2014923 (Refugee) - [2024] ARTA 656

2014923 (REFUGEE) [2024] ARTA 656 (13 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2014923
Tribunal:Matthew Currie
Date:13 November 2024

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

General Member M. Currie

Statement made on 13 November 2024 at 2:17 PM
CATCHWORDS
REFUGEE – Protection Visa – China – claims lacked detail and substance – applicant declined to attend a hearing – consented to the Tribunal making a decision on the papers – land appropriation – protest – has not provided any independent supporting evidence that a protest about a cemetery occurred in Fuzhou – not satisfied the applicants have a well-founded fear – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Administrative Review Tribunal Act 2024, ss 9, 55, 106
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant (the applicant) who claims to be a national of China, applied for the visa in December 2017. In that application, the applicant claimed he would face harm in China from the authorities, after he had participated in a protest, been arrested by the Chinese police, mistreated, and fined. The delegate refused to grant the visa on the basis that there was no evidence to suggest the applicant was of interest to the authorities in China or that he had faced adverse treatment or harm in China as the result of attending a protest, or that he had a profile that would bring him to the attention of the Chinese authorities.
In October 2020, the applicant lodged a review application with the Administrative Appeals Tribunal (AAT). 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. This decision and statement of reasons is made by the Tribunal.
The applicant in this case was invited to attend a hearing before the Tribunal on 20 November 2024. In a response to the invitation that was provided to the Tribunal 4 November 2024, the applicant indicated that he did not intend to participate in hearing and requested that the Tribunal make a decision in relation to his case on the papers.
BACKGROUND
In December 2017 the applicant submitted a protection visa application to the Department of Home Affairs (the Department) as delegate for the Minister. As part of that application the applicant provided a copy of a genuine Chinese passport that had been issued in his name.
Evidence before the Department
In his protection visa application, the applicant’s made the following claims:
·He is a Chinese citizen who lived in Fuzhou City in Jiangxi Province. Local government authorities in his area had decided to allow new development at the site of a cemetery where his grandparents were buried.
·The applicant opposed the development of the cemetery and protested against it. Police attended the protest and attempted to shut it down. Though the protest was peaceful, the police responded aggressively and beat the demonstrators.
·The applicant was detained and taken to a local police station where he was threatened and beaten and told not to engage in protests. Though he was released, he was fined 300,000 yuan for destroying police equipment and injuring police officers. The applicant asserts that these claims are false and denies that he ever harmed a police officer or destroyed any police equipment.
·Fearing further problems, the applicant departed China and travelled to Australia. He has not paid the fine. He says he will not be safe in China as the Chinese authorities continue to search for him and will force him to pay the fine. As he is unable to pay, he would be gaoled for his role in the protest. He says he cannot relocate within China due to a lack of funds.
In August 2020, the Department wrote to the applicant under s 56 of the Act and invited him to provide additional information about his claims for protection. The s 56 invitation advised the applicant that his claims for protection, as outlined in his protection visa application, lacked substantiating details such as the date’s when key events occurred, and the locations of key events. The invitation also noted that the applicant had not provided any evidence to support any of his claims for protection.
The invitation specifically asked the applicant to provide further information about his claims for protection including further information about his family, the cemetery, his grandparents’ graves and the protest. The invitation also requested that he provide supporting evidence for his claims, such as copies of any offer of compensation he had received, copies of letters or petitions he had lodged with local authorities, copies of documentation relating to his arrest or his fine and explanations for whether any other adverse incidents had affected him since he left China and for why he thought the authorities in China would continue to target him.
The s 56 invitation contained a warning that if the applicant did not provide additional details and evidence about his claims, the Department may make a decision in relation to his case without further contact with him.
The applicant did not provide any response to the section 56 invitation. On 28 September 2020, the Department proceeded to make a s 65 decision without receiving any further information from the applicant.
In the section 65 decision the delegate accepted the applicant was a Chinese citizen and found that China was his receiving country. However, noting the limited information the applicant provided about his claims for protection, the delegate found that there was no evidence that this applicant had ever been of interest to, or subject to harm from, the authorities in China. The delegate also found that the applicant did not have a profile of interest in China and would not face harm in the future. Ultimately the delegate found that the applicant did not meet the refugee criteria or the complementary protection criteria.
Evidence before the Tribunal
The Tribunal has before it the protection visa application made to the Department and the decision of the Department 28 September 2020.
In August 2024, the Tribunal wrote to the applicant and indicated to him that his case was soon to be considered. That correspondence included a ‘Pre-hearing information form’ which sought to ascertain, among other things, whether the applicant wanted to provide any more information about his claims for protection. The applicant returned the ‘Pre-hearing information form’ to the Tribunal without providing further information about his claims for protection.
In November 2024, the applicant was invited to attend a hearing at the Tribunal on 20 November 2024. In a signed response dated 4 November 2024, the applicant advised the Tribunal that he would not attend a hearing and that he preferred the Tribunal’s decision to be made on the papers. The applicant did not provide any additional evidence to the Tribunal.
Decision without a Hearing
For the following reasons, the Tribunal has decided to make a decision without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) outlines the circumstances in which the Tribunal may reach a decision without conducting a hearing.
In making the decision to proceed without a hearing, the Tribunal has considered the statutory objectives of the ART Act as outlined in s 9, which says:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings; and
(d) improves the transparency and quality of government decision-making; and
(e) promotes public trust and confidence in the Tribunal.
The Tribunal has also considered s 55 of the ART Act, which provides that, among other things, each party to a proceeding must be given a reasonable opportunity to present their case, and to make submissions and adduce evidence.
As referred to earlier, on 1 November 2024, the Tribunal sent a ‘Notice of Hearing’ (the Hearing Notice) to the applicant. Two additional documents were attached to the Hearing Notice. These were a ‘Response to hearing notice’ (the hearing response form) and factsheet titled ‘Information About Hearings’ (the hearing factsheet)
The Hearing Notice indicated that the applicant could use the hearing response form to request that the Tribunal make a decision without a hearing. The Hearing Notice contained a warning that if such a request was made, and the Tribunal proceeded to make a decision in the applicant’s absence and without holding a hearing, there was no guarantee that he would receive a favourable decision. The hearing information factsheet explained the purpose of the hearing and noted that a hearing was an opportunity for the applicant to give evidence and present arguments relating to the issues arising in his case.
The applicant returned the hearing response form to the Tribunal. In the hearing response form, he clearly indicated that he would not participate in a Tribunal hearing and requested that the Tribunal make a decision on the papers without holding a hearing. In the circumstances, the Tribunal is satisfied that the applicant was given a reasonable opportunity to attend a hearing, present his case, make submissions and adduce evidence and that s 55 of the ART Act is met.
To date, this applicant has had very limited engagement with the Tribunal. Taking into account the statutory objectives which include ensuring that ‘applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits’; the Tribunal has considered whether it should make further attempts to obtain more information from the applicant either in writing or by inviting him to another hearing. In his protection visa application, the applicant only provided sparse detail about his claims for protection which did not include key details about his claims. Since that time the applicant has had multiple opportunities to provide further information about his claims for protection to the Department and the Tribunal. The Tribunal notes that this applicant declined to respond to the Department’s s 56 invitation in 2020 and did not offer any further information in the ‘Pre-hearing information form’ he provided to the Tribunal in August 2024. The applicant’s hearing response form also indicated that even if he did attend a hearing, he did not intend to rely on any documents, witness statements, written submissions, country information or other evidence. All of these factors weigh against seeking further information from the applicant as does his failure to provide further evidence about his claims, despite being offered multiple opportunities to do so.
Section 106(3)(b)(ii) of the ART Act provides that the Tribunal may make a decision without holding a hearing when the applicant requests the Tribunal to do so. The Tribunal considers the applicant’s hearing response form to be a request for the Tribunal to make a decision without a hearing, fulfilling the requirements of s 106(3)(b)(ii).
Section 106(3)(c) of the ART Act requires that the Tribunal be satisfied that the proceeding can be ‘adequately determined’ in the absence of the applicant. The term ‘adequately determined’ is not defined, but The Macquarie Dictionary defines ‘adequate’ as meaning ‘equal to the requirement or occasion; fully sufficient, suitable or fit’ and in a legal context as meaning ‘reasonably sufficient for starting legal action’[1].The Tribunal considers this term to have its ordinary meaning, rather than being term of art.
[1] (accessed 6 November 2024)
The Hearing Notice provided to the applicant clearly indicated that a decision made on the papers would not necessarily result in a favourable decision for the applicant and when read as a whole, the terms of s 106(b) clearly envisage circumstances where an unfavourable decision could be made without a hearing being conducted. The Tribunal does not consider that the term ‘adequately determined’ means or requires a decision favourable to the applicant.
Taking into account the statutory objectives, the Tribunal considers that as s 106(3)(b)(i) clearly envisages a situation where a decision may be made without a hearing when an applicant consents, and that in this context ‘adequately determined’ means that the Tribunal may make a decision without a hearing where it appears to the Tribunal that this can be done in a fully sufficient or suitable manner based on all the evidence before it and where doing so is consistent with the objectives outlined in s 9 of the ART Act.
As the summary above indicates, the evidence and claims before the Tribunal are brief. The issues before the Tribunal in this case are not novel or complex matters of fact or law. The applicant is aware of the country information cited by the delegate in the s 65 Decision, and he has not provided any submissions that the material relied upon in the delegate’s decision was unreliable, or irrelevant or otherwise unsuitable. The applicant has been offered multiple opportunities to put forward additional information and evidence to both the Department and the Tribunal in support of his claims. Despite these opportunities, he has consistently declined to do so. In the hearing response form, the applicant clearly declined to attend a hearing and consented to the Tribunal making a decision on the papers. For the reasons outlined above, the Tribunal is satisfied that the applicant was aware of the purpose of the hearing and was aware that if he declined to attend, that the Tribunal could proceed to a decision without obtaining further information about his claims for protection.
In the circumstances, the Tribunal is satisfied that the conditions of s 106(3) of the ART Act are met and has decided to determine the matter on the papers before it.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether or not the applicant meets the refugee criteria or engages the complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
As part of his protection Visa application the applicant provided a copy of his genuine Chinese passport. This document identifies him as a citizen of China. The Tribunal has reviewed the passport and the applicant has established his identity to the Tribunal’s satisfaction. The Tribunal accepts that he is a Chinese citizen who was born in [year] in the Jiangxi Province of China. According to his protection Visa application he lived in Jiangxi province all his life before he came to Australia. The Tribunal also accepts that he lived in the Jiangxi Province of China until his departure in 2017 and concludes that if returned to China, the applicant would return and reside in Jiangxi Province, as he did in the past. For the purposes of this decision, the Tribunal finds that China is his receiving country.
Cemetery, Protest, detention & fine
According to the applicant’s protection Visa application he lived in Fuzhou city, Jiangxi Province for his whole life before coming to Australia. He attended school in Fuzhou between 1983 and 1995. Thereafter he worked as a [Occupation 1] between 1996 and 2017 when he came to Australia. There is no reason to doubt these background details that were provided in the protection visa application and the Tribunal accepts the applicant was a [Occupation 1] who lived and worked in Fuzhou, Jiangxi.

His principal claim for protection is that a cemetery in Fuzhou, where his grandparents were buried, was to be used for development. According to his application, the applicant believed it was “bad karma” for his grandparent’s graves to be disturbed. The applicant says the local city authorities had decided to remove the cemetery to make way for more development.
According to his application, the applicant attended a protest about development at the cemetery site. He described the protest as peaceful. However, he says police attended the protest and sought to shut it down. He says the police became aggressive and started to harass and beat protesters. He says he was arrested and taken to a local police station where he was threatened and beaten again. He says he was beaten in the stomach and the legs and told that if he protested again, he would face further harm.
Afterwards he was released, but he was informed that he had to pay a large fine of 300,000 yuan. The fine was issued because he was involved in injuring police officers and destroying police equipment. The applicant asserts these charges are false and denies destroying any police equipment or injuring police officers.
The applicant says that if he returned to China the police would look for him and force him to pay the fine. He cites this as his reason for seeking asylum in Australia. He says that if the police find him in China, he would be unable to pay the fine, and so he would be gaoled. He says he would not be safe anywhere in China.
Country information before me indicates that land seizures by the Chinese Government and local authorities are a source of ongoing tension in China[2]. Land in urban areas in China is exclusively owned by the state while rural land is owned ‘collectively’ by villages. Rapid development and high levels of internal migration have led to an increase in demand for land, and consequent contested development and displacement. Land sales are said to be an important source of revenue for local governments and there is an incentive for these agencies to sell already occupied land [3]. There is little scrutiny or oversight of these types of decisions in China[4].
[2] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210; '2023 Country Reports on Human Rights Practices - China', US Department of State, 22 April 2024, 20240423144042
[3] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
[4] '2023 Country Reports on Human Rights Practices - China', US Department of State, 22 April 2024, 20240423144042
While the authorities in China have the power to compulsory acquire land, they are required to provide compensation. Former owners or occupiers of land frequently dispute the level of compensation provided[5]. Disputes about land appropriation have become more common in China. In 2019, the Department of Foreign Affairs and Trade reported that in 2014, Chinese officials estimated that more than 4 million disputes over appropriated land occurred every year in China[6]. The Chinese government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. The central government no longer accepts such petitions and requires that they be lodged at local government level[7]. Many complaints are resolved through the petitioning process[8].
[5] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
[6] 'DFAT Country Information Report China October 2019', Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550
[7] 'DFAT Country Information Report China October 2019', Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550
[8] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
Nevertheless, protests occur regularly in China and protests about land appropriation issues are common[9]. Despite restrictions many political protests are held in China[10]. In 2021, the last date for which there are reliable figures, there was over 180,000 popular protests[11]. However, persons who organise protests risk punishment if they are conducted without permission. Such permission is rarely granted[12]. There are credible reports of local government officials intimidating protesters who raise these issues[13]. There are unverified reports that local governments and officials use aggressive and sometimes violent action by private security contractors to intimidate landholders and protesters[14].
[9] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
[10] 2023 Country Reports on Human Rights Practices - China', US Department of State, 22 April 2024, 20240423144042; 'Freedom in the World 2024 - China', Freedom House, 29 February 2024, 20240301084828; 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
[11] 'DFAT Country Information Report China October 2019', Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550
[12] 2023 Country Reports on Human Rights Practices - China', US Department of State, 22 April 2024, 20240423144042; 'Freedom in the World 2024 - China', Freedom House, 29 February 2024, 20240301084828; 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
[13] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
[14] 'DFAT Country Information Report China October 2019', Department of Foreign Affairs and Trade, 03 October 2019, 20191003160550
The Tribunal has considered the country information cited above and accepts that land appropriation by local government authorities in China is a real issue that effects many persons in China. The Tribunal also accepts that in many cases land seizures lead to protests, and that there are credible reports of intimidation being used against protesters in China.
However, despite accepting these are issues of concern in China, the Tribunal does not accept that the applicant was involved in protest over a cemetery which led to adverse consequences from the authorities. The applicant only provided bare details of these incidents. Beyond asserting that it was “near his home”, the applicant has not identified the name of the cemetery nor indicated where it was located. He has not provided any other information about the cemetery such as how big it was, or how many people were buried there or how many families were affected by the closure of the cemetery. He has not provided any independent supporting evidence about the existence of cemetery, his grandparents’ burial in the cemetery, or any decision by local authorities to allow development of the cemetery.
The applicant has not indicated when the local authorities made the decision to approve development at the cemetery, nor has indicated how he learned of that decision. He has not provided any information about whether he, or his family, were offered compensation. Beyond stating he attended a protest, he has not provided any information about what steps, if any, he or his family took to change the decision about the cemetery. In fact, except for his claim to have attended a single protest, he has not provided any evidence that he sought to engage with the local authorities about this issue at all.
Despite his claim to have attended a protest, he has not indicated when or where the protest occurred. He has not indicated whether he organised the protest, or if not, who did. He has not specified whether his involvement in the protest was merely to attend, or whether he spoke at the protest or otherwise had a prominent or leading role. He has not indicated how he learned about the protest. He has not provided any evidence about who else was involved in the protest or how many people were present. He has not provided any information about how other members of his family were affected by these events. He has not provided any information about whether the protest was successful or any information about the present status of the cemetery. He has not provided any independent supporting evidence that a protest about a cemetery occurred in Fuzhou.
Though the applicant says he was detained by police and was subsequently issued a fine, he has not provided any details about this arrest, or any independent supporting evidence such as a copy of a police report, or a copy of the fine, any other document issued by Chinese authorities about these issues. He has not provided any independent supporting evidence indicating that he was ever detained or of interest to the authorities in China.
The Department advised the applicant that his claims for protection lacked substantiating detail in August 2020. The Department’s s 56 letter offered the applicant an opportunity to provide further details about his claims for protection to the Department. The Tribunal has also offered the applicant the opportunity to provide further information about his claims in August 2024 and invited him to attend a hearing in November 2024. Despite these opportunities, the applicant has not provided any further details in relation to the incidents he claimed took place in China.
The Tribunal notes that s 5AAA of the Migration Act provides that it is the applicant’s responsibility to specify all particulars of his claim to be a person who is owed protection and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist him in specifying his claims for protection.
In the Tribunal’s view, the applicant was advised that his principal claims for protection lacked important detail in mid-2020. Since that time, he has had multiple opportunities to provide further details about his claims including an opportunity to attend a hearing before the Tribunal. Had the applicant attended the hearing the Tribunal would have questioned him about the incidents in China.
In the absence of any substantiating detail the Tribunal is not satisfied that this applicant was ever involved in a protest about a cemetery or that he was detained by the Chinese police, or was mistreated, or that he was issued a fine. The Tribunal is not satisfied that the applicant was ever of interest to the Chinese Police, or the local authorities or anybody else in China or that he departed China for this reason.
Does the applicant satisfy the refugee criterion for protection?
For the reasons set out above, the Tribunal is not satisfied that the applicant was involved in a protest over a cemetery or was ever of interest or suffered any adverse consequences from the authorities as a result. Given that the Tribunal is not satisfied that the applicant was of interest to the Chinese police or local authorities or anyone else in the past, the Tribunal is not satisfied that the applicant would be of interest to the police or anybody else in China now, almost seven years after his departure from that country. Despite being given opportunities to attend a hearing and provide further evidence, the applicant has not provided any additional information since his submitted his application about why he fears harm in China in the reasonably foreseeable future.
In the circumstances, the Tribunal is not satisfied that the applicant would face a real chance of any harm in China for reasons of his political opinion or for any of the other reasons set out in the legislation were he to return to China in the reasonably foreseeable future. The Tribunal is not satisfied the applicant has a well-founded fear of persecution in China for any of the reasons set out in the legislation.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has found that this applicant would not face a real chance of harm arising from any of his claims for protection and that he was not of any interest to the authorities, or anybody else in China. As the ‘real chance’ and ‘real risk’ test have been found to meet the same standard[15], it follows that the Tribunal is not satisfied that this applicant would face a real risk of any of the kinds of significant harm set out in the legislation were he to be removed from Australia to China.
[15] MIAC v SZQRB (2013) 210 FCR 505
The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk of significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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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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