1924766 (Refugee)

[2024] AATA 4455

1924766 (Refugee) [2024] AATA 4455 (30 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1924766

COUNTRY OF REFERENCE:                   China

MEMBER:L. Symons

DATE:30 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 30 September 2024 at 6:01pm

CATCHWORDS

REFUGEE – protection visa – China – particular social group – victim of loan sharks – threats from debt collectors – physical assault – death of petitioners – businesses closed – detention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 May 2019 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of China, arrived in Australia [in] March 2019 as the holder of a subclass 600 Visitor visa. On 12 April 2019, he was granted a Bridging A visa in association with his application for a Protection visa.  

3. On 6 April 2019, the applicant applied to the Department of Immigration (the Department) for a Protection (Class XA) (Subclass 866) visa. On 18 June 2019, the Department refused to grant him the Protection visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 4 September 2019, he applied to the Tribunal for review of that decision.

4. The applicant appeared before the Tribunal on 5 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was not represented in relation to the review.

6. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criteria or under the complementary protection criteria.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.

8. 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.

9. 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).

10. 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.

11. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

13. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·He was born on [date] at Nehe in Heilongjiang Province in China. He is a citizen of China.

    ·He invested in [three named businesses] and was cheated. This caused him to get into debt. 

    ·His father was ill and needed an operation. His family did not have the money to pay for it and were unable to borrow money from a bank. His parents borrowed money from an underground bank at a high interest rate. They could not repay the loan.

    ·The underground bank sent people to harass and threaten them. They “caught” his father. His mother was worried for his safety and sent him overseas. After that, “the gangdom” sent a person to smash his house and beat his mother. 

    ·He did not try to relocate in China because, no matter where he went, they would have found him and harmed him. If he returns to China, he will be harmed by the underground bank. Because he escaped to Australia, he will be harmed more seriously and his safety cannot be guaranteed.

    ·The Police and the government cannot protect him all the time. When they leave, members of the underground bank will return to harm him.   

14. The applicant provided the Department with a copy of his Chinese passport issued [in] 2014 and valid until [2024].

15. The applicant was not invited to attend an interview with the Department. On 12 April 2019, the Department wrote to the applicant, acknowledged receipt of his valid application and stated that he could provide additional information in relation to his claims. He was also informed that a decision could be made on his application without another opportunity to present further information. He did not provide any additional information. His application was refused on 18 June 2019.

16. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 18 June 2019. He has not filed any other documentary evidence with the Tribunal.

    Receiving Country

17. The applicant claims to be a citizen of China and has provided a copy of the bio data page of his Chinese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China. The Tribunal finds that China is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.

    Third Country Protection

18. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to indicate that he has the right to enter and reside in any country than his country of nationality.

    Assessment of Claims

19. The applicant initially gave evidence that his application for a Protection visa was prepared by a lawyer. He then stated that he was not sure if he is a lawyer. He cannot reach him anymore. When asked if this person is a migration agent, he responded no. He is just a regular person whose English is good. He provided him with the information to prepare his visa application. The information he provided him was true and correct and he is satisfied that his visa application is accurate and complete. It is not very detailed. When asked whether there had been any changes in his circumstances since he filed his visa application, he responded that his father passed away.

20. During the hearing, the Tribunal discussed with the applicant his background, family,  education, employment, where he lived in China, why he left China and why he fears returning to China. There were significant inconsistencies between his written claims and his oral evidence and within his oral evidence. He made a series of new claims during the hearing. He was unable to provide a coherent and consistent account of events. The Tribunal finds that he is not a reliable or credible witness for the following reasons:

21. First, the applicant gave evidence that his application for a Protection visa was prepared on his instructions and he was satisfied that it was accurate and complete. In his visa application, he stated that he completed a three year course in [subject 1] at university. He did not claim to have undertaken any other studies after leaving school. At the hearing, he gave evidence that he completed [a Course 2] at university in China. In his visa application, he stated that he was a “freelance worker” between July 1988 and March 2016. He did not provide any details of an employer/organisation. He stated that he was then self-employed and worked [at] [Business 1] (sic) from April 2016 to February 2019.  

22. During the hearing, the applicant’s evidence in relation to his employment in China was very different. He initially stated that his first job after leaving school (in [specified year]) was selling [product 1]. He started this job in 2010 and finished this job in 2012. In 2012, he started his own business selling [products 1]. He had this business until he left China in 2019. In 2015, he started a second business which was a [service 1] business. He had this business for four years until he left China in 2019. In 2016, he started a third [business]. This business lasted less than two years and was closed down at the end of 2018 or in 2019. He had a cash flow problem and could no longer afford to run the businesses.

23. These inconsistencies in the applicant’s evidence in relation to his education and employment raise concerns in relation to his credibility and reliability as a witness particularly as his employment history is crucial to some of his claims.

24. Second, in his application for a Protection visa, the applicant claimed that he invested in [three named businesses] and was cheated. This caused him to get into debt.

25. During the hearing, the applicant made a number of new claims. He gave evidence that his three businesses (referred to in paragraph 22 above) were profitable. He made money and invested it in two online businesses. One was in [one product] and the other was called “[title]”. There were over ten thousand investors nationwide. The Chinese government closed down both businesses. The [product] business closed in December 2016 and the other closed in about August 2017. He did not know why the businesses were closed. He thinks the government was trying to make a profit from them in a subtle way. He lost over [amount] yuan from these two investments.  

26. The applicant made further new claims that in about September 2017 he and “a lot of other people” went to the Petition Bureau in Beijing to make a petition. When they got there, there were Police Officers and military officers who outnumbered them four to one. Their telephone signals were blocked so they could not use the service. They were detained, locked up for two days and beaten. They were not provided with food or water. Their telephones were confiscated and the videos they took were deleted. They were intimidated and were told never to return to Beijing to make a petition. Police from their local area turned up and took them back to their hometown.

27. The applicant stated that he was thereafter monitored by the authorities. He knows this because, when he purchased train tickets, Police Officers turned at his house and stopped him from travelling. When he purchased airline tickets Police officers turned up at his house and told him that he was not allowed to leave and had to cancel his ticket. They did not allow him to leave his city or go to Beijing.

28. The applicant’s failure to mention any of these claims in his application for a Protection visa raises issues in relation to his credibility and the veracity of his claims.

29. Third, later in the hearing, the applicant changed his evidence and stated that he borrowed money from loan sharks and an underground bank and invested that money (in the online businesses). This was not consistent with his earlier evidence that he used profits from his three businesses to invest in the two online businesses. When he was unable to repay the loans, he was threatened by local gangsters. He went to the Police (to report the threats) but was ignored by the Police. They told him there was not sufficient evidence to open a case. He believed the Police were in cahoots with the loan sharks and the underground bank.

30. The applicant stated that he went to the Police frequently. They got tired of him and told him that if he continued to attend the Police Station he would be taken into custody. It was after this that he decided to make the petition to Beijing and a series of scary incidents happened after that. This is not consistent with his earlier evidence that he went to Beijing to petition because he wanted to find out why the two online businesses were closed and wanted to recover his investments.

31. In his application for a Protection visa, the applicant was asked the question ‘give details about why this applicant thinks the authorities could not, or would not, protect them’. He responded ‘the Police and government cannot protect me every time. The members from underground bank will come back to harm me when the Police and government leave’. This tends to indicate that the Police and the government were willing to protect him. He made no mention in his visa application of seeking Police protection and being ignored or, alternatively, being told there was insufficient evidence to open a case. He also failed to mention that the Police had threatened to take him into custody if he kept going to the Police Station.

32. Further, when asked why he applied for a Protection visa and what he thought would happen if he returned to China, the applicant made no mention of fearing harm from loan sharks or people employed by underground banks.

33. The inconsistencies in the applicant’s evidence in relation to the source of the money he invested and why he decided to go to Beijing to petition, his failure to mention any of his claims in relation to the Police in his application for a Protection visa and his failure to mention any fear of harm from loan sharks and/or people employed by underground banks in his evidence to the Tribunal raise concerns in relation to his credibility and the veracity of his claims.

34. Fourth, in his application for a Protection visa, the applicant did not claim that he borrowed any money from loan sharks or an underground bank. However, he claimed that his father was ill and needed an operation, his family did not have the money to pay for it and were unable to borrow money from a bank. His parents borrowed money from an underground bank at a high interest rate. They could not repay the loan. The underground bank sent people to harass and threaten them. They “caught” his father.

35. During the hearing, the applicant gave inconsistent evidence. He stated that his father passed away about four years ago (2020). When asked his cause of death, he initially stated that he was under mental stress because he was being threatened by people and this caused his death. He then stated that it was caused by a failure of his organs. When asked whether he received any medical treatment prior to his death, he responded no. His death was very sudden. When asked whether his father had ever received medical treatment, he responded no. He was considered to be a pretty healthy man. This is not consistent with his claims that is father was ill and his parents borrowed money to pay for an operation he needed.

36. The Tribunal raised as issues with the applicant its concerns in relation to his credibility and the veracity of his claims. By way of example, the Tribunal referred to his contradictory evidence in relation to whether or not his father received medical treatment. He responded that what he told the Tribunal was the truth. Both versions of his evidence were correct. They happened at different times. His father used to serve in the military and went to war. There was shrapnel from a bullet left in his body which caused him to have asthma. It was not serious. His father did get hospitalised because of low blood sugar. He had surgery on his stomach and had part of his stomach cut out. These two incidents of hospitalisation were not life threatening. Other than that, he was very healthy.

37. The applicant stated that, when he said he obtained a loan for his father’s medical treatment, he was referring to stomach surgery. The low blood sugar was a symptom and not a condition. The doctor also said his father’s condition was not serious. When the Tribunal pointed out that being hospitalised for stomach surgery was not consistent with his father never needing medical treatment, he responded that maybe there was a language difference between them and it was a language issue. His father did not suffer from a serious disease. The Tribunal reminded him that it did not ask about diseases, it asked about medical treatment. He responded that in his hometown they do not call surgery (medical) treatment. The doctor said it was not serious.

38. The applicant’s response exacerbates the Tribunal’s concerns. In his application for a Protection visa, he claimed that his parents borrowed the money to pay for his father’s medical treatment. However, in his response to the Tribunal’s concerns, he made a new claim that he borrowed the money to pay for his father’s medical treatment. It was not clear whether or not this was in addition to the money he claimed he borrowed from loan sharks and/or an underground bank to invest in the two online businesses. The Tribunal is not convinced that the inconsistencies in his evidence can be explained by a language issue. His explanation for the inconsistencies in his evidence is implausible and the Tribunal does not accept it.

39. These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.

40. Fifth, in his application for a Protection visa, the applicant claimed that his parents borrowed money from an underground bank to pay for his father’s operation. When they could not repay the loan and the underground bank sent people to harass and threaten them, his mother was worried for his safety and sent him overseas. After that, “the gangdom” sent a person to smash his house and beat his mother. 

41. During the hearing, the applicant gave inconsistent evidence. He initially stated that his mother passed away about six or seven years ago (2017 or 2018). He later clarified that his mother passed away before he started his (first) business in 2012. She passed away sixteen or seventeen years ago. (2007 or 2008). If his mother passed away in 2007 or 2008, his parents could not have borrowed money from an underground bank to pay for his father’s operation, the underground bank could not have sent people to harass and threaten his mother for non-payment of the loan and his mother could not have sent him overseas because she was worried about his safety as she was not alive at that time.

1. These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.

2. Sixth, during the hearing, the Tribunal asked the applicant when and why he decided to come to Australia. He responded that he decided to come here around October 2018 because he heard that Australia is a fair country, everyone is treated equally here and there is freedom in Australia. Later in the hearing, the Tribunal asked him why he applied for a Protection visa. He responded that he is afraid that if he returns to China his personal safety will be at risk. He and two of his acquaintances made a petition together. They died of “abnormal causes”.

3. The Tribunal sought further information from the applicant in relation to these new claims. He stated that two men named [Mr A] and [Mr B] were among the people who went to Beijing with him to lodge a petition. [Mr B] died in 2019 and [Mr A] died in 2021 or 2022. One died in a car accident and the other got into a fight with someone, was beaten and died. They died from “unnatural causes”. He found out about [Mr B’s] death in June 2019. When asked why he thought this was significant, he responded that he realised that those people who went to make the petition died one after another. He was lucky he came to Australia. When he thinks about returning to China, he feels scared. When asked whether he thought someone had killed them, he responded definitely. When asked who would kill them, he responded that he did not know. He thinks it is related to the Chinese government. The Chinese government is involved in this.

4. The Tribunal asked that applicant why the Chinese government would want to kill these people. He responded that it was because they were all victims of the bad investment that failed. Instead of accepting it, they went to make a petition and fiercely fought back to protect their rights. This upset the Chinese government. The situation in Beijing was scary. The government had a lot of Police Officers and military who had loaded guns. All their mobile telephone signals were blocked.

5. The Tribunal reminded the applicant of his evidence that tens of thousands of people invested in the two online businesses. When asked whether he was suggesting that the Chinese government was going to kill tens of thousands of people, he responded that not all went to lodge a petition in Beijing. Hundreds of people went to lodge a petition in Beijing. The government will pick up the people who were most active during the petition and those people will be severely punished.

6. The Tribunal has a number of concerns in relation to this evidence. Firstly, in his application for a Protection visa, the applicant made no mention of going to Beijing to lodge a petition at the Petition Bureau, why he did so, what happened when he got there and the events that followed. These are significant claims and the Tribunal would expect him to have made some mention of them, even briefly, in his visa application.

7. Secondly, the applicant’s evidence that the group of people who went to the Petition Bureau in Beijing to lodge a petition are being targeted and killed by the Chinese government because they fiercely fought back to protect their rights is not consistent with his own evidence. His evidence of what happened is that when they got to the Petition Bureau in Beijing there were Police Officers and military there, they were unable to use their mobile telephones because the signals had been blocked, they were outnumbered, detained, taken to a Police Station where they were held for two days until their local Police took them back to their hometown. He did not claim that the petitioners fought with the Police Officers or the military or with staff at the Petition Bureau in their attempt to lodge their petition. After he returned home, he bought a train ticket with the intention of returning to Beijing but was stopped by his local Police. In these circumstances, it is implausible that the Chinese government will be targeting and killing these potential (or actual) petitioners.

8. Thirdly, the applicant’s evidence that he, [Mr A] and [Mr B] made a petition together contradicts his own evidence that hundreds of people, including him, went to Beijing to lodge a petition at the Petition Bureau. Fourthly, the country information indicates that disputes with the government may be raised at petitioning offices and that millions of disputes are raised every year.[1] In these circumstances, it is implausible that this group of potential (or actual) petitioners would be targeted and killed by the Chinese government.

   [1] DFAT Country Information Report on China, 22 December 2021.

9. Fifthly, the applicant continued to live in China until he departed China for Australia in March 2019. He has not claimed that any attempts were made on his life between the time he went to Beijing and when he left China to travel to Australia. Sixthly, his evidence that he applied for a Protection visa because [Mr A] and [Mr B], who made petitions with him, died by “abnormal causes” contradicts his own evidence. His evidence is that he heard about [Mr B’s] death in June 2019 and [Mr A] died in 2021 or 2022. He lodged his application for a Protection visa on 6 April 2019. This was before he found out about [Mr B] or [Mr A’s] deaths so he could not have applied for a Protection visa because of their deaths.  

10. When the Tribunal raised this as an issue with the applicant, he responded that he only heard the news after he arrived in Australia. When the Tribunal again pointed out that this was after he lodged his application for a Protection visa, he responded that he first applied for a refugee visa and is now applying for a Protection visa. When the Tribunal noted that there was only a record of him lodging one visa application and inquired whether he had lodged more than one application, he responded no. He described in detail what happened to him. His response does not address the issue raised with him.

11. These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.

12. Seventh, during the hearing, the applicant made new claims that, after his unsuccessful attempt to lodge a petition at the Beijing Petition Bureau, he was monitored by the authorities. He knows this because, when he purchased train tickets, Police Officers turned up and stopped him from travelling. They would not allow him to leave his city and especially would not allow him to travel to Beijing. After he purchased an airline ticket, Police Officers turned up at his home. They said he was not allowed to leave and had to cancel his ticket. When asked whether he left China illegally, he responded no. He was monitored for several months but, as time went by, the authorities lifted their restrictions on him as long as he did not make plans to go to Beijing.

13. The Tribunal asked the applicant whether anything else happen to him or his family in China. He responded that Police Officers visit his home and talk to his family members regularly. They ask them what he is doing overseas and warn them that if he does things that harm the nation’s interests he will be severely punished. When asked when this last happened, he responded two or three months ago. When four Police Officers attended his home.

14. The Tribunal finds these claims to be implausible. If the Chinese authorities were monitoring the applicant, did not want him to leave his city, were aware that he had purchased an airline ticket and had warned him to cancel his ticket, the Tribunal would expect the Chinese authorities to have confiscated his passport and cancelled it. Further, the Tribunal would expect that if the Chinese authorities were targeting him and wanted to kill him, they would have placed his name on a watch list so that he would have been stopped at the airport and prevented from leaving the country. His evidence is that he left China legally using his own passport. He did not claim to have had any problems at the airport. This tends to indicate that he is not of adverse interest to the Chinese authorities.

15. The Tribunal raised these issues with the applicant. He responded that the Chinese authorities monitored him for the first few months after the petition but after a few months they lifted the restrictions. He does not know whether they will come after him and kill him. A lot of people who made the petition died one after another. That made him scared. These are further new claims. His response that the Chinese authorities monitored him for the first  few month and thereafter lifted the restrictions contradicts his earlier evidence that they were aware of when he purchased his airline tickets (to travel to Australia). This indicates that they continued to monitor him. The Tribunal does not find his response to be convincing and does not accept it. 

16. The Tribunal raised as an issue with the applicant the number of new claims he had made during the course of the hearing. Most of these claims could and should have been made in his application for a Protection visa. He responded that he had truthfully described to the Tribunal what happened in China. The Tribunal could obtain satellite surveillance footage to see them in Beijing. The Tribunal explained to him that it was not the Tribunal’s role to make his case for him and that it was up to him to put the relevant evidence before the Tribunal for consideration. He responded that that kind of satellite footage would be kept by a government authority and he cannot access it. The Tribunal could access it.

    Other considerations

17. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on China and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

18. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that he is not a credible or reliable witness. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

19. The Tribunal accepts that the applicant was born on [date] at Nehe in Heilongjiang Province in China. The Tribunal accept that his mother passed away in 2007 or 2008. The Tribunal accepts that his father passed away in 2020. The Tribunal accepts that he was married [in] May 2013 and has one child of his marriage, namely a son aged [age] years. The Tribunal accepts that he had a succession of businesses in China which were closed down because he had cash flow problems. The Tribunal accepts that he made some bad investments and lost money as a result.

20. The Tribunal does not accept that the applicant’s parents borrowed money from an underground bank or loan sharks and could not repay the loan. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal does not accept that the applicant borrowed money from an underground bank or loan shark/s and could not repay the loan. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal does not accept that he is of adverse interest to loan sharks or people associated with underground banks.

21. The Tribunal does not accept that the applicant travelled to Beijing with a group of people to lodge a petition and lodged the petition with the Beijing Petition Bureau or, alternatively, was prevented from doing so. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal does not accept that he was or is of adverse interest to the Chinese authorities.

22. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?

23. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any reason set out in s.5J(1)(a) of the Act, that there is a real chance that he would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of China. Therefore, he does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

24. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

25. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied 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 he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

    CONCLUSION

26. 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) or s.36(2)(aa) of the Act.

27. 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) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.

    DECISION

28. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    L. Symons
    Senior 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.

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    36     Protection visas – criteria provided for by this Act

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    (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.

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