1934063 (Refugee)

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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

  1. 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

  2. The applicant provided a copy of the bio page of his Chinese passport ([Number]) issued [in] 2017.

  3. 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;

  4. 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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Details
Case
[2025] ARTA 1175
Decision Date

CaseChat Overview and Summary

The applicant, a male citizen of China, applied for a protection visa on 18 July 2017. The Federal Court was required to review the decision of the Tribunal affirming the decision to refuse the visa. The key legal issue was whether the applicant met the criteria for a protection visa under the Migration Act 1958. Specifically, the court had to determine if the applicant had a well-founded fear of persecution based on the circumstances he described regarding the appropriation of his family’s land by the village committee in China.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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 EVIDENCEEvidence 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.

Decision

Reasons for decision

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 2025ATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

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