1932124 (Refugee)

1932124 (Refugee) [2024] AATA 1524 (7 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Harry Huang (MARN: 9579277)
CASE NUMBER: 1932124

COUNTRY OF REFERENCE: China
MEMBER:Joshua Le Vay
DATE:7 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 February 2024 at 10:03am
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – anti-corruption demonstration – extortion on market stall holders – physical assault – detention – exit procedures – passport renewal in Australia – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZGUR (2011) 273 ALR 223
MIAC v SZQRB [2013] FCAFC 33
SZBYR v MIAC (2007) 253 ALR 609
SZTGV v MIBP (2015) 318 ALR 450
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 November 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 citizen of China, applied for the visa on 31 October 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 15 December 2023 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 (Department), 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
Background
In his protection visa application form, the applicant provides the following information:
He was born in Fuqing, Fujian, China, in [specified year]. He resided at the same address in Fuqing from birth until travelling to Australia in August 2017. He speaks, reads, and writes Mandarin. He is of Han ethnicity and is an atheist. He attended school in Fuqing [between specified years]. He then worked [at workplaces]. He is married and has twins born in Fuqing in [year]. His wife and children continue to reside in Fuqing. His parents reside in China as does his [sibling]. He was refused a [Country 1] student visa in October 2013. He visited [Country 2] in July 2016. He arrived in Australia on [a day in] August 2017, entering as the holder of a visit visa and having departed China on [the previous day].
In the Tribunal hearing, the applicant gave evidence that his parents continue to live at the same address in Fuqing, which is where the applicant lived in China. When he married his wife joined the applicant and his parents at that address. His father currently grows crops on his own land – his parents do no other work. The applicant’s wife divorced the applicant in 2021 - he no longer has contact with her and does not know her whereabouts. His parents are caring for their two children, who are now aged [age] years and attend school. He is in frequent contact with his parents and children. His [sibling] is married and lives separately in the same town. He is presently single and has no family in Australia. In Australia he works [casually]. He has lived in the same rental accommodation since arriving in Australia. The applicant confirmed that in 2013 he had applied for a [Country 1] student visa, which was refused – he does not know the reasons for refusal.
Evidence before the Department
Protection visa application
The applicant’s written claims for protection are contained in a statutory declaration dated 31 October 2017 attached to his protection visa application form. He makes the following claims:
·     His father was a fisherman.
·     Families with an official background built sea farms and came to control the channels out to sea. His father had to pay the families for access to the sea which caused the applicant’s family financial hardship and led to his father selling his boat in 2014.
·     His father then bought a stall in in the market, where he would sell [product 1]. There his father was targeted by officers at the Urban Administrative and Law Enforcement Bureau (‘Chengguan’) who extorted his father by demanding ‘hongbao’ on Chinese festivals.
·     During the Spring Festival in January/February 2017, the applicant’s father was unable to pay hongbao to the Chengguan and as a result the leader of the Chengguan threatened to close the applicant’s father’s stall. His father collected CNY [amount]. The Chengguan however raided his stall in March 2017 and sealed it on the excuse that he was suspected of selling spoilt [goods]. When the applicant’s father went to protect his business, the Chengguan beat him resulting in his hospitalisation for a week.
·     In March and April 2017, the applicant personally reported the matter many times to the anti-corruption bureau of the Fuqing municipal government. The bureau however took no action and as a result the applicant organised a demonstration on [a day in] May 2017 – [identified] – in [a location], which was attended by about 200 protestors who included other stall-owners. The applicant, along with many others, was arrested. The others were fined and released. The applicant however was regarded as the leader of the demonstration and was therefore detained at Fuqing detention centre for more than a month, during which time he was subjected to ‘inhuman treatment’.
·     The applicant was released from detention when his wife paid a bribe to the police. He was required however to report to the police regularly and was still under investigation. He was frequently harassed, questioned, and warned by the police. Fearing arrest, the applicant fled China in August 2017 by plane with the assistance of his wife’s friend who organised the journey.
·     Since his departure the applicant’s wife, parents, and [sibling] have been questioned, threatened, and warned by the police.
·     He fears persecution if he returns to China.
The applicant received assistance from a migration agent when completing the form. He provided a copy of his passport.
Interview with the delegate
The applicant attended an interview with the delegate on 28 October 2019. In the interview, the applicant responded to questions and elaborated on his claims. The Tribunal has listened to a recording of the interview. Where relevant, information provided by the applicant in the interview is referred to below.
The delegate’s decision
On 31 May 2018, the delegate made their decision. The delegate found that the applicant’s claims were not credible due to inconsistencies between his written evidence, information given at the protection interview and information given in his visit visa application, and because his claims were considered implausible. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Application for review
On 8 June 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. He provided the Tribunal with a copy of the delegate’s decision.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s representative attended the hearing.
At the outset of the hearing the applicant confirmed that the information in the application is true and correct and that there have been no changes in his circumstances relevant to the claims.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the hearing the applicant said that he organised a protest against ‘city management’ who demanded bribes from vendors in the market in [Town 1], Fuqing, including from his father who had a [stall] there which he had commenced when he sold his boat in 2014. This payment was sought during festivals. He called it a ‘red envelope’ payment. He said that he learned about the payments in 2017 and that his father had to pay 4 or 5 times. The Tribunal asked how much the payments were – the applicant replied that the highest amount his father had to pay was CNY[amount]. The Tribunal remarked that this is a lot of money: presently over AUD[amount]. The applicant said that his father had to borrow money to pay. On one occasion, his father resisted making a payment and was consequently beaten in front of his stall, [receiving an injury]. The leader of the city management group which was targeting his father was called [name]. The applicant’s father was admitted to hospital for a week. The applicant did not witness the assault but went to see his father in hospital. The applicant said he reported the matter to the police at [a named] police station in [Town 1], but they took no action.
The applicant said that he reported the conduct of the local authorities to the anti-corruption bureau 3 to 5 times. The Tribunal asked the applicant if he attended the bureau’s office in person to which he answered ‘no’. He called them instead. He did not enter into any written correspondence with the bureau. When asked to describe the content of his conversations, he said that he told the bureau about the city management’s corrupt conduct, but he did not receive a response.
As a result, the applicant organised a protest via the messenger app: [App 1]. He said that he created a group of about 100 to 200 vendors and their families and that he was the administrator of the group. He no longer has the messages sent within the group because his phone was confiscated by the police following his arrest and the messages deleted. For the same reason he said that he no longer has any photographs of the protest. The protest took place at [the location] in Fuqing [in] May 2017. [Details deleted]. The applicant said that he did not seek permission for the protest which he thought was not required and because he did not think that the authorities would grant permission in any case. This was the only protest the applicant has organised. About 200 people attended the protest, including the applicant’s father. The protestors gathered in the [location] and chanted slogans opposing the conduct of the city management. No one person led the chanting. The applicant said that he carried a [banner] at the front of the group of protesters. The Tribunal asked the applicant what the [banner] signified, to which he replied simply that it was ‘anti-government’. He said that the protest started around 2.00pm and was broken up 2 or 3 hours later by the police, who identified him as the leader because he was the only person holding a [banner]. He said that no other protestors were arrested.
The applicant told the Tribunal that the police took him to [a named] police station where he was detained, interrogated, and ‘tortured’. Asked to provide more detail about the nature of the torture, the applicant said that the food was not good, the room where he was held was not clean, and that the police would wake him when he was trying to sleep. He shared a room with others who had nothing to do with the protest. The Tribunal ask the applicant if the police mistreated him in any other way – he replied that he was ‘interrogated from time to time’. He said that he was not allowed any visitors. The applicant said variously during the hearing that he was detained for a month and more than a month. The Tribunal asked him if he could be more precise. He then said that he was detained for around 45 days. The Tribunal noted with him that this is significantly longer than a month.
The Tribunal asked the applicant whether he was charged. He replied that he was not. His wife made a payment to the police to secure his release – he did not know how much. He did not think that he was granted bail – rather he thought that the payment was a bribe. He was released on the condition that he report to the police station 3 times a week: on [specified days], which he did. When reporting he simply signed his name. He did not know how long the reporting condition was to apply. He was still reporting when he left China. The Tribunal asked the applicant if he had any other difficulties on his release to which he replied that he was restricted from travelling.
The Tribunal asked the applicant why he chose to leave China. He said that it was his wife’s decision for him to leave because she worried that he would not be able to work. The Tribunal noted with the applicant that it was a major decision to leave his family behind. The applicant acknowledged this, remarking that he could not work or support his family because of the reporting conditions. He said that his wife’s friend – who he named – obtained the Australian visit visa on his behalf and that he did not provide the information to support the application – he only provided his passport. His wife’s friend took him by car to [the location] where he caught the plane for Australia. He had no difficulties either travelling to the airport or departing China. His wife’s friend arranged for him to meet someone at the airport, who he did not know and who helped him there. This person did not travel with him – the applicant said that he travelled alone.
The applicant arrived in Australia [in] August 2017 and lodged the application for the protection visa on 31 October 2017. The Tribunal asked the applicant why he delayed lodging by about three months after his arrival if his intention was to seek protection in Australia. He indicated that his wife’s friend advised him to look for a migration agent in [a location in] Sydney, which he did, finding his current representative within a week. Asked why, if it only took a week, did it take longer to lodge the application The applicant replied that he does not know English and was not working.
The applicant told the Tribunal that after he left China the police came to his family’s home and harassed his parents and asked his wife to get him back. The Tribunal asked the applicant to provide further information about these circumstances. The applicant said that his family could not live a normal life and that it was the ongoing harassment that caused his wife to divorce him in 2021. The applicant said that the police knew that that he had left China. Asked why the police kept returning if that was the case, the applicant said that the police put pressure on his father to get the applicant back. The Tribunal asked the applicant if his family had come to any harm while he was in Australia. He said that when the police last visited a week before the hearing, they threatened to prevent his children going to [school] if the applicant did not return. He said that the police came to his family home 2 or 3 times a year. He said that his family had not come to any other harm.
The applicant said that he fears returning to China because he believes he will be arrested. He also said that he would not be able to work due to harassment by the authorities and would therefore be unable to support his children. He said that he does not send his parents money. The Tribunal asked the applicant why he thought the police would still have an interest in him more than 6 years after leaving China. He said that he did not know and then ventured that it was because he had left. He also said that he does not know if he has been charged since his departure and does not know whether his parents have received a court summons or warrant or any other documentation indicating that he is the subject of prosecution proceedings.
The Tribunal asked the applicant why he had applied for a new passport in Sydney and whether he was concerned about bringing himself to the attention of the Chinese authorities if he had absconded from the police. He said that he was concerned but that he applied for a new passport because his previous passport had expired. He provided no other reason for wanting the passport. The applicant indicated that he had no difficulty in obtaining the passport.
Assessment of claims
Nationality
The applicant provided a copy of the bio-data page of his People’s Republic of China passport to the Department. The passport was issued [in] 2010 in Fujian. Based on the information provided, the delegate was satisfied of the applicant’s identity and citizenship. The applicant also presented to the Tribunal a new Chinese passport which was issued [in] 2022 in Sydney. In the absence of evidence to the contrary, the Tribunal is satisfied that the applicant is using his own identity and that his receiving country for the purposes of assessing his claims for protection is the People’s Republic of China.
Country information

The Tribunal recognises information that indicates a significant level of corruption in China. President Xi Jinping launched an anti-corruption campaign in 2013.[1] However, on one estimate 28 per cent of public officials accepted a bribe in 2020.[2] According to the US State Department, although officials faced criminal penalties for corruption, the government and the Chinese Communist Party (CCP) did not implement the law consistently or transparently, and corruption remained ‘rampant’.[3]
[1] Radio Free Asia, China's Communist Party sets up smartphone channel for corruption tip-offs, 5 January 2016, available at:
[2] Department of Foreign Affairs and Trade, Country Information Report, People’s Republic of China, 22 December 2021, para. 2.21
[3] US Department of State, 2022 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau, and Tibet),
The Tribunal understands that the ‘red envelope’ payments refer to hongbao in the applicant’s statutory declaration. Hongbao is frequently referred to as ‘red envelopes’ or ‘red packets’ in English and is a traditional payment associated with Chinese New Year. It is used to ‘maintain, cultivate, and nurture relationships between different members of Chinese society’. It has however also been misused in the form of bribery to officials, business partners, or others in positions of power.[4]
[4]The Chinese Language Institute, Hongbao: The who, how and what of Chinese red envelopes, 6 December 2023,
The Tribunal also understands that ‘city management’ refers to the Chengguan in the applicant’s statutory declaration. Chengguan are ‘urban management officials’ and in 2013 were said to be often demobilized soldiers who ‘routinely abuse their authority in their attempts to keep city streets in order and lack effective supervision, training, and discipline’.[5] Other information from 2013 indicates that they were set up in 1997 to enforce noncriminal administrative regulations, including rules governing the environment, sanitation, traffic, and civic pride - often using unnecessary brute force against ordinary citizens - and are often paid no basic wage, relying on income from fines and fees levied from citizens to make a living.[6]
[5] Radio Free Asia, China executes food vendor who killed in 'self defense', 25 September 2013, available at:
[6] Radio Free Asia, Chinese police flee angry crowd after reported beating of vendor, 29 May 2013, available at:
The Tribunal finds it plausible that corrupt payments are forced upon market vendors by local officials and notes instances of this.[7] A payment of CNY [amount] does seem very high for a market vendor selling [product 1], but the Tribunal could not identify information about the level of payment that might apply to a market vendor. The Tribunal also finds it plausible that local officials might use excessive force when seeking to enforce a bribe.
[7] e.g. China Digital Times, Sichuan crowd turns tables on notorious “Chengguan” urban enforcers, 14 June 2023,
The Tribunal further notes information that thousands of protests took place in China in 2022. Although peaceful protests are legal, public security officials rarely granted permits to demonstrate. Despite restrictions, many demonstrations occurred, but authorities quickly broke up those motivated by broad political or social grievances, sometimes with excessive force.[8] All gatherings of more than 200 people must obtain approval from public security authorities. The Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges. Public demonstrations are rarely approved.[9]
[8] US Department of State, 2022 Country Reports on Human Rights Practices: China (Includes Hong Kong, Macau, and Tibet),
[9] Department of Foreign Affairs and Trade, Country Information Report, People’s Republic of China, 22 December 2021, para. 3.86
There is information from 2014 that indicates that there was then a range of laws that imposed penalties on those who participate in, or organise, protests without permits.[10] These penalties include fines, surveillance, detention and forced deportation to the person’s place of residence. There is little detail on the specific charges laid against individuals accused of organising or participating in protests. However, detention can range from a detention order for up to 15 days e.g. for any person responsible for organising a protest without seeking permission from authorities beforehand,[11] to a prison sentence up to 10 years for organisers of public demonstrations charged with ‘gathering people to disturb social order’.[12] More recent information indicates that administrative detention up to 20 days is imposed for crimes of a minor nature that are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law and can involve detention in one’s home.[13] Further the police can detain a suspect for day-to-day crimes for up to 37 days.[14]
[10] e.g., Criminal Law of the People’s Republic of China 1997; Law of the People’s Republic of China on Penalties for Administration of Public Security 2005; Law of the People’s Republic of China on Assemblies, Processions and Demonstrations 1989
[11] Law of the People’s Republic of China on Penalties for Administration of Public Security 2005; Law of the People’s Republic of China on Assemblies, Processions and Demonstrations 1989
[12] Criminal Law of the People’s Republic of China 1997
[13] Department of Foreign Affairs and Trade, Country Information Report, People’s Republic of China, 22 December 2021, para. 4.11
[14] Department of Foreign Affairs and Trade, Country Information Report, People’s Republic of China, 22 December 2021, para. 4.15
The Tribunal finds it plausible that the police would seek to break up a protest for which no approval had been given, and to detain a person who had organised the protest for a period. The Tribunal finds it unlikely that such a person would be granted bail since this is rarely granted.[15] However there is information that on some occasions, families have been able to negotiate the early release of prisoners by paying a bribe and the Tribunal considers this more likely where a person has been administratively detained.[16]
Inconsistencies
[15] Department of Foreign Affairs and Trade, Country Information Report, People’s Republic of China, 22 December 2021, para. 4.15
[16] Australia: Refugee Review Tribunal, China: 1. What information do we have of people being released from police cells by the intervention of family? 2. What information do we have of people escaping from jail with the assistance of family? 3. Could you also try and find out the name of the prison in Dalian city and its proximity to main landmarks in the city? Any information you are able to obtain about the prison would be helpful, 29 August 2006, CHN30551, available at:
Notwithstanding the applicant’s claims being broadly consistent with the above country information, the Tribunal has serious concerns arising from inconsistencies in the applicant’s account: as between information given in his protection visa application, his interview with the delegate, and his hearing with the Tribunal. The Tribunal considers that inconsistencies arising from the applicant’s oral evidence given to the Department referred to below goes to credibility,[17] and is not ‘information’ for the purposes of s 424A of the Act as it does not contain a rejection, denial or inherently undermine the applicant’s claims to be a person to whom Australia owes protection obligations.[18] These inconsistencies were put to the applicant for comment. Some are more significant than others and are as follows, along with the applicant’s responses, where applicable:
·     In his statutory declaration the applicant claimed that the Chengguan ‘always’ extorted his father and forced him to pay hongbao on Chinese festivals. In the interview with the delegate, he stated that his father paid only once and refused a second demand. In the hearing the applicant said that his father paid 4 or 5 times. In response to the concern the applicant said that when he stated that his father had paid only once, he was referring only to the largest payment of CNY [amount].
·     In his statutory declaration the applicant stated that he ‘personally went to report’ to the anti-corruption bureau many times, whereas in his hearing he said that he only called the bureau. In response to the concern the applicant said that he had made the calls himself.
·     In his interview with the delegate the applicant stated that he organised the protest via [App 2] and the protest lasted an hour, whereas in his hearing he said he used [App 1] and that the protest lasted 2 to 3 hours. The applicant responded that [App 1] and [App 2] are both forms of social media and otherwise made no comment.
·     In his statutory declaration the applicant claimed he was arrested along with many other people at the protest and that the others were released after they paid fines. In his interview the applicant stated that only he and one other person was arrested. In his hearing he said that he was the only person arrested at the protest. The applicant provided no comment to the concern.
·     In his statutory declaration the applicant claimed that he was detained for more than one month and subjected to inhuman treatment. In his interview he stated that he was detained for 4 to 5 days and beaten. When the delegate put this discrepancy to the applicant, he replied that the longer period included the reporting period. He then changed the period of detention to 15 days. His representative, who is understood to speak Mandarin, at the interview indicated that the interpreter had misunderstood the applicant to say ‘4 to 5’ days when he had said ‘15’ days. In the hearing the applicant variously stated that he was detained for a month, more than a month, and 45 days, and when asked about how he was mistreated gave no indication that he was physically harmed. The applicant responded to the concern by saying that he had claimed he was tortured and, in relation to the period of detention, that the interpreter had made a mistake.
·     In his statutory declaration the applicant claimed that after he was released, he had to report to the police and continued to be ‘frequently harassed, questioned and warned’ by the police. In his interview the applicant stated that he had to report every day and that he had no other interactions with the police. The delegate sought comment from the applicant about this inconsistency, but he gave none. In his hearing the applicant said that he reported 3 times a week and when asked if he had any other difficulties on release stated only that he was restricted from travelling. The applicant responded to the concern put by the Tribunal by saying that he could not remember what he said in his interview and that he was threatened by the police.
[17] SZBYR v MIAC (2007) 253 ALR 609 at [18]; MIAC v SZGUR (2011) 273 ALR 223 at [9], [77]; SZTGV v MIBP (2015) 318 ALR 450 at [102], [103]
[18] SZBYR v MIAC (2007) 253 ALR 609
The Tribunal finds these inconsistencies either individually or cumulatively to be so significant that they render the applicant’s core claims unreliable. The Tribunal is mindful of the Migration and Refugee Division’s Guidelines on the Assessment of Credibility when assessing the credibility of the applicant’s claims. The Tribunal considers that the applicant would not be mistaken about whether he attended the anti-corruption bureau in person or not, whether he was arrested with others or not, whether he was detained for a shorter or much longer period, or whether he had to report to the police every day or 3 times a week had these events occurred. Where the applicant has provided responses to the Tribunal’s concerns, the Tribunal does not find them sufficient to allay its concerns.
The applicant’s response that he made the calls himself to the anti-corruption bureau does not resolve the inconsistency with his written claim that he attended the bureau personally many times. The Tribunal notes that the statutory declaration was written in both in English and Mandarin and that the applicant declared that he had read and explained to him the contents of the statutory declaration.
In relation to his assertion that the interpreter was mistaken concerning the period of detention, even if it is accepted that in the Department interview there was a confusion between ‘4 to 5’ days and ‘15’ days, the Tribunal does not accept that this would resolve the various periods of detention the applicant has claimed, which vary significantly. The Tribunal notes that the applicant has not made any other criticisms in relation to the interpreting in either his interview or at the hearing. The Tribunal further notes that the applicant’s representative in the hearing – the same representative who was at the Department interview and who interjected concerning the apparent confusion between ‘4 to 5’ days and ‘15’ days – made no representations concerning the interpreting in the hearing.
In relation to the inconsistency concerning his claimed mistreatment in detention, the Tribunal again does not accept that the applicant’s response – that he said he was tortured – resolves the inconsistency. The applicant may have characterised the claimed mistreatment as ‘torture’ in the hearing. However, the Tribunal asked the applicant directly about how he was mistreated in detention and at no point did he say that he was physically harmed, as he claimed in his interview. The Tribunal assesses that if the applicant had been beaten as claimed in the Department interview, he would not have omitted to mention this in the hearing when asked to describe his mistreatment in detention.
Neither does the Tribunal consider that the lapse of time since the occurrence of these events would account for the inconsistencies. Nor has the applicant provided any indication or evidence of suffering trauma which may impact upon the consistency of his statements since his arrival in Australia or on his capacity in providing testimony of such events. The applicant states that he was tortured when he was detained. However, given the Tribunal’s broader concerns about the credibility of his claims the Tribunal finds that the inconsistencies in his account have arisen not due to any trauma which affected his memory of events but rather because the claimed events did not take place.
It may be conceivable that the applicant confused the social media platform he claims to have used to organise the protest, and he has erred in recalling the duration of the protest and the number of times his father was extorted, and that individually these inconsistencies are not sufficient to undermine the applicant’s account. However, these inconsistencies in combination with each other and with the more significant inconsistencies add to the Tribunal’s concerns about the credibility of the applicant’s account.
Other matters
The delegate also put to the applicant that he had given information in his visit visa application – information that was set out in the delegate’s decision provided to the Tribunal by the applicant – that he lived and worked in Shanghai and that he planned to travel to Australia with two friends, one of whom in fact arrived on the same flight. The Tribunal has some concern about this information but notes that the applicant has consistently stated that he only lived in Fuqing; that he knew nothing about his visit visa application or the arrangements for his travel which were made by his wife’s friend; and that he travelled from China alone. The Tribunal considers it plausible that whoever applied for the visit visa on the applicant’s behalf entered false information and made similar travel arrangements for others without the applicant’s knowledge. The Tribunal does not rely on this information in reaching its decision.
Country information was put to the applicant that indicates that in China exit and entry is strictly regulated; the government knows when people enter or leave the country; and those suspected of a crime and activists may be prevented from leaving China due to being on an exit control list.[19] The applicant responded to this information by saying that his departure was arranged by his wife’s friend. However, given the applicant’s claim that he had absconded from the police, and given the Tribunal’s concerns for other reasons about the credibility of his claims, the Tribunal assesses that the applicant’s ability to leave China without any difficulty underscores that he was of no interest to the authorities when he departed and therefore adds to the Tribunal’s concerns. The Tribunal has considered the applicant’s claim that he was helped by someone at the airport but finds this account to be vague and conflicts with information that it is almost impossible to exit China without authorities’ knowledge,[20] and in any case does not assist in resolving the Tribunal’s concerns for other reasons about the credibility of his claims.
[19] Department of Foreign Affairs and Trade, Country Information Report, People’s Republic of China, 22 December 2021, paras. 5.31 and 5.32
[20] Department of Foreign Affairs and Trade, Country Information Report, People’s Republic of China, 22 December 2021, para. 5.35
That the applicant continues to be of no interest to the authorities is reinforced by his ability to obtain a new passport without difficulty. Country information indicates that those suspected of a crime and activists may be refused a passport upon application.[21] The Tribunal notes the applicant’s response to this concern – that the Chinese authorities issued the passport because they wish him to return to China – and further that the passport application was made outside not within China – but considers this explanation unconvincing. Given the Tribunal’s broader concerns expressed in this decision it considers the much likelier explanation for the passport being issued is that the applicant is of no concern to the Chinese authorities. The Tribunal also considers that the applicant’s approach to the Chinese authorities by way of applying for a new passport undermines his claim to be in fear of them, especially as someone who has absconded from the police.
[21] Department of Foreign Affairs and Trade, Country Information Report, People’s Republic of China, 22 December 2021, para. 5.32
The Tribunal does not consider that the delay in applying for protection in itself would be a reason for doubting the applicant’s claims and accepts that since he does not understand English, he relied on assistance to complete the application.
Summary of findings
The Tribunal assesses that the inconsistencies in the applicant’s evidence are material to his claims and that they lead to adverse credibility findings regarding his key claims. The Tribunal does not accept that the applicant’s father was extorted by local officials and was beaten; that the applicant organised a protest; that he was arrested and detained by the police; or that he was of any other adverse interest to the authorities in China. Since the Tribunal does not accept these claims, it follows that the Tribunal does not accept that the applicant’s family has been harassed and questioned by the police in relation to the applicant’s whereabouts. The Tribunal finds that the applicant was not of adverse interest to the Chinese authorities prior to his departure, is not of adverse interest to them now, and would not be so on return to China for any reason. The Tribunal therefore does not accept that the applicant would be prevented from working in China as a result of harassment by the authorities.
Does the applicant meet the refugee criterion?

Taking into account the findings set out above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
The Tribunal has found that the applicant would not be of adverse interest to the authorities on return to China since it has not accepted his key claims above. On the evidence there are no other reasons for finding that he will face a real chance of serious harm if he returns to China.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether he meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[22] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. Therefore, the Tribunal is not satisfied 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. 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).
[22] MIAC v SZQRB [2013] FCAFC 33
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.
Joshua Le Vay
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1524

7 February 2024

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction