1909860 (Refugee)

1909860 (Refugee) [2021] AATA 2072 (27 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1909860
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Booth
DATE:27 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 May 2021 at 11:54am
CATCHWORDS
REFUGEE – protection visa – China – petitioned against government corruption and lack of compensation for demolition of home – detained, interrogated, beaten, fined and house ransacked – breach of one-child policy – credibility – vague, unconvincing and uncorroborated claims and evidence – financial motivation to stay in Australia – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 3 April 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 20 September 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.
Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
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.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Pursuant to s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgements of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.
Pursuant to s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.
Pursuant to s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria set out in either s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The facts are taken from the applicant’s protection visa application as follows.
Identity and country of reference
The applicant is a [Age 1]-year-old male, born on [Date], in Fujian, China.
The applicant speaks Mandarin.
The applicant has Chinese citizenship by birth and a copy of the applicant’s passport, held upon the Department file, confirms that he is a citizen of China and was born in China.
The applicant stated that he was married with children. The date and place of marriage were not supplied, although his wife was born in Fujian in [Year 1]. The applicant claims that no members of his family are present in Australia. The applicant declared in his protection visa application that he has four children.
The applicant did not provide any religion or ethnic group in his protection visa application, and claimed to have been unemployed at the time of application. The applicant claims not to have any personal contacts within Australia, and maintains contact with his family by phone.
The applicant claims to have departed China [in] July 2016 and arrived in Australia [the next day].
The applicant stated that he was unemployed at the time of lodging the protection visa application. He listed “[Occupation]” for a [company] in China as his previous occupation.
The applicant completed primary school in China. No details of any further study were listed after [Year 2].
The applicant claims that he was arrested and charged with joining petition activities.
In summary, the applicant claims that he fears persecution due to making complaints against the local government due to government corruption and for failing to compensate him for the destruction of his home.
Migration history
The applicant arrived in Australia [in] July 2016 as the holder of a [Visitor] visa.
The applicant applied for a XA-866 protection visa on 20 September 2016.
CLAIMS
866 visa application
The applicant’s claims for protection are contained in his protection visa application and department interview which was conducted 2 April 2019. The details provided in his application were as follows:
89. Why did you leave that country/those countries. Provide specific details.
Please see the statement.
90. What do you think will happen to you if you return to that country/those countries?
Please see the statement.
91. Did you experience harm in that country/ those countries?
Applicant selected “yes”.
Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you).
Please see the statement.
92. Did you seek help within that country/those countries after the harm?
Applicant selected “no”.
Give details (including the name of the person/organisation/authorities you asked for help, and if they helped you, what they did)
Please see the statement.
93. Did you move, or try to move, to another part of that country/those countries?
Applicant selected “yes”
Give reasons for why you did not try to move to another part of that country/those countries
Please see the statement.
94. Do you think you will be harmed or mistreated if you return to that country/those countries?
Applicant selected “yes”.
Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)
Please see the statement.
95. Do you think the authorities of that country/those countries can and will protect you if they go back?
Applicant selected “no”.
Give details about why you think the authorities could not, or would not, protect you
Please see the statement.
95. Do you think you will be able to relocate within that country/those countries to an area where you would not be harmed?
Applicant selected “yes”.
Give details about why you are unable to relocate.
Please see the statement.
The applicant provided his statement of claims for protection to the Department dated 14 September 2016. The statement is as follows:
[The applicant]'s Personal Statement
At 10:30 a.m., [Day 1] April 2016, I was arrested at work. The police from [Town] Police Department and a plainclothes police broke into my office. They lied to me, telling me to go with them to check something out. When I refused to cooperate, they dragged me out of the office. I yelled for help and tried very hard to get out of their control. Police handcuffed my hands behind my back roughly. I was physically jostled downstairs by two police holding my arms on each side, forcefully pushing my upper body down. I was pushed into the back seat of a black car with a police on each side. The plainclothes police officer took my handbag. When she I abducted to the Police Department, a police searched my whole body, including my shoes. Around 12:00 p.m., local police officers took me to a basement to interrogate me. I was forced to sit in an iron chair, with my body and two feet shackled to the chair. Four police took my house key from the handbag and went to my house to ransack it with the help of two others.
I am [the applicant], [Age 1] years old. I worked as [an Occupation] at [a] Company in 2010. I am a good person, well thought of by neighbors and colleagues, caring little about fame and gain, and treating everyone with compassion. I was very diligent and responsible with my duties and had no complaints. But the corrupted government brought my family one disaster after another.
In early 2016, the Town Government noticed me that my house would be demolished. The Town Government refused to compensate as my family disobeyed the one child policy. My family deserved compensation for 600,000 yuan. Rumor said the money was diverted by officials. Starting from March, I took my complaint letter to Fuqing Bureau of Letters and Calls, Municipal Government and other departments to appeal several times, but there was no result.
On the day I was arrested, police ransacked my house in front of the frightened child, and neighbors. They took away a computer, a printer and other items. My family could not stop crying.
Three or four policeman then took turns interrogating me. I was tied to an iron chair from 2:00 p.m. to 10:00 p.m, on [Day 1] April 2016. The police attempted to fabricate evidence. I refused to cooperate and told them the truth about my case. At 6:30 p.m. the Deputy Director who ordered the arrest and ransacking came in and questioned me cruelly, saying, "Why do you make petition?" Another police scolded and insulted me, and defamed me for three or four minutes. He threatened me when he was leaving, saying 'You dared to report against the Town Mayor, we will kill you!"
I was tied to the cold iron chair for sixteen hours, from 12:00 p.m. on [Day 1] April to 4:00 a.m. on [Day 2] April. It was freezing at night. I was so cold that I could not help shivering. The handcuffs cut into the flesh of my wrists. They turned purplish-black and were very painful. Then I was sent to Fuqing City Detention Center, where I was beaten many times. On 30 April 2016, I was fined for 2,000 yuan and released.
When I got home, police came to harass me several times. The company stopped my work. My family was in nervous. Without any hope, I left China. In early September, I heard the Town Mayor and some officials were reported again because of corruption. They accused me, and repeatedly asked my family to tell me to return home. Police from the Police Department waited at my house to catch me. My salary was withheld. I became homeless because I could not return to my house. My young children have lost a father's love, and my wife has no one to take care of her. My children cannot survive by themselves and have been taken in by relatives. A happy family has been broken apart under the government's persecution.
EVIDENCE AND SUBMISSIONS
The applicant has not provided any submissions in support of the application to the Tribunal or the Department.
The applicant gave evidence at the hearing, with the assistance of a translator, the substance of which was as follows.
The applicant confirmed that, in summary, the basis for his claim for protection in Australia was that he fears persecution due to making complaints against the local government due to government corruption for failing to compensate him for the destruction of his home. He asserted that this was also because he was in breach of the one child policy. He also confirmed that he did not make any claim for protection in Australia on any other basis.
The Tribunal asked the applicant why he left China and now claimed protection in Australia. The applicant responded as follows: “because the International criminal police are looking for me, I am scared of them”. He did not elaborate. When asked if he had anything further to add he said “it is much safer here, the climate is better here, very unsafe in China, I cannot stay there”. He did not elaborate. The Tribunal asked why he believed he would be unsafe in China. He replied “the law and order are not stable, the public securities are very unsteady, and I am not feeling safe”. He did not elaborate. When asked why the international criminal police were looking for him he said “because there was a lot of commotion which was caused, that is why they are looking for me”. He did not elaborate. The Tribunal observed that his evidence was extremely vague and most unconvincing and reminded him that he must explain the detail of his claim. He responded “yes”. When asked whether he had anything further to add he said “that’s it for now”.
The Tribunal informed the applicant that it had read his statement dated 14 September 2016 and enquired whether he had a copy. He said “I’m not certain, I think I submitted a copy”. When asked who wrote the document he said “my woman was caught, they took her away”. When pressed to provide an answer to the question he said “because I couldn’t write I got someone to write on the paper for me”. He did not elaborate.

When asked whether he owned the home which was demolished he said “yes”. He was asked whether he wanted to say anything further on the topic. He replied “that the statement has given a full narrative of the event.” When asked when he received notice of compensation he said “I did not receive anything”.
The Tribunal observed that in his statement he asserted that he took a complaint letter to the bureau of letters and calls and asked whether he had a copy of the document. He said “I’m going to look for them, I have copies”.
The Tribunal observed that in his statement he asserted that he was arrested and asked him when that occurred. He responded “can’t remember”.
The Tribunal observed that in his statement he asserted that his home was ransacked in front of frightened children and neighbours. The applicant agreed. The Tribunal asked whether there was any reason why he did not produce any witnesses to those events. He replied “that is exactly why I have to run away”. When asked to respond to the question he said “can you repeat”. When the question was repeated he said “the reason is simple because we violated the family planning policy, we had baby too young”. He was asked when his children were born. He responded “1988 or 1989”. He did not elaborate. When asked how many children he had he said “I gave birth to five children, four girls and one boy, we gave away one girl”. He was again asked when his children were born and he responded “first child 1999, then year 2000 and one child each year following that and my son was born in 2004”.
The Tribunal observed that in his statement he asserted that he was detained and beaten. The applicant agreed. When asked whether he was physically injured he said “they didn’t physically abuse me, there are arguments and quarrels”. The Tribunal put to the applicant that in his statement he asserted that he was beaten and asked whether the statement was incorrect. He replied “they pushed me and pulled me, very violently, just like an act of violence”. He did not elaborate.
The Tribunal observed that in his statement he asserted that he was fined ¥2000 and was then released. He responded “yes”. When asked where he obtained the money he said “I borrow from other people”. He was asked whether there was any reason why he did not have any evidence to corroborate the assertion from the persons from whom he borrowed money. He replied “relatives don’t give any paper”.
The Tribunal asked whether he had any proof of being arrested and detained. He said “after I was released I just have to find ways to run away”.
The Tribunal asked the applicant why there was no corroborative evidence from any person in charge to confirm events in the applicant statement. He said “they are in China you can make a call to them”.
He was asked why he left his family in China and responded “our house was dismantled, I had to come here and make money to build a house”. When pressed to answer the question directly he said “I did not have the ability to bring them all with me”.
The Tribunal asked whether the real reason he came to Australia was to earn money. He responded “to tell the truth I don’t make much money at all”. When pressed to respond directly to the question he said “maybe you can ask a different way”. When the question was repeated the applicant said “yes”.
The Tribunal asked why he hadn’t returned to China and he responded “first reason I need protection, second reason is to try and make a living”.
The Tribunal asked the applicant whether he contended that he would be persecuted if he returned to China. He said “if I go back the International criminal police will catch me”. When pressed to answer the question directly he said “as soon as I land at the airport Chinese police will arrest me”. The Tribunal asked him why he believed he would be immediately arrested if he returned to China. He said “because of the commotion that I caused and the arguing”. The Tribunal observed those events occurred approximately five years previously and asked why the authorities would arrest the applicant upon his return. He said “February [date], I heard about the police were looking for me”. When asked what year he was referring to he said “this year, 2021”. When asked who told him this he said “the translator told”. When the question was repeated he said “in one of the interviews they told me there was a warrant”. When asked to produce the warrant he said “February [date], 2021 I was told”. The Tribunal again asked the applicant whether he had a copy of the warrant and he said “no”. When he was asked why he did not mention this fact before he said “this just happened”. He did not elaborate.
He was asked whether there was any good reason why he could not relocate if he returned to China. He said “if I return to China would be arrested and taken away, no point in looking for another place”.
When invited to add anything further to his application for review he responded “I would like to ask a few more years, so they would not be looking for me, when this wind blows over maybe it would be better”.
Based upon the applicant’s answers to other questions in the application for a protection visa, the substance of which is also set out above, the Tribunal finds that the applicant:
a)is a [Age 1]-year-old male, born on [Date], in Fujian, China.
b)speaks Mandarin.
c)is a citizen of China and was born in China.
d)arrived in Australia on [in] July 2016 as the holder of a [Visitor] visa.
e)applied for a XA-866 protection visa on 20 September 2016.
THE COUNTRY INFORMATION
In accordance with Direction No.84 made pursuant to s.499 of the Act, the Tribunal also had regard to country information assessments prepared by DFAT. The DFAT report titled “People’s Republic of China” dated 3 October 2019 relevantly stated as follows (footnotes omitted):
SECURITY SITUATION
2.55 Gaining support for CCP policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. China’s internal security agencies include: the Ministry of Public Security, which is responsible, inter alia, for the police, border security and household registration (hukou, see Hukou (household registration) system, Health and Children)); the Ministry of State Security, the main intelligence agency; the People’s Armed Police (PAP), a paramilitary force responsible for internal security; and the People’s Liberation Army (PLA), China’s military (see also Military and Police). In November 2013, President Xi established a new National Security Commission to strengthen coordination of both international and domestic security issues.
2.56Security personnel and surveillance technology are ubiquitous throughout China. Increased artificial intelligence (AI) capabilities serve China’s economic and military modernisation interests, while simultaneously enhancing Party stability through increased power to surveil and control the population (see The Social Credit System).
2.57Some reports estimate 170 million surveillance cameras have been installed in cities and towns across the country in the past decade. Everyday street crime and violence in China’s major cities is generally low. Sensitive social groups, including religious organisations, Uighur and Tibetan ethnic groups, Falun Gong practitioners and human rights activists, have alleged that the government uses a range of surveillance methods to monitor their activities. Since 2016, media have reported that Chinese police and security agencies have begun combining photo databases, artificial intelligence and facial recognition technology installed in surveillance cameras to track down criminal suspects and ‘destabilising agents’ in society.
2.58Since 2010, China’s expenditure on internal security agencies such as the police, the PAP, the courts and the prison system has outstripped spending on the military. In 2016, the gap between domestic security and defence expenditure reportedly reached a record high of 13 per cent, with domestic security expenditure increasing by 17.6 per cent compared to the previous year, to exceed RMB 1 trillion (AUD 209.4 billion), while defence expenditure only increased by 7.5 per cent. However, the actual amount China spends on its military and domestic security is widely debated. Most foreign experts, governments and relevant publications concur that Chinese statistics on security spending do not include some outlays that are standard reporting for most other countries, and note there is no way to verify the accuracy of official figures reported by China.
2.59Domestic security expenditure across all provinces and regions increased by 215 per cent between 2007 and 2016, and continued to grow in 2018 - particularly in sensitive minority regions such as Xinjiang and Tibet, where security remains volatile due to heightened ethnic tensions and government attempts to curb perceived threats to social stability (see Ethnic Uighurs and Ethnic Tibetans). Over the same 10 year period, security expenditure increased by 411 per cent in the Xinjiang Uighur Autonomous Region (XUAR, Xinjiang), by 404 per cent in the Tibet Autonomous Region (TAR) and 316 per cent in Qinghai (where the population is approximately 25 per cent Tibetan). In February 2018, Xinjiang reported a 92.8 per cent increase in its domestic security spending, from RMB 30.05 billion (AUD 6.3 billion) in 2016 to RMB 57.95 billion (AUD 12.9 billion) in 2017. The increase in security spending in TAR is estimated at 9.3 per cent, although TAR maintains its position as the region with the highest per capita domestic security expenditure of all provinces and regions since 2008, ahead of Xinjiang. Analysts of Chinese security expenditure suggest that per capita domestic security spending in sensitive minority regions is now higher than per capita domestic security spending in the US or Russia (PP adjusted by wage levels).
2.60 In June 2017, China’s National People’s Congress Standing Committee also passed a new National Intelligence Law (2017; amended 2018) which forms part of a national security legal architecture introduced in 2014 which includes the Counter-Espionage Law (2014), Criminal Law (1979; Amended 2015), National Security Law (2015), Anti-Terrorism Law (2015) and Cyber Security Law (2017). The National Intelligence Law calls upon all elements of Chinese society, including individuals, to contribute to national intelligence work. The law inter alia empowers security agencies: to launch intelligence operations in China and abroad; to collect intelligence on foreign bodies ‘engaged in activities that may harm China’s national security or its interests’; to monitor suspects, raid premises or seize vehicles during the investigation of domestic or foreign individuals or groups; to gain priority use of transportation or telecommunications equipment, buildings or enterprises; and to employ ‘technical reconnaissance’ measures with permission. The law explicitly requires security agencies to act in strict compliance with laws relating to the protection of human rights, and states agencies should not exceed their authority or abuse their powers. DFAT is aware of reports of kindergarten children being given homework instructing how they should assist state security officers.
ARBITRARY DEPRIVATION OF LIFE
4.1Article 37 of China’s Constitution states that ‘freedom of the person’ of citizens of the People’s Republic of China is inviolable.
Enforced or Involuntary Disappearances
4.3Chinese law permits security agencies to detain suspects without charge for varying lengths of time during an investigation, with the conditions dependent on the nature of the offence investigated (see Arbitrary Arrest and Detention). Police have broad powers of detention during investigations relating to national security or intelligence matters, as defined by the CCP or state agencies. In the course of the anti-corruption campaign, the CCDI has detained many Party members suspected of corruption, holding some for several months before delivering them to the state criminal justice system (see Corruption).
4.4The authorities' power to restrain the liberty of citizens through a number of legal or extra-legal measures applies to children as well as adults: Then six-year-old Gedhun Choekyi Nyima disappeared with his parents in 1995, after the current Dalai Lama recognised him as the reincarnation of the Panchen Lama, Tibet’s second most senior spiritual leader. The Chinese authorities declared the nomination invalid and installed another six-year-old, Gyaltsen Norbu, as Panchen Lama in his place (see Buddhists). No international observer (diplomatic, media or NGO) has seen Gedhun Choekyi Nyima since 1995. The then 16-year-old son of a ‘709’ lawyer (see Human Rights Defenders (including Lawyers)) was arrested in 2015 at Beijing airport on his way to school in Australia, and again later that year on the Chinese-Myanmar border. In November 2017, he was denied exit from Beijing airport while again seeking to travel to Australia for study.
TORTURE
4.14China ratified the Convention against Torture and Other Inhuman and Degrading Treatments in 1988. Chinese law prohibits the physical abuse of detainees and forbids prison guards from extracting confessions by torture, insulting prisoners’ dignity, and beating or encouraging others to beat prisoners. Amendments to the Criminal Procedure Law that exclude evidence, including confessions, obtained through illegal means, including under torture, took effect on 1 January 2013.
4.15In 2015, the UN Committee against Torture expressed serious concern over consistent reports indicating torture and ill-treatment were still deeply entrenched in China’s criminal justice system (see Torture). In 2016, in its concluding observations on the Fifth Periodic Report of China in January 2016, the UN Committee against Torture also expressed concern over a number of continuing practices that it assessed increased the risk of torture of detainees. These practices include: lengthy pre-trial detention; denial of access to a private lawyer; withholding of information from the detainee’s family in cases deemed ‘endangering state security’, ‘terrorism’ or serious ‘bribery’; ‘residential surveillance’ (see Arbitrary Arrest and Detention); the lack of independence of medical practitioners examining detainees; revisions to laws that prohibit (undefined) ‘conduct that disrupts court order’; lack of judicial or procuratorial oversight of criminal investigations; lack of information on past investigations of allegations of torture by security officials; unexplained deaths in custody; solitary confinement and use of restraints; a lack of information on inspection of detention facilities; exclusion of matters relating to ‘State secrets’ from the government’s reporting on torture; and the broad definition of many offences, including ‘endangering State security’, ‘picking quarrels and provoking troubles’, and ‘gathering a crowd to disturb social order’.
4.16Family members of the ‘709 lawyers’ (see Human Rights Defenders (including Lawyers)) wrote an open letter to world leaders on 1 March 2017 detailing allegations of mistreatment of their family members while in detention. The allegations included: forced consumption of drugs; marathon interrogation sessions and sleep deprivation; beatings; the application of heavy weights on legs; being almost entirely submerged in water for several days at a time; and threats and detention of family members. Individual lawyers detained during the ‘709’ crackdown have also detailed allegations of mistreatment at the hands of the authorities.
4.17Falun Gong practitioners have reported mistreatment in custody including sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding (forced feeding through a tube inserted into the nostril), being forced to drink dirty or salty water, shackling and beatings (see Falun Gong). International human rights reporting continues to document use of psychological pressure against Falun Gong practitioners. Media, human rights groups, members of the international community, and Uighurs have also reported the use of violence and torture of Uighurs in re-education centres in Xinjiang (see Ethnic Uighurs, Muslims).
4.18Media and Uighurs’ reports of physical and psychological maltreatment have included, but are not limited to, interrogation, inappropriate clothing for climate, sleep deprivation, administration of electric shocks, having weights tied to feet, indefinite confinement, forced administration of medication, psychiatric drugs, injections, blood tests, DNA sampling, and medication to stop menstruation, as well as intrusive medical examinations.
4.19DFAT considers allegations of torture, particularly those detailed in cases deemed politically sensitive, to be credible.
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Arbitrary Arrest and Detention
4.20The Ministry of Public Security manages pre-trial detention facilities and procedures. Authorities with the power to authorise the detention of a criminal suspect include (but are not limited to) the Public Security Bureau (PSB), Ministry of State Security, and the Anti-Smuggling Bureau.
4.21Under the Criminal Procedure Law, the term ‘arrest’ refers to the stage of the criminal prosecution process when authorities determine there is sufficient evidence to proceed with prosecution. A suspect can be, though is not necessarily, detained prior to being formally arrested. A detention warrant must be issued to a suspect’s family within 24 hours of their detention. The formal arrest of a detainee must be approved by the Procuratorate, which can take up to 37 days. Unless released on bail, criminal suspects will generally remain detained until the conclusion of the judicial process, including appeals. In practice, the rate of release on bail is extremely low. Bail is not considered a right; under the Criminal Procedure law bail ‘is not an individual right designed to minimize restraints on freedom, but an alternative pre-trial coercive measure. When bail is granted, it is usually on the initiative and for the convenience of the police.’
4.22These procedures are not subject to judicial oversight. The post-arrest investigation period can be up to seven months, and preparation of indictment can take up to six and a half months. The total time required to hear a case and issue a verdict in standard cases ranges from twenty months to an indefinite period. Security agencies can hold individuals for years while they progress through the charge, arrest, investigation, court hearing and sentencing processes. Individuals convicted of an offence do not move into the prison system until their case is finalised, including any appeal processes. Time served in a detention centre is deducted from their custodial sentence.
4.23Amendments to the Criminal Procedure Law (1979; amended 2012, 2018) require the prompt delivery of suspects to detention facilities following arrest. The law stipulates that interrogations must take place in the detention facility, and must be recorded in audio and video. The revised law also requires judicial officials to investigate cases of extraction of confessions under torture.
4.24Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. Police can hold individuals for up to 30 days in criminal detention before deciding whether to pass the case to prosecutors, and for an additional seven days prior to formal arrest. Police detention beyond 37 days requires prosecutorial approval of a formal arrest and notification of family members within 24 hours of detention. The law permits officials not to provide notification if doing so would ‘hinder the investigation’ or for cases pertaining to ‘national security, terrorism, and major bribery’. During periods and anniversaries considered politically sensitive, authorities often detain activists without charge for the full 37-day period.
4.25Administrative detention is regulated under the law on Penalties for Administration of Public Security (2006). Administrative detention is imposed for crimes of a minor nature, and which are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law. It is imposed by public security organs at the local (county) government level. While there are various forms of administrative detention in China with different procedures and time-limits, the maximum period of administrative detention for any one act is 15 days, and where multiple periods of administrative detention are imposed concurrently for several acts, the maximum period of detention is 20 days.
4.26Under the Criminal Procedure Law, police may also detain individuals in ‘residential surveillance at a designated location’ (RSDL) away from their home for up to six months before formal arrest or release. RSDL can be used to detain individuals suspected of crimes endangering national security, involving terrorist activity, or involving serious corruption (see Corruption), or where the suspect or defendant does not have a fixed residence. Authorities must notify relatives of individuals placed under formal arrest or residential surveillance in a designated location within 24 hours, unless notification is impossible. The notification does not need to specify the reason for or location of detention. Suspects do not have the right to meet defence lawyers in these categories of cases. In cases involving national security or terrorism, police are authorised to detain a suspect after arrest for up to an additional seven months while investigating the case. Following investigation, the procuratorate has an additional 45 days to determine whether to file criminal charges of detention, during which time detention can continue. The law explicitly allows detainees to meet with defence counsel before criminal charges are filed but this rarely happens where cases are considered politically sensitive. After filing charges, authorities can detain a suspect for an additional 45 days before beginning judicial proceedings.
4.27RSDL has been criticised for exposing detainees to risk of mistreatment (see Torture) and for enabling conditions of detention that produce forced confessions. While evidence obtained while in RSDL should be able to be excluded in court, rarely is this the case. Human rights groups report RDSL has been increasingly used to detain activists, human rights lawyers and government critics in recent years, and claim police training dormitory facilities have been repurposed for RSDL.
4.28Locations used to enforce RSDL are often referred to as ‘black jail,’ however the term ‘black jail’ more correctly describes short-term detention in rented/owned, run down hotel rooms or similar, often used for petitioners, criminals and those under suspicion of less sensitive allegations, as a coercive measure. The primary distinction between RSDL and ‘black jail’ is that RSDL is a formal feature of the Chinese legal system. RSDL also reportedly often entails treatment more severe than in ‘black jails,’ and occurs in government-run, custom fit for purpose facilities, whereas black jails are quasi-administrative holding centres for petitioners and criminals.
4.29Public security authorities continue to use other forms of administrative detention to suppress political and religious dissidents, sex workers, drug users and petitioners. Authorities also detain family members of dissidents: poet Liu Xia, widow of Nobel Peace laureate Liu Xiaobo, was released in July 2018 after being under house arrest for nearly eight years following her husband’s nomination for the Nobel Peace Prize in 2010 (see Deaths in Custody). Authorities have also curtailed the freedom of family members of ‘709’ lawyers (see Human Rights Defenders (including Lawyers) and Uighur and Tibetan activists (see Ethnic Uighurs and Ethnic Tibetans). The law does not provide for house arrest. Individuals facing this type of detention do not have the right to legal counsel or due process. The Chinese government abolished its ‘re-education through labour’ policy in December 2013, although media and human rights groups claim re-education through labour (including in prisons and linked to Xinjiang-based re-education centres) continued in 2018 and supported production in factories for overseas markets (see Detention and Prison and Ethnic Uighurs).
4.30DFAT assesses that reports that security authorities use extra-legal detention for politically sensitive investigations are credible.
STATE PROTECTION
5.1 Article 5 of the Constitution states that ‘no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws’.
5.2 There is no organisation in China tasked with enforcement of the Constitution and courts do not have the general power of judicial review which would allow them to invalidate laws on the grounds they violate the Constitution. The Constitution states the National People’s Congress and its Standing Committee have the power to review laws that violate the Constitution, but, in practice, these powers are rarely exercised, with only one instance of regulations being rescinded.
5.3 Crimes are investigated by public security organs, generally the PSB, but also including other organs such as the Anti-smuggling Bureau, Ministry of State Security and National Supervision Commission, prosecuted by the People’s Procuratorate, and tried in the People’s Courts. All lawyers must be registered with, and operate in compliance with, regulations issued by the All China Lawyer’s Association, which is directly supervised by the Ministry of Justice (see Human Rights Defenders (including Lawyers)).
5.4 The Criminal Procedure Law and Criminal Law regulate arrest and detention. The Criminal Procedure Law sets out the procedures to be followed in the criminal process. It applies prior to a verdict being issued by a court and the Criminal Law is applied after a verdict has been issued. Criminal prosecution can be lengthy, and it can take in excess of one year for a case to progress from initial detention to verdict and sentencing.
Police
5.6 The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. The government no longer publicises the size of its police force, but media estimates place the number at around two million. The People’s Armed Police, a paramilitary force responsible for internal security issues such as riots, terrorist attacks, natural disasters and other emergencies, has an estimated 660,000 members. Police undertake four-year training programs that include courses in procedural law and public order, as well as extensive physical training. Performance is statistics-driven and a national ranking system provides incentives for compliance. Local-level police are generally entitled to receive housing and food allowances as part of their monthly salaries, which are calculated according to local conditions rather than a national standard.
5.7 Maintaining public order and social stability – defined as defending CCP rule – are the key priorities of the police force in China, and outweigh protection of the public from criminal activity. Regular police do not generally carry firearms but can do so in areas of heightened security (such as in Xinjiang and Tibet). Reflecting the power held by the Ministry of Public Security, procuratorate oversight of the police is limited, localised and ad-hoc.
5.8 Chinese citizens have the right to lodge complaints against the police in their city of residence through a telephone hotline, or online complaints website, in person, or in writing to the Public Security Bureau Complaints Office. Local authorities have targeted petitioners (including those with complaints against police) with punishments including arrest and detention (see Protesters/petitioners). Complaints against police rarely lead to disciplinary action and, where investigations are announced, their outcomes are not publicly released (see also Deaths in Custody).
5.9 Police are unable to open a case until the prosecutor is confident there is a high chance of conviction. Police are required to send a brief to the prosecutor seeking formal permission to arrest, and only very clear- cut cases are generally approved, accounting for the 99 per cent conviction rate. When the procuratorate deems there is not enough evidence to justify arrest, it sends the case back for further investigation. Sources report that police are under pressure to obtain confessions prior to trial, and to ensure success in all police investigations. However, China has taken some positive steps to protect individual rights through amendments to the Criminal Procedure Law prohibiting the use of confessions obtained under torture as evidence, and requiring interrogations in major criminal cases to be audio and video recorded. However, these protections do not apply in cases involving national security, which are investigated outside of China’s criminal justice system. In practice, the number of cases in which evidence is not accepted at trial because it was obtained through torture or other coercive means is still very low, and only very few cases of this nature have been reported.
5.10 DFAT has no additional information on the quality of local policing or responsiveness of the PSB to local crime.
Judiciary
5.11 China has explicitly rejected ‘Western notions’ of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. The CPP approves judicial appointments and personnel decisions. Jurors are also appointed to a jury pool by the CCP for a five-year period and therefore serve the needs of the Party. The CCP also exercises direct influence in individual cases through Political-Legal Committees (PLCs) at each level of government. PLCs supervise and direct the work of state legal institutions, including the courts, and are typically staffed by court presidents, the heads of law enforcement agencies, officials of the justice ministry or bureau, and other legal organs. Although PLCs focus primarily on ideological matters, they can influence the outcome of cases, particularly when the case is sensitive or important.
5.12 China’s 2016 White Paper on Judicial Reform includes measures to reduce political influence on courts, improve access to justice, strengthen professionalism of the judiciary, and increase transparency. In an effort to curb local corruption, new policy shifts funding of courts from the local to provincial level and courts have started recording attempts to influence proceedings. Since May 2015 there has been a mandatory nation-wide case filing system, through which courts cannot refuse to hear cases without sound legal justification.
5.13 Enforcement of court judgements remains an issue. However courts now publish many routine judgements online on the Open Trial Network (OTN). The OTN is a case database platform, which increases transparency (for listed cases) to help enforce judgements and parole. If individuals or entities do not comply with fines or fulfil judgements, they can face other restrictions in line with the SCS (see The Social Credit System). Nevertheless, OTN coverage is patchy and not all cases reported in the media are listed. The 709 crackdown cases, for example, are not listed on the OTN. Only final judgements can be viewed on the OTN; intermediary judgements are not always accessible if there is an appeal.
5.14 Articles 183, 274 and 196 of the Criminal Procedure Law require cases involving state secrets, personal privacy, trade or commercial secrets or where the defendant is under 18, to be tried in a closed court. Cases involving trade or commercial secrets are also held in private if any party concerned in the matter requests a closed court session. However, Article 196 requires all verdicts to be issued in open courts.
5.15 Judicial reforms implemented in recent years have led to an increase in administrative law cases, albeit from a very low base, including local cases of official abuse of power. For example, the Shenzhen court has published figures for administrative cases showing 10,133 administrative cases in 2015, compared with 9,167 in 2014 and only 3,840 in 2013. In 2015, the government lost 381 (15.2 per cent) of 2508 lawsuits against it. While improving, these relatively low numbers - even in one of China’s wealthiest and most international cities (Shenzhen has a population of 12 million) - indicate the difficulties faced by ordinary people in pursuing cases against officials.
5.16 A number of special courts also play a key role in the judicial system. The Standing Committee of the National People’s Congress has the power to list the functions and powers of special courts and set up new special courts. Special courts include the military courts, maritime courts, railway transportation courts, forestry courts and the intellectual property courts. The military court, established within the People’s Liberation Army, is responsible for hearing criminal cases involving servicemen and women. This is a relatively closed system without external supervision.
5.17 The maritime court system deals with highly specialised issues related to waters under Chinese jurisdiction. Maritime courts operate in Shanghai, Tianjin, Qingdao, Guangzhou, Wuhan, Haikou, Xiamen, Ningbo, and Beihai, and there are also 39 detached tribunals in major port cities across 15 provinces. Maritime courts have jurisdiction over maritime tort disputes, maritime contract disputes, sea environmental protection cases, and maritime administrative and special procedure cases, including any disputes in this category arising between Chinese and foreign citizens, organisations and enterprises. The procedures of the maritime courts are governed by the Civil Procedure Law (1991; amended 2017), and where there is no provision in the Civil Procedure Law, the Special Maritime Procedure Law (1999) applies. However, maritime courts have no jurisdiction over criminal cases and other civil or administrative cases without a maritime element. In the event of a jurisdictional dispute regarding the existence of a maritime element, the ordinary court at one level higher than the maritime court and the ordinary court seeking to exercise jurisdiction, will determine jurisdiction. The High People’s Court in the locality where a particular maritime court is located has appellate jurisdiction over judgments and orders of the maritime court. Sources claim the maritime court’s remit has, at times, increased to include administrative cases, labour cases involving unpaid workers, shop workers (sailors) and maritime pollution cases. The Maritime Courts connect with port and border authorities, and entry and exit can be prohibited if an Individual has a pending Maritime Court order.
5.18 DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.
INTERNAL RELOCATION
5.31 There are many opportunities for internal relocation in China and movement of people is fundamental to China’s push for continued economic growth and urbanisation. While there are no legal impediments to internal migration, the hukou system presents the biggest administrative impediment to freedom of internal movement (see Hukou (household registration) system). Those who have otherwise come to the attention of the authorities may also face impediments to freedom of movement (see The Social Credit System and Security Situation).
5.32 Linguistic and cultural barriers are not an inhibiting factor for ethnically Han Chinese to move away from their place of hukou registration. Ethnic minorities may face varying degrees of difficulty or discrimination, depending on their ethnicity and their destination (see also Uighurs and Tibetans).
5.33 DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score (see The Social Credit System, Religion, Political Opinion (actual or imputed) and Groups of Interest). People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel (see Security situation and The Social Credit System)
COUNTRY INFORMATION – CLAIM SPECIFIC
Corruption
2.40China ranked 87 out of 180 countries and territories measured on Transparency International’s 2018 Corruption Perceptions Index. The most prevalent forms of corruption in China are bribery, diversion of public funds, and favouritism by government officials. Bribery, political interference and facilitation payments are common when acquiring public services and dealing with the judicial system.
2.41Of Chinese companies surveyed in 2015, 35 per cent had paid bribes to government officials, and the 2017 Global Corruption Barometer found 26 percent of respondents in China had paid bribes when accessing public services, including education, health care, and the criminal justice system. The common practice of guanxi, a custom for building connections and relationships based on gifts, banqueting or small favours (see Guanxi), can also be considered bribery by foreign companies and by national and international anti-corruption laws.
2.42On taking office in 2013, President Xi launched a nation-wide anti-corruption campaign promising to catch officials of both high and low rank. Authorities conducted 172,000 anti-corruption investigations in 2013, 330,000 in 2015, 527,000 in 2017, and 302,000 in the first half of 2018. By mid-2017, the crackdown had caught over 1,800 officials, including 182 officials ranked at or above the deputy provincial or deputy ministerial level. It had led to the arrest, expulsion from the Party or conviction for corruption of 1,130 officials (including 139 senior officials). Ousted senior officials include provincial Party secretaries, former generals, and former Politburo Standing Committee member Zhou Yongkang. Targets include heads of state-owned enterprise and officials who have fled China with large sums of public money.
2.43The campaign has led to a decline in some corruption-related activities. The 2017 – 2018 Global Competitiveness Index ranked China 49th out of 137 countries for frequency of irregular payments and bribes, and 20th for favouritism by government officials, compared to 67th for irregular payments and bribes and 34th for favouritism by government officials in 2012. Nevertheless, corruption remains widespread in China. The government and Party did not implement the law consistently or transparently and court judgements were not uniformly enforced against Party members, the military, government departments or state owned enterprises.
2.44In March 2018, the NPC adopted the Supervision Law (2018) and established a new National Supervision Commission (NSC), with subordinate Supervision Commissions at the province, city and country level. The NSC is the supreme supervisory organ of the state responsible for investigating corruption within the Party; People’s Courts and Procuratorates; the People’s Congress, their standing committees and subordinate organs; China’s eight ‘democratic parties’; managers of state-owned enterprises, public universities, public research institutes, public hospitals and sports units; and anyone performing ‘public duties.’
2.45Upon its creation, the NSC absorbed the investigative function of the People’s Procuratorate and the entirety of the Ministry of Supervision (which no longer exists), effectively merging with the Central Commission for Discipline and Inspection (CCDI) (the Communist Party’s internal corruption body). The NSC, in conjunction with the CCDI, is thus responsible for conducting graft and ideological investigations against all Party members and public officials. The NSC has the power to detain people under the liuzhi system in residential surveillance at a designated location (RSDL) for up to six months (an initial period of three months, extendable by a further three months), at undisclosed locations without access to a lawyer (see Arbitrary Arrest and Detention and Detention). Conviction rates for corruption cases, as with all criminal cases, are close to 100 per cent (see Judiciary).
2.46The Party Central Committee’s Propaganda Department maintains tight control over media coverage of the anti-corruption campaign and, consequently, state media rarely play a watchdog role. Authorities have detained members of the public, including journalists, who have sought to publicise official corruption beyond that endorsed by authorities. International observers report the government and Party have not implemented the PRC Supervision Law consistently or transparently; however, DFAT notes the law was only passed in March 2018. Likewise, court judgements have not been uniformly enforced against Party members, the military, government departments or state owned enterprises.
2.47Prior to the Supervision Law (2018), anti-corruption confessions were obtained under the ‘shuanggui’ system, a detention system outside of the formal legal system. The ‘liuzhi’ system, a system of extra-legal detention not only for Party members but also for public servants investigated for misconduct (see Glossary), replaced the shuanggui system under the PRC Supervision Law (2018) (for comparison and recent cases see Treatment of Party and public officials).
Political Opinion (actual or imputed)
3.119 Article 35 of China’s Constitution states that citizens of the People’s Republic of China enjoy freedom of speech, the press, assembly, association, procession and demonstration. China’s 2018 White Paper on Progress in Human Rights over 40 years, also states ‘the system of multi-party cooperation and political consultation…gives expression to people's democracy...It guarantees that all social strata, people's organizations and patriots from various quarters can express their opinions and play a role in the country's political and social life.’ China’s National Human Rights Action Plan 2016-2020 also outlines the Government’s plans to advance the right to expression ‘giving more space to public opinion, […] improving the check and supervision system for the operation of power, and protecting in accordance with the law the citizens’ rights of free expression and democratic supervision’.
3.120In practice, however, laws and regulations enforcing these constitutional rights are not well developed. China’s law requires all gatherings of people numbering more than 200 persons to obtain approval from public security authorities. The Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges.
3.121The CCP has little tolerance for public dissent on a wide-range of matters considered politically sensitive, including social stability, the legitimacy of central authorities and one-Party rule, and other topics that authorities consider might aggravate social unrest. Examples of issues which authorities deem sensitive include, but are not limited to, commentary on serious economic, health and environmental concerns, financial risks, land and property issues, ethnic and religious unrest, labour disputes and official responses to natural or anthropogenic disasters. The Party and government may, in limited circumstances, tolerate commentary on corrupt local officials, particularly those already under investigation (see Corruption). What the authorities deem sensitive can change with no warning.
3.122Pre-emptive detention of activists and rights defenders is common around sensitive political anniversaries and other high profile political or ‘sensitive’ events (see Arbitrary Arrest and Detention). Those publicly advocating greater human or civil rights, including the ‘709 Lawyers’ (see Human Rights Defenders (including Lawyers)) have also been detained and charged under public order offenses or accused of state subversion. Duihua’s Political Prisoners Database, which records information about political and religious prisoners incarcerated in China since 1980, contained 40,053 entries as of April 2019.
3.123In recent years, several people charged with political offences have appeared on Chinese state television making public confessions to alleged crimes. In some cases, the public confessions have taken place before trial and conviction. Recent examples include several ‘709’ lawyers (see Human Rights Defenders (including Lawyers)), journalists who have exposed official abuse of power, and two registered refugees who were returned from Thailand (see Enforced or Involuntary Disappearances). Those confessing commonly express regret for having sought to sow instability and work against the authority of the CCP, and have often included alleged admissions of colluding with ‘foreign forces’ to destabilise the country. Some have subsequently claimed their confessions were forced.
3.124Political prisoners can legally be deprived of political rights (freedom of speech, assembly, association, procession, demonstration, vote and holding a position in a state organ) after completing a prison term. In many cases, individuals have been placed under house arrest for extended periods of time after official release from prison (see Arbitrary Arrest and Detention). Those deprived of political rights can face difficulties finding employment, renting property, travelling freely, and accessing social services. Such penalties can also now be formalised under the social credit system (see The Social Credit System). Prisoners and their families have reported harassment or intimidation, including police surveillance, telephone wiretaps, and property and body searches.
3.125Families of dissidents, including children, have also been subject to movement restrictions, exit bans and other forms of harassment by Chinese authorities. The teenage son of a ‘709’ lawyer was placed under effective house arrest from 2015 until late 2017 (see Enforced or Involuntary Disappearances). Children of other ‘709’ lawyers have been denied entry to primary school and pre-school, and the spouses of some detained lawyers have reported being evicted from their apartments. Chinese authorities have also reportedly harassed family members in China of overseas dissidents. Overseas Uighur activists have reported police harassment of their China-based families, including jail terms (see Ethnic Uighurs). Other high profile critics of the Chinese government’s human rights record have also reported harassment of their China-based families and some have publicly severed ties with their families in order to protect them from further harassment. DFAT is aware of claims that authorities have confiscated ID cards or hukou (see Hukou (household registration) system) of families of dissidents, limiting their ability to access medical care, education and social services.
Protesters/petitioners
3.134Protests and petitions occur regularly across China. An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. China Labour Bulletin (CLB) obtained details of 1,287 protests in 2017, and 1,318 protests between January and October 2018, but it estimates this only reflects one tenth of protests that occurred. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. While construction issues account for around 40 per cent of labour issues, in line with changing patterns of migrant work (see Employment), NGOs working on labour issues claim an increasing trend towards protests over service sector work (more than 20 per cent), rather than industry and factory work.
3.135Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices) in 2014, an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT is aware of, but cannot verify, reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.
3.136 China’s Constitution and State Compensation Law (1994; amended 2010) enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. Sources report that local officials are encouraged to ensure protests do not reach Beijing. The SCS can be used to restrict movement of people to prevent them from travelling to Beijing to petition the government (see The Social Credit System).
3.137 In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise. A series of protests over land appropriation in 2011 in Wukan, a village of 20,000 people in Guangdong province, led to the resignation of local officials and direct elections of village office-holders. While hailed at the time as a sign of greater openness to democratisation, in 2016 provincial authorities arrested the popularly elected local chief, sparking further protests. In contrast to 2011, authorities violently suppressed the 2016 protests and excluded foreign media (including from Hong Kong), some of whom claimed themselves to be victims of police violence while attempting to cover the event. Police blockaded the village, preventing access to goods and services, and local leaders received lengthy sentences (up to ten years in prison) for their role. In November 2017, media reported the village remained under lock-down and a provincial level ‘Wukan Mass Working Group’ had been established, with 100 staff responsible for ensuring stability by marshalling a network of informers, security patrols, surveillance systems and floodlights in the village.
Detention
5.195.25 See Arbitrary Arrest and Detention for distinctions between types of detention. Conditions in administrative and pre-trial detention facilities are typically harsh, and often worse than in prisons. Pre-trial detention is highly controlled, and there are no opportunities to work to reduce sentences or for family visitation. Cells in pre-trial detention are approximately 12 metres long and five metres deep, with up to 24 detainees held in each cell.
5.20Detainees are not permitted to leave cells except to meet with investigating and Procuratorate officials, lawyers and consular officials. There is no opportunity to exercise. Meals are delivered to cells three times a day, and detainees are permitted to purchase a limited range of additional food, clothes and personal hygiene items. In pre-trial detention, bright, fluorescent lights are generally switched on 24 hours a day. DFAT is aware of reports of violence and mistreatment in detention centres, with authorities taking immediate action (including shackling violent detainees) to discourage violence.
5.21Hygiene, medical services and food and water provisions are sub optimal and rudimentary at best. Cellmates generally share one open toilet per cell. While detention centres will generally have on-site doctors, they have limited options for treating medical problems.
5.22As in the prison system, national Detention Centre regulations require detainees sentenced to a non- suspended death penalty to be shackled, to prevent self-harm. Detainees subjected to shackling must wear the restraints, which are fixed to an anchor point in the cell, at all times, and require assistance from other detainees for toileting and washing themselves. According to the mandate of pre-trial detention centres, offenders who are sentenced to death are often kept in detention centres (rather than transferred to prisons), thus detained together with pre-trial detainees.
5.23Family visits are technically possible after all judicial proceedings have been finalised and the defendant is sentenced. However, DFAT is aware of reports that family visits to detainees are generally not permitted and, in most cases, families must wait until the defendant has been transferred to a prison and completed their mandatory one-month induction process before they can visit.
5.24Australia has signed, but has not ratified an extradition treaty with China.
Family planning
2.13 China’s society is ageing rapidly, owing to significant advances in the quality of and access to healthcare and decades of low birth rates, due in part to family planning policies (see People affected by Family Planning Policies). China’s fertility rate of 1.6 births per woman is below the replacement level of 2.1. The traditional preference in Chinese society for boys, combined with decades of the one-child policy, have also contributed to a sex ratio of 1.16 male births to every one female birth (compared with a natural rate of 1.05:1).
2.14 The government changed its family planning policies in 2016 to allow all families to have more than one child, with a view to boosting the birth rate (see People affected by Family Planning Policies). Despite the change, many young Chinese families report they cannot afford the economic cost of a second child on top of caring for aging parents and the increased cost of living in China’s megacities (see Economic Overview). While the birth rate initially increased by 1.31 million (to almost 18 million) births in 2016, the increase did not meet government expectations (20 million), and rapidly declined in 2017, with 630,000 fewer births than in 2016. The increase in births is not sufficient to reverse the effects of the declining trend.
2.15 DFAT assesses China’s demographic challenges, combined with high levels of income inequality, rapid urbanisation, challenges to environmental sustainability, as well as risks posed by a declining property market and significant levels of debt (particularly at the provincial level), pose challenges to future growth and act as significant push factors for internal and external migration.
People affected by Family Planning Policies
3.195 China has had nation-wide family planning policies since the late 1970s, aimed at controlling population growth (initially in response to famine), in support of China’s economic ambitions. Article 25 of the Constitution states ‘the State promotes family planning so that population growth may fit the plans for economic and social development.’ Article 49 states ‘marriage, the family and mother and child are protected by the State. Both husband and wife have the duty to practise family planning. Parents have the duty to rear and educate their children who are minors, and children who have come of age have the duty to support and assist their parents.’
3.196 The government manages family planning under the Population Law (see Women), which has historically required government departments, state media and schools to advocate family planning policies. Such policies include encouraging late marriage and childbearing, and limits on the number of children permitted per family. Until 2015, the state encouraged late marriage and childbearing and mandated one child per couple. Exceptions were permitted if both spouses were sole children; the first child had a disability; both spouses were members of ethnic minorities; or, for rural residents, the first-born child was a girl. From 2013, couples were also permitted to have two children if either spouse was a sole child. However, concerned about its ageing population, the National People’s Congress published a new amendment to the Population Law in 2016. The 2016 amendment included the implementation of a ‘two child’ policy (subject to other health, age and timing requirements), the abolition of forced contraception, and changes to certain leave entitlements for parents (including maternity and paternity leave). Lower level governments down to neighbourhood and village committees are responsible for implementation of the two-child policy. Interpretation and implementation of the policy varies enormously across China (see Family Planning in Fujian).
3.197 Authorities enforce compliance with family planning regulations through both incentives and punishments. There are financial and administrative penalties for births that exceed limits or violate regulations. The law, as implemented, requires each woman with an unauthorised pregnancy to abort or pay a ‘social compensation fee’ (SCF, ‘shehui fuyang fei,’ also known as ‘social maintenance fees’).’ The parents of each unapproved child must pay a SCF. The national law does not set out a fee schedule that applies to all localities; exact SCF amounts vary widely across and within provinces, and on individual financial circumstances.
3.198 County-level governments collect the revenues from fees. Authorities calculate individual SCFs according to ‘last year's local disposable annual income per capita’ in urban places, and ‘the net annual income per capita’ in rural places. Average annual disposable incomes for urban residents and net average incomes for rural areas differ according to the county, city or district (see Family Planning in Fujian). In some cases, this can amount to up to ten times a person’s annual disposable income. Information on actual fees charged is difficult to obtain as they are subject to local discretion (leaving open the possibility of individual or institutionalised manipulation). DFAT is aware of, but cannot verify, reports of people falsely presenting themselves as officials to claim SCF illegally.
3.199 Both the previous and current Population Law require those who give birth to a child in contravention of family planning policies (including second children born before 1 January 2016) to pay a SCF, irrespective of hukou status (see Hukou (household registration) system). The hukou system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth. Prior to the 2016 amendment, SCF payment ensured children born in violation of the birth restrictions had access to government-provided social services and rights under the hukou system. However, following the 2016 amendment, children born before 1 January 2016 have a right to hukou and access to health and education services irrespective of SCF payment. Children whose unauthorised birth might previously have gone unregistered are now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees.
3.200 Some parents still avoid the SCF by hiding children born in violation of the law with friends or relatives. Such hidden children do not have access to social services and rights under the hukou system (see Children). Awareness of SCFs is widespread and, in many cases, couples wishing to have an additional child will save the required SCF. In these cases, the SCF operates as a pseudo tax, rather than as a punitive arbitrary measure. Local authorities have the discretion to decide whether to impose a more lenient fine if parents report an out- of-policy (child born to a single woman) or unauthorised birth (additional child born to a married couple) soon after it occurs. Authorities are likely to apply heavier penalties for uncooperative behaviour, such as hiding children, and can apply additional surcharges to those who fail to pay the required fee. The local family planning bureau and employers may also pressure the parents of out-of-policy and/or unauthorised children. In some provinces or counties, authorities have also imposed fines on entire work units in addition to the individuals concerned.
3.201 Officials can receive rewards or penalties based on meeting population targets set for their administrative region. However, the change to the two-child policy, as well as a broader reluctance among a large proportion of the population to have no more than two (and in some cases no more than one) child, have made it easier to achieve population targets in recent years and reduced pressure on local officials (also see paragraphs 3.207-208 regarding foreshadowed policy and budgetary changes).
3.202 Parents denied registration in contravention of provincial regulations or national law can, in theory, seek legal redress, but are then subject to the general conditions governing protection against abuse of power by officials (see Judiciary). Chinese authorities have regarded public opposition to family planning policies as provocative and treated petitioners and their advocates as political opponents (see Political Opinion (actual or imputed)).
3.203 Media reports that authorities have employed coercive practices (such as forced abortions, sterilisations or invasive medical inspections) in order to force compliance with family planning policies International NGO reports suggests the incidence of coercive practices has reduced since the introduction of the two-child policy. Nevertheless, the US State Department reports regulations requiring women who violate the family planning policy to terminate their pregnancies still exist and were enforced in some provinces in 2017, including Hubei, Hunan, and Liaoning, and other provinces, such as Guizhou, Jiangxi, Qinghai, and Yunnan, also maintained provisions requiring ‘remedial measures’ (which the US reports is an ‘official euphemism for abortion’). DFAT notes reliable data on the frequency of coerced or forced abortions or sterilisations is not available. While family planning officials face criminal charges and administrative sanctions if they violate citizens’ human or property rights, abuse their power, accept bribes, misappropriate or embezzle family planning funds, or falsely report family planning statistics in the enforcement of birth limitation policy, forced abortion is not specifically listed as a prohibited activity.
3.204 Despite the introduction of the two-child policy in 2016, couples with only one child received a certificate entitling them to collect a monthly incentive payment and other benefits. Benefits varied across provinces, from around RMB 6 (AUD1.23) per month up to RMB 3,000 (AUD615) for farmers and herders in poorer areas. Couples in some provinces were also reportedly still required to seek approval and register before conceiving.
3.205 Although China’s Marriage Law (see Sexual Orientation and Gender Identity) states children born outside of marriage have the same rights as those born to married parents, the Population Law (see Women) only refers to the rights of married couples. As such, local implementation remains inconsistent, and children born out of wedlock continue to be considered to be ‘outside of policy’ under the two-child policy. Single mothers with children born out-of-policy must pay SCFs, and pay for contraception and all medical expenses associated with giving birth. They are still denied legal documents and hukou for their children (and the health and education benefits it provides) (see Hukou (household registration) system). State subsidies for maternal and child services are available only with the permission of family-planning authorities, who require proof of marriage. Consequentially, many single mothers give birth outside of medical facilities with associated complications for both mother and child. Single mothers can also find it difficult to obtain birth certificates. Sources report that heavier SCFs will be imposed on those who give birth to out-of-policy children born from an extra-marital affair. However, children born out-of-policy are reconsidered to be within-policy (legitimate) and the mother will avoid any penalty if the mother marries within 60 days of the child’s birth. Sources report that heavier SCFs will be imposed on those who give birth to out-of-policy children born from an extra-marital affair.
3.206 While the introduction of the two-child policy in 2016 led to a temporary increase in birth rates, the increase did not continue in 2018. Population and fertility policy experts argue long-term application of the one-child policy has led to social change, resulting in families still preferring to have only one child, despite policy change. Media and many people in China cite the economic cost of raising one child makes having a second child prohibitive. Experts working on fertility policy in China anticipate the government may approve full liberalisation of the fertility policy (removing birth limits) in coming years in an attempt to increase birth rates, in favour of ageing population policies. Recent budget and government department structural changes are early signals in this regard. The former National Health and Family Planning commission was renamed as the National Health Commission in March 2018, and had ageing added to its portfolio and family planning budget lines removed. The family planning budget is now part of the basic public health package.
3.207 In September 2018, state-media reported ‘the three departments responsible for implementing family planning policies [had] been removed from the new structure of the National Health Commission.’ In August 2018, media reported China appeared to be considering dropping its family planning policy, and that all media content related to family planning had been dropped in a draft civil code, set to be completed by 2020. In late 2018 state-controlled media performed an about-face and started publishing articles regarding the need to reverse China’s low birth rate and proactively encouraging births.
3.208 DFAT is aware of reports that, following departmental structure and budgetary changes, some provinces had more discretion to not charge the SCF in 2018. DFAT notes in country-sources report a general trend of significant relaxation of the enforcement of the SCF across China, especially in rural areas. Anecdotal evidence suggests married informal sector workers in Fuzhou who gave birth to unauthorised children in 2018 were not required to pay a SCF. DFAT is unable to verify these claims.
3.209 DFAT assesses that, while the introduction of the two-child policy has reduced the need for the application of penalties to those in violation of the Population Law and family planning policies, application of law and policy remains inconsistent and non-transparent across provinces. DFAT assesses inconsistent and non-transparent application of SCFs leaves open the possibility of individual or institutionalised corruption. If the government were to approve full liberalisation of the fertility policy at any stage, there would no longer be a use for the SCF or other punitive measures against married couples; however, the possible impact on single, unmarried mothers remains unclear.
COUNTRY INFORMATION – SUMMARY

The Tribunal is informed by the country information, in summary, as follows:
a)As to security generally: gaining support for Chinese Communist Party (CCP) policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus.
b)As to enforced disappearance: Chinese law permits security agencies to detain suspects, including children, without charge for varying lengths of time during an investigation. Police have broad powers of detention during investigations relating to national security or intelligence matters, as defined by the CCP or state agencies.
c)As to torture: Chinese law prohibits the physical abuse of detainees and forbids prison guards from extracting confessions by torture, insulting prisoners’ dignity, and beating or encouraging others to beat prisoners. However, allegations of torture have been made by the families of human rights defenders, Falun Gong practitioners and Uighurs and DFAT considers allegations of torture, particularly those detailed in cases deemed politically sensitive, to be credible.
d)As to the police: citizens can be arrested prior to being charged. Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. The arrest procedures are not subject to judicial oversight.
e)As to State protection: Article 5 of the Constitution states that ‘no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws’.
f)As to the judiciary: China has explicitly rejected ‘Western notions’ of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.
g)As to internal relocation: DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score. People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel.
h)As to corruption: China ranked 87 out of 180 countries and territories measured on Transparency International’s 2018 Corruption Perceptions Index. The most prevalent forms of corruption in China are bribery, diversion of public funds, and favouritism by government officials. Bribery, political interference and facilitation payments are common when acquiring public services and dealing with the judicial system.
i)As to political opinion: Despite formal rights to freedom of speech, the press, assembly, association, procession and demonstration, the CCP has little tolerance for public dissent on a wide-range of matters considered politically sensitive, including social stability, the legitimacy of central authorities and one-Party rule, and other topics that authorities consider might aggravate social unrest. Those publicly advocating greater human or civil rights, have been detained and charged under public order offenses or accused of state subversion. Duihua’s Political Prisoners Database, which records information about political and religious prisoners incarcerated in China since 1980, contained 40,053 entries as of April 2019.
j)As to protestors and petitioners: An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. The central government no longer accepts petitions that should be lodged at local government level and sources report that local officials are encouraged to ensure protests do not reach Beijing. In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question.
k)As to detention: Conditions in administrative and pre-trial detention facilities are typically harsh, and often worse than in prisons. Hygiene, medical services and food and water provisions are sub optimal and rudimentary at best and detainees are not permitted to leave cells except to meet with investigating and Procuratorate officials, lawyers and consular officials. DFAT assesses that reports that security authorities use extra-legal detention for politically sensitive investigations are credible.
l)As to family planning policies: China has had nation-wide family planning policies since the late 1970s, aimed at controlling population growth (initially in response to famine), in support of China’s economic ambitions. Until 2015, the state encouraged late marriage and childbearing and mandated one child per couple. From 2013, couples were permitted to have two children if either spouse was a sole child. Authorities enforce compliance with family planning regulations through both incentives and punishments. There are financial and administrative penalties for births that exceed limits or violate regulations. The law, as implemented, requires each woman with an unauthorised pregnancy to abort or pay a ‘social compensation fee’ (SCF, ‘shehui fuyang fei,’ also known as ‘social maintenance fees’).’ The parents of each unapproved child must pay a SCF. DFAT assesses that, while the introduction of the two-child policy has reduced the need for the application of penalties to those in violation of the Population Law and family planning policies, application of law and policy remains inconsistent and non-transparent across provinces.
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. The Tribunal notes that it is a requirement of the Act that the applicant provide details of the applicant’s claim and that it is not incumbent upon the Tribunal to prove the applicant’s case. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The applicant did not produce any documents to corroborate his claims for protection. This is most surprising having regard to the importance of this matter, apparently, to the applicant and the time which the applicant has had to consider and prepare for this application.
The applicant’s claims for protection are contained in his application for a protection visa and in the associated narrative document which he provided to the Department at the same time. The applicant has asserted that his house was demolished and that he received no compensation. However he has produced no document or witness to corroborate this critical assertion. It is not accepted by the Tribunal.
He asserted that the reason he received no compensation was because “my family disobeyed the one child policy”. He said that he had five children, although he had previously stated in his written protection visa application that he had four children. He gave vague evidence as to their birth dates. He produced no birth certificates. His wife did not give evidence. He did not produce a witness or document to corroborate the assertion that he was in breach of the policy or that he was denied compensation on that basis. The Tribunal does not accept these assertions.
He asserted that he complained to the relevant authorities about the lack of compensation. He could not produce a copy of the complaint. He did not produce a witness to corroborate his assertion of the complaint. The Tribunal does not accept that he complained to the authorities about the absence of compensation.
He asserted that he was arrested on [Day 1] April 2016 at 10:30 am and thereafter detained and beaten and tied to a “cold iron chair for 16 hours”. At the hearing he said that he was not beaten. He asserted that he paid money to be released. He said that he provided the money from relatives but produced no witness to corroborate either the loan or the payment of the money. He asserted that his house was ransacked on the same day as he was arrested and detained “in front of the frightened child and neighbours”. However he produced no witnesses to confirm these events.These assertions are not accepted by the Tribunal.
He left China after these events but in so doing left his family behind. His reason for abandoning his family was most unconvincing. If he believed that he would be further persecuted it is curious, to say the least, that he left his family to their own fate. This has been given some weight.
During the hearing he made references to his need to make money in order to purchase a house. He was asked if the real reason he came to Australia was in order to make money. After requesting some clarification of the question he said “yes”. This is given some weight by the Tribunal.
At the hearing he referred to a fear of being arrested via the “international criminal police”. This phrase was repeated several times during the hearing. The identity of this police force and the reasons for his belief that he would be immediately arrested were not explained to the Tribunal’s satisfaction despite the applicant being given several opportunities to do so. It is given no weight.
He also asserted at the hearing that he was informed on 5 February 2021 that a warrant had been issued for his arrest. He asserted that a translator had told him this. He could not provide any details or a copy of the arrest warrant. The assertion is given no weight.
The vague nature of the assertions, the failure to provide relevant details and documents and the failure to provide corroborative testimony compel the conclusion that the applicant’s assertions cannot be accepted. The Tribunal does not accept the matters asserted by the applicant as the basis for his claim for protection in Australia. In the Tribunal’s view the applicant was motivated to travel to Australia by a desire to earn money and came to Australia for that purpose and not otherwise.
The Tribunal has considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act.
Having regard to the evidence the Tribunal makes the following findings:
a)the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b)the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to China, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c)the Tribunal is not satisfied that there is a real chance of persecution that relates to all areas of China;
d)the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;
e)the Tribunal is not satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act; and
f)the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Act.
Complementary protection criteria assessment – s.36(2)(aa)
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or if that harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case must be provided by the applicant.
While the Tribunal is required to adopt a reasonable approach to such matters, the Tribunal is not required to make the applicant’s case out for the applicant. Neither is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. In respect of the Tribunal’s assessment in regard to complementary protection, the Tribunal adopts the findings stated above in relation to the refugee criterion assessment.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.

Peter Booth
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.
…

[2021] AATA 2072

27 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction