2014797 (Refugee) - [2024] ARTA 492

2014797 (REFUGEE) [2024] ARTA 492 (21 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2014797

Tribunal:General Member S Memmott
Date:21 October 2024

Place:Sydney
Decision:The Tribunal affirms the decisions under review.

Statement made on 21 October 2024 at 3:27pm

CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – local elections – corruption – detention – torture – Communist party membership – financial hardship – employment – medical condition – access to health care – 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
CASES
SZDCD v MIBP [2019] FCA 326
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, made to the Administrative Appeals Tribunal (AAT), of a decision made by a delegate of the Minister for Home Affairs on 23 September 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants, who are a married couple and both claim to be citizens of China, applied for the visas on 1 March 2018.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT, in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2014 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for the purposes of the proceeding after 14 October 2024. Anything done in, or in relation to, the proceeding after 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal.
This decision and statement of reasons is made by the Tribunal.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The protection visa application included, among other things, the following personal information about the applicants:
·The first named applicant was born in [specified year] in Lianjiang, Fujian Province in China.
·The second named applicant was born in [year], also in Lianjiang, Fujian Province.
·The applicants are both citizens of China and no other country.
·They are both of Chinese ethnicity and state they have no religion.
·The applicants were married [in] December 1998.
·The applicants arrived in Australia [in] December 2017, as holders of visitor visas.
The protection visa application set out the following claims for protection, advanced by the first named visa applicant:
·The first named applicant was persecuted by a town government corrupt official because he wasn’t following the official’s instructions to gain his own political interests. The first named applicant was retaliated against, so he had to escape China.
·All the villagers wanted to vote for the first named applicant to be the village committee director, but the leaders in the higher level government disqualified him without proper reason. The higher level official wanted him to promote a person with personal connections and interests. The first named applicant didn’t follow these instructions and so was retaliated against for that.
·The first named applicant sought justice by appealing to higher level government, but only got worse retaliation for that.
·He didn’t try to move because it’s all the same political environment in China.
·If he returns to China he will be targeted by the corrupt official who won’t let him survive. He will be imprisoned by illegal detention and will be tortured by inhumane treatments.
·He won’t receive protection from authorities as they are all the corrupt officials and they protect each to gain their private interests.
·He cannot relocate to avoid harm as they are all the same kind of government officials and the political environment is all the same in China.
No claims for protection were advanced by the second named applicant.
The form states that the applicants did not receive assistance in completing the form.
Supporting documents
The file held by the Department of Home Affairs (the Department) contains copies of the biodata pages of each applicants’ passport, issued by the People’s Republic of China. The first named applicant’s passport was issued in [2014], the second named applicant’s passport was issued in [2017].
Delegate’s decision
A delegate of the Minister for Home Affairs (the delegate) refused the visa applications on 23 September 2020. The delegate cited a range of country information, including about exit controls, and considered that the applicants were not of adverse interest to authorities at the time of their departure from China. The delegate was not satisfied that the first named applicant participated in the activities claimed or experienced adverse treatment as claimed, and on that basis was not satisfied that the applicants met the refugee or complementary protection criteria.
Claims and evidence before the Tribunal
Application for review
The applicants lodged an application for review of the refusal decisions on 2 October 2020. No supporting documents or other evidence was submitted with the application form.
Submissions and documentary evidence
On 10 September 2024, the second named applicant lodged some 40 pages of evidence concerning her diagnosis of and treatment for [cancer]. On 4 October 2024, the second named applicant lodged two additional documents concerning her cancer treatment.
On 14 September 2024, the first named applicant submitted a written statement, in Chinese but accompanied by a certified translation. It was dated 24 August 2024 and set out, in summary, the following information concerning his claims for protection:
·The conflict with [Official A], the [Position 1] in [Town 1], began in July 2017 when the village party branch election was held. The first named applicant was on the official candidate list for the election through public opinion polls, but [Official A] talked to the first named applicant and asked him to withdraw his candidacy to be replaced by someone else. The first named applicant refused and the conversation ended unhappily, as the first named applicant had failed to meet his expectations.
·In October 2017, the election of members of a villager’s committee was held and the first named applicant was recommended to be on the candidate list through public opinion polls. The official candidate list was then to be determined by the village representatives who attended the meeting and elected official candidates. When the official candidates were determined, [Official A] instructed the branch secretary in this village to threaten others by utilising political means (the party leads everything in China) and asked others not to support the first named applicant, so that the first named applicant was unable to be listed on the official candidate list.
·Before the October election, the applicant had argued with [Official A] and intended to report the situation to higher authorities. [Official A] called the police, saying that the first named applicant disrupted public services and disturbed other staff when they were working. The first named applicant was arrested by the police and questioned in the detention room for an entire afternoon. He was not released by the police until family members pulled some strings.
·[Official A] must have certain connections in politics to become a [Position 1]. The first named applicant cannot compete against him at all. The first named applicant was dissatisfied with what [Official A] did, so the conflict between them became increasingly serious. Later, [Official A] stopped the first named applicant from being a party branch member, which made the applicant feel that he was treated unfairly.
·The first named applicant talked to others about [Official A’s] despicable behaviour, but he retaliated even more severely. He thought the first named applicant made him look bad and so he felt embarrassed.
·The second named applicant ran a small [store], and [Official A] frequently instructed tax authorities and administrative departments for industry and commerce by utilising his power to find fault with the store, asking them to rectify the store and imposing fines, thereby making it impossible to keep running the store.
·Moreover, [Official A] interfered with the operation of the [product 1] company the first named applicant and his friend had invested in through various ways, such as tax inspections and safety inspections. The first named applicant had to withdraw from the company’s shareholders.
·During this period, the applicant also repeatedly lodged complaints and reported the situation to relevant departments at higher levels, but [Official A] intercepted his complaints by using his connections. The first named applicant was detained in the detention centre by public security organs for bypassing the immediate authority and presenting complaints to higher levels.
·The first named applicant thought he had no way to defeat [Official A] and no ability to compete against him. Officials always provided protection for other officials, they always achieved their own goals by any means necessary.
·Because of [Official A’s] oppression, the first named applicant’s debt burden became increasingly heavy, his income couldn’t cover his expenses and he experienced financial difficulty. He was in financial hardship and felt oppressed by [Official A] in various ways. He and his wife had no choice but to leave their home and try to live in other countries, and they asked relatives to bring up their child.
·If they return to China, they may still be oppressed by [Official A] in various ways, and they have no personal freedom.
The hearing
The applicants appeared before the Tribunal on 10 September 2024 and 4 October 2024 to give evidence and present arguments. On both occasions, the Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
On both occasions, the second named applicant advised that she was well enough to participate in the part of the hearing conducted on that day, despite her ongoing treatment for [cancer]. On 10 September 2024 she advised that she had recently had surgery and was off from work resting. On 4 October 2024 she advised she was soon to have radiotherapy treatment.
At hearing, the second named applicant advised that her treatment for cancer was a new claim for protection she wished to rely on, because she has to have medication and visits for the next few years, which she won’t be able to access or afford in China. The applicants also maintained that they are at risk because of the official the first named applicant has had problems within the past ([Official A]), stating that he has been promoted to higher ranks.
The oral evidence given about these claims is discussed in more detail below, as relevant.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicants both claim to be citizens of China and no other country. As noted above, copies of their passports, issued by the authorities of the People’s Republic of China, are before the Tribunal. In the absence of any evidence to the contrary, the Tribunal accepts the applicants are nationals of China and that China is the receiving country for the purpose of assessing their claims.
Claim to be at risk of harm from Party official
Evidence at hearing
The first named applicant gave oral evidence that after completing the junior years of high school, he worked in a [shop] for around 2 years, before getting a job with the village government. He worked for the village government for several years before he was elected to the Branch Party committee in [year]. He held a role responsible for campaigning and propaganda. He continued to be elected to this committee and held the same role until November 2017.
He gave evidence that he worked in the lowest level of government in China, at the village level, and had conflicts with people in the next level up, the town level – in particular, conflicts with the [Position 1].
He explained at even at the lowest level of government in China there are two sections: the government staff section and the communist party section. In July 2017 there was an election for the Branch Party committee. The villagers would recommend 9 people, voting freely, and of those 7 would be chosen to enter the Party committee at the village level. He was one of the 9 recommended members, but the [Position 1] from the level of government above village level (the town level) – [Official A] – came to speak to him and asked him to step down and give the position to someone else.
The first named applicant refused, [Official A] summoned the first named applicant to his office, and there was a big fight – a verbal conflict. [Official A] called the police, saying that the applicant was causing trouble. He was detained for one afternoon and interrogated, before calling his family and using some connections to get out.
The first named applicant advised there were no further problems with the police after this incident, and he was successful in being voted onto the Branch Party committee (in fact receiving [a high] number of votes). He observed that the police couldn’t do anything else because arresting and detaining him was against the law and they knew that. They were just acting at the request for [Official A] and they knew they didn’t have a proper basis to detain him.
Elections for the government part of the committee are always in October – with the party elections always in July (elections occurring every three years). So there was another election in October for the village committee, this time the government section. The first named applicant had worked in the Party’s committee for a long time, so was really popular with the villagers, and his name was included as a candidate, but [Official A] opposed and prevented this.
The first named applicant explained that [Official A] then arranged for him to lose his place on the Branch Party committee in around November 2017, using the applicants’ second son (born outside the family planning policy) as an excuse for doing this. The first named applicant advised, when the Tribunal sought to clarify, that this was the event he referred to in his written statement of 14 September 2024 as [Official A] stopping him from being a ‘branch party member’.
The first named applicant confirmed at hearing the content of his written statement about [Official A] causing problems for his wife’s business and the [product 1] business he held shares in.
It was after this that the first named applicant decided to make further complaints to the authorities in Liangjiang who deal with such matters. After he made this complaint, in person, he was detained again by the police. He was detained in the morning and released in the evening, he thinks because the law at the time said that he couldn’t be held for longer than that.
After that, he approached [Authority 1] in Liangjiang. However, he was again detained by police. He was again released after around a day, he thinks because there was a limit on how long he could be held.
The first named applicant gave evidence that due to the tremendous pressure he was under during this period, he did not sleep and developed [a medical condition]. He had to undergo surgery in China and to this day continues to take medication for [this condition] and has problems if he doesn’t get enough sleep. He also became depressed, though that has improved since he’s been in Australia.
At hearing, the second named applicant gave evidence about this issue consistent with that given by the first named applicant. She referred additionally to [Official A] sending a drunk man 2 or 3 times to the [store] she owned and operated, to keep drinking without making payment, and then taking the step of engaging some guys from a gang to visit the shop, who smashed things and broke goods. Her father in law was injured that incident.

The first named applicant gave evidence that if the applicants return to China now, [Official A] will find out whatever they are doing and stop it. He said that once you have a conflict with government officials, they will keep chasing you down and keep doing things. The second named applicant referred to [Official A] wanting to take revenge on their family and spying on their family. She said that news would travel fast if they returned to China (as they are from a small rural area) and that [Official A] would definitely do something to them. Both applicants also pointed out that [Official A] has been promoted since they left China and is now [in a higher role] of their county, such that he has more power and authority than before.
Findings and assessment
The evidence given by the applicants at hearing and, in the case of the first named applicant, in writing, was generally consistent. Both applicants’ evidence was given in a spontaneous manner at hearing. The Tribunal accepts their evidence given about past events is generally credible. The Tribunal does have some concerns that they have exaggerated or overstated their fear of [Official A], as discussed below.
The Tribunal accepts that the first named applicant had a long career in village level government as claimed, that he had problems with [Official A] because he refused to step aside in an election as described, and that he was detained for relatively short periods on three occasions by police before being released. The Tribunal accepts that [Official A] caused problems for the second named applicant’s business, by ordering inspections, sending a drunk man and sending others to smash up the shop, and that he caused problems for the [product 1] company in which the first named applicant held shares, as claimed. The Tribunal accepts that the stress of these events caused the first named applicant to have a permanent problem with his [medical condition] and caused him to experience depression, which has now improved.
The Tribunal considers that the applicants would return to live in their home village of [Town 1] in Lianjiang Country and accepts the first named applicant’s evidence that he would have to seek casual work, given his limited education and financial circumstances. The Tribunal notes the second named applicant’s evidence that there is a house in [Town 1] (owned by the first named applicant’s parents) which they could return to live in, and the Tribunal considers they would do so.
Neither applicant claimed that the first named applicant would seek government work again on return to China or continue to pursue matters concerning [Official A], and the Tribunal considers he would not do so. In this respect the Tribunal notes the significant passage of time since he left his position, and the first named applicant’s evidence that he had previously stayed in position for so long because it was a good job and because he was used to office work (and not, for example, because of any strong motivation or commitment to this work).
Having regard to country information before it, the Tribunal accepts generally that the Chinese Communist Party plays a dominant role in Chinese politics and government.[1] However, the Tribunal does not accept the official, [Official A], who caused the applicants harm in the past, is still motivated to harm the applicants, for the reasons which follow.
[1] DFAT Country Information Report – People’s Republic of China, December 2021 (paras 2.17 – 2.19).
The first named applicant was not able to articulate any clear reason why [Official A] asked him (as opposed to one of the other 8 candidates) to step aside during the July 2017 elections, other than he wanted a particular female party member to be successful in the elections, and that [Official A] had a good relationship with this woman and her husband ([Official A] having [earlier worked] with him). The first named applicant also speculated that perhaps [Official A] thought he would be easy to persuade, or that in fact [Official A] may have asked others to step down also and he did not know about this.
Given this evidence, the Tribunal does not consider that [Official A] asked the first named applicant to step aside because of any particular animosity or hostility towards the first named applicant. While the Tribunal accepts that [Official A] was upset with the first named applicant because he refused to step aside and took various adverse actions against the applicants, the Tribunal does not accept that having succeeded in pushing the first named applicant out of his position and the applicants out of their businesses that [Official A] would retain any particular motivation to harm the applicants now, some 6 years after the events described.
While the second named applicant referred to their sons daring not to back to their home village for fear [Official A] would interfere with their work or studies and that she was concerned [Official A] might influence them, both applicants indicated that their sons are in fact living in the same county and have done so since the applicants departed China. The second named applicant explained that the younger son initially lived with her sister, [distance] away, while the older son lived at his school, and that the younger son now lives at his school, while the older son lives independently and works in the office of a [business].
Despite them both living in close proximity to the family’s home village, both applicants’ evidence was that [Official A] had done nothing to interfere with either of their sons’ work or study, or otherwise cause them problems of any kind.
Further, while the second named applicant referred to a concern [Official A] might use his influence in relation to other family members, and in particular cause problems for the first named applicant’s [relative] – who also worked in government – on the applicants’ evidence this has not occurred. The first named applicant’s evidence was that his mother and [family members] all still live in their home village ([named]), that [other family members] still live in the same county and two live in a different city in Fujian – but that none of them had experienced any problems with [Official A].
Accordingly, the Tribunal does not accept that [Official A] has been spying on the applicants’ families, as claimed by the second named applicant, or that he has any interest in the applicants or their families any more. If [Official A] was truly motivated to cause problems for the applicants, their sons and/or their families as claimed, then the Tribunal considers he would have taken some action in the past 6 years to do so. The fact that he has not done anything in that period strongly suggests to the Tribunal that he is no longer motivated to cause difficulties for or inflict harm on the applicants.
The Tribunal also considers that the applicants have exaggerated their fears of harm to a degree, and that economic factors were an important part of their decision to leave China and are an important part of the reason they do not wish to return.
At hearing, the Tribunal asked the first applicant about the decision to come to Australia to avoid harm rather than trying to move somewhere else in China. He said that the area where they are from has a quite developed economy, and if they moved elsewhere they wouldn’t be able to earn enough money. He referred to their poor education, difficulty finding proper jobs other than labour work and concerns about making sufficient money to survive. When the Tribunal pointed out that he had in fact had a steady job for many years, had sufficient income to invest in a [product 1] business, that his wife had been in a position to start her own business and that he had several family members living and working in Fujian – such that perhaps he was overstating the level of hardship experienced – he said that if he was leaving his village that he may as well move far away to a new environment, and that because of his depression he wanted to go somewhere where no one knew him.
The second named applicant gave evidence at hearing that, after the problems with [Official A], her husband couldn’t keep working for the village and she’d had to shut her shop, so that eventually they decided to leave their children with relatives and go and seek new opportunities. She said that they had heard that Australia has fresh air, good people, that there is more freedom in Australia and that workers here can get good pay. When the Tribunal asked about moving within China, she referred to their poor education and skills and having lived in the same rural area their whole lives. She also gave evidence that she didn’t want to return to China because they wouldn’t have money there, and because in Australia they can enjoy freedom and human rights and because the people here are very nice.
In none of this evidence did the applicants refer to a fear of being harmed by [Official A], the police or anyone else. Had the applicants genuinely feared that they would be subjected to serious or significant harm, the Tribunal considers that this would have been part of their evidence when describing why they left China and did not want to return. The fact that they did not do so suggested to the Tribunal that they had exaggerated the level of concern they felt about [Official A] and that while they may have experienced difficulties with him as described, that they did not genuinely fear they would suffer ongoing harm because of him.
Further, the Tribunal has placed weight on the fairly general nature of the applicants’ evidence about what precisely [Official A] may do to them on return. When specifically asked about this by the Tribunal, the first named applicant said that no matter what he did [Official A] would either prevent him from doing this or impose a lot of restrictions, and that he could make arrangements for that to happen (rather than doing it himself). The second named applicant referred to [Official A] asking village leaders to not provide support to them, and to preventing officials from giving them land if they wanted to start another shop. The Tribunal considered these somewhat vague responses, lacking in specificity.
When this concern was raised with the applicants, the first named applicant referred to [Official A] being able to prevent them from getting a loan to start a new shop and the second named applicant referred to him telling the town government not to support them, for example by not approving them to build a new house or get a licence to start a new shop. The Tribunal has considered this evidence, but considers that the examples provided are general in nature, and somewhat speculative about future events.
The Tribunal has also considered the first named applicant’s evidence at hearing that once you have a conflict with government officials they keep chasing you and that, as an official, [Official A] has a mindset to ‘beat you until you’re dead’ to show his superiority. The first named applicant also gave evidence that [Official A] would have seen his conduct as a humiliation. The Tribunal has also considered the second named applicant’s evidence that [Official A] would want to take revenge. However, having regard to time elapsed since the applicant’s left China (now almost 7 years), and to the Tribunal’s findings and concerns outlined above, including the Tribunal’s concerns that the applicants’ have exaggerated their fears about [Official A], the Tribunal does not accept that [Official A] would still be motivated to pursue the applicants in any way.
Overall, the Tribunal is not satisfied that there is a real chance that either of the applicants would face any harm from [Official A] (including as inflicted by police or other people acting on his behalf or at his direction) now or in the reasonably foreseeable future in China. For the same reasons, the Tribunal is not satisfied that there is a real risk that either of the applicants would face any harm from [Official A] (including as inflicted by police or other people acting on his behalf or at his direction) as a reasonable and foreseeable consequence of their removal to China.
Accordingly, the Tribunal is not satisfied that either applicant meets s 36(2)(a) or s 36(2)(aa) on this basis.
Employment / income
The applicants both gave clear evidence that this was the only reason that they feared harm on return to China, apart from concerns about access to health care for the second named applicant (which have been separately addressed below). During the course of the hearing, the applicants did both refer to difficulties in obtaining employment in China and earning a good income.
To the extent that this was a claim for protection, the Tribunal accepts that it is possible the applicants may have difficulty finding work on return to China, given their prolonged period of absence, their age, their somewhat limited work experience and the second named applicant’s health. However, the Tribunal is not satisfied that there is a real chance that [Official A] (or others actin on his behalf) would cause them difficulties in finding employment or earning a good income, for the reasons given above. The Tribunal is also not satisfied on the evidence before it that any difficulty in obtaining employment would be the result of systematic and discriminatory conduct for any of the reasons specified in s 5J(1)(a) of the Act.
Neither is the Tribunal satisfied that any difficulties the applicants may experience in obtaining employment would constitute significant harm. The Tribunal is not satisfied that there is a real risk that [Official A] (or others acting on his behalf) would cause them difficulties in finding employment or earning a good income, for the reasons given above. Such difficulties would not involve the death penalty or arbitrary deprivation of life, and the Tribunal is not satisfied on the evidence before it that any of the intentional elements would be present such as to constitute torture, cruel and inhuman treatment or punishment or degrading treatment or punishment.
Accordingly, the Tribunal is not satisfied that the applicants meet either s 36(2)(a) or s 36(2)(aa) because of difficulties they may have in finding employment or earning a good income.
Medical treatment – second named applicant
At hearing, the second named applicant advanced a new claim that she wouldn’t be able to access the same quality of health care in China. The Tribunal accepts that the second named applicant was diagnosed with [cancer] in early 2024, that she has undergone surgery and is currently undergoing other radiotherapy for this condition. The Tribunal accepts the evidence given at hearing that with treatment, the second named applicant may live for another 10 or 20 years, but that without the treatment she is receiving in Australia her life expectancy will only be around 3 to 5 years.
Given this diagnosis was only received relatively recently, the Tribunal is satisfied that there is a reasonable explanation as to why this claim was not presented before the primary decision was made by the delegate.
The second named applicant gave evidence that they would not be able to afford the same treatments in China that she is receiving in Australia. She said that there is government provision for some healthcare services in China, but that this does not extend to special medications. She referred to the cost of chemotherapy and radiotherapy being very high. She also referred to a kind of health cover into which people pay contributions but stated that they hadn’t been making those payments since they left China. The first named applicant also expressed concern that because they had stopped making such contributions when they came to Australia, he was unsure if they could apply to join this scheme again.
The Tribunal accepts that the second named applicant may not be able to access fully subsidised health care in the way she has in Australia, and that the applicants may not be able to afford the type of cancer treatments she is receiving in Australia.
However, neither applicant claimed that the second named applicant would be refused treatment or otherwise treated in a discriminatory manner in the provision of health care for one of the reasons specified in s 5J(1)(a) of the Act. The Tribunal is not satisfied that any inability to access certain treatments for her cancer amounts to persecution. Accordingly, the Tribunal is not satisfied that the second named applicant satisfies s 36(2)(a) on this basis.
The Tribunal is also not satisfied that any inability for the second named applicant to access certain treatments for her cancer, due to a more limited provision of publicly funded health treatment in China and a lack of financial means to privately fund that treatment, would constitute significant harm. It would not involve the death penalty, and the Tribunal is not satisfied on the evidence before it that any of the intentional elements would be present for such an inability to access care to amount to torture, cruel and inhuman treatment or punishment or degrading treatment or punishment.
Further, while the Tribunal accepts that the second named applicant’s life expectancy may be lowered by her inability to access the cancer treatments she is receiving in Australia, the Tribunal is not satisfied that this would amount to arbitrary deprivation of life, arising as a necessary and foreseeable consequence of her removal to China.[2] Accordingly, the Tribunal is not satisfied that the second named applicant satisfies s 36(2)(aa) on this basis.
[2] SZDCD v MIBP [2019] FCA 326.
Concluding findings
For the reasons given above, the Tribunal is not satisfied that the either the first or the second named 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). For the reasons given above, the Tribunal is not satisfied that either the first named applicant or the second named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
It follows that the applicants are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicant protection visas.
Date(s) of hearing:  10 September 2024 and 4 October 2024
Representative for the Applicant:       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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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