1931440 (Refugee) - [2024] ARTA 710

1931440 (REFUGEE) [2024] ARTA 710 (3 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1931440
Tribunal:General Member S Durvasula
Date:3 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 3 December 2024 at 11.55am
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – inadequate compensation for land appropriated for development – threatened and beaten, and goods destroyed –collusion by developers, police and local government – capacity to subsist – passport and multiple departures and returns – incorrect information included in visitor visa application by tourist company and protection visa application by another person – approached by developers but no acquisition, and family continues to live there – work history – no evidence of medical condition provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5)(f), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of China, applied for the visa on 20 December 2017. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owes protection obligations.
The applicant appeared before the Tribunal on 29 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
Evidence before the Department
The applicant is a [Age]-year-old male Chinese national who was born in Fuqing City, Fujian Province.
In his protection visa application, the applicant provides the following background information:
·     He is married and has [children] aged [Ages] years.
·     His parents also live in Fuqing.
·   In China he lived in Fuqing from his birth until he departed for Australia in December 2017. He does not provide an address.
·   He studied until he was 16 years old, completing middle school in [Year].
·   He was unemployed between [Year] and [Year] and was employed as a worker between [Year] and November 2017.
·   He has previously travelled to [Country 1] (between [Day] and [Day] September 2016) and [Country 2] (between [Day] and [Day] December 2016).
·   He departed China on [Day] December 2017 and arrived in Australia on a visitor visa on [Day] December 2017.
In his protection visa application, the applicant claims that he suffered persecution by the Chinese government because he made a petition to reveal the corrupt behaviour of government officials. His family has land in his hometown. One day, the local government notified him that the land would be collected by a developer but the compensation offered was only half the market price. The applicant and other residents did not sign the collection agreement. The developer sent people to the applicant’s home and forced him to sign the collection agreement. They threatened him, destroyed all his goods and beat him. After that, the applicant called the police but the police ignored his case. His neighbour told him that the compensation money was ‘corrupted’ by the local government and the developer. They also colluded with the police. The applicant decided to make a petition. He wrote a letter of complaint to the city government to get a reasonable explanation and compensation. After the officials knew of his behaviour, they sent the police to catch him. He was scared so he escaped China. If he returns to China, he fears he will suffer persecution from the police, will be sent to prison, be tortured and will die.
Evidence before the Tribunal
At the hearing, the applicant confirmed the biographical information as set out above and provided further details.
His wife and [children] live with his parents at an address in [Village], [Town], Fuqing City. The house is his father’s ancestral home and his family have always lived there. It is in a rural area. The applicant grew up in this house and lived there the whole time he was in China, apart from working for 18 months in Guangzhou (in 2003) and 18 months in Beijing (in 2007). He was living there just before he came to Australia.
The delegate noted that the applicant had provided an address in Fuzhou City and had listed his occupation as ‘[occupation 1]’ in his visitor visa application. The applicant confirmed he had never lived in Fuzhou or worked as [an occupation 1]. His visitor visa application was prepared by a tourist company and he only gave identity documents for this. He did not give details of his address or occupation.
Land acquisition claims
When asked why he left China and does not want to return, the applicant stated the government wanted to acquire his family’s land for development. They did not offer enough compensation, so the applicant refused to sign the contract. Local government officials and developers kept coming to his home, persuading him to sign the agreement. On one occasion, the developers brought gangsters and they beat him. He went to the Fuqing city government to lodge a petition and complain about the low amount of compensation being offered.
Initially in the hearing, the applicant stated that if he returns to China, he fears the would be accused of making false accusations against the government due to his petition and he may be fined or imprisoned. Later in the hearing, he stated he would not face a fine or imprisonment and would face threatening words only. He also agreed that he would not face harm from local government officials, developers or gangsters if he returned to China.
Contrary to what was stated in his protection visa application, the developers did not destroy his goods and his land and they did not send police to catch him. His application was prepared by a third party and he had only briefly mentioned his claims and cannot recall what was in the application.
The applicant confirmed that the land in question was his family home in [Village] where his parents, wife and children currently live. The developers first approached his family about acquiring the land in November 2015. To date, they have not yet acquired the land for development and the applicant understands the issue is still ongoing. His father has told him he may sign the contract to hand the land over if they pay a fair price.
When asked why the officials approached the applicant when it was his father’s land, the applicant stated that his father was often away for work and only returned for holidays. They asked the applicant to sign a contract to sell but he refused. A few days later, local government officials returned with a gangster group and threatened to harm him if he did not sign. There was a verbal argument and the gangsters punched the applicant twice. They also damaged the door of his home but no other property was destroyed. Neighbours intervened and tried to protect him. He cannot remember when this event happened, but it was sometime in 2016. He reported the matter to the police about 12 to 13 days later, but they refused to intervene.
After that incident, the applicant went to [Country 1] as part of a tour group as he feared harm from the gangsters. He obtained his passport for this purpose and did not have any difficulty obtaining a passport. He returned to China after 4 days. He did not have any difficulty leaving China or returning. The Tribunal asked the applicant why he returned to China after only 4 days if he feared for his safety. This may indicate he did not fear harm from gangsters, local government officials or developers. The applicant stated that after he returned, he stayed at his workplace for 1.5 months in a nearby village. The gangsters did not try to locate him at his workplace and did not harm him when he returned to his home. They did not harm his family.
After this, it went quiet for a few months. At the end of 2016, the developer came again with the gangster group and used threatening words against him. There was no physical harm at that time. The applicant feared for his safety so he went to [Country 2] as part of a tour group and stayed for 4 days. He had no difficulties leaving China or returning. After returning to China, he stayed at his workplace in a nearby village for 2 weeks and then returned to his home. The Tribunal again put to the applicant that the fact that he returned to China after only 4 days may indicate that he did not fear for his safety. The applicant responded that he did not want the gangsters to harass his family. The gangsters did not approach his family home when he was away as his wife and children stayed with her mother, his mother is illiterate and his father was away for work.
The applicant stated that he also went with neighbours to petition the Fuqing City government. He cannot remember when this occurred, but it was sometime before he went to [Country 2]. They got a lawyer to draft the petition. They complained that the local government and the developer may have had a joint interest as the compensation amount being offered was less than the original offer price, indicating that the local government would take some of the proposed amount. The petition was not accepted. About one week later, local government officials again came to his home and pressured him into signing the contract as soon as possible.
After returning from [Country 2], the applicant realised that he could not live this kind of life, so he decided to come to Australia. He continued living in his family home and worked as [an occupation 2] in a nearby village for a year between December 2016 and December 2017. Local government staff came to his home once or twice to try and persuade him to sign the contract, and developers came 2 or 3 times a month. There were no further visits from gangsters. His father returned for the Lunar New Year holidays in early 2017 but the developers did not approach his father during that time.
The Tribunal put to the applicant that he remained at his family home in [Village] for a year before coming to Australia, despite his claim that he feared for his safety. He did not appear to experience any harm during this time. This may indicate he did not fear harm when he left China. The applicant commented that the issue was not solved after a long time.
Currently, his family continue to live at the property. His father has not had any further approaches from developers and his family have not been threatened or harmed. Local government staff came to his father’s home about 3 months ago and said they may increase the offered price by 5 to 10 per cent. In the end, his father may agree to sign the contract to sell. He does not remember the timeframe but there was a plan for moving out of the area.
The Tribunal put to the applicant that this indicated that his father was not averse to selling his land to the developers and given it was his property, he was free to do so. The applicant then agreed he would not face harm from local government officials, developers or gangsters if he returned to China. His main concern was that he would not find suitable accommodation for the whole family if they had to move and would not find a suitable job.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether there is a real chance, if the applicant returns to China, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant has provided a copy of his passport to the Department which shows he is a Chinese citizen. The Tribunal finds, based on the applicant’s passport, that he is a national of China and has assessed his claims on this basis.
Does the applicant satisfy the refugee criterion for protection?
The applicant’s claims may be summarised as follows. The applicant claims that he cannot return to China due to ongoing pressure from developers and local government officials to sell his father’s land. He claims that on or around 2015, developers approached him to acquire the family’s land for development. He refused to sign the contract of sale due to the low rate of compensation being offered. The applicant claims that in 2016, developers brought gangsters who threatened and beat him. He claims he petitioned the Fuqing city government but was unsuccessful. He claims that he faced ongoing threats and pressure from local government officials and developers to sign the contract.
The applicant acknowledged that if he returned to China, he would not face ongoing harm from local government officials, gangsters or developers. He claims that he would face pressure to sell the property and threatening words. The applicant has also claimed economic harm due to not being able to find a suitable job and harm due to lack of accommodation if the family home was sold.
The Tribunal has considered the applicant’s remaining claims individually and cumulatively.
Land appropriation claims – claims of past harm
The Tribunal has considered the independent country information which indicates that ‘land disputes are a particularly common reason for protest’ and ‘disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation… China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’.[1] There continue to be reports that ‘local governments forcibly seized and demolished the homes of citizens without providing adequate replacement housing or financial restitution’.[2]
[1] DFAT Country Information Report People’s Republic of China (22 December 2021) (DFAT Country Information Report) at 3.88.
[2] US Department of State, 2022 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau and Tibet), Property seizure and restitution, >
On the basis of the applicant’s evidence at hearing and the independent information above, the Tribunal accepts that:
·     On or around 2015, developers wanted to acquire the applicant’s father’s home for development.
·     The applicant and his father refused to sign the contract to sell the property as the amount of compensation being offered was inadequate.
·     While the applicant was in China, developers and local government officials continued to pressure the applicant and his family into selling the property, but the applicant and his father refused to do so.
·     The applicant and other neighbours petitioned the Fuqing City government about the low rate of compensation being offered, but the petition was unsuccessful.
For the reasons set out below, the Tribunal does not accept the applicant’s claims that he was beaten by gangs hired by the developers, that the gangs damaged his front door, or that he faced verbal threats from developers and local government officials when he was in China.
Firstly, the applicant claimed he travelled to [Country 1] as part of tour group in September 2016 following the beating by gangsters as he feared further harm from them. Despite this, he only stayed away 4 days and returned to China shortly afterwards. The Tribunal considers that if the applicant had actually been harmed by gangsters and feared for his safety, he would have tried to stay away for longer. The Tribunal has considered the applicant’s response that after he returned to China, he stayed at his workplace for 1.5 months in a nearby village. However, the gangsters did not try to locate him at his workplace and did not try to approach him or his family at his home. On the applicant’s own evidence ‘it went quiet for a few months’ after he returned from [Country 1].

Secondly, the applicant also claimed he travelled to [Country 2] as part of a tour group in December 2016 as he feared further harm from gangsters. Despite this, he only stayed away for 4 days and returned to China afterwards. He claimed that he stayed at his workplace for 2 weeks, but again, the gangsters did not try to locate him at his workplace or approach his family at his home.
Thirdly, the applicant claims he feared for his safety in China, but he continued living in his family home and working at the same place in Fuqing for more one year after the claimed beating by gangs in 2016. He did not attempt hide and he did not experience any threats from developers, local government officials or gangsters. This is despite his claim that they were so keen to acquire the property that they sent gangs to beat him in 2016. His family was not threatened or harmed. On the applicant’s own evidence, he had occasional contact with developers and local government when they tried to persuade him to sign the contract, but there was no harm. The Tribunal does not accept that approaching the applicant to persuade him to sign the contract amounts to threats or serious or significant harm.
Fourthly, the Tribunal finds the applicant’s family, in particular, the applicant’s father, were not harmed by developers or local government officials, despite the fact that the property was owned by his father. The Tribunal has considered the applicant’s explanation that the applicant’s father was often away for work, which was why they approached the applicant instead. This does not explain, to the Tribunal’s satisfaction why the developers did not approach the applicant’s father when he was home for the Lunar New Year holiday in 2017, if they were interested in acquiring the property. It does not explain why the developers did not intimidate or threaten the applicant’s family (in particular his father), into signing the contract as the applicant claimed they did to him.
Fifthly, the applicant told the Tribunal he did not have any difficulty obtaining his current passport in 2016 and did not have any difficulties departing and returning to China twice in 2016 and in departing again in December 2017. At the hearing, the Tribunal put to the applicant that this may suggest that he was not of interest to the Chinese authorities, given that he was able to freely depart China without a problem. Independent country information indicates that entry and exit to/from China is strictly regulated and it is almost impossible to leave China without the authorities’ knowledge. Various government agencies can feed information into databases and the technology may be used to create an exit control list. If a person is on an exit control list, it is very unlikely that they would be able to exit China.[3] The applicant responded that his dispute was with the local government are not so powerful as to influence his exit from China.
[3] DFAT Country Information Report at 5.31–5.35
The Tribunal has considered the applicant’s response but is not satisfied this explains why he would be able to leave China without difficulties, if he was in fact of interest to the local authorities. As stated above, various government agencies can feed information into databases to create an exit control list. The fact that the applicant was able to leave China 3 times over 2 years, without difficulty, leads the Tribunal to find that he was not of interest to the local authorities.
Finally, the applicant’s own evidence at the end of the hearing was that he did not fear harm from gangsters, developers or local government officials if he returned to China and his main concerns were economic – that he would not be able to find a suitable job or accommodation if his family home was sold.
Cumulatively, the above evidence and findings lead the Tribunal to not accept the applicant’s claims that gangsters and developers had beaten and threatened him in 2016 and 2017, or that he was of interest to the local government authorities when he left China in 2017.
At the hearing, the applicant resiled from his claims in his written application that developers had sent police to catch him; that the developers had destroyed all his goods and land; and that he feared harm from the police. He explained at the hearing that his written application was prepared by a third party and he was not aware of what was in it. He also resiled from his earlier claims in the hearing that he would face a prison or a fine if he returned to China.
On the basis of this evidence the Tribunal finds that developers did not send police to catch the applicant, that developers did not destroy his goods and land and that he does not fear harm from the police, and that he does not fear being imprisoned or fined if he returns to China.
In summary, the Tribunal does not accept the applicant’s claims that he was beaten by gangsters in 2016 for refusing to sign the contract of sale for his family property. The Tribunal does not accept that the applicant faced ongoing threats and pressure from local government officials and developers to sign the contract of sale. The Tribunal finds the applicant did not fear harm from developers, local government officials or the police when he departed China in December 2017.
Is there a real chance of harm if the applicant were returned to China in the reasonably foreseeable future?
Land appropriation claims
At the hearing, the applicant told the Tribunal that his family have continued to live on the property in question since he left China in 2017. It has not been sold or compulsorily acquired. His family and have not faced any harm or threats from developers, local government officials or gangsters for refusing to sell.
The Tribunal discussed with the applicant that this demonstrates the developers may no longer be interested in acquiring the property. The applicant responded his father told him that if the developers offer a higher price, he may accept the offer to sell. He does not remember the timeframe but he believes there was a plan for moving out of the area.
Based on the applicant’s evidence, the Tribunal finds the family property in question has not been acquired for redevelopment. The Tribunal has considered the applicant’s explanation that the developers are still negotiating with his father about the price and his father may still decide to sell. As discussed with the applicant at the hearing, under the Chinese Constitution, rural land is owned by collectives, not individuals. The Constitution allows for the State to expropriate or requisition land for its use, provided that affected individuals are compensated.[4] There continue to be reports that ‘local governments forcibly seized and demolished the homes of citizens without providing adequate replacement housing or financial restitution’.[5]
[4] Constitution of the People’s Republic of China 1982 (amended 14 March 2004), National People’s Congress of the People’s Republic of China, Article 10 (accessed 7 December 2023).
[5] US Department of State, 2022 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau and Tibet), Property seizure and restitution, >
Given the independent country information about the legal basis for land acquisitions and the speed of land acquisitions for redevelopment projects, the Tribunal does not accept that the acquisition of the applicant’s family home is ongoing, more 10 years after first being proposed in 2015. The Tribunal does not accept that developers and the local government are still interested in acquiring the land, as they have taken no further action in the 7 years since the applicant has been in Australia. His family continue to live on the property, unhindered. The Tribunal does not accept that the applicant’s father is proposing to sell the family home to developers. Given these circumstances, the Tribunal does not accept the applicant or his family would face pressure to sell the property and threatening words from developers and local government officials if he returned to China.
In relation to his future conduct, the Tribunal finds the applicant would return to his family home in [Village] and live with his wife, [children] and his parents. The Tribunal does not accept the applicant would face harm, pressure or threatening words from gangsters, developers or local government officials. Further, the Tribunal does not accept that the developers or local government officials are interested in acquiring the property for development. For these reasons, the Tribunal is not satisfied there is a real chance the applicant will face serious harm from developers, local government officials or gangsters, if he returns to China, now or in the reasonably foreseeable future.
At the hearing, the applicant raised an additional claim that he may not have suitable accommodation for his whole family (being his wife, [children] and his parents) if he returns to China and the family home is sold. He agreed that his father had not yet signed the contract to sell the family property.
The Tribunal does not accept this claim, given that the family home has not been sold, has not been compulsorily acquired by the government and the Tribunal has not accepted that the applicant’s father is proposing to sell the home to developers. Therefore, the Tribunal finds that if the applicant returned to China, he could continue living at his family home in Village A in Fuqing with his family. The Tribunal is therefore satisfied he would have suitable accommodation and would not face harm due to a lack of accommodation. For these reasons, the Tribunal is not satisfied there is a real chance the applicant will face serious harm due to lack of suitable accommodation, now or in the reasonably foreseeable future.
Employment claim
At the hearing, the applicant claimed that if he returned to China, he would not be able to find suitable employment to support himself and his family.
The applicant gave evidence that in China, he completed middle school education and did various [work sector] jobs in Fuqing, Guangzhou and Beijing. His last job in China was as [an occupation 2] in Fuqing, where he had worked for 8 to 9 years. In Australia, he has worked as [an occupation 3]. He recently went to hospital for a [body part] and has been prescribed medication for that. He is on sick leave from work for 2 weeks. He intends to return to work.
His applicant’s father works as a labourer. His wife does not work and she is currently in hospital due to [condition]-related issues. His [children] attend school. His mother does not work. He regularly sends money home to his family.
At the hearing, the Tribunal discussed with the applicant that his claim that he would not be able to find a suitable job in China, may not meet the definition of serious harm in s 5J(5) the Act. The Tribunal noted that the applicant had been able to find work throughout his time in China and Australia. If he had to return, he may not be denied of capacity to earn a livelihood, such that it would threaten his capacity to subsist. The applicant responded that he was concerned that he would not be able find work due to his [body part] condition. As the applicant had worked overseas for many years, he had lost social connections in China to find suitable work. His father was retired (contrary to his earlier evidence that he worked as a labourer).
The Tribunal has considered the applicant’s claims that he will not be able to find a job that will be sufficient for him to support his family if he returns to China. The Tribunal accepts that the applicant has been sending money to his family from Australia which supplements their income. However, the Tribunal does not accept the applicant’s claim that he would not be able to find a suitable job in China that will be sufficient to support his family. The applicant completed schooling up to middle school and has broad work experience in [work sectors] work. When he was in China, he was able to find work in his home province and other areas of China in these industries. He did not spend any periods unemployed because of his inability to find work. He was able to save sufficient funds to fund his travel to Australia. He claims he has a [body part] condition, but the Tribunal has no medical evidence before it to demonstrate that the applicant would be incapacitated for work due to a medical condition, if he returned to China. The Tribunal is satisfied that given the applicant’s previous experience and skills, he would be able to find work in China in his home province.
Based on these findings, the Tribunal does not accept that if the applicant returned to China, he would be denied of capacity to earn a livelihood, such that it would threaten his capacity to subsist, within the meaning of s 5J(5)(f) of the Act. Noting that what constitutes serious harm is not limited to the examples in s 5J(5), the Tribunal is not satisfied the applicant fears serious harm, having considered the evidence as a whole.
For these reasons, the Tribunal is not satisfied there is a real chance the applicant will face serious harm for economic or employment reasons if he returns to China, now or in the reasonably foreseeable future.
Overall assessment
The Tribunal has considered the applicant’s accepted claims individually and cumulatively. Having considered the evidence as a whole, and the Tribunal’s accepted claims, the Tribunal is not satisfied that if the applicant returned to China, now or in the reasonably foreseeable future, he would face a real chance of serious harm.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal is not satisfied the applicant meets the definition of refugee in s 5H(1) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
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) – that is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk he will suffer significant harm.
The Tribunal takes into account the above findings of fact in relation to the ‘real chance’ test and its findings that the applicant would not face serious harm if he were removed from Australia to China. The Tribunal has not accepted that the applicant would face harm from gangsters, developers or local government officials if he returned to China. The Tribunal has not accepted that the applicant would face harm due to a lack of suitable employment or lack of accommodation if he returned to China. The Tribunal takes into account the above findings of fact and its view of the applicant’s future conduct and circumstances if he were removed from Australia to China. The Tribunal is satisfied the applicant would be able to live with his family in his home village, find a job and would not experience adverse treatment from the authorities, developers or gangsters.
Therefore, the Tribunal also does not accept that the applicant would face ‘significant harm’, as that term is defined in s 36(2A). That is, the Tribunal does not accept the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subject to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal is not satisfied on the evidence 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 he will suffer significant harm. The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under s 36(2)(aa) of the Act.
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) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
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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.
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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.
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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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