real chance of that outcome in its literal sense.

    [13] SZBQJ v Minister for Immigration and Citizenship [2005] FCA 143, [11]; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725, [23].

21. In any event, the applicant did not claim that his family’s economic hardship was such that their ability “to continue to exist or remain in being” was threatened or that his ability “to continue to exist or remain in being” would be threatened on his return. The evidence before the Tribunal was that the applicant’s family has continued to subsist since the applicant was remanded in custody on the criminal charges and could no longer contribute financially to their care. I do not accept that there is a real chance that the applicant’s capacity to subsist or that of his family will be threatened in a manner that constitutes serious harm if he is returned to China.

    Conclusions on consistency

22. With the minor exception of having accepted that the applicant felt that he needed to make more money in order to meet the significant medical expenses incurred in the care of his [children], I have not accepted any of the claims raised by the applicant in the PV application or in his interview with the delegate. I have rejected these claims on the basis of my adverse findings about the applicant’s credibility. Those findings also cause me not to accept the claims for protection advanced in the course of the hearing. Because I do not accept that the events in the applicant’s claims occurred, I am not satisfied that there is a real chance that he would suffer serious harm for any reason claimed in the PV application, in the interview or at the hearing.

    Possible criminal liability under Chinese law

23. As noted above, at the time of the first hearing, the applicant was being held on remand pending trial on criminal charges relating to the importation of a commercial quantity of a border-controlled drug. By the time of the second hearing, he had pleaded guilty to the criminal charges and was awaiting sentence. At the time of writing this decision, the applicant was awaiting sentencing for his commission of the acts which constituted the criminal charges. Analysis of the prospect of the applicant suffering significant harm upon his return to China for reason of being convicted of drug offences in Australia is necessarily speculative. The reasoning below proceeds on that basis.

    Double jeopardy and prison conditions

24. The Chinese Criminal Law (article 10) specifically allows a person to be prosecuted for a crime for which that person has already been tried, including for prosecutions conducted outside of China (double jeopardy). Country information ranging from 2016 to the present suggests that re-prosecution happens rarely, usually where a Chinese citizen has murdered another Chinese citizen abroad, where the alleged crime relates to a sensitive issue, such as one with political relevance, or where the crime has attracted significant attention in the media or on social media.[14] Australian diplomatic sources reported in December 2019 that they were not aware of any re-prosecutions of Chinese nationals for drug offences committed overseas. That information is consistent with diplomatic information, which is still considered accurate, provided by Australia and other countries over the last 20 years.

    [14] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [5.30].

25. I asked the applicant during the first hearing about the charges against him. While he was unable to give a comprehensive opinion, he said that he had been led to expect that, if convicted, he would face a penalty in the low range based upon the details of the conduct with which he has been charged.

26. In the second hearing, I put the country information above to the applicant directly and asked if he wished to comment upon it. The applicant stated that he did not know that he was in possession of drugs when he was arrested but made no comment about the country information put to him.

27. I asked the applicant during the first hearing whether he was concerned about facing additional punishment if he is returned to China having been convicted on the criminal charges. He had not considered the possibility before the hearing and said only that he was “afraid of thinking of that”. By the time of the first hearing, the applicant was no longer represented and the Tribunal did not receive the benefit of any further submissions on this issue at that time.

28. There is a reasonable prospect that the applicant will be convicted of the criminal charges in Australia. While the applicant’s sentence remains a matter of speculation at the time of writing this decision, I accept that it is probable that conviction on the criminal charges in Australia will result in a relatively low-range custodial sentence, as the applicant has stated that he expects.

100.   The country information put to the applicant at the second hearing indicates that re-prosecutions in China under the double jeopardy provision of the Criminal Law are rare and fall into two main categories. The applicant’s conviction in Australia falls into neither category. He has not been convicted of murder, or any other violent offence, against a Chinese citizen or anyone else. No evidence was provided to the Tribunal, and I do not accept, that either the criminal charges faced by the applicant or his conviction on those charges have previously or will in the future attract media or social media attention. Furthermore, they do not have political relevance. I do not accept that the applicant’s conviction on the criminal charges amounts to a “sensitive issue” for the Chinese government. My conclusion in this regard is supported by the fact that the applicant himself had not considered the prospect of re-prosecution or any other official consequences as a result of conviction on the criminal charges until the issue was raised with him at the first hearing.

101.   It follows from this reasoning that I do not accept that there is a real chance that the applicant would be re-prosecuted in China as a result of crimes committed in Australia or conviction on charges relating to those crimes. I therefore do not accept that there is a real chance that the applicant would suffer serious harm as a result of being re-prosecuted on his return to China.

Death penalty

102.   It is possible that a person convicted of drug offences in Australia may, if retried and convicted in China, face the death penalty. Country information states that the death penalty is listed as a punishment “for 46 offences, including non-lethal offences that do not meet the threshold of the ‘most serious crimes’ under international law and standards”.[15] These offences include financial crimes, corruption, forgery and drug offences. There is evidence that China has removed 22 crimes from the list of offences which attract the death penalty since 2011. Criminal executions fell by 60% in the decade between 2006 and 2016.

[15] Amnesty International, International Report 2022/23, p 126.

103.   The diplomatic sources referred to above reported that they had no information that anyone in China had suffered the death penalty upon their return to China having served prison sentences for drug offences in another country. The majority of death sentences are given for murder and drug offences,[16] but it has been estimated that 80% of executions are carried out for crimes which result in the death of the victim. The country information from DFAT estimates that thousands of people are executed in China every year, although it is not possible to verify the numbers of executions.

[16] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [4.4].

104.   In the second hearing, I put the country information above to the applicant directly and asked if he wished to comment upon it. The applicant reiterated that his arrest was for “negligently” possessing drugs and that he had never touched drugs in his life. He made no comment about the country information put to him.

105.   While I have accepted that there is a real risk that the applicant would face double jeopardy and a period of imprisonment in regard to criminal offences committed in Australia if returned to China, I do not accept that there is a real risk that, if retried and convicted in China, the applicant would face the death penalty.

106. The Act says at s 36(2A)(b) that a person will suffer significant harm for the purposes of the complementary protection criterion if “the death penalty will be carried out” as a necessary and foreseeable consequence of that person’s return to a receiving country (emphasis added). There is authority for the proposition that this section should be read as saying that the imposition of the death penalty would not amount to ‘significant harm’ if it would not in fact be carried out.[17]

[17] MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13, [31].

107.   The country information above indicates that the likely outcome for the applicant of any double jeopardy conviction in China would not include the imposition of the death penalty. This conclusion is supported by diplomatic sources which states that there is no information over the course of nearly 20 years that anyone has suffered the death penalty upon their return to China having served prison sentences for drug offences in another country.

108.   I do not accept that the death penalty will be carried out as a necessary and foreseeable consequence of the applicant’s return to China in the event that he is convicted of drug offences in Australia.

Conclusions

109. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa), which refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test has been held by the Federal Court of Australia to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[18] That reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[19]

   [18] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505.

   [19] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp170-1 at [1169], [1180].

111. I am not satisfied that there is a real risk that the applicant will suffer significant harm on return to China. The reasons for that finding, other than with regard to the possible consequences of re-prosecution in China for criminal offences committed in Australia, are the same as those which support my findings that there is not a real chance that the applicant will suffer persecution in the reasonably foreseeable future if returned to China. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. 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

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

Dr Greg Weeks
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.

…