1912442 (Refugee)

1912442 (Refugee) [2022] AATA 1248 (28 February 2022)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912442
COUNTRY OF REFERENCE:                   China
MEMBER:Gabrielle Cullen
DATE OF DECISION:  28 February 2022
DATE CORRIGENDUM
SIGNED:13 May 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

- Paragraphs 57 to 86 should be deleted.

Gabrielle Cullen
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912442
COUNTRY OF REFERENCE:                   China
MEMBER:Gabrielle Cullen
DATE:28 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 February 2022 at 2:17pm
CATCHWORDS
REFUGEE – Protection visa – China – applicant protested against corrupt local officials – Government acquisition of the family farmland – delay in departure – feared harm from the corrupt village officials – fears harm at the hands of the gangsters or anyone associated with the underground banks – inconsistent evidence– applicant is not a witness of truth – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of China, claims to fear harm if returned to China as he protested against corrupt local officials who did not give adequate compensation for the Government acquisition of the family farmland. Before the Department he claimed to fear return as he borrowed money from gangsters and could not repay the high interest payments.
The applicant arrived in Australia on [date] March 2018 on a subclass 600 Visitor visa valid to [June] 2018. He applied for a protection visa, to which this decision relates, on 19 June 2018.
The delegate refused to grant the visa on 2 May 2019 on the basis that effective protection is available to the applicant on the basis of the authorities’ actions against underground banks and illegal money lenders. The delegate did not accept that there is a real chance the applicant would suffer serious harm or real risk the applicant would face significant harm on return to China.
The applicant applied for review of the Department decision and attached the decision of the Department.
The applicant appeared before the Tribunal on 22 February 2022 to give evidence and present arguments and, where relevant, the evidence from that hearing appears in this decision. The applicant was assisted by an interpreter in the Mandarin and English languages. His representative attended the hearing.
As agreed at hearing, the applicant was given until close of business on Friday 25 February 2022 to provide additional submissions and respond in writing to the s.424AA matters raised at hearing. He did so on 24 February 2022.
The issues to be considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act?
·Does he meet the protection obligations under the complementary protection provisions of the Act?
Criteria for a protection visa
The relevant criteria for a protection visa are outlined in the attachment to this decision (see Attachment A).
CONSIDERATION OF Claims and evidence
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s protection visa application dated 19 June 2018, identity documents and his claims for protection in this application.
·Statement from the applicant dated 14 December 2021.
·Oral evidence provided at the Tribunal hearing held on 22 February 2022.
·Post hearing submission dated 24 February 2022.
·Department of Foreign Affairs and Trade (DFAT), Country Information Report, China, 22 December 2021.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
The applicant made the following claims in his answers to questions in his protection visa application dated 19 June 2018:
As to why the applicant left China, he claims that as he did not receive sufficient education and could not find a stable job to support himself and his family, he had no choice but to borrow money from the black market or underground bank. He claims he did not expect the interest would be so high and he could not afford to make any repayment for the past several months.
The applicant claims he experienced harm in China and claims that gangsters rushed into his home and smashed nearly all the stuff in the home. He claims they took away all the electrical appliances and threatened if he did not make payments, they would return from time to time and that they would not have a peaceful life from now on. He claims they returned several times and used different ways to torture him and that once he had to drink urine from the toilet. He said nobody could come to help him and he has no future in China.
He claims he sought help from his neighbours who called the local police and after the gangsters had left helped clean his home and brought food.
As to whether the applicant moved to another part of the country; he claims he did not try to move to another part of the country as this would not help as he tried to move to other towns, but they had so many people working for them they were caught eventually. He claims this action caused the loan interest to be bigger as a punishment. He claims he had to separate from his wife and child and live by himself.
As to what will happen to him on return to China, he claims they will find him, and he will live in darkness every day and worry about whether he has money to repay the loan. He claims the amount is too much no matter how much he works.
As to why the authorities will not help him, he claims that underground banks are illegal, and they are not allowed to borrow from them. He claims he already did this against the government’s policies, and they will not help to solve his problem.
On 14 December 2021 the applicant’s newly appointed representative emailed the following statement from the applicant dated 1 December 2021 in Mandarin along with an English translation. He makes the following additional claims:
·He was born on [date] in [Hulan] District, Harbin. His father is from Northeast China, and mother from Shandong who returned to Shandong in December 1986 to live.
·He went to live with his mother in Weifang, Shandong after graduating from high school in 1987. He studied [a subject]. He married his wife in 1995 in Weifang, Shandong and divorced in 2007 due to emotional discord.
·In 2008, he returned to Harbin in Northeast China, where he worked.
·In 2016, the Harbin municipal government requisitioned people’s land with great fanfare. He claims ten acres of land in his family was in their requisition plan.
·At that time, the city government said that it would compensate 360 RMB per square meter for land acquisition but they were later paid only RMB 180 per square meter. He went to the village secretary [Mr A] who said not to worry, it was only the first compensation fee, and that there will be a second compensation fee for them soon. He claims he waited then heard from insiders that there is no compensation for the second instalment because the village secretary is deceiving and lying, and compensation money issued by the government has been embezzled by him.
·He claims he was angry and went to town to find the mayor, [Mr B], to file a complaint. The mayor, [Mr B], said that the government originally compensated RMB 180 per square meter. He claims the mayor was also corrupt. He wrote down what happened and went to the Hulan District Government to sue the corruptive officials. There was no news from the district government for a month after he lodged the complaint. He went to ask for progress and they told him to go back and wait. After another half month, there was still no news and he realised that the district government was perfunctory and could not handle this matter impartially.
·He claims he went to the Harbin city government to file a complaint. After [Mr B] knew that he had sued him, he was very angry. He claims he found some gangsters from the local underworld. He claims they came near his house every now and then and threw stones to break the glass windows of his house to intimidate him and prevent him from being peaceful. He states this seriously affected his normal life. He felt very scared and had no other way but to go back to Weifang, Shandong to escape from this.
·He claims he [did a specified work] in Weifang, Shandong to make ends meat. He claims he does not know via what channel [Mr B] used to obtain his [car] information but in about January 2017, [suddenly] two cars approached him, one after the other. He claims he was caught in the middle and seven or eight people got off the two cars, some of them were holding wooden sticks, and the rest came to him with bare hands. He claims he was about to run but when he got out of the car, they surrounded him, and they used fists, feet, and wooden sticks to hit him. One of them hit him and said: “Let you go and sue; next time you sue I will break your arm or leg”
·He claims he was hit and suffered injuries all over. He claims his eyes were so swollen he could not see much; his face was swollen, and his waist and legs hurt. He claims he met a kind driver who took him to a nearby hospital where he stayed for two days and was discharged because he could not pay for the hospitalisation fee.
·After being discharged from the hospital, he spent two weeks recuperating at home. He claims he thought a lot and has seen through this corrupt government. He claims he cannot fight the entire police and the black club they keep.
·He did not want to stay in China anymore and wanted to leave this terrible country. He asked his friend to find a travel agency and asked them to help apply for a visa to Australia. He came to Australia, hoping to be protected by the Australian government.
·In 2018, he came to Australia alone. He was not familiar with the place and found the first immigration agency in [Suburb 1] in a hurry. He told him about his experience of being persecuted by the local government in China. He said that they said they would sort out the information of applying for refugee status. After that he called several times and asked to see him again and have a look at the materials they wrote for him. The applicant claims they said they already had done everything for him and had handed it over to the immigration office.
·He claims he said to them that he wanted to look at his application, but they said he does not have to, and he can be rest assured. He claims they told him they will inform him of anything. He believed them and waited to know any progress.
·Then one day in the fall of 2019, they called him and said that his refugee application had been rejected by the Immigration Department and he needed to appeal further. He asked them why it was rejected, and then they told him to pay them again before they told him. He refused to pay without a reason, and they severed all contact with the applicant.
·He found another immigration agent in [Suburb 2]. He wanted her to tell him why his application was rejected by the immigration office. She said that she would tell him when the appeal committee notifies him of the hearing. As a result, he waited until November 17, 2021 and received a message on his mobile phone, and his friend told him that was the time for the AAT hearing date. The applicant claims he called this agent, and she did not answer the phone.
·He then found [a] Migration Service. [The agent] who helped him retrieve the refugee statement submitted to him by the first agent in [SUBURB 1]. He found it was totally inconsistent with his situation, in which he was persecuted by the government in China. He claims that looking back, he still trembles with anger and dare not go back to China for fear of retaliation from the local government. He asks the Australian government to protect him.
At the Tribunal hearing held on 22 February 2022 the applicant reiterated his claim to fear return as outlined in his statement dated 14 December 2021. He said he fled China in fear of [Mr B], his associates and gangsters and that he fears them on return as they will seek revenge. The Tribunal questioned him as to the difficulties he faced from [Mr B] and his men in China and he referred to having stones thrown at his window where the panes broke in his rented place in Harbin, moving to Shandong as a result and in fear and then in Shandong being beaten while [working] in January 2017. He said he did not face any more difficulties at the hands of [Mr B] or his associates or anyone else after this incident in January 2017. He said it was because he went to the Hulan District Government to sue the corruptive officials including [Mr B] and then to the Harbin city government to file a complaint. He said at hearing because of his complaints [Mr B] targeted him and was denied being able to hold office.
He confirmed that he did not rely on the claims as outlined in his protection visa application submitted to the Department and does not fear return on the basis of the claims outlined in his protection visa application. He referred to his agent at the time submitting these claims and the application without him reviewing it or seeing its contents. It asked him details about this agent and referred to the email addresses on the application form. He said the agent informed him of the rejection by the Department. The Tribunal raised concerns and questioned the credibility of this claim, which where relevant are outlined below.
The Tribunal asked him as to where he lived in China, where his parents live and who supports them. It asked him about his work in China and he said he ceased working at the end of 2017 after he was beaten and had injuries to his legs, body parts and eyes.
As to his family in China, he said he divorced his wife in 2007. He said he has his wife, child, parents and younger sister in China.
The Tribunal raised a number of concerns via the process outlined in s.424AA which are outlined below. The Tribunal raised with him concerns as to the credibility of his evidence, including inconsistencies in his evidence, which where relevant are outlined below. It also raised with him the delay in his departure after the grant of the visitor visa and his claim he returned to Harbin a few months before he departed. The Tribunal has considered the responses when these matters were raised which are outlined and considered below.
On 24 February 2022 the applicant provided the following statement to the Tribunal:
1. Why did it take 3 to 4 months to get a visa to leave China?
The agency that helped me apply for a tourist visa informed me that my visa was approved, four days after that, I left China. I didn't wait for 3 to 4 months.
2. Why you were beaten up in January 2017 by bad guys sent by [Mr B] and you only applied for a visa in November 2017?
Because I came to Australia seeking the protection from the Australian government, I didn't want to go back. Before I come, I have to arrange my son's life. So I applied for the visa in November 2017.
3. Why did you stay in Harbin for 1 to 2 month?
Because my parents were in poor health and both had [medical condition], during this period, I want to fulfill my filial piety. I would never see them again after I come to Australia.
4. Why are the emails left in the visa application all in your name?
I misunderstood at the time. I didn't know that [SOCIAL MEDIA] mailbox and e-mail are the same thing. I only have one [SOCIAL MEDIA] number. Those email numbers must have been created by the agent, I don't know.
5. Why is your land requisitioned by the government and your parents are still farming on it?
I meant what my parents farmed were the front and back yards of the house. The crop land was requisitioned by the government.
Assessment of claims
Is the applicant credible as to his claims?
On the basis of the applicant’s identity documents, and evidence provided at hearing, the Tribunal accepts that the applicant is a national of China. Therefore, for the purposes of s.36(2)(a) of the Act, the Tribunal accepts that China is the country of nationality, and for the purposes of s.36(2)(aa) of the Act the Tribunal accepts that China is the receiving country.
As to the applicant fearing return for the reasons he claims, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness as to being, harassed and threatened in China as he protested against corrupt local officials who did not pay enough compensation for the Government acquisition of the family farmland or for any of the other reasons he claims. Further, for the reasons that follow, it does not accept he ever borrowed money from gangsters and was harmed or threatened as he could not pay the interest. It finds the applicant’s testimony inconsistent and a fabrication for the reasons set out below. This leads the Tribunal to find that the applicant is not a witness of truth.
The Tribunal views as inconsistent with the applicant’s claims to have faced the difficulties he claims happened to him in China and why he fears return, his behaviour in continuing to remain in China for approximately three and a half months after his visa to enter Australia was granted. As raised with the applicant via the process outlined in s.424AA the evidence indicates the visitor visa to enter Australia was granted on 1 December 2017, but he did not depart China until [date] March 2018. When the concern was raised with the applicant, he stated that his agent organised for the visa and he had no idea it had been granted. In his post-hearing submission, he said that the agency that helped him apply for a tourist visa informed him that his visa was approved, and four days after that he left China. He claimed he therefore didn't wait for 3 to 4 months to leave china. The Tribunal has difficulty accepting this response that despite claiming to be in fear in China he did not continue to be in contact with his agent regularly to discover whether the visitor visa had been granted and he could depart China. It also has difficulty accepting that the agency would delay by over 3 months in telling him he had been granted a visitor visa. The Tribunal therefore does not accept his reasons for the delay in departure. His delay in departure leads the Tribunal to find that he did not face the difficulties he claims and was not in fear prior to his departure. It adds to the finding he is not credible witnesses as to his claims of difficulties faced in China and not a credible witness.

Further, despite claiming and confirming he wished to depart China as he was in fear following being beaten by [Mr B]’s associates in January 2017, as raised with the applicant via s.424AA, he did not apply for a visitor visa to depart China until [date] November 2017, some 10 months after he claims he was beaten and the final incident which he claims led him to be in fear and to depart China. The Tribunal notes in this regard his evidence was that following the beating in January 2017 nothing further happened to him in China. When the Tribunal questioned that it may expect he would have applied sooner if he faced the difficulties he claims, he said that he would respond in writing. In his written response he stated that because he came to Australia seeking the protection from the Australian government, he did not want to go back. He stated that before he came, he had to arrange his son's life, so he applied for the visa in November 2017. The Tribunal does not accept his response as explaining why he would wait 10 months to apply to depart China if he faced the difficulties he claims in January 2017 and did not apply to depart until November 2017. It does not accept that organising his son’s life would take that long or that if he was in fear and fled in fear having been beaten in the manner claimed, that he would wait 10 months to organise his son’s life. The Tribunal views as inconsistent with his claim that he departed China in fear for the reasons he claims, particularly as a result of the beating that he waited 10 months to apply for a Visitor visa so as he could flee China. It adds to the finding he is not a credible witness as to his claims and why he departed China. It adds to the finding he is not a credible witness.
Also, of concern and undermining his claim that he fled China in fear from [Mr B] and his associates and faced the difficulties at the hands of corrupt village officials, [Mr B], and his associates for complaining about their corrupt behaviours to the District and City Government in Harbin, is his return to Harbin 1 to 2 months before he departed. His evidence is he lived in [address] in Harbin from 2008 to 2016 and returned to live there 1 or 2 months before he departed in March 2018. His evidence at hearing was that he lived at [address], Liming District, Harbin one or two months before he departed for Australia. He said this was close to where his parents lived who had always lived in Harbin. He said this was a rented place and it is where he had also lived in Harbin in 2016 before he left for Shandong because of the harassment by [Mr B] and his associates. The Tribunal views his behaviour returning from Shandong to Harbin before his departure as undermining his claim he faced the difficulties he claimed in Harbin for the reasons he claims. This is particularly so as the applicant indicated Shandong is a 1 day and 2 night train ride from Harbin and he had not faced any difficulties there since January 2017, as was his evidence at hearing. When the concern was raised with him at hearing, he indicated that he was worried about his parents and wanted to visit his parents who lived close by in Harbin. He also said he secretly returned to Harbin. In his posy-hearing submission he said his parents were in poor health and both had [medical condition], during this period, so he had to fulfill my filial piety. He said he would never see them again after he went to Australia. The Tribunal has considered his response and is of the view that if he faced the difficulties he claims and feared the corrupt village officials, including [Mr B] and his men he would not return to Harbin from Shandong, as Harbin is where the difficulties began and where [Mr B] is from even if he wanted to see his parents for the last time or if they were ill or he lived there secretly. The Tribunal is of the view his return to Harbin before he departed undermines his claim that he feared harm from the corrupt village officials, [Mr B] and his men and faced the difficulties he claims from him and his associates. It adds to the finding he is not a credible as to the difficulties he faced in China and adds to the finding he is not a credible witness.
The applicant also provided inconsistent evidence as to the farmland that was appropriated by the Government which he claims led to the dispute with [Mr B] and the corrupt village officials. At the beginning of the hearing the applicant indicated that his parents continue to live in their family home in [Liming], Harbin and he said they also own farmland which is just near the [area]. He said his parents partially support themselves as they have their own land and sell their produce. However, in contrast, later in the hearing he said that his parents used to own 10 lots of farmland which was all appropriated by the Government without proper compensation in 2016. He confirmed that all his parents’ farmland was taken and that they no longer have any farmland. When the inconsistency was raised with the applicant, he indicated that his parents have yards around their home which they farm. In his post-hearing submission, he said he meant that his parents farmed the front and back yards of their house, but the crop land was requisitioned by the government. The Tribunal does not accept this response and is of the view the applicant would be consistent throughout the hearing if his parents’ owned farmland as well as the yard surrounding their home or not. His inconsistent evidence as to whether his parents owned farmland or not and whether it was all appropriated by the Government adds to the finding he is not a credible witness.
The applicant also provided inconsistent evidence as to when he suffered the injuries. At the beginning of the hearing when the Tribunal was questioning the applicant as to his work history in China, he said he did not work much after the injury and when asked when that injury occurred, he said at the end of 2017. When asked for details of the injury he said his body, legs, eyes, parts were beaten. However, in his statement and later in the hearing when recounting the difficulties he faced in China as per his statement he said he was beaten in January 2017. When the inconsistency was raised with him, he said he did not refer to “at the end of 2017” but rather in 2017. The Tribunal has listened to a recording of the evidence provided at hearing which is as follows.
T: Did you work in China?
A: Yes, I did work
T: Where did you work before you departed for Australia?
A: For a period of time before I departed China to Australia I did not work. I did work previously
T: When did you stop working?
A: After my injury I did not work much.
T: When was your injury?
A: At the end of 2017
T: What injury was that?
A: My body, my legs, my eyes, many parts because I was beaten.
The inconsistency adds to the finding the applicant is not a credible witness.
Also, of concern to the Tribunal is the complete and significant difference in the applicant’s claims to the Department and to the Tribunal. As highlighted above the applicant referred to departing China in fear as he borrowed money from an underground bank and could not repay the high interest, as a result being tortured by gangsters as opposed to at the Tribunal facing harm because he complained to the District and City Governments about corrupt officials, including [Mr B], taking money that was meant to compensate his family for the Government acquisition of their farmland. To the Tribunal in his statement and at hearing he said he did not rely on his claims outlined in the Application to the Department nor fear return on the basis of these claims. He noted in his statement and reiterated at hearing that he found an agent in [Suburb 1] who sorted out his application for the visa and he did not look at the application. He said at hearing that he told the agent about his experiences and they said they would sort it out. When asked how he found out his application had been refused by the Department he said the agent called and told him and then he severed communication with him and used another agent to apply for the review. The Tribunal, for the reasons that follow, does not accept his evidence as explaining the significant inconsistencies in his claims between the Department and Tribunal. Firstly, as raised with the applicant at hearing there is no evidence of any agent acting for him before the Department in his protection visa application. There is no indication that he had an agent in her application form submitted to the Department. Further, while not solely determinative the authorised recipient in the application for the visa to the Department is the applicant and the email address for correspondence incudes the applicant’s name and year of birth, being [deleted]. When the applicant was asked whether that was his email address, he said he was not sure.
In his post-hearing submission, he said he misunderstood at the time. He said he did not know the [SOCIAL MEDIA] mailbox and e-mail are the same thing and he only has one [SOCIAL MEDIA] number. He claimed those email numbers must have been created by the agent and he did not know
Further, when asked as to details about this agent, the applicant was vague and lacking in detail as outlined below.
T: Why did you apply making those claims?
A: I came to Australia alone. I did not really know and so that was the first agent, the migration agent I approach. And at that time, I told that migration agent my experience of being persecuted in China. The migration agent told me that’s ok he would sort it out and submit the documents to the Department.
T: Ok, what was that migration agent’s name?
A: An individual person, did not really have a business name. I have no idea
T: That’s a bit vague, isn’t it?
A: What
T: Well, that sounds very vague that you can’t give me any detail?
A: When I came here, I did not have much knowledge here and I was at [Suburb 1] area and found the local [Suburb 1] agent.
……
T: So, is there any more detail you can give me about this migration agent?
A: I can’t give you any details. That person already cut all the communication with me.
T: When the visa was refused by the Department, I’ll just find the date, on 2 May 2019 how did you know that your visa had been refused by the Department?
A: Sorry can you say again
T: On 2 May 2019 the department refused your application for the visa, how did out about that?
A: That [Suburb 1] called me and told me.
The Tribunal is of the view if the inconsistencies arose because of an agent there would be evidence before the Department that he used one but there is not. Further, it is of the view he would be able to provide some detail including the name of that agent considering the level of contact and the claimed importance to him that he was applying as he was fearing return, but he was unable to. The Tribunal therefore does not accept that the inconsistencies between the Department and Tribunal as to what happened to him and why he fled China and fears return arose as a result of any agent being involved. The significant inconsistencies between his claims to the Department and Tribunal as to what happened to him in China and why he fears return adds to the finding the applicant is not a credible witness.
Credibility summary
For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful, and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns, the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, and the manner in which responses can differ depending on the nature of and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making these findings, the Tribunal accepts that some information has been consistent, including between his statement from December 2021 and that provided at hearing on 22 February 2022. However, the Tribunal considers that these matters are relatively easy matters to learn and recall and that his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
As the Tribunal has found, on the basis of the cumulative evidence before it, that the applicant is not a witness of truth, it follows it does not accept that the applicant or anyone else faced any of the difficulties he claims from any corrupt local officials, including corrupt village officials, [Mr A], [Mr B] and his men. As well as gangsters. It follows it does not accept that the city Government undercompensated the applicant’s family farmland by 180RMB, the difference being taken by the corrupt local officials including [Mr A] and the mayor, [Mr B]. It follows it does not accept that as a result the applicant complained or sued these officials, including [Mr B] at the Hulan District Government and before the Harbin City Government. It follows it does not accept that when [Mr B] found out the applicant had complained he was no longer able to run for office and he found gangsters to throw stones at the applicant’s windows and broke those windows to intimidate the applicant. It follows that it does not accept that as a result of any harassment or threat from corrupt government officials including [Mr B] and his men or gangsters the applicant fled to Shandong and in Janaury 2017 or at any time was assaulted with wooden sticks and bare hands and feet where he suffered injuries to his eyes, face, waist, and legs which he had to go to hospital to be treated. It follows it des not accept he was threatened while being beaten that next time he sues his arms , legs and body will be broken. It follows it does not accept he was ever threatened by corrupt village officials, [Mr B], or his men or gangsters in this manner for the reasons he claims. It follows it does not accept at any time he sought help from the police.
Based on the applicant’s lack of credibility the Tribunal also does not accept the applicant ever borrowed money for any of the reasons he claims; and as he could not repay the interest faced any harm at the hands of the gangsters or anyone associated with the underground banks.
Based on his lack of credibility, it follows it does not accept he fled China in March 2018 to avoid the harm from corrupt officials, [Mr B] his men or the gangsters or anyone else in China for any of the reasons he claims.
The Tribunal rejects the applicant’s claims of fear of harm in their entirety and does not accept at the time he departed China in March 2018 that he was of any interest to corrupt officials, local authorities, [Mr B] and his men or gangsters or anyone else. It follows it does not accept he fears return for the difficulties he claims he faced in China.
Does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act and meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the credibility findings above, and as it does not accept the applicant faced the harm or threats of harm he claims or is of any interest to corrupt government officials, [Mr B] and his men, any local official or gangsters, it follows the Tribunal does not accept that were the applicant to return to China now or in the reasonably foreseeable future, he or his family would face any of the difficulties he claims for the reasons he claims. It follows it does not accept that were he to return he will be arrested, imprisoned, beaten, threatened, harassed, detained, harmed, tortured, and have to report to local authorities or be unable to earn a livelihood for the reasons he claims.
It follows the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm were he to return to China in the reasonably foreseeable future at the hands of the local officials, corrupt local officials, [Mr A], [Mr B] and his men or the mafia or gangsters or anyone else for any of the reasons he claims.
Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that she or her family will suffer significant harm on his return to China at the hands of the local officials, corrupt local officials, [Mr A], [Mr B] and his men or the mafia or gangsters or anyone else for any of the reasons he claims as outline din his evidence to the Tribunal.
With respect to the applicant’s claims outlined in his protection visa application; at the hearing the applicant indicated he did not rely on these claims or fear return because of those claims. Based on the applicant’s lack of credibility the Tribunal also does not accept the applicant ever borrowed money for any of the reasons he claims; and as he could not repay the interest faced any harm at the hands of the gagsters or anyone associated with the underground banks. It follows it does not accept were he to return to China he will be tortured, harmed, harassed threatened or face any of the difficulties he claims for the reasons he claims as outlined in his Application for the visa, including harm from gangsters or those associated with the underground bank.
It follows the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm were he to return to China in the reasonably foreseeable future at the hands of gangsters and those associated with underground banks or anyone else for any of the reasons he claims to the Department including in his application for the visa.
Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that she or her family will suffer significant harm on his return to China at the hands of gangsters and those associated with underground banks or anyone else for any of the reasons he claims to the Department including in his application for the visa.
Summary
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in China in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of him being subjected to significant harm on return to China. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that 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 she will suffer significant harm as defined in s.36(2A).
CONCLUSION

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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 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) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Member
[Paragraphs 57 to 86 deleted]
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ATTACHMENT A - 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 Attachment B.
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 Attachment B.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…

[2022] AATA 1248

28 February 2022

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