1936170 (Refugee)

1936170 (Refugee) [2023] AATA 4743 (13 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1936170

COUNTRY OF REFERENCE: China
MEMBER:Rosa Gagliardi
DATE:13 November 2023
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 November 2023 at 9:32am
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – legal action against local government – corruption – education – detention – confiscation of family home – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 116, 499
Migration Regulations 1994, Schedule 2
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 28 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 18 July 2019. The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China there is a real risk he will suffer significant harm as defined in s.36(2)aa) of the Act.
Engagement with the Tribunal
On 5 October 2023 the Tribunal wrote to the applicant via her authorised recipient sending a Pre-hearing information form and advising that the Tribunal was preparing to present his matter to a Member for review. The Pre-hearing form also invited the applicant to present any further information about his claims. This communication was returned to the Tribunal as “undeliverable”. On 23 October 2023 the Tribunal wrote to the applicant inviting him to attend a hearing on 15 November 2023 at 9.30am EST.
The hearing invitation stated that the applicant ought to provide all documentation he intended to rely on by 8 November 2023. The invitation also noted that the applicant should have regard to the reasons set out in the Departmental decision, in providing documents and preparing for the hearing. The invitation also set out that if the applicant failed to appear at the scheduled hearing, the Tribunal might make a decision on the review without taking any further action to allow or enable the applicant to appear or may take action to dismiss the application for review without any further consideration of the application.
On 23 October 2023 the invitation to hearing was returned to sender. On 1 November 2023 the applicant’s authorised recipient emailed the Tribunal to say she had finally made contact with the applicant and that he had decided not to go ahead with the review.
Given the limited interaction with the Tribunal by the applicant and the minimal information submitted to support his claims, the Tribunal is reasonably satisfied that the applicant does not wish to engage with the Tribunal further. The Tribunal is therefore in the situation where it may decide the matter on the material before it and does so particularly as the applicant has submitted a copy of the Departmental decision for the purposes of the review.
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 issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant was returned to China now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims at the time of application
The Tribunal considers it is useful to set out the applicant’s statement of claims 18 July 2019, in its entirety:
My father open a [products 1] shop in 2005 and supply goods to a company and supply to government department occasionally. At that time, we lived quite well. People came to my home to talk about business with my father, and life is getting better day by day.
However, the district had a new government head in 2016, at that time, my father supplied goods to the government department, the new head of the district always tried to cause trouble to my father. He refused to pay my father because the whole government project was not completed yet, my father has to take all of these and keep providing goods.
In 2017, the government department had a new project, they wanted my father to provide [products 1] again, because of previous experience, my father said no. However, they said if you refuse to take this one, you do not have any chance to do business later on.
Without choice, my father has to keep inject capital into the government project. In 2018, the project was fully completed. By then, my father asked his money to be paid, but the overdue amount is not been paid by all the excuses.
My father had to take legal action against the government department to the local court, however, not only without outcome which my family expected for, but coursed (sic) more trouble for himself and family.
In middle of 2018, my father was detained for 15 days because he “interrupt the social order”. Our house was taken by the government because they said our house was purchased using black money. So we have to rent a house to live, then the rented house was been damaged by unknown people too, I was been kick out of the school because we are a black family. My mother was been threatened by strangers on the street and in the market when she was shopping. I was beaten up when I was play outside the house.
We have reported to the police, but no one ever turned up. Once, I was beaten up at front of my house, we called the police, still no one turned up. My mother tried to take me to the hospital, there were four people stopped us and told my mother that this is a beginning. My father went to the local police station asking why no one come to see what was happened after the reporting, they told my father that there was no report at all. They did not want to know more and ask my father to leave. All these things made our family panicking all the days and nights.
Later on, my parents think if we all be sitting ducks there, why not let me out to find my own way of life. I am [age] years old, but what else can I do.
My parents ask people to get a student visa for me, so I came here to looking for my new life…
At the time of writing this decision the applicant is [age] years of age and an adult.
From the Departmental decision it would appear that the applicant arrived in Australia [in] July 2019 on a TU500 Student visa. He lodged this Protection visa application on 18 July 2019. On 20 September 2019 the applicant’s TU500 Student visa was cancelled under s116 of the Migration Act. Section 116 of the Act provides for a number of grounds in which a person's visa can be cancelled, including: the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that either did not exist or is no longer the case or that no longer exists (paragraphs 116(1)(a) and (b)).
An applicant’s previous visa cancellation of itself, however, should have no bearing on whether an applicant has a well-founded fear of persecution and in this case the Tribunal has found no such nexus as the Tribunal. The applicant’s protection claims have to be assessed on their own merits.
As put to the applicant by the Department at interview, for the purposes of his student visa application, the applicant’s father provided a letter to the Department advancing that he and his wife were the owners of a [products 2] shop which commenced in 2015. At the time of application for this protection visa the applicant claims that his father had a [products 1] shop. The Departmental decision records that when this contradiction was put to the applicant, he responded that as far as he knew, his parents were still running the [products 1] shop. When asked about his father’s [products 2] shop, the applicant told the Department he did not know anything about such a business. He stated that he knew his father “was doing something to send me overseas but I didn’t know the details”. The applicant was asked by the Department (as reflected in the Departmental decision) if his father had ever owned a [products 1] store and the applicant replied that his father sold some [product 2] in his [products 1] shop. He added, his father had friends who produced [product 2], so his father put it in his shop to see if it would be sold.
The Department was perplexed that as part of the student visa application, the applicant’s father had not listed a [products 1] store as his main source of income, instead he provided a business licence indicating ownership of a [products 2] store. The applicant stated that he did not know why his father had not listed the [products 1] store. He stated that he knew nothing of the contents of his student visa application and that he had not written the associated Statement of Purpose.
It would make no difference for the purposes of the student visa whether the applicant’s father owned a [products 1] or a [products 2] shop. The Tribunal can see little advantage in putting forward evidence that the applicant’s father owned a [products 2] shop instead of a [products 1] concern to obtain a student visa. Depending on the profitability of any such business, it is probable that had the applicant’s father provided evidence of a legitimate [products 1] business his student visa would have been granted. The Tribunal therefore sees no advantage in the applicant’s father providing the Department with documentation showing he ran a [products 2] business over a [products 1] store in gaining a student visa for his son. For these reasons the Tribunal relies on the information (with supporting information) in the student visa application that the applicant’s father owned a [products 2] shop.
In respect of his protection visa claims, however, the issue of the applicant owning a [products 1] store is central, as it is this enterprise that the applicant claims landed his father in difficulties with the authorities. The Tribunal notes that even after the matter was raised with the applicant by the Department, the applicant has not sought to provide a business licence for any claimed [products 1] store operated by his father, which would have lent some credibility to his claims.
Had the applicant availed himself of a hearing the Tribunal would have asked the applicant why if his father genuinely ran a [products 1] store as his principal source of income, the applicant has yet to provide verifiable information that this is the case. The applicant claims in his statement of 18 July 2019 that the claimed [products 1] store had been an ongoing concern since 2005. If this were the case, the Tribunal would have expected that the applicant could reasonably obtain copies of store receipts, invoices, and other documentation demonstrating what the core business of the applicant’s father’s [products 1] store was.
The Tribunal has considered the applicant’s statements that in fact his father sold some [product 2] out of his [products 1] shop but rejects this explanation as credible. As the Tribunal has highlighted the applicant has provided little to indicate his father ran a business which was principally a [products 1] store. This leads the Tribunal to have serious doubts that the applicant’s father ever had a [products 1] store of any kind and finds that the applicant was attempting to remedy the inconsistency by stating the [products 1] store sold [product 2] as well.
At a hearing the Tribunal would have liked the applicant to provide specific details about the [products 1] store, where it was located for example and the name of the business. This would have provided the Tribunal an opportunity to search the internet/google maps and attempt to locate and verify the existence of such a premises. As it is, the information before the Tribunal is general and vague, leading the Tribunal not to accept that the applicant’s father ever had such a [products 1] store. In rejecting that the applicant’s father had ever owned a [products 1] store, the key plank on which the applicant’s claims rest, it follows that all of the applicant’s claims fall away and the Tribunal rejects them in their entirety.
Even if the Tribunal were to accept at face value that the applicant’s father had owned a [products 1] store (and the Tribunal does not accept this), taking the claims as put forward by the applicant, the Tribunal considers that they are general and are not bound in detail as to lead the Tribunal to accept that any of the events claimed ever occurred.
At a hearing the Tribunal would have liked the applicant, for example, to detail whether the [products 1] store was located in a retail strip or a shopping mall. It would have asked about the relationship between his father and that of the government head who was head of the district prior to 2016. Was it amicable for example given it is claimed that the father’s difficulties with the authorities and others commenced in 2016?
The Tribunal places some adverse weight on the applicant’s statements to the Department that his father’s business continues to operate even if not at an optimal level. This would not indicate that his father’s business was destroyed completely by the authorities or that his father was deprived of making a living due to excessive financial loss due to non-payment of goods by the authorities. It is implausible, however, that had the authorities targeted the applicant’s father and family to the degree claimed, they would have permitted the business to continue running.
The Tribunal would have liked to ask the applicant to provide detail about the new government head who took on the role some unspecified time in 2016. The Tribunal would have asked the applicant at a hearing to provide key characteristics such as his name and other identifying information to assist the Tribunal place the personage in context. Other unanswered questions relate to which government department/s the applicant’s father supplied materials to and what they were and what official role the district leader might have had in choosing suppliers in the area, for example.
The applicant stated that this government official “always caused trouble to my father”. The Tribunal would have liked the applicant to specify at a hearing precisely what the nature of this continuing trouble was. The applicant goes on to say in his statement of 18 July 2019, that the district head refused to pay his father because the government project was not completed, and his father was just expected to take it and keep supplying goods. The Tribunal would have queried the applicant at a hearing whether he could recall how much his father had been owed and the nature of the “project” being undertaken by the government department. The Tribunal would also have been interested to know whether the applicant could discuss why the government head had an interest in obtaining goods from the applicant’s father specifically, and why he did not resort to a competitor, for example, if indeed any such competitors were available.
The applicant then claims that some time (unspecified) in 2017, the government department embarked on a new project and again turned to his father to provide [products 1] but given his previous experience with the unidentified government department, the applicant’s father refused to supply this department. It is claimed that “they” said that if he refused to take the offer his father would not have a chance to do business later. The Tribunal has many unanswered questions about who “they” were (how many persons were involved, for example), and where and when they approached the applicant’s father to provide [products 1] for another project about which little information has been provided to the Tribunal.

In his statement of 18 July 2019, the applicant states that “without choice” his father was obliged to keep injecting capital into the government project. This aspect of the applicant’s claims is also somewhat unclear as the Tribunal is perplexed as to why the applicant’s father would even want to keep doing business with government officials if it were clear that they were not reliable payees. In this respect, the Tribunal has difficulty seeing how the applicant’s father was coerced when he could have agreed to their terms not to ever take any work from them given dealing with the government departments was a money losing proposition. The applicant has not made this clear. Further, it is claimed that when the claimed project was finished, the applicant’s father asked for payment for goods and his father was not paid the “overdue amount”. The Tribunal would have liked to have been in a position to ask the applicant whether he knew exactly how much was owed to his father from this second project and how such an outgoing affected the business.
The Tribunal would have also expected that the applicant could provide some documentary evidence showing that his father had supplied materials to these unnamed government agencies by way of invoices or written agreements.
The Tribunal’s rejection of the applicant’s claims is also based on the lack of verifiable information that could easily be provided by the applicant to bolster the claims put forward. The Tribunal acknowledges that an applicant is not required to corroborate their claims. Nonetheless, the Tribunal would have thought that where it was reasonable to provide supporting documentation the applicant would do so.
The Tribunal notes that the Department records in its decision that the applicant had difficulty being specific about what his father’s company was providing to the government agencies, saying that it provided [products 1] for the government to [use in specified] facilities. When pressed to detail exactly what his father’s company provided, the applicant told the Department, “everything that can be used by [specified workers]”. The non-specific answers provided by the applicant and the general nature of his written statement leads the Tribunal to reject that the applicant’s father ever held a [products 1] store; and that that the applicant’s father ever dealt with non-paying government agencies.
The applicant claims that his father took legal action against the government department at a local court. Court proceedings usually generate a good deal of paperwork, such as evidence of filing fees or lodgement of an application. No such materials have been provided that would demonstrate the applicant’s father did indeed take court action against a government department (department unknown). In addition, it could be expected that an order by the court would have been handed down and that the applicant’s father would have such a copy. If the applicant could not provide such material, at a hearing the Tribunal would have liked to ask the applicant why he was not able to provide this evidentiary information. As it is, the Tribunal has many unanswered questions about when the action was commenced precisely, and how long it continued, for example.
Given the gaps in the applicant’s narrative and the lack of supporting documentation to support his claims, the Tribunal rejects that the applicant’s father ever initiated court action against any government agency or other state or non-state actor in China for non-payment of goods.
The applicant claims the court action initiated a series of trouble for the applicant and his family. In mid-2018 it is claimed that the applicant’s father was detained for 15 days. The Tribunal would have asked the applicant at a hearing whether he could recall more precisely when this momentous event occurred and who continued to run the business in his absence. Other unknowns include where his father might have been when he was arrested and what happened to his father during that period of incarceration. These are key details about which the applicant has provided little detail. Other questions remain about how his mother might have reacted to her husband’s incarceration and how this period affected the applicant psychologically and emotionally. Without such realistic detail the Tribunal rejects that the applicant’s father was detained by anyone for any period. This is particularly so as the Tribunal has rejected that the applicant owned a [products 1] store; that he was coerced into supplying government agencies; and that then such government agencies refused to pay for the goods supplied.
The remaining claims also fall away. The applicant claims that his house was taken away by the government as they were accused of using “black money” to pay for it. It is concerning, however that the applicant had told the Department at interview that his home had been taken away by the authorities in mid-2018. Yet in his application he had written that his family had been residing at an address for 3 years which at the time the Department was engaging with the applicant, meant the applicant’s family had not been dispossessed of their home in 2018 as he claimed in his statement.
The Tribunal rejects that the applicant’s family’s home was confiscated by the authorities or any other actors because the family was accused of using black money to purchase it, or for any other reason. It follows that the Tribunal does not accept that the applicant and his family were forced into renting a home and that such a rental property was damaged in any way by unknown persons. The details around these critical events are vague and do not provide sufficient detail to enable the Tribunal to place such claimed events in time and location.
The explanation provided by the applicant to the Department as recorded in its decision is confusing and the Tribunal finds that the applicant was advancing a convoluted narrative to disguise the fact he had provided inconsistent information about the applicant’s family having resided without interruption in one home for three years, contrary to the claims it was confiscated in mid-2018 by the government. He told the Department that the mayor caused trouble for his family (without identifying this trouble) and that the applicant’s parents’ cars were also taken. People also came to the home and smashed things. In addition, the applicant told the Department that his father transferred a house deed title from his brother to his sister-in-law and his parents would hide at his brother’s house for a few days, before returning to the previous home. The Tribunal finds it implausible that if the authorities were intent on locating the applicant and his family to cause them harm, they would not be able to do so easily simply because the family went from one home to another.
The Tribunal rejects outright that the applicant and his family were being pursued, harassed, targeted or physically beaten by the authorities or any other state or non-state actors in China, and the Tribunal does not accept that his parents’ cars were taken by the authorities or anyone else or that anyone used to go to smash things at their home and that that is why they moved back and forwards between houses.
The applicant has also claimed that his father was beaten by unknown people many times. The Tribunal at a hearing would have liked to inquire of the applicant about the nature of any injuries sustained and whether there were medical reports to support his assertions that his father had been beaten on numerous occasions.
In his statement of 18 July 2019, the applicant also claimed that he was kicked out of school because he was part of a black family in China. The Tribunal presumes this means that the applicant’s family were personas non grata for the authorities, but at a hearing the Tribunal would have liked the applicant to explain further what he meant and the implications of belonging to what was perceived as a Black Family.
The Tribunal has difficulty with the credibility of the applicant’s claims concerning being kicked out of school given that to be granted a student visa to study in Australia the applicant would have had to demonstrate he was a genuine student and had completed in China any pre-course requisite for his chosen field of study. The applicant in his application stated in his student visa application that he was a full-time student in China yet in his protection visa application he has declared that he was expelled from school in 2017. Given the verifications that would have been made by the Department prior to the grant of the student visa, the Tribunal prefers the applicant’s initial evidence to the Department that he was a full-time student prior to travelling to Australia to continue his studies. Consequently, the Tribunal rejects that the applicant was ever expelled either in 2017, or at any time on the basis of his father’s refusal to keep supplying materials to the government free of charge and then taking legal action against the relevant authorities.
It follows that the Tribunal also rejects that the applicant’s mother has been threatened by strangers, particularly when the Tribunal has limited information about when precisely and how often such threats might have occurred.
The Tribunal also rejects that the applicant was beaten while he was playing outside his home. At a hearing the Tribunal would have asked the applicant to provide specific information surrounding such a significant event. For example, what injuries did the applicant sustain? Did he attend a clinic, and could he provide evidence to show that he had indeed been beaten because of his father’s claimed antagonistic attitude towards the government head of the district and other officials who attempted to make him give away materials from a [products 1] shop (that the Tribunal has reasoned the applicant’s father never owned)?
The narrative about having called the police who never turned up is similarly general and undetailed. The applicant alleges he was beaten in front of his house but still the police did not turn up. His mother, it is claimed, tried to take the applicant to the hospital but there were four people who stopped them attending the hospital. The Tribunal would have been interested to know how precisely the four people managed to prevent the applicant and his mother going to hospital and would have wanted the applicant to provide the characteristics of such persons. There are also unknowns about the applicant’s injuries at this time and how, and if, they had healed without resort to medical attention. Consequently, the Tribunal does not accept that the applicant and his mother were ever accosted on their way to hospital by unidentified persons because the applicant had been beaten by unidentified persons because of the applicant’s father’s adverse political (actual and imputed) profile with the authorities.
The applicant states that his father went to the local police station to ask why nothing had happened given the reports submitted but he was told by the police there were no reports and asked his father to leave. The applicant states that at that point his family started to panic and the applicant had to leave China.
The applicant’s account that he and his family members had an adverse profile with the authorities and that the authorities were intent on causing serious harm to them, is undermined as the country information demonstrates that the entry and exit procedures in China are stringent and that anyone who is of interest to the authorities would come to the authorities’ attention if they attempted to leave the country.[1] When the Department put this matter to the applicant he responded that even though the mayor did a lot of bad things to his family, he did not let his senior officials know about it, and when he left China he did not have a criminal record so he would not be prevented from leaving the country.
[1]
The Department also asked him how he was he at risk of persecution in China and the applicant responded that the mayor did bad things to his family through “his personal relationships, not his public power”. The Tribunal finds the applicant’s explanation discordant with his claims that his father was pursued by government authorities who were angry because the applicant’s father refused to accept being involved in their projects because the agencies expected his father not to take payment for materials. The Tribunal finds it incongruous that after having upset governmental officials to the extent claimed by the applicant, that the matter would have been kept as a local one. The Tribunal cannot see why, had the mayor had intentions of causing serious harm towards the applicant’s family that he would have taken no interest in whether any members of the family attempted to leave the country, thereby escaping punishment.
The Tribunal does not accept the applicant’s explanation for why he was permitted to travel to Australia freely had he or his family had such an adverse profile even at a local level. The country information demonstrates that anyone considered a dissident is banned from exiting the country.[2]
[2]
The applicant has had the benefit of viewing the country information in the Departmental decision reflecting the Tribunal’s concerns:
In regards to entry and exit procedures from China, DFAT states that families of dissidents have also been subject to exit bans.[3] The government maintains a system of border controls that prevents persons of interest departing the country. The government uses exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents and persons employed in sensitive government posts.[4] China’s passports use sophisticated technology and its authorities have a high surveillance capability, particularly at train stations, airports and ports.[5] An ordinary citizen would find it hard to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[6]
Country Reports on Human Rights Practices for 2018 – China (includes Tibet, Hong Kong and Macau), US Department of State, 13 March 2019, p.41.
[4] Ibid.
[5]
[6] Ibid.
Given that the applicant was able to leave China without difficulty, the Tribunal does not accept that on return to China the applicant would have an adverse profile of any kind and the Tribunal finds that there is not a real chance that he would face serious harm or persecution now or in the reasonably foreseeable future for any reason, and specifically not for his imputed or actual political opinion. The Tribunal does not accept that the applicant will face serious harm as outlined (but not limited to) the instances under the Migration Act. Importantly, the Tribunal’s findings in relation to the applicant’s credibility and the vague nature of his claims reinforce the Tribunal’s rejection of the applicant’s claims, individually, cumulatively and as a totality.
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).
Having rejected the applicant’s claims in their entirety, the Tribunal does not accept 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 as defined in s 36(2A) of the Act. The Tribunal rejects that the applicant will be arbitrarily deprived of his life; that he will be subjected to torture; or subjected to cruel or inhuman treatment or punishment; or will be subjected to degrading treatment or punishment. This is because the Tribunal has found that the applicant and his family have no adverse political or other profile with state or non-state actors in China.
Accordingly, 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.
Rosa Gagliardi
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.
…

‘DFAT Country Information Report China October 2019’, Department of Foreign Affairs and Trade,
3 October 2019, p.37.

DFAT Country Information Report China October 2019’, Department of Foreign Affairs and Trade,
3 October 2019, p.37.

[2] Ibid.

DFAT Country Information Report China October 2019’, Department of Foreign Affairs and Trade,
3 October 2019, p.75.

[2023] AATA 4743

13 November 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice