1934063 (Refugee) - [2025] ARTA 1175

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 affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4)(b), (5), 36(2)(a), (aa), (2A)
Migration Regulations 1994 (Cth), Schedule 2
CASES
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 470
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
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 back and because they had not signed any land expropriation contract and had not received any compensation;
v.In November 2016, he and more than 30 villagers went to the town government to demand that they redress the matter, however the town government leaders refused to meet with them;
vi.The villagers knocked down the locked iron gate using tree branches from the roadside trees but police arrived, beat them with batons, took the three leaders directly to the police station, during which time they intimidated the leaders not to threaten the city government and forced them to sign the land acquisition contract, however the villagers did not receive any land acquisition compensation;
vii.In December 2016, he and four villagers went to lodge a report at Haian County Letters and Visits Bureau, however the officers there said that they should not impede the national construction plan and told them to discuss compensation with the village and town government;
viii.He and the four villagers insisted that they would not have come to the Haian County Letters and Visits Bureau if they were able to solve the problem with the village and town government leaders, but the officers became impatient and asked security to remove them which led to a conflict and the applicant and the other villagers being detained for three days by police at [Town] Police Station where they were beaten;
ix.[In] January 2017, he and two villagers intended to go to Nantong City to lodge a petition but plainclothes police officers intercepted them and took them to a police station where they were detained for 7 days;
x.The applicant and the two other villagers later discovered that the village committee had sent people to stalk them;
xi.He left China for Australia because government officers are corrupt, civilians have nowhere to complain and his freedom was under restriction.
The Department’s delegate invited the applicant to attend an interview on 9 January 2018. The applicant did not attend the scheduled interview and the delegate made their decision based on the information provided in the application form and country information about land appropriation by the government in China.
The delegate considered that although country information appeared to support the applicant’s claims that a dispute in relation to the appropriation of his land may have occurred, however the written material provided by him did not provide a sufficient basis to be satisfied that he had been denied fair compensation or had been harassed by the police for petitioning after the land appropriation, or that he faces harm of any kind for such a reason on return to China.
The delegate found that there was no real chance the applicant would suffer persecution for reasons relating to the appropriation of his land for the purposes of the refugee criterion in s 36(2)(a). The delegate also found that there was no real risk that the applicant facing significant harm for the purposes of the complementary protection criterion in s 36(2)(aa).
On 9 January 2018, the delegate decided to refuse to grant the applicant a protection visa.
Evidence given to the Tribunal
On 6 March 2018, the applicant applied to the former Administrative Appeals Tribunal (AAT) for review of the delegate’s decision. On 19 March 2018, the AAT found that it did not have jurisdiction because the prescribed period to apply for review ended on 5 February 2018.
On 18 June 2019, the Full Federal Court ordered by judgment that the AAT’s decision on 19 March 2018 be quashed and that the AAT determine the applicant’s review application on the basis that it has jurisdiction to do so.
On 14 October 2024, the 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.
Tribunal hearing – 16 January 2025
The applicant appeared before the Tribunal on 16 January 2025 to give evidence and present arguments relating to the issues in relation to the decision under review. The Tribunal conducted the hearing with an interpreter in the Mandarin Chinese and English languages.
The applicant gave in oral evidence to the Tribunal the following personal information about his life in China and since arriving in Australia:
i.He lived only ever lived in [Village 1] from when he was born until 2017 when he left for Australia;
ii.He completed primary school in [Village 1] and middle school in [Village 2], Nantong City in China;
iii.After finishing middle school he started farming corn, rice and barley on his family farm in [Village 1] (his home village) generating RMB1000-2000 income per year until approximately 2016-17, he also occasionally undertook paid farmwork for other villagers;
iv.His wife, mother, brother and sisters all continue to reside in [Village 1], and his daughter is married and lives with her husband and his family in another part of Haian County;
v.He had never travelled to any other countries before coming to Australia;
vi.He arrived in Australia on a tourist visa that others helped him obtain, he applied for his passport himself after applying to Chinese authorities, and took a bus from [Village 1] to Shanghai and flew from Shanghai airport without any difficulties or issues;
vii.Since arriving in Australia, he has resided in the Sydney suburb of [Suburb];
viii.After arriving in Australia he had worked [doing job task 1] in [Suburb] from 2017 until 2024 and more recently had started [job task 2] in Sydney;
ix.He had saved approximately AUD30,000-40,000 from having worked in Australia. and had been sending approximately RMB10,000 to his wife every 3-5 months to financially support her;
x.He speaks with his wife on voice and video calls once a week, and has been in occasional contact with his daughter and siblings since arriving in Australia.
Resumed Tribunal Hearing – 21 February 2025
The applicant attended a resumed Tribunal hearing on 21 February 2025 to continue giving evidence and presenting arguments relating to the issues in relation to the decision under review. The Tribunal conducted the resumed hearing with an interpreter in the Mandarin Chinese and English languages. At this resumed hearing, the Tribunal explored the applicant’s claims of past events in China before he left there to come to Australia as well as his claims of what he feared would happen if he returned to China in the reasonably foreseeable future.
Claims of past events
The applicant told the Tribunal that in July 2016 he received notification from village leaders that that his land would be acquisitioned for the purposes of building factories. He said that he and other villagers asked for compensation in return for their land but they did not receive any and that their land was taken without their consent. He confirmed that at this time he was living in his family home in [Village 1] with his wife, daughter and mother.
The applicant said that in October 2016 in response to what had happened he and some other villagers went to [Town] to speak to town-level government officials. He said that when they were at the gates of the governmental offices, the officials did not want to meet them or address the issue, and they instructed the security guards to move them away from the gates and then called the police. When the police arrived they arrested the applicant and those he was with. They were detained and beaten for one to two days, but did not get a response from any officials in respect of the land issue. The police warned them not to start any trouble again and the applicant and his fellow villagers returned home and resolved to escalate the issue with Haian County governmental officials.
The applicant said that In November 2016 he and other villagers went to Haian County but were told by officials there that the land acquisition was for the purpose of construction in the countryside and that they should consider the overall situation and accept the construction of factories. The officials asked security and police to remove the applicant and the other villagers from the governmental offices but they refused to leave because they wanted an answer with respect to the issue of compensation. The applicant said that they were again beaten by police and then detained for approximately five to six days but he couldn’t remember clearly. He said that while in detention the police threatened them and before releasing them forced them to sign an agreement indicating that they agreed to sell their land otherwise they would not release them. The applicant said he did not receive a copy of the agreement and although he was released from police custody he did not receive any compensation money.
The applicant said that in January 2017 he and other villagers intended to go to the petition office in Nantong city. He said that they got to the bus station in Haian country but that the [Village 1] leaders had engaged local gangsters to track their movements and they pulled the applicant and his fellow villagers from the bus to Nantong city and confiscated the complaint letters that they had drafted. The applicant claimed that he and the other villagers were then returned to [Village 1] where their movements were monitored to prevent them from going outside the village to petition or complain to higher levels of government. The applicant claimed that during this time he was unable to leave the village and could only work inside the village having no land to otherwise farm.
The applicant confirmed to the Tribunal that the village population was approximately 1000 people, divided into 10 groups of approximately 100 people.
The applicant confirmed that the problems he had experienced were at the behest of village officials who had hired gangsters. He said that after the land acquisition, there was supposed to be distribution of compensation money, but the officials kept it for themselves.
The applicant said that he did not relocate to another part of China in response to what he had experienced because he needed money and resources to do so but he did not have that.
Claims of future harm
When the Tribunal asked the applicant what would happen if he returned to China, the applicant said that he did not know. He said that he did not know if the village officials would cause any trouble for him. He added that it would be unlikely that they would and that if he went back to China now it would not be too much of a problem for him.
When the Tribunal asked the applicant if he would experience any problems if he went back to China now, he said maybe he wouldn’t face any problems if he behaved himself and didn’t look for trouble. The applicant indicated that he would just give up on pursuing the compensation after not having received anything all these years.
The applicant confirmed to the Tribunal that neither he nor anyone in his family had pursued the matter of compensation with Chinese authorities since he came to Australia because no one would help them.
The applicant confirmed to the Tribunal that he otherwise did not wish to make any further claims for protection.
COUNTRY INFORMATION
The DFAT Country Information Report People’s Republic of China, 27 December 2024 provides the following on corruption in China:
2.58 China ranked 76 out of 180 countries and territories in Transparency International’s 2023 Corruption Perceptions Index (where 1 is perceived to be least corrupt). The 2023 US Department of State China Human Rights Report described corruption in China as ‘serious’, noting frequent corruption in court decisions and areas ‘heavily regulated by the government’, such as land usage rights, real estate, mining and infrastructure development, which it described as susceptible to fraud, bribery and kickbacks (see also Documentation and Fraud; Entry and exit procedures).
2.59 In some instances, what might be perceived as corruption by those not of Chinese cultural background may be viewed by Chinese people as guanxi in China. Guanxi, (literally ‘connection’) is a system where progress in business or government relies on patronage networks – giving and receiving ‘face’ (mianzi – esteem, prestige) and exchanging favours or gifts. Good guanxi can obtain favourable business, social and legal outcomes, and bad guanxi can make them impossible.
2.60 The CCP takes allegations of corruption seriously, viewing it as a threat to its legitimacy. Penalties for corruption can, and have, included death in some serious and high-profile cases. For example, suspended death sentences were handed out to former CCP secretary of Hangzhou, Zhou Jiangyong, in 2023 and former vice minister of public security, Sun Lijun, in 2022 for accepting bribes. Allegations of corruption by officials are investigated by Party organs in the first instance, including the Central Commission for Discipline and Inspection and the National Supervisory Commission. While officials are generally investigated by these organs for alleged crimes related to fraud, financial misappropriation and other activities traditionally defined to constitute corruption, these organs appear also to investigate officials deemed to lack loyalty and ideological purity.
2.61 On taking office in 2013, President Xi launched a nationwide anti-corruption campaign against high and low-ranking corrupt officials. In its first year alone, more than 180,000 officials were disciplined. In the following decade, 3.7 million cadres were punished, including about 1 per cent of national and provincial leaders. In early January 2024, during the third plenary session of the CCP's Central Commission for Discipline Inspection, a major anti-corruption meeting, President Xi stated that there would be no let up in the intensity of the Party's perennial anti-corruption campaign under his leadership. In 2024, local media reported on rolling anti-corruption campaigns focusing on senior officials within the financial sector, resulting in many arrests and convictions.
The DFAT Country Information Report People’s Republic of China, 27 December 2024 provides the following on protesters and petitioners in China:
3.147 Public demonstrations require permits, which are rarely approved by authorities. Still, spontaneous protests occur, which have been met with police violence. In-country sources told DFAT in 2023 that all types of protests had become much less common, as the consequences for dissent had become harsher in the last decade. Freedom House's China Dissent Monitor recorded a total of 383 protests from January to September 2024, the vast majority of which were non-political and related to workers' pay and benefits, land or forced relocation disputes, and housing projects.
3.148 Local disputes with government decisions and officials can be raised at designated petitioning offices in China. Millions of disputes are raised at these offices every year. Local authorities participate in programs that incentivise dispute resolution at the local level, to avoid escalation to higher authorities. In practice, this means local authorities often have motivation to retaliate against petitioners, which might include laying charges for ‘picking quarrels and provoking trouble’. The US Department of State reported in 2023 that local governments had sent personnel to Beijing to force petitioners in the capital to return home. Although retaliation was common, it was not always the outcome, and in some cases the system was effective in resolving disputes.
3.149 In-country sources told DFAT in 2023 that land disputes, local corruption, and labour disagreements were common protest themes. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. While land policies and the process of compulsorily acquiring land varied from place to place, all land in urban areas continues to be owned by the state and rural areas were collectively managed by villages. Disputes often arose when local officials tried to sell land and evict existing tenants after paying low amounts of compensation. China’s Civil Code (2020), which came into force on 1 January 2021, requires fair and reasonable compensation to be paid for expropriated land, however, it did not define ‘fair and reasonable’, leaving room for interpretation. Specific documentation provided to those who have had land expropriated differs from province to province. Land sales remain an important source of revenue for local governments and corruption in land deals was commonly alleged. In February 2024, international NGOs reported several hundred Tibetans had been detained in Derge County, Sichuan for protesting the construction of the Kamtok (Gangtuo) dam that would displace local villagers and destroy Buddhist monasteries. International NGOs stated that video footage showed police beating protesters before making arrests, and detainees were held incommunicado and denied access to legal representation.
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, 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
It is the applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations (however arising) and the Tribunal does not have any responsibility or obligation to specify or assist in specifying, any of the applicant’s claims, or to establish, assist in establishing, the applicant’s claims: s 5AAA. The Tribunal is not required to make an applicant’s case for him or her, but may ordinarily decide a review on what the applicant puts forward.[4]
Findings on applicant’s home region
[4] SZNWA v MIAC [2010] FCA 470 at [41]; SZLJK v MIAC [2008] FMCA 694 at [26].
The applicant told the Tribunal at hearing that if he had to return to China, he would return to [Village 1] where he previously lived and where his mother continues to reside in the family home. On the basis of this evidence, the Tribunal finds that [Village 1] is the applicant’s home region for the purposes of considering his claims for protection in this decision.
Findings on past events
The Tribunal has considered the applicant’s claim to have had his land acquired by Chinese authorities and to have not received compensation from village authorities for this. The Tribunal has also considered the applicant’s claim to have experienced problems when he and other villagers attempted to petition town, county and city-level authorities in respect of the conduct of village officials and their unwillingness to pay appropriate compensation to villagers who had their land acquired.
The Tribunal found the applicant’s oral evidence given at hearing in respect of these claims to be detailed and spontaneous as well as consistent with the claims set out in his written statement. The applicant’s claims and evidence are also consistent with information set out in previous and the most recent DFAT Country Information Report which indicate that land disputes are a common reason for protest in China, that disputes are generally complaints against local government officials who try to sell land and evict existing tenants with low amounts of compensation which may escalate to the national government[5], that local disputes with government decisions and officials can be raised at designated petitioning offices in China, that local authorities participate in programs that incentivise dispute resolution at the local level to avoid escalation to higher authorities, and that in practice this means local authorities often have motivation to retaliate against petitioners, including by forcing petitioners who approach higher authorities to return home.[6] The applicant’s claims are also consistent with information in the DFAT Country Information Report on China dated 22 December 2021 indicating that thugs have been used and are allegedly hired by local governments to intimidate protesters.[7]
[5] DFAT Country Information Report People’s Republic of China, 22 December 2021 at paragraph 3.88.
[6] DFAT Country Information Report People’s Republic of China, 27 December 2024 at paragraph 3.148.
[7] DFAT Country Information Report People’s Republic of China, 22 December 2021 at paragraph 3.88.
In light of the above, the Tribunal accepts that in 2016 the applicant had his farming land in [Village 1] compulsorily acquired by Chinese authorities for the purposes of building factories. The Tribunal accepts that the applicant was not properly compensated by local village authorities who were responsible for distributing compensation payments to villagers affected by the land acquisition. The Tribunal accepts that in October and November 2016 the applicant and other villagers decided to collectively petition town and county-level authorities to bring the conduct of village authorities to their attention and to resolve the issue of compensation. The Tribunal accepts that these attempts to petition higher level authorities were unsuccessful and instead led to conflict with police who detained the applicant and his fellow villagers, beat them, and made them agree in writing to selling their land to Chinese authorities. The Tribunal accepts that in January 2017, the applicant and other villagers attempted to go to city-level authorities to petition them in respect of their land acquisition and compensation matter but were stopped from doing so by hoodlums hired by the local village officials.
The Tribunal accepts that the applicant and other villagers were then monitored by local officials to prevent them from once again petitioning, however the Tribunal does not accept that the applicant was prevented from leaving the village entirely given that, according to his oral evidence given at hearing, he was able to buy a ticket and travel by bus from [Village 1] to Shanghai and then board a flight from the airport there to Australia without any issues or problems. In addition to this, his daughter and only child was able to marry and move out of [Village 1] to work in Nantong city and reside with her husband and his family in a different part of Haian county.
The Tribunal has made these findings even though the applicant provided no documentary evidence to support his claims of past events such as notifications sent to villagers about the intention of authorities to appropriate their land, protest letters that the applicant claims he and fellow villagers wrote, police records of their arrest, photos or videos.
Findings on future harm
Although the Tribunal accepts that the applicant had his farmland appropriated by Chinese authorities and that he was not appropriately compensated for this and experienced physical mistreatment and detention by Chinese police when he tried to petition authorities in respect of this, the Tribunal is not satisfied that the applicant will be harmed if he returned to China in the reasonably foreseeable future.
The applicant last attempted to petition Chinese authorities in respect of his land appropriation matter more than eight years ago in January 2017. He told the Tribunal that since arriving in Australia neither he nor anyone in his family had petitioned Chinese authorities again. He said that he would just give up after not having received compensation money all these years. On the basis of this evidence, the Tribunal finds that the applicant is no longer motivated or interested in petitioning Chinese authorities again in respect of compensation for the appropriation of his farmland or misconduct by local village officials. The Tribunal finds that he would not petition Chinese authorities because he is no longer motivated or interested in doing so rather than due to any fear of harm if he did so. The Tribunal therefore finds that the applicant would not draw adverse attention from village officials or anyone else and that there would be no real chance or real risk that he would be harmed on this basis if he returned to China in the reasonably foreseeable future because he would not engage in any petitioning activities.
The applicant told the Tribunal that although his farmland had been appropriated, his family home remained in [Village 1] and that he would be able to resume living there if he returned to China. The applicant also told the Tribunal that despite no longer having land to farm if he returned to [Village 1] he would engage in casual work such as [job task 1] (like he has while living in Australia), [job task 2] or doing [job task 3] for others. He said that he would do such work either within [Village 1] or by going to other [worksites] outside the village wherever work is available. The applicant did not claim that he would be prevented from leaving [Village 1] by local village officials or anyone else because of his past petitioning or for any other reason. As such, the Tribunal finds that the applicant’s movements would not be restricted and that he would be able to move within and outside of [Village 1] for work purposes as needed. The Tribunal finds that despite no longer having farmland, the applicant would still be able to find work to support himself and his family. In addition to this, the applicant told the Tribunal that he had approximately AUD30,000 to AUD40,000 in savings from having worked in Australia and had been remitting approximately RMB10,000 (AUD2,000 equivalent) to his wife in China every three to five months. In light of the applicant’s oral evidence given at hearing, the Tribunal finds that despite not longer having farmland the applicant would be able to support himself and his family by either working upon return to [Village 1], relying on savings that he has accumulated from having worked in Australia, or a combination of these two things. As such, the Tribunal finds that there is no real chance or real risk that he would suffer economic hardship that would threaten his capacity to subsist or be denied a capacity to earn a livelihood of any kind where the denial would threaten his capacity to subsist. The Tribunal further finds that the applicant would otherwise not suffer serious harm as contemplated by s 5J(4)(b) and (5) or significant harm as set out in s 5 and s 36(2A) in connection with his economic or financial circumstances if he returned to China in the reasonably foreseeable future.
Refugee criterion
Having regard to the findings of fact above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning set out in s 5J. As such, the Tribunal is not satisfied that the applicant is a refugee within the meaning set out in s 5H. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criterion
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).
Having regard to the findings of fact set out above, the Tribunal is not satisfied that it has 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. For these reasons, 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)(b) or (c) 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 under review.
Hearing date:             10 February 2025

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.
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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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