2014612 (Refugee)

[2024] AATA 4418

2014612 (Refugee) [2024] AATA 4418 (30 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014612

COUNTRY OF REFERENCE:                   China

MEMBER:Alan McMurran

DATE:30 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 30 September 2024 at 2:57pm

CATCHWORDS

REFUGEE – Protection Visa – China – dispute over the land acquisition – dispute over compensation – internet activities – applicant faces more than a probable chance of persecution and serious harm in the form of a lengthy jail term – threats received from Chinese authorities – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 46, 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 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Background

1. This is an application lodged 29 September 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 29 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant [applied] for the visa on 16 March 2018.

3. The applicant is a [age]-year-old single male who claims to be a citizen of the People’s Republic of China (“China”). He arrived in Australia on [date] March 2014 on a student visa granted 27 February 2014. He left China with a High School education intending to study in Australia. He is an only child and his parents who are now aged [age] and [age] respectively have remained in China and have supported him financially. His parents are both retired and living off their savings, and fund the applicant in Australia from time to time.

4. The applicant was enrolled at [a university] in Sydney to study a Bachelor [degree]. The applicant did not complete his studies and his student visa was cancelled under s116 of the Act on 13 April 2016. The applicant lodged his protection visa application and was granted a Bridging visa. He has remained in Australia continuously since his arrival in March 2014.

5. The delegate refused to grant the visa on the basis that the applicant did not have a well-founded fear of persecution as defined in s5J of the Act  or for any of the reasons in s5J(1)(a). This was because the applicant had not provided sufficient evidence to support claims of probable harassment or adverse treatment in China based on Internet posts he had made from Australia and which relied on an adverse profile of the applicant’s father which was not supported on the available information.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   The applicant’s claims

7. The applicant’s claims are set out in a written statement lodged with his application to the Department on 19 March 2018.

8. The applicant maintains that his family property in their home village in [named] Province was subject to acquisition by the local authority and then a compensation claim. This occurred in late 2016 and then continued into early 2017, in March, and which resulted in a protest by villagers. The applicant’s father was involved in the protest and clashed with police, together with other villagers who were beaten. He claims his father had [been injured]. His father along with [other] villagers made a complaint to the District Government office. His father was subsequently investigated and arrested for petitioning. His mother was compelled to pay [amount] RMB for bail, and his father was hospitalised for a month for his injuries after he was released. He was warned not to petition again and was monitored by village authorities.

9. The village dispute over the land acquisition was reported to the applicant by his mother in June 2017. He claims he was “distressed and angry” and reported his father’s experience on the Internet. The post was soon deleted and his father arrested again because the applicant had “criticised the government”. The applicant claims he was later contacted by the [named] PSB in early 2018 who warned him he would be jailed on his return to China. He claims that his parents have warned him not to return to China for his own safety.

10. The applicant elaborated on these claims in his oral evidence at the hearing, as described below. He provided no written documentation or supporting witness statements as evidence of the claims, and relies entirely upon his oral evidence. He maintained that it was not possible to provide evidence from witnesses who were unwilling to speak up for fear of retribution. The evidence of his Internet activity had been deleted and he could not reproduce that information, other than from his memory. He had no medical records of his father’s injuries and subsequent treatment. He relied on his mother’s account of what happened when he reported the events on the Internet, but had no first-hand experience of the claims made.

    The hearing

11. The applicant appeared before the Tribunal on 27 September 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 applicant appeared unrepresented. No issues of interpretation were raised at the hearing either by the applicant, or the interpreter, and none were evident to the Tribunal. The hearing went for in excess of 3 hours with 2 short breaks for the interpreter.

12. The Tribunal explained to the applicant the purpose of the hearing and what was required to establish his status as a refugee under the Act. The applicant’s comments at the hearing where italicised below are from the Tribunal’s notes of what was discussed and in the absence of any available written transcript.

13. The applicant was asked whether he had sought advice or required an adjournment to provide further information. A discussion followed as to how he might choose to present his evidence, why it was important and whether he needed any assistance. The applicant said he was ready to proceed and did not require any further time as he had provided all the information and documentation that he could provide. He said he was willing to rely upon his oral evidence only, and his submissions and argument made to the Tribunal at the hearing.

14. The Tribunal informed him that it could not provide him with advice and it was a matter for him what it was he chose to say and how to present his information. The applicant indicated he understood. The applicant did not recall the reasons for the refusal decision. The Tribunal explained that the delegate had found that there was not enough information in support of the claims to show that anything had happened to his father, and the delegate did not accept that the applicant in turn had posted “anti-government sentiments online”.

15. The applicant responded that he did not have any witnesses to call upon and could not provide any documents and trusted himself to present his information truthfully and correctly. He said his parents were elderly and confused by events which had happened since 2016 /2017 and relied upon him for assistance. He told the Tribunal he had regular contact with his parents and had also been in contact with Chinese police.

16. He was asked to explain about his claims, but did not remember all the details in his statement. The Tribunal reminded him what he had said in his statement on 19 March 2018. He maintained everything he had said there was true and correct.

    Frozen bank funds

17. He was asked if he wished to comment or elaborate on his written statement. He then gave a general explanation that the issue was now, in 2024, “all about money”. His parents had money in an account which had been frozen by authorities. He said they had several accounts and that the frozen account contained approximately AUD [amount]. He said some of that money was his own funds. He said he had contacted his mother to ask her to send him money. His mother told him their account had been frozen and asked him to contact police. His parents gave him a phone number to ring and enquire about their account and to see if he could arrange for the funds to be unfrozen. His mother informed him that the account had been frozen because of the events following the dispute over the land acquisition. The applicant claimed it was because of the Internet posts he had made complaining about the local authority after learning of the events in 2017. He said he agreed with his mother to contact police on their behalf to inquire about the bank account and to try and have the funds released.

18. He said he contacted police in 2018 on the number he had been given and they told him words to the effect: “You have to ask your parents to come to handle this problem.” He said he tried to explain that his parents had already attended for that purpose and had been detained. He said he was then told: “You need to come back to China to resolve this problem. You are obstructing police. We cannot give you details because you are not your parents”. He said at that point he hung up. He said he was afraid because of the threat. He then had several contacts with police over the next 2 months, trying to have the funds released from the account and to obtain an explanation. He said that when his parents had in fact attended at the police station as requested, they had been interrogated and their account remained frozen. He said that when he had rung police himself, either they had not been available to talk with him about the matter or would try “to deceive me” because they wanted him to return to China so he could be arrested. Holding the funds was a form of “blackmail”.

19. He believes the frozen account was the result of the compensation claim brought by his father for the acquisition of their village land and his subsequent complaint on the Internet. He said his family had owned two plots of land in the village and two apartments in the city, and his parents alternated between these properties for their living arrangements, spending sometime in the village and sometime in the city. He said his mother had told him that when his father had been detained by police and assaulted in about June 2017, that the land had already been compulsorily acquired. He was asked whether the compensation claim had since been finalised, which he denied. He said they had received no compensation. He said he learned about the frozen bank account subsequently when he rang his parents asking for money, some of which was his and in that account.

20. He said his mother had only informed him about the land acquisition dispute and his father’s treatment, after the events in June 2017, and when she told him that his father had been injured. He said his parents did not know what to do about the situation and had waited for a while before deciding to ask him for help over the issue with the bank. This occurred in early 2018 when they asked him to contact police on their behalf. By that time, in early 2018, the applicant had already posted information on the Internet to complain about what had happened in the village to his father in 2017. The applicant claimed it was because of his interference in his parents’ dispute over the land by posting information on the Internet with his complaint about the local government that their funds had been frozen. This was done he believes as an incentive for him to return to China.

    Internet posts critical of the local authority

21. The applicant explained that after his mother had told him what had happened to his father in June 2017, he was upset and “angry”. He was in Australia and decided in September 2017 to start a WeChat social media group comprising “10 other villagers whose land was affected”, and who also had not received adequate compensation, or indeed any compensation. He said he contacted them via the social media channel and during the Internet discussions, some also by mobile phone and with chat messages, and he simply set out the facts as related by his mother. He said he was critical of the local authority in those discussions. He did not elaborate other than to say he had said what happened to his father was “unfair” and that they should be compensated. He said he could not remember all the detail of their discussions which took place over approximately 2 weeks, before his internet account was “shut down”.

22. He said before his account was closed, he had agreed with the villagers involved that he would compose a letter which would be sent as a petition to the provincial city authority. He said he composed the letter as a petition, setting out the facts and their complaint, and all the villagers and himself signed the petition, as well as his parents.

23. He said he did not have a copy of the document which was sent in late 2017. He said the letter had simply set out the facts, saying what had happened and how his parents had not been compensated and how his father had been detained and assaulted, and how the compensation offered was unfair. He was unaware of any response to the petition. He could give no details as to when or how the document was delivered but said as a consequence, the villagers and his parents were again threatened by local police because they had petitioned.

24. The Tribunal asked him about his concerns over his We Chat account, his recorded comments with the other villagers, and any threats he had received as a consequence.

25. The applicant claims that his personal predicament arises twofold. Firstly, because he is a member of his family who have been threatened by police, and the local authority, not to petition, and that he has not returned to China to report to police about his personal involvement and for responsibility for lodging the petition. Secondly, because it is illegal to post information publicly on the Internet criticising the local authority and the State, and that his reporting of the events are seen as “criticism” of the State which is a crime, and for which he is liable to punishment and for a lengthy jail term.

26. He was asked to explain. He said he knew it was illegal to protest and put the information out on the Internet, but that he had done so because he felt “safe” in Australia and was “angry” at the time. He said when he had contact with police in early 2018 they had tried to “deceive” him. He said they had accused him of “multi-level marketing”, which was a reference to using the Internet to promote his information. The expression was otherwise unexplained by the applicant, and he appeared not to understand why the police had made such a complaint in his telephone calls. He simply believed police were trying to have him return to China voluntarily “to resolve this problem.” He said he had many conversations by telephone with police over 3 or 4 weeks in early 2018, but could not remember all the details of those conversations, only that they required him to return and to report to police to have it resolved. He said he was told if he did not return, that later “you will suffer more severe consequences”. He said his social media account is now unable to be used, as it has been shut down by Chinese authorities who regularly censor such material and his account contains no record of its history.

    Threats and fears of returning

27. He said on 5 February 2018, he had been contacted by the PSB on his mobile. He said these were not the same police from the local authority and the village. He said it was a video call by someone who had “friended me” on the Internet. He said he did not know the person who appeared in the video, who was in a uniform and he thought was “police”. He said the person threatened him and wanted him to return to China to face prosecution for posting comments critical of the government. He said he was informed that he would be “arrested once I returned to China because of anti-government comment as I had criticised the authority saying it blackmailed the villagers”. He said he was warned “don’t say it again”. He said he was frightened after he received this threatening phone call and hung up immediately. He said it was his last contact with police. When he was asked for more information about conversations with police, he said he could “not remember all the details”. He said in summary he had been threatened at least twice, from the local police from the village in his phone calls for his parents about their bank account, and the second time by the PSB who said he would be prosecuted when he returns for making “anti-government posts”.

28. The applicant was asked if he had any further information. He said his mother keeps him regularly updated and his parents have warned not to return to China. He was asked what he had done since receiving the threats in 2018. He repeated his social media account had been closed and their bank account remains frozen. He said he understands that one threat from local police pertains to the petitioning over land compensation. The second threat from the PSB pertains to his perceived criticisms of the government. He is unable to provide any written documentation to support his claims but maintains they are true, notwithstanding that his memory is not so accurate because several years have passed since his conversations. However, his mother informed him that the issues are still current and that it would be a risk for him to return.

29. The Tribunal asked how he would calculate that risk of being harmed should he return. The applicant said he has no doubt, “100 %”, that he will be found and arrested when he returns and jailed for a lengthy period for using the Internet to criticise the government. He does not believe the issue has gone away because their bank account is still frozen and is unlikely to be released until he returns to deal with the issue. He said his mother had known about the threats to him because police had also visited their home in China and were pressuring his parents to have him return. He was asked about the other villagers involved in the petitioning. He said some had been arrested and some had run away. He had no details of what happened to those who were arrested. He said this was because his We Chat group had been shut down and his parents had no further information. He believes they would have been detained and interrogated and given warnings, as he was, not to continue to petition. He said “only a couple of days ago” his mother had informed him that some of those arrested for signing his petition in 2017 had not yet been released.

30. The Tribunal asked if he had any other fears about returning to China. He said it was only related to what he had described about threats he had received from police and the PSB. He was asked what he intended to do. He responded that he had not come to Australia “to work”. He said his family was able to support him and “I don’t need the money”. He said his family “have more than one bank account”. He said his family have been able to regularly send him money when he requested it. He said his feelings about returning to China have changed because of what he believes will happen to him if he does. He said he does not want to go back to face an indefinite jail term, or worse, if he is prosecuted and imprisoned in China. He said he is reminded of the threats and past events continuously and which has caused him stress including “turning my hair grey”.

31. The Tribunal asked why it should accept what he has said without any other evidence to corroborate his claims. He was told that his recollection seemed at times vague and uncertain and therefore unreliable. He responded that “I was telling the truth”, and he insisted that at the time in late 2017, “I could not stand silently by”, which is why he took the action he did to help his family. He said there is no one else to do it other than him as he is their only child. He said he is safe in Australia and that punishment in China could involve “decades of imprisonment” and mistreatment. He said he should be believed and the experience of the remaining petitioning villagers, some of whom are still imprisoned is an example of what can happen to him.

1. The Tribunal put to him country information that it would be relatively straightforward for him to relocate anywhere in China to be safe, other than returning to his village and reporting to police. He said he believes he will be on a PSB watchlist on his return. He said he would be obliged within 7 days of his return to report to his local authority and from the village where he usually resides. He said this is now a requirement for returning citizens. He said he will have to return to the village anyway to help his parents and the local authorities will know that he has returned and he will be arrested. He said it would not help him to argue that he had simply stated the facts, without making any explicit anti-government comments. He said that is not however how the authorities will view his Internet posts as he has already been threatened.

2. He was asked whether he needed any more time to provide supporting evidence. He said he could not do so because any witnesses would be unlikely to come forward or were already in jail. He could not obtain any written statements. He could not find evidence of the Internet posts and did not have a copy of the original petition from 2017. He maintains and submitted that there is a significant likelihood he will be arrested and jailed indefinitely if he is returned and he is genuinely afraid to return.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   Identity

9. The Tribunal has accepted the Department’s information as to the applicant’s biometrics from his passport and his identity as a Chinese citizen.

10. The Tribunal finds that the applicant is outside his country of origin (China) and is the country to where he would ordinarily be returned.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant meets the criteria in s36(2)(a) of the Act and is a refugee as defined in s 5H(1) for one of the reasons in s 5J, and as a person with a well-founded fear of persecution.

12. The Tribunal has available for consideration the Department file, the application and information extracted from it, the Department decision, the Act and Regulations, the oral evidence and submissions from the hearing, the Tribunal file, relevant Department policy and country information, and guidance from Court authority.

    Analysis and findings

13. The review application considered information provided orally by the applicant and which had not been provided to the delegate. The applicant had not been provided with an interview and was unable to provide any written documentation or supporting witness statements, other than what was contained in his original statement.

14. By the time the matter came on for review, the applicant’s principal concerns were related to his Internet activity which had been raised in the claim before the delegate, but not articulated. The hearing on review focused both on the genesis of the claims arising from a land dispute, and upon the details of the Internet posting, and subsequent threats received from claimed State authorities.

15. In the absence of documentation to support the claims or any other evidence, the Tribunal has considered the reliability of the applicant’s oral evidence and his general credibility. If he is accepted as truthful, and the facts are reliable, then the Tribunal must form a conclusion as to whether the applicant faces a well-founded fear of persecution based on an identified adverse political point of view which criticises the State, and for which reason he faces a real chance of serious harm. The Tribunal must also weigh up the likely or probable outcome of the threats, where accepted, and were the applicant to be returned to China.

16. The Tribunal is mindful that forming a view as to credibility is never with certainty that its view might be correct. The Tribunal must come to a decision where it can accept that something is probable and within the reasonably foreseeable future. If the facts identified are within a reasonable context and chronology, are not unbalanced or extreme or hypothetical or imaginary, the claimant (the applicant) might in such circumstance be accepted so that the essential claims are made out in support of his claimed  ‘well-founded’ fear of persecution.

17. Where there is evidence which supports likely or probable outcomes based on the applicant’s claims, it is first essential to consider those claims which might lead to those outcomes. There is ample and reliable country information about China, referred to below, which identifies probable outcomes. The facts in this instance however can only be identified by accepting the applicant’s oral evidence. In this instance, the Tribunal is not troubled by minor discrepancies or uncertainties in a chronology which occurred more than 6 years ago. It has listened carefully to the applicant’s statements and submissions and finds as follows in relation to the oral evidence. Memory is not a perfect tool. There is nothing before the Tribunal or in the manner of the applicant’s presentation which raised concerns he was being untruthful. The applicant was forgetful perhaps, but the Tribunal is satisfied he was not deliberately so.

    Findings on land claims

18. Firstly, the Tribunal can accept that the applicant’s parents were involved in a land acquisition dispute in the village. This did not come to light for the applicant until mid-2017. Prior to that, the applicant had been living in Australia as a student since early 2014 and had little knowledge or awareness of events back in his home village.

19. Secondly, the Tribunal can accept that his parents informed him of those events which happened in a relatively short compass between March 2017 and June 2017. In that period, the applicant’s father took an active part in opposing a land acquisition claim, and was himself arrested. He was detained, interrogated and beaten. The extent of his subsequent injuries is not established on the available information. The Tribunal however is aware from country information that frequently village land disputes result in violence, arrest and detention where protesters are harmed.

    The internet posts

20. The Tribunal can accept these events in general terms. What followed was however the result of independent action taken by the applicant himself. This involved him being informed by his mother of those events, and it is unsurprising that he accepted what he was told by her. He became angry, and the Tribunal can accept that he sought to inform himself from other villagers how he might assist from afar, being located in Australia. The Tribunal accepts that he contacted some of the villagers. It is logical that was done by the Internet, and using We Chat as the medium, which was and remains China’s largest social media Internet platform.

21. The Tribunal cannot establish from the available information exactly what was said or done during the short life of the social media group the applicant claims was formed with those villagers. The applicant maintains he did nothing other than report the facts as recounted to him by his mother, and no doubt from the other villagers with whom he was communicating. The Tribunal accepts the applicant’s account of those messages, emails and telephone calls in the chat group. The applicant denies any direct criticism of the authorities, although he maintains in a petition which he drafted that he claimed the compensation was “unfair”.

22. The Tribunal found nothing surprising in the applicant’s account about the dispute over compensation. If the claim were to remain at its highest at that point, the Tribunal finds it would not accept there was a real chance of prosecution in the foreseeable future on account of the land dispute alone, and for taking the side of his family in making a petition. Country information informs[1] that lodging petitions is commonly done by millions of Chinese every year on account of land disputes. Many of those are resolved, and do not continue as in this instance for more than 6 years.

    [1] Common Claims China - country of origin information service- p40

23. The applicant in this case relies however on threats he has received from two sources, one from local police and the other from the security police (PSB). If those accounts of the threats are to be accepted, then the Tribunal must form a view as to whether there is a real chance of the applicant being persecuted and likely to suffer serious harm were he to return to China in the foreseeable future.

24. The Tribunal listened carefully to the applicant’s account which was consistent. He maintained firstly that the local police insisted he returns so he can “resolve” the petitioning issues for his parents, including the claimed frozen bank funds. Secondly, he claims being threatened by the PSB that he will be arrested upon his return.

25. The Tribunal has had regard to the applicant’s submissions about what happens to convicted criminals in China. He maintained he is likely to face a very lengthy prison sentence because of his Internet posts.

26. The Department of Home affairs reports on 23 July 2024[2] that:

    “The law allows authorities to collect and use online private messages. Social media, phone calls, text messages, faxes, email, and instant messages may be monitored. The government has the capacity to read and track down low-level social media commenters, including using automated methods such as algorithms. All Chinese social media users must use their real names or be identifiable by the state. Chinese social media applications (including their digital assistants and payment platforms) like WeChat, popular in Australia, may be monitored by the Chinese government and subject to censorship.”

    [2] Common Claims China - country of origin information service- p40

27. The report further acknowledges that:

    “Discussion of sensitive issues may attract attention from authorities. Estimates indicate thousands of people are incarcerated for their political or religious views. Civil society organisations may operate openly if they do not work on politically sensitive topics or if their aims align with government priorities. Sensitive subjects may quickly change but include political issues and events (including the policy direction of the CCP and nation and sensitive anniversaries); serious economic, health (including COVID-19 origins and the government’s handling of the outbreak); land rights and property or environmental issues; labour rights; religious or ethnic issues; or legitimacy of central authorities and the CCP. Those who broach sensitive topics, and their families, may be subject to questioning and surveillance.”

28. A DFAT report [3] notes that information considered sensitive may be censored, including a large number of topics such as land compensation and “with those raising them liable to punishment”.

    [3] 22 December 2021 at 3.79

29. Freedom House reports[4]  that:

    “The CAC and other bodies routinely introduce new rules and guidelines to further refine online restrictions, with an increasing focus on user-generated content. In December 2022, the CAC introduced new rules that require technology companies to review all social media posts before they are published and filter out “illegal and harmful” information”.

    It further notes:

    “There is evidence that WeChat users are increasingly self-censoring to pre-empt the closure of their accounts or other penalties, since WeChat is relied on for a wide variety of services that include messaging, banking, ride-hailing, ordering food, and booking travel (see B2). The app’s critical role in daily life, alongside platform moderators’ growing propensity to close accounts rather than delete objectionable posts, has increased pressure on users to self-censor.

    Chinese citizens are regularly jailed for their online activities, and the risk of being detained or imprisoned has increased considerably in recent years. Rapid advances in surveillance technology and growing police access to user data have helped facilitate the rise in prosecutions (see C5 and C6) [ emphasis added]

    [4]

    Well-founded fear arises

30. The Tribunal has considered this information along with a considerable body of reporting that to criticise the authorities and the government in the PRC is a high risk strategy, likely to result in serious consequences such as imprisonment, and where citizens onshore are regularly jailed for their online activities.

31. The Tribunal has listened carefully to the applicant’s oral evidence and submissions. The Tribunal finds it is satisfied that the applicant is truthful and credible as to his summarised account of events from 2017 and 2018. The Tribunal is further satisfied that his personal involvement through the Internet and media posts is an unresolved issue as far as Chinese authorities may be concerned and that the applicant has a genuine fear of persecution through arrest and imprisonment if he were to return to China in the foreseeable future. The Tribunal is satisfied that the applicant’s fear is not fanciful or exaggerated so as to promote his visa claims.

32. The Tribunal had some difficulty with the fact the applicant had made no attempt to corroborate any of his submissions and the facts relied upon. This is so, notwithstanding the significant passage of time he has been in Australia and aware of the difficulties his family was facing in China. There are also some discrepancies as to the timing of events and little to record what was actually done in the Internet posts and by way of petitioning through the Internet by the applicant.

33. Nonetheless, the Tribunal has formed the view from the oral account given and the country information available that the applicant faces more than a probable chance of persecution and serious harm in the form of a lengthy jail term because of the Internet activity he claims was undertaken. In doing so, the Tribunal is mindful of court opinion which notes that the Tribunal does not require rebutting evidence before it can lawfully find a particular factual assertion made by an applicant is (or is not) made out.[5] There is no rebutting evidence in this instance, which contradicts the applicant’s claims, albeit the Tribunal may have some minor doubts as to the reliability of all the facts claimed. The applicant’s argument that he did not provide further information due to lack of ability to provide it, and despite the delayed decision-making process, is accepted when taking into account the difficulty for a person in his position, possibly under surveillance, and who has little or no access to independent witnesses or documentation.

    [5] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.

34. The Tribunal finds it is satisfied on the basis of all the evidence, cumulatively, and both from the applicant himself and reports from country information, that the Internet activity engaged in by the applicant and the subsequent threats received from Chinese authorities leads to the conclusion that he faces a well-founded fear of persecution and a real chance of serious harm in the foreseeable future, should he be returned to China.

35. For these reasons, the Tribunal finds it is satisfied that the applicant meets the refugee criteria in s 36(2) of the Act.

    Conclusion

36. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

37. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a)) of the Migration Act.

    Alan McMurran
    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.

    …

    
    

[China: Freedom on the Net 2023 Country Report | Freedom House]