1934063 (REFUGEE) [2025] ARTA 1175 (31 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1934063
Tribunal:General Member R Guemy
Date:31 March 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 31 March 2025 at 3:35pm
CATCHWORDS
REFUGEE – protection visa – China – Federal Court remittal – family’s land appropriated by village committee for industrial development with no compensation – crops levelled and villagers beaten – complaints to town and county governments – beaten, intimidated, forced to sign acquisition contracts and detained – spontaneous and detailed oral evidence consistent with country information – no documentary evidence – passport and unhindered departure – passage of time and no adverse attention – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4)(b), (5), 36(2)(a), (aa), (2A)
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA [1989] HCA 62
Randhawa v MILGEA [1993] FCA 592
Selvadurai v MIEA [1994] 34 ALD 347
SZLJK v MIAC [2008] FMCA 694
SZNWA v MIAC [2010] FCA 470Any 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
BACKGROUND
The applicant, a [Age]-year old male and citizen of China born in Jiangsu province. He applied for a protection visa on 18 July 2017.
CLAIMS AND EVIDENCE
Evidence given to the Department
The applicant provided a copy of the bio page of his Chinese passport ([Number]) issued [in] 2017.
In his signed protection visa application form, the applicant indicated:
i.He was born [Date] in [Town], Nantong City, Jiangsu Province, China;
ii.He was married [in] December 1997;
iii.He calls his family once every two weeks and that they are living in [Town], Nantong City, Jiangsu Province, China;
iv.He left China legally on Chinese passport [Number];
v.He lived in [Village 1], [Town], Haian County, Nantong City, Jiangsu Province from June 1987 until May 2017;
vi.He had worked as a farmer in [Town] from [Year] until May 2017;
vii.He attended primary school in [Village 1] and middle school in [Village 2];
viii.He last arrived in Australia [in] May 2017;
In a written statement provided with his protection visa application form the applicant claimed that:
i.In July 2016, the village committee notified villagers in [Village 1] that they would expropriate villagers’ land to sell to the [Workplace] and his family’s land was requisitioned as part of this process;
ii.The villagers did not agree to sell the land because the compensation was too low and they would be unable to survive without their land;
iii.In October 2016, the village committee colluded with the underground and sent dozens of people to level the crops in the field with bulldozers and when the villagers tried to stop them, they were beaten by these rogues;
iv.The villagers decided to jointly report the village committee to the town government to get their land…
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- Case
- [2025] ARTA 1175
- Decision Date
CaseChat Overview and Summary
The court examined the applicant's claims about the appropriation of his family's land and the subsequent beatings and intimidation he and other villagers experienced. The court assessed the credibility of the applicant's evidence and compared it with the country information provided by the Department of Foreign Affairs and Trade. The applicant's oral evidence was found to be spontaneous and consistent with the country information, though there was no documentary evidence to support his claims. The court also noted that the applicant had left China legally, had an unhindered departure, and had not faced any adverse attention since his departure.
The Federal Court affirmed the Tribunal's decision, finding that the applicant did not meet the refugee criterion under section 36(2)(a) of the Act. The court held that there was no real risk that the applicant would suffer significant harm if returned to China. The spontaneous and detailed nature of the applicant's oral evidence was considered, but the lack of documentary evidence and other inconsistencies led the court to conclude that the applicant's claims were not substantiated.
The court ordered that the decision under review be affirmed, meaning the applicant's application for a protection visa was refused.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has considered the copy of the applicant’s passport and the applicant’s evidence given at hearing on 16 January and 21 February 2025 and finds that he is a Chinese national. The Tribunal finds that China is the applicant’s country of nationality for the purposes of s 5H of the Act and the receiving country for the purposes of s 36(2)(b) of the Act. The Tribunal has considered the applicant’s written claims, supporting documentary evidence and oral evidence given to the Tribunal at hearing on 16 January and 21 February 2025. The Tribunal has also had regard to relevant country information contained in the most recent DFAT Country Information Report on China dated 27 December 2024. When determining whether an applicant is entitled to protection in Australia, a decision maker is required to make findings of fact on the applicant’s claims that he or she is owed protection obligations. This process may involve an assessment of the credibility of the applicant and his or her other claims. When assessing credibility, a decision maker must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those applicants who are generally credible, but are unable to substantiate all of their claims. However, a decision maker is not required to accept uncritically any and all allegations made by an applicant,[1] nor is it necessary for a decision maker to have rebutting evidence before he or she can find that a particular factual assertion by an applicant has not been made out.[2] Nor is a decision-maker required to accept claims which are inconsistent with the independent evidence regarding the situation in an applicant's country of nationality.[3][1] Randhawa v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 592[2] Selvadurai v Minister for Immigration and Ethnic Affairs [1994] 34 ALD 347[3] Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62