2013189 (Refugee) - [2024] ARTA 887

2013189 (REFUGEE) [2024] ARTA 887 (16 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for ImmigrationMa and Multicultural Affairs

Tribunal Number: 2013189

Tribunal:General Member K. Gillingham
Date:16 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

CATCHWORDS
REFUGEE – protection visa – China – land resumption without compensation – physical assault – detention – attack on home – petitions – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 made on 16 December 2024 at 10.28am
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 August 2020 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 national of China arrived in Australia [in] December 2017 on a visitor visa and applied for protection visa on 6 February 2018. In his protection visa application and accompanying statement, he made protection claims in connection with a corrupt local village director selling his family’s land to developers without their consent for insufficient compensation.
The Department of Home Affairs (the Department) did not interview the applicant about his protection claims. On 25 August 2020 the delegate refused to grant the applicant a protection visa on the basis that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The same day, 25 August 2020, the applicant lodged an application for review of the delegate’s decision (the Application) with the Administrative Appeals Tribunal (AAT).
The proceeding was not finalised before the AAT ceased to operate on 11 October 2024. The AAT was replaced by this Tribunal which commenced operation on 14 October 2024. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transition Act) provides for the transition of AAT matters to this Tribunal. Proceedings before the AAT which were not finalised before it ceased to operate, must be continued and finalised by this Tribunal in a manner that this Tribunal considers is efficient and fair.[1]
[1] Item 24(2) of Part 5 of Schedule 16 to the Transition Act.
The applicant appeared at the hearing before this Tribunal on 6 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The issue in this case is whether there is a real chance the applicant will suffer persecution if he returns to China or whether there is a real risk he will suffer significant harm if he is removed from Australia to China. For the reasons set out below, I have determined that the decision under review should be affirmed.
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or they are 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 of the Act.
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they 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) of the Act.
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
Material before the Tribunal
The Tribunal has before it the Department’s file relating to the applicant’s application for a protection visa; the Tribunal’s file relating to the Application; and other material available to it from a range of sources. This includes but is not limited to:
a.The applicant’s protection visa application submitted on 6 February 2018 and an accompanying statement (undated) from the applicant.
b.The applicant’s oral evidence provided at the Tribunal hearing on 6 December 2024.
c.A copy of the applicant’s passport issued in China in [2017].
d.The delegate’s decision dated 25 August 2020.
e.The applicant’s movements records provided by the Department.
f.Department of Foreign Affairs and Trade (DFAT), County Information Report, People’s Republic of China, 22 December 2021.
g.Department of Immigration – PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
h.Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines.
Claims in the protection visa application
In his protection visa application and accompanying statement, the applicant made the following claims.
a.The director of his village in China was a bully and corrupt. In March 2017 the village director informed the villagers that part of the cultivated land in the village was to be sold to developers. The applicant’s family’s 5 mu of arable land was also to be requisitioned. When the villagers disagreed, the village director said that their land has been classified as contaminated land and sold the land to the developers at a low price, despite the villagers’ opposition. The village director took most of the proceeds of the sale and the villagers only received a little amount of compensation.
b.In May 2017 some of the villagers complained to the town government about the village director and the sale of their land without their consent for insufficient compensation.
c.One night later strangers broke into the applicant’s home and smashed all its contents. The applicant was dragged outside and beaten up. His attackers warned him that he would be beaten until he was disabled if he dared to report the village director again. Other villagers who had joined the applicant in reporting the village director were also retaliated against.
d.The applicant called the police who did not arrive until the next afternoon and made no record of the incident.
e.In June 2017 the applicant reported the village director to county government officials who said they would investigate and sent him away. In late July 2017 the applicant returned to the county government to inquire about the progress of its investigation. The applicant became angry upon hearing the county government officer say that the land sale was legal. The county government officials called the security guards who called the police when the applicant refused to leave. The police arrested the applicant for disrupting public affairs. In the County Public Security Bureau the applicant was beaten and forced to give up his petitions or they said they would send him to a mental hospital.
f.Later the village director came to the applicant’s home and threatened to have him killed if he continued to petition against him. The village director said he had connections with high level government. He instructed people to occupy the applicant’s family’s vegetable fields and had the applicant and his family monitored to stop the applicant leaving the village.
g.The applicant was left with no way to live. He secretly entrusted an agency to obtain him an Australian visa. He hoped the Australian government would protect him.
Evidence before this Tribunal
I accept the applicant’s evidence at the Tribunal hearing that prior to coming to Australia he lived in his parents’ house in the village with his wife, parents and [children]. They supported themselves by selling [produce] which they grew on the family’s land plots. I accept that the applicant completed primary school but his family could not afford for him to complete middle school. I accept that after he finished school, the applicant worked farming the family’s land plots.
I accept the following evidence given by the applicant at the Tribunal hearing.
a.The applicant and his parents owned a number of plots of land scattered around the village. Some of the land was irrigated and some was not. His parents owned one particular piece of land, about 5 mu in size, that was very fertile. The applicant and his parents had always farmed this piece of land. It was located about 200 metres from his parents’ house and next to the land of [Mr A] upon which was located [a specified] factory. The land belonged to his parents but the applicant considers that his parents’ land is his land because he is the only child.
b.[Mr A] is a rich man with influence, money and resources. He wanted to expand his factory. He spoke to the applicant and his parents and offered to exchange their good land for some of his not-so-fertile land. The applicant and his parents refused. Negotiations broke down. In late 2016 [Mr A] proceeded to take possession of their good land ‘bit by bit’ over time without their consent. The factory site was higher than the good land. [Mr A] engaged workers at night to use vehicles to deposit soil on the good land and to gradually make it as high as the factory site.
c.The applicant’s parents had an argument with the workers who did not take his parents seriously. After that young people threw bricks at his parents’ house one night and smashed a window. The applicant was not home at the time. He considered this to be a threat from [Mr A].
d.About a week later, in early 2017, the applicant heard a tractor sound. He went outside and started a fight with one of [Mr A’s] workers. The worker injured the [applicant] using a shovel and the applicant spent about 15 days in the county hospital.
e.Whilst he was in hospital, [Mr A’s] workers continued to deposit soil on their good land. The applicant’s wife tried to stop them but they carried her to one side. She became angry and sick.
f.The applicant and his wife reported the fight and the fact that [Mr A] was stealing their land to the police. The police said they would investigate but the applicant heard nothing further.
g.The applicant approached the county government about the matter. The government officials said they would investigate but they did nothing. The applicant yelled at the police at the county government office who dragged him outside and called him a psycho.
h.The applicant felt he had no other options. He returned to the village. His father and uncle told him to stop fighting against [Mr A] and his workers. They told him to go and find a job and make some money.
i.His family was never paid for the land. The applicant was still angry about the situation. Sometimes he would go to the factory and puncture the tyres of the factory trucks.
j.The applicant thought about moving to another village but decided not to as his family is poor and they would have to rent a house if they moved. His parents did not want to leave the village. His friends suggested he should go overseas to get away from all of it. The applicant then decided to come to Australia. He says he left the village secretly because his parents are old and they only have him and they did not want him to be hurt.
k.[Mr A] now lives in the city. The factory has expanded onto the applicant’s family’s good land. The applicant’s family can no longer farm there. He and his family have taken no action in relation to the land since the applicant left China. The applicant’s wife died from cancer in 2018 and his children no longer live in the village. His parents still live at their home. They are generally happy. In summertime they grow [produce] on their other plots of land which they sell to make money for basic living and medical expenses. In winter they take a break and rest. Nobody has threatened, harassed, intimidated or harmed them since [Mr A] took their land. The family’s other plots of land are no use to [Mr A] as they are not next to his factory.
When questioned, the applicant gave evidence that he has never been arrested; he has never been imprisoned; and apart from the fight with [Mr A’s] worker, he has never been beaten up or injured in a fight about the land. The applicant said that the only time he was threatened in connection with the land was when the young people threw brick’s at the family house. He did say that because no agreement was reached, sometimes when he walked down the street in the village some people would deliberately bump into him. The applicant said that after [Mr A] took the land, he gave up. He referred to an old Chinese saying: ‘If you can’t fight against them, you’d better get away from them’.
As is apparent from the above, the applicant’s evidence at the Tribunal hearing differed in significant respects from the claims made in his protection visa application and accompanying statement. When questioned about preparation of the protection visa and accompanying statement at the beginning of the Tribunal hearing, the applicant gave evidence that he had paid an overseas student to help him. He said that he told the student about his past experiences and the student wrote it down. The student then repeated what they had written to him in Mandarin. The applicant said that everything in the application form and statement was true.
When I raised my concerns towards the end of the Tribunal hearing about the inconsistencies between the applicant’s evidence at the Tribunal hearing and the claims set out in his protection visa and accompanying statement, the applicant acknowledged there were differences but indicated that he did not wish to comment other than to say that he has become used to life in Australia. He wants to stay here and make more money and send money back to support his children and parents.
When asked whether he had any fears that something would happen to him if he returns to China, the applicant said that his parents told him he may receive threats if he returns. When asked why [Mr A] would want to threaten him, the applicant said because they have not seen eye-to-eye in the past; because we didn’t agree to give him our land in the past; and because the applicant punctured the tyres on the factory trucks many times.
When asked, the applicant gave evidence that if he returns to China he would definitely not stay in his village. He would move to another village with his parents and find work. He does not think he would make another petition against [Mr A].
REASONS AND FINDINGS
On the basis of the applicant’s passport and his oral evidence before the Tribunal, I accept that the applicant is a national of China. For the purpose of s 36(2)(a), I accept that China is the country of nationality. For the purpose of s 36(2)(aa), I accept that China is the receiving country.
I find that the applicant was generally a witness of truth in respect of the evidence he gave at the Tribunal hearing. He appeared to recount what has happened to him and answer my questions without embellishment or exaggeration. I find that whilst the the protection claims set out in his visa application and accompanying statement may be grounded in, and have some connection to the truth, they are largely exaggerated, embellished or untrue.
I have set out above the applicant’s evidence at the Tribunal hearing which I accept to be true. The theft of the applicant’s family’s fertile land by a wealthy powerful man without any proper recourse for the applicant and his family is most unjust. Understandably, the applicant is angry, frustrated and unhappy about what has occurred and does not wish to return to live in his village. He has a job and has become used to life in Australia. However, the issue in this case is whether there is a real chance the applicant will suffer persecution if he returns to China or whether there is a real risk he will suffer significant harm if he is removed from Australia to China.
Based on the applicant’s evidence at the Tribunal hearing, I find that there is no real chance that the applicant will suffer serious harm if he is returned to his village or any other part of China in the reasonably foreseeable future. There is no ongoing dispute or conflict. [Mr A] is not interested in the family’s other land as it does not adjoin his factory. It has been more than seven years since [Mr A] stole the fertile land and the applicant left China. Since that time [Mr A] and his workers have not threatened, harassed, intimidated or harmed the applicant or his family. [Mr A] does not live in the village. The applicant has given evidence that if he returns to China he will move to another village with his parents. He says he will not petition further against [Mr A]. Whilst the applicant said he fears he may receive threats from [Mr A] if he returns to China, I find this fear to be speculative and without factual basis.
On the same reasoning I find that there is no real risk that the applicant will suffer significant harm if he were to be removed from Australia to China now or in the reasonably foreseeable future.
CONCLUSIONS
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.
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.
…