2006159 (Refugee) - [2025] ARTA 1124

2006159 (REFUGEE) [2025] ARTA 1124 (15 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2006159
Tribunal:General Member A Goldsworthy
Date:15 April 2025

Place:Perth
Decision:The Tribunal affirms the decision under review.

Statement made on 15 April 2025 at 2:29pm
CATCHWORDS
REFUGEE – Protection Visa – China – land requisition and detention – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 11 March 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old male national of China. He applied for the visa on 18 July 2019. The delegate refused to grant the visa and the applicant appealed to the then Administrative Appeals Tribunal.
The applicant appeared in-person before the Administrative Review Tribunal (the Tribunal) on 7 April 2025 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR 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
In his protection visa application the applicant claimed that he had left China due to gambling debts owed to a loan shark and a fear of being harmed, detained or killed by them.
The applicant provided the Department with ID including a copy of his passport bio-page.
The delegate refused to grant the visa on the basis that:
a.they were satisfied that there were effective protection measures available to the applicant in China and that they therefore did not have a well-founded fear of persecution; and
a.that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm.
The applicant did not add information to his claims prior to the Tribunal hearing.
At the hearing the applicant said that he had paid an agency to complete his protection visa application form and that he had never seen the form. When the Tribunal told him what claims had been submitted on his behalf, he said that the claims made in the application form were not true. He also said that a lawyer had submitted his review application to the Tribunal and he had not seen any documents at that time either. The applicant said that he knew that he had applied for a protection visa but did not know on what grounds.
Relevant oral evidence from the hearing is included below.
Background
The applicant was born and raised in Jinan, the capital city of Shandong Province in China, and has a house there in which his wife lives. The applicant has a [age]-year-old son who works in a factory in Jinan, while his wife works as an agricultural farmer on their own plot of land. They are in contact a few times per month.
The applicant’s mother passed away, as did one of his three brothers. His father is [age]-years-old and lives alone in a home that he owns in Jinan. The applicant is seldom in touch with his brothers but speaks with his father approximately every two months.
The applicant finished three years of primary school before taking up farming work. He worked as a farmer until he left for Australia in 2019 and said that he had never participated in any political activity.
The applicant currently works [in] a factory and has had this job for about 4 years. He sends approximately AUD $10,000 home annually.
He said that if his application for protection was unsuccessful and he was returned to China, he would live with his wife in Jinan.
Protection claim
The applicant told the Tribunal that he was seeking protection because he was ‘always persecuted’ in China. He said that China had a one-party system and no human rights. He said that there was a huge difference between Australia and China and he felt that he had freedom and human rights in Australia.
The applicant told the Tribunal that in 2016 the government had occupied his land and had not compensated him for it. He later clarified that they had occupied 10 percent of his land.
The applicant said that he had tried to argue his case but had in response been detained for 15 days in a police station in a ‘poor black room’. He said that he had been told that he should not argue anymore or they would continue to detain him. The applicant said that after he was released nothing further had happened and he had continued with his life.
When the Tribunal asked why he had come to Australia in 2019, noting that the applicant had come on a visitor visa but had said that he had no savings, he said that he had come for business. He was unable to tell the Tribunal what kind of business he had come for.
The applicant said that in the five months between arriving and applying for protection he had done some work at a [company], but he said he had not come to Australia to work.
The applicant said that he had applied for his first passport in January 2018 because he felt he had to leave China as he was always persecuted. The Tribunal noted information before it that he had been granted his visa 7 months before having arrived, and asked why he had waited so long to leave if he had faced harm. The applicant said that his wife had become ill with [cancer]. He said that he had not had any money and so had come to Australia to earn money to pay for her medical treatment.
The Tribunal highlighted that the applicant had earlier said that he had not come to Australia to work. He responded that China was a one-party system and had no human rights or freedom and he wanted to live in Australia.
When asked if the applicant had any reason to believe that he would be treated differently than others by the Chinese government, he said he did not.
The Tribunal put to the applicant that it was his responsibility to provide all relevant evidence in as much detail as possible to allow the Tribunal to establish the relevant facts of his case. The Tribunal also explained that it needed to be satisfied that he would face serious or significant harm in China and invited him to present further evidence. The applicant said that he hoped the Australian government would allow him to stay and live in peace.
I put to the applicant that I had some concerns about his claim reaching the level of serious or significant harm, highlighting that the instances of harm that he had described had been in 2016 and he had not left until three years later, as well as that his family continued to live and work in Jinan and did not face harm. I invited the applicant again to provide further evidence or claims, but he did not.
Findings of fact and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
I accept that the applicant had paid people to submit his protection visa application and his review application and had never seen the claims that had been made on his behalf.
I accept that the applicant has resiled from and does not fear harm for reasons of the claims submitted in his protection visa application, being that he owes a gambling debt to a loan shark.
I accept that the applicant is married, has a son, an agricultural plot of land and a house in Jinan, and that his wife lives in the house and works on the land. I find that, based on the applicant’s evidence, he would live with his wife in his home in Jinan if he were returned to China.
Land requisition and detention
I accept that the applicant was detained for 15 days at a police station for making a complaint against the uncompensated requisition of 10 percent of his land. I also accept that he had been told during his detention that if he continued to make complaints he would remain in detention. The applicant did not contend that he had been physically harmed during his detention.
I accept the applicant’s evidence that after having been released, he continued with his life as before and suffered no further harm in the three years before he left for Australia.
Having had regard to the applicant having not pursued his land complaint in the years after the incident, nor having had anyone do so on his behalf, I find that the applicant will not pursue his land complaint into the reasonably foreseeable future.
I have had regard to the applicant having been released from detention and never having been detained or otherwise harmed again. I have also had regard to him having been able to obtain a passport after this incident and been able to freely leave China. Finally, I have had regard to his wife continuing to freely farm their plot of land while the applicant has been in Australia. Having considered this information I find that the applicant’s detention was an isolated incident that was directly related to his complaints about the government having requisitioned a portion of his land without compensation.
As I have found it to have been an isolated incident, I also find that the applicant will not be again detained for reasons relating to the requisition of his land.
I have had regard to all of the applicant’s evidence, including that his family remain free to farm 90 percent of their land, and to my finding that he will not be detained again for reasons of this. I find that the applicant will face no further harm into the foreseeable future for reasons relating to his land requisition.
To avoid doubt, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal, for reasons relating to his land having been requisitioned.
Persecution by government authorities
I acknowledge the applicant’s claim of there being a difference between China and Australia in terms of politics, human rights and other freedoms, including freedom of speech.
The applicant was given every opportunity to present additional evidence of having been harmed in response to his claim of having been ‘always persecuted’, but did not.
Despite having been given every opportunity, the applicant did not provide evidence beyond the land issue discussed above, that he had been persecuted or was at risk of being persecuted by anyone in China.
I therefore find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 7 April 2025
Representative for the Applicants: N/A
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.
…