2015308 (Refugee)

2015308 (Refugee) [2024] AATA 3666 (5 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2015308

COUNTRY OF REFERENCE: People’s Republic of China
MEMBER:Alison Ryan
DATE:5 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 August 2024 at 1:23pm
CATCHWORDS
REFUGEE – protection visa – China – land resumption without compensation – corruption – home demolition – detention – physical assault – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v GUO (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant, who claims to be a citizen of the People’s Republic of China (China), came to Australia on 30 June 2017. The applicant applied for a protection visa (Class XA, Subclass 866) on 29 May 2018.
A delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 8 October 2020. The delegate’s decision is the subject of this review by the Administrative Appeals Tribunal (the Tribunal).
The applicant was invited to attend a hearing of the Tribunal in his case. The applicant declined the invitation and consented to a decision being made on the papers.
CLAIMS AND EVIDENCE
Protection visa application
In his protection visa application, the applicant indicates that he was born in Hebei province, China in [specified year]. The applicant notes that he is unmarried and can speak, read and write Mandarin. The applicant states that he is a Christian and of Han ethnicity.
The applicant’s claims in his protection visa application are summarised as follows.
The applicant and his family have been beaten, tortured and persecuted by the Chinese government because of their fight against the government’s illegal plans to carry out demolitions, including in respect of the applicant’s family’s factory.
The police seized the applicant’s home.
In October 2016 the local government asked the applicant’s family to close its small [factory] pursuant to the ‘uniform plan’. The officials wanted to transfer the land to developers for a residential building project.
[In] January 2017 staff from [Authority 1] came to the applicant’s house with papers related to the demolition. The applicant’s father requested reasonable compensation in the order of 800,000 Yuan. [Later in] January 2017 an official responded that a non-negotiable figure of 100,000 Yuan would be paid. The official threated to demolish the factory by force if the applicant’s family did not agree.
[In] February 2017 more than a dozen police came to the family’s factory to demolish it. The applicant’s family argued with the police and the applicant made physical contact with the police. The applicant was surrounded, beaten badly by the police and accused of assaulting the police. The applicant was handcuffed and taken to a police car. The applicant’s father was also beaten badly by the police.
The applicant’s family arranged for the applicant to come to Australia to study, for his safety.
The applicant’s father wrote a letter to the [City] authorities exposing corrupt practices.
[In] April 2017 the county government called the applicant’s father to their office where he was arrested by the police, taken to the police station and beaten. The applicant’s father was threatened with further trouble and with life in prison if he made any further petition about the corrupt practices.
On release from police custody the applicant’s father was required to report weekly to the police station, and his parents were not able to leave the village. The applicant’s parents were threatened with house detention if they failed to comply with these conditions.
The applicant is terrified of what would happen to him in China. The applicant has health problems and feels depressed. He did not attend school in Australia and lost his initial visa. A friend told him that he could apply for a protection visa.
The applicant also made an application for permission to work to the Department of Home Affairs and attached a statement and financial documents to that application. Those documents are not relevant to the applicant’s claims for protection.
The applicant attached copy of the identification page of his Chinese passport and an untranslated copy of his national identity card to the information provided to the Department of Home Affairs.
On 28 August 2020 the applicant was sent a letter by the Department of Home Affairs under s56 of the Act to provide additional information about his claims, including documents related to his business, offers of compensation, petitions sent by his family and his arrest. No response was provided.
The applicant was not invited to an interview by the Department of Home Affairs.
The delegate’s decision
The delegate refused the applicant’s protection visa application on 8 October 2020. The delegate was not satisfied that the applicant and his family participated in the activities as claimed and had been subject to adverse treatment by the Chinese authorities as claimed. Further, the delegate was not satisfied the applicant would be of adverse interest to the Chinese authorities, or anyone else, if he returned to China. On this basis the delegate was not satisfied that the applicant had a well-founded fear of persecution in China in the foreseeable future. For the same reasons, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequent of being removed to the China, the applicant would suffer significant harm.
The review application
The applicant made an application for review to the Tribunal on 15 October 2020. No additional information related to his claims for protection was provided with the review application.
On 21 May 2024 the Tribunal wrote to the applicant to advise that his case was being prepared to be given to a Tribunal Member and to invite him to provide more information about his protection claims.
On 9 July 2024 the Tribunal wrote to the applicant informing him that the Tribunal was not able to make a favourable decision on the information he had provided. The Tribunal invited the applicant to attend a hearing on 29 July 2024 to give further evidence and present arguments.
On 25 July 2024 the applicant completed the Tribunal’s pre-hearing form indicating he would not participate in the hearing and consenting to the Tribunal making its decision on the papers without taking further steps to allow him to appear.
The applicant did not provide any further evidence related to his claims for protection to the Tribunal.
In these circumstances, the Tribunal considers it appropriate to determine the review without a hearing in accordance with s 425(2)(b) of the Act.
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 of such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant claims to be a citizen of China in his protection visa application. He travelled to Australia on a Chinese passport and provided a copy of the identification page and his national identity card to the Department of Home Affairs. The Tribunal finds that the applicant is a citizen of the of People’s Republic of China.
There is no information before the Tribunal to suggest that the applicant is a citizen of another country or that he has a right to enter and/or reside in another country.
Protection
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: (MIEA v GUO (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
There is a lack of detailed information in the applicant’s claims for protection in relation to the harm he experienced in China. The applicant states that he had to leave China for his safety due to problems he and his family faced in relation to the forced confiscation of the family’s small factory. However, the applicant provides insufficient detail about his family’s factory. For example, the applicant does not provide the name, address, or registration details of the family company. The applicant does not state how many people worked at the factory nor how long it had been operating. The applicant has not provided any documents related to the existence of the factory or the family business.
Further, the applicant’s evidence about the demolition of his home is vague and confusing. On the protection visa application form the applicant states that the police seized his home. The applicant does not detail when his home was seized or the circumstances in which it was seized. The applicant refers to his protection claim, which is written in a separate document. In his protection claim document the applicant does not refer to his house being seized. The applicant has not provided any documents related to the seizure of the family home.
The applicant indicated that his father requested 800,000 Yuan compensation for the factory however the applicant does not detail how this amount was determined or provide any documents related to the value of the factory or the land. The applicant does not provide details of whether any compensation was paid, or provide any documents related to the offer of compensation.
The applicant stated that he was beaten by the police after he made physical contact with the police. The applicant provides insufficient information about what action he took toward the police and what type of physical contact was made by the applicant. The applicant also states that he was beaten by the police, handcuffed and taken to the police car. The applicant provides insufficient information about this incident including whether he was charged or arrested by the police, how long he was detained in the car, whether he was taken to another location, why he was released and under what conditions he was released from police custody. No documents were provided by the applicant related to his interaction with the police. There is a lack of information in the protection visa applicant about any injuries suffered by the applicant and his father, any medical treatment that they obtained and any corroborating evidence of any injuries.
The applicant’s account of problems his family have faced since he has come to Australia is also lacking sufficient detail. The applicant notes that he heard that his father wrote a letter about the corruption faced by his family, but he does not state how he heard that his father did this, and he does not provide a copy of his father’s letter. The applicant states that his parents were threatened with further adverse consequences, by the police, if they did not obey the conditions that were imposed against them. The applicant has not provided any information about what has happened to his family since 2017. There is no information as to whether the applicant’s family are continuing to experience problems in 2024, and if, and why, the applicant would face harm now or in the reasonably foreseeable future.
On the limited evidence available to the Tribunal, the Tribunal is not satisfied that the applicant’s family factory was subject to action by local authorities, developers, and police to close it down and/or demolish it, or that his family house was seized. The Tribunal is not satisfied that the applicant’s father was offered compulsory compensation at a rate well below what he expected, or that police came to demolish the applicant’s family factory by force. It is not satisfied that the applicant was involved in a physical altercation with the police, beaten by the police, handcuffed and taken to a police car. Further, the Tribunal is not satisfied that the applicant’s father wrote a letter to the authorities about the corruption, or that he was beaten and detained by police. The Tribunal is not satisfied that the applicant’s father was subject to threats of imprisonment or that reporting conditions were imposed on his father, or that his parents were ordered not to leave their village. The Tribunal does not accept that the applicant or his family have an adverse profile with the Chinese authorities, as claimed.
The applicant has not claimed to fear harm for any other reason, or by any other source, and no other claims are apparent on the information before the Tribunal.
On the evidence before it the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of particular social group or political opinion.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Having considered all of the evidence before the Tribunal, the Tribunal is not satisfied 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 that the applicant will be arbitrarily deprived of life, or the death penalty will be carried out on him, or he will be subjected to cruel or inhuman treatment or punishment, or that he will be subjected to degrading treatment or punishment.
Accordingly, the Tribunal is not satisfied 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 that he will suffer significant harm as defined in s 36(2A) and s 5(1) of the Act. 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.
Alison Ryan
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)   that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)   that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)   for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)   for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)   for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)   a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)   in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J   Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)   denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36   Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)   a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3666

5 August 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction