2015336 (Refugee)

2015336 (Refugee) [2022] AATA 2864 (6 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Songtao Lu (MARN: 0430155)
CASE NUMBER:  2015336
COUNTRY OF REFERENCE:                   China
MEMBER:Kate Chapple
DATE:6 July 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 July 2022 at 3:39pm
CATCHWORDS
REFUGEE – protection visa – China – apartment building demolished by property developer – no compensation – protests – threats and assault by property developer – credibility issues – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This decision record relates to an application made to the Tribunal on 15 October 2020 for merits review of a decision made by a delegate of the Minister for Home Affairs (the Department) on 21 September 2020 to refuse to grant the applicant a Protection XA subclass 866 Visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant claims to be a citizen of the People’s Republic of China (China).
The Department’s movement records show that the applicant first arrived in Australia [in] May 2016 as a holder of a visitor visa subclass 600. She was accompanied by her husband, also then a holder of a visitor visa subclass 600.
The Department’s movement records further show that since first arriving in Australia, the applicant undertook three trips, departing and returning to Australia, two of which accompanied by her husband, and one of which unaccompanied by her husband. She has remained onshore since [August] 2017. The applicant’s husband last departed Australia [in] August 2017.
On 30 October 2017, a migration agent was appointed to represent the applicant in his application for a protection visa.
On 9 November 2017, the applicant lodged an application with the Department for a protection visa.
On 30 November 2017, the Department granted the applicant a Bridging Visa A class WA subclass 010, which remains current.
On 21 September 2020, the Minister’s delegate issued to the applicant a notification of refusal of application for a Protection (subclass 866) visa and the related decision record.
On 15 October 2020, the applicant lodged an application with the Tribunal for merits review of the refusal decision.
CLAIMS AND EVIDENCE
EVIDENCE BEFORE THE DEPARTMENT
Protection visa application
The applicant provided (inter alia) these details in her protection visa application:
10.1.The applicant is a woman born in [year] in the city of Jinan, Province of Shandong; who is a citizen of China; of no religion; and reads, writes, and speaks Mandarin.
10.2.The applicant lived at an address in Jinan from the year of her birth until her departure for Australia in 2016: some [number] years.
10.3.The applicant was married in 1995, and has remained married to her husband, who was born in [year] in Jinan, Shandong, and is a citizen of China. The applicant and her husband had a son in [year] who is a citizen of China.
10.4.The applicant’s husband resides in Jinan (address not provided).
10.5.The applicant’s son resides at an address in Brisbane, Australia. He is studying in Australia on a student visa.
10.6.The applicant was educated in Jinan and employed as [an occupation] at [a workplace] from 1977 to 1996. Thereafter, the applicant is stated to be an unemployed housewife, supported by her family.
10.7.The applicant travelled to [Country 1] [in] August 2016.
10.8.The applicant resided at the same address in Brisbane during her visits to Australia: May to October 2016; December 2016 to March 2017; August to November 2017.
10.9.The applicant resided at the same address in Jinan previously referred to during her return visits to China: October to December 2016; and March to August 2017.
10.10.The applicant legally departed Baiyun Airport (Guangzhou Province, China) [in] August 2017 and arrived in Brisbane, Australia [in] August 2017 as a visitor travelling on a Chinese passport (expiry [2026]), however the applicant stated elsewhere in her application that she bribed a government official to get her passport.
10.11.The applicant is the sole applicant in her protection visa application.
The applicant’s protection visa application set out the following claims for protection:
11.1.In 2017, the applicant received a notice that her building would be demolished by the government.
11.2.The applicant’s family and other residents in the building refused to move out because the compensation was not enough for them to relocate in the city. They took turns to stay in front of the building to stop the demolition, and police arrested her.
11.3.Police told the applicant she would not be released until she signed the demolition agreement; she refused, and they put her in a dark room without food for two days. She was hurt and was scared she would die, and no one would know. She was released after the police forced her to sign the agreement.
11.4.After the applicant was released, she went to Beijing City’s Letters and Calls Office, an official took her written statement, and told her to go home and wait for the response. When she went home, someone from the property developer came to her home and beat her up, and they threatened to come again.
11.5.The applicant came to Australia to visit her son. After she came to Australia in August, the developer demolished her home. She made a lot of calls to many different authorities including the Beijing Letters and Calls Office.
11.6.The applicant’s husband called her and told her to stay in Australia because the Police were looking for her, they wanted to arrest her.
11.7.The applicant can’t go back to China because she is very scared, she doesn’t feel safe to live there, and she believes she will be arrested by police. She claims property developers in China always have connections with the government.
11.8.The applicant can’t relocate because the property developer demolished her home, and she didn’t get compensation. The authorities will find her if she moves.
Supporting documents
Documentary evidence of the applicant’s identity: fingerprints; digital photograph; and copy of Chinese passport.
In response to a written request from the Department (pursuant to s56 of the Act) on 19 August 2020 for particularised evidence in support of the applicant’s protection claims, on 15 September 2020 (within the prescribed time), the applicant’s representative provided to the Department a statement written and signed (on the face of it) by the applicant, and translated into English, which stated that she can’t provide the documents requested because:
13.1.her land title and property documents were confiscated by police when they demolished her home, and she can’t get them back;
13.2.she received 50000 Yuan compensation which was a third of the value of the home, and not enough to buy in nearby city;
13.3.she has no compensation paperwork;
13.4.when she went to the Call and Letter Office, she didn’t write anything, so she can’t provide any related documents.
The interview
The Department did not offer the applicant an interview.
Delegate’s decision
In their decision dated 21 September 2020, the delegate concluded that:
15.1. The applicant’s claims lacked specific details and supporting evidence;
15.2.Given that the applicant was able to leave China lawfully and due to the lack of any evidence which would state otherwise, the delegate found that the applicant is not an individual of high importance to the authorities; and
15.3.As the applicant failed to address concerns raised by the Department in the written request for information dated 19 August 2020 the delegate was not satisfied that the applicant participated in any protest activities or was captured and held in detention by the police.
Cumulatively the delegate found that:
16.1.The applicant did not meet the definition of refugee as defined in s 5H(1) of the Act and therefore is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act; and
16.2.The applicant will not suffer serious harm as defined in s5J(5) of the Act at the hands of the Chinese authorities as a result of her being removed to China and therefore is not a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
Departmental documents
The case file.
The Department’s internal records relating to the applicant.
Application for review
The applicant lodged an application with the Tribunal on 15 October 2020 for merits review of the decision made by the Minister’s delegate to refuse to grant the applicant a protection visa.
On 31 May 2022, the Tribunal wrote to the applicant’s representative inviting the applicant to attend a hearing on 16 June 2022 and to provide pre-hearing submissions.
Pre-hearing submissions
On 8 June 2022, the applicant’s representative provided to the Tribunal:
21.1.A Response to hearing invitation signed (on the face of it) by the applicant confirming (inter alia) that: the applicant would take part in the hearing as scheduled; the representative would not be participating in the hearing; and the applicant did not request that the Tribunal take oral evidence from another person; and
21.2.A written submission signed (on the face of it) by the applicant, which provided information consistent with, but not additional to, the claims for protection made in the applicant’s protection visa application and set out in paragraph 11 and 13 of this decision record.
The Hearing
The applicant appeared before the Tribunal to give evidence and present arguments at a hearing conducted in person on 16 June 2022. The hearing was conducted with the assistance of an interpreter (on the phone) in the Mandarin and English languages. The applicant’s representative was not present at the hearing.
The applicant gave the following evidence at hearing in response to the Tribunal’s invitation to discuss details and information about her claims for protection, and also in response to the Tribunal’s questioning:
23.1.In the course of 2015, the applicant’s son began experiencing serious mental health issues, including suicidal ideation, after failing his college entrance exams and a relationship breakup with his partner. The applicant and her husband were very worried about their son and did what they could to get psychiatric treatment and rehabilitation for him in China. At one stage, the applicant’s husband took the son to a psychiatric hospital where the son was medicated, which the son resented. Over this time, the relationship between the applicant’s husband and son deteriorated; the applicant stated that her son hated his father. To assist with the son’s recovery, the applicant and her husband encouraged him to study in Australia.
23.2.The applicant’s son travelled from China to Australia in March 2016 on a student visa and commenced his studies at [a] University. The applicant and her husband, having both retired, travelled from China to Australia in May 2016 because they were still worried about their son’s mental health and wanted to make sure he was adequately cared for. Initially, the applicant and her husband lived near their son in Brisbane, and a few months later, the three lived together at a different house in Brisbane.
23.3.In June or July 2016, when the applicant was in Australia, she heard from her neighbours in Jinan about Chinese government planning to demolish the apartment property she and her husband owned at [Lixia], Jinan.
23.4.The applicant and her husband lived at the [apartment] from 1990 to 2002, then rented it out to tenants until 2019, which the applicant subsequently corrected to 2017. They purchased a new property at [another location] in 2002 and lived there until they sold in 2007. From 2007 to 2008, they rented an apartment at [a location]. In 2008, they purchased a property at [a further location] and lived there until 2012 when they sold, and purchased a property at [Street 1], Jinan where they lived until they first departed China in 2016, where they lived when they periodically returned to China in 2016 and 2017, and where the husband and son now continue to live.
23.5.In early August 2016, the applicant and her husband travelled from Australia to [Country 1] for a two-day holiday, then returned to Australia. The applicant cooked for the son each day and, with her husband, generally kept an eye on his wellbeing.
23.6.The applicant and her husband returned to China in October 2016. At some stage after their return, the applicant’s husband had a stroke, which she attributes to the stress her husband was experiencing due to their son’s mental ill health.
23.7.In December 2016, before the applicant returned to Australia from China for the second time, the husband received a demolition notice for the [apartment] from the government delivered to him at their home. The applicant stated that she wasn’t home at the time, she never saw the notice, and doesn’t know whether her husband has a copy; she can longer ask him because he is too sick, reliant on a feeding tube, and living like a vegetable. The applicant stated that their son knows nothing about the issue, and that she is not in contact with neighbours from the [apartment] building, so she doesn’t know whether they received a notice. Later in the hearing, the applicant referred to a notice in 2010, saying that the government had been planning the demolition for many years. On another occasion in the hearing, the applicant stated that there was no notice, rather that the husband had been involved in demolition negotiations with the government in 2016.
23.8.The applicant returned to Australia in December 2016 to look after their son as he was continuing to experience mental health issues. However, the applicant’s husband remained in China due to his own ill health and poor relationship with the son. The applicant returned to China in March 2017, and her husband returned to Australia in May 2017.
23.9.Sometime after the applicant returned to China in March 2017, on a date unknown to the applicant, the applicant was arrested and detained by police for 2 days because she had a fight with the developer about the demolition. The applicant stated that she was forced to sign the demolition agreement with her fingerprint. The applicant couldn’t recall any other details about her detention and has never seen the demolition agreement, however she recalls arguing about the compensation amount, which in her view was too low at no more than 3000 RMB per square metre.
23.10.Sometime in April 2017, on a date unknown to the applicant, the applicant went to the Beijing Letters and Calls Office with the [apartment] building leader and 7 or 8 other apartment owners to complain about the demolition compensation. The applicant stated that an official took notes of the complaint, the building leader signed the petition, and they were told to return home and the case would be handed over to the local government. This was the only occasion the applicant went to Beijing to make a complaint.
23.11.Following the lodgement of the petition, the property developer, unknown to the applicant, demanded that the apartment building leader withdraw the petition, however he refused. The applicant stated that, on a date unknown to her, the property developer hit her on the head and face, and the men were more badly injured. The applicant stated that she went to the hospital for treatment so that she would have a record; she has the record but didn’t know to produce it.
23.12.Sometime in July or August 2017, on a date unknown to the applicant but before she returned to Australia, the applicant and other apartment owners went to the local government building to complain about the property developer’s demands, whereupon police arrested 2 or 3 people, unknown to the applicant. The applicant hid in the toilet as she was aware the police were coming, and she managed to escape arrest. The applicant couldn’t recall any other details about this incident. Later in the hearing, the applicant stated that, on the day of the incident, she purchased a plane ticket to Australia and departed China the following day.
23.13.In August 2017, the applicant’s husband returned to China as he had developed serious symptoms indicative of bowel cancer, for which he later required surgery sometime in early 2018. The applicant returned to Australia a week later in August 2017 to continue to look after the son and has remained here since. Her husband has not returned to Australia.
23.14.Sometime after the applicant returned to Australia in August 2017, she thinks her husband told her that the [apartment] building had been demolished, on a date unknown to the applicant, perhaps September 2017. The applicant couldn’t provide any other details about what happened, including to their tenants in the apartment building or other residents after the demolition as she has no contact with them.
23.15.Not long after the applicant returned to Australia in August 2017, her husband told her that the police had come to their home looking for her, when he was home alone, on a date unknown to the applicant. The police didn’t do anything to her husband because he had not been involved in the complaints to Beijing or the local government.
23.16.Sometime no later than New Year’s Eve 2017, on a date unknown to the applicant, the applicant thinks below value compensation in the amount of around 420000 RMB plus a demolition subsidy of around 10000 RMB was paid in cash to the applicant’s husband by a person unknown to the applicant. The applicant could not provide any further detail about the payment, stating that she was only told about it by her husband, she has not received any share of the payment, and she is not aware of any bank records of the payment.
23.17.In February 2018, the applicant’s son returned to China as he had failed his university exams and he decided that it was better that the money his parents had set aside for his study be spent on his father’s surgery and medical costs.
23.18.The applicant’s husband and son live together at the [Street 1], Jinan address, which the applicant and her husband own. The husband is retired and receives a pension from the Chinese government. The husband has multiple diseases and is not doing well. The son works [and] otherwise takes cares of his father. The son’s mental health is much improved as is his relationship with his father.
23.19.The applicant has other family in Jinan too: an older son from her first marriage, a brother and sister and their children. The applicant misses her family in China, but she is not worried about her husband and son as they are getting on well and her son is caring for her husband well. The applicant is happy in Australia, she does casual [jobs] to support herself financially, her mental state is good, she likes the Australian environment, air, and food, and has had no problems living here.
23.20.The applicant has not experienced any problems with the Chinese authorities when departing China, including at the airport.
23.21.If the applicant were returned to China, she would not continue making complaints about the demolition compensation amount because they have received their compensation and all they can do is accept it. She also stated that her husband hasn’t done anything about the compensation amount because it is impossible to conquer government officials.
23.22.The applicant does not know what would happen to her if she were returned to China. She stated that going to the local government was a big thing for her to do and her husband has told her the police are after her. The applicant also stated that she doesn’t believe she could get protection from things happening to her. Later in the hearing, the applicant stated that as long as she can enter China and pass customs without any difficulty, she will know the police are not after her.
23.23.When questioned by the Tribunal about discrepancies between the applicant’s protection visa application, related statements and her evidence at hearing, the applicant stated that:
23.23.1.She doesn’t remember the contents of the protection visa application or who prepared the application; her husband was dealing with those things as he was healthy then.
23.23.2.She recalls doing a resumé in handwriting when she first came to Australia but doesn’t know the reason. She may have given the resume to the migration agent, she’s not sure.
23.23.3.She doesn’t know about bribing a passport official to get her passport; her husband handled all the passport arrangements.
23.23.4.She doesn’t remember stating in her protection visa application that they received no demolition compensation, then stating in a subsequent statement that they received 50000 Yuan in compensation.
23.23.5.She doesn’t remember stating in her protection visa application that she lived at the [Street 1], Jinan address from [month year] (the month of her birth) to May 2016.
23.23.6.It is very hard for her to remember many things as it has been too many years.
Post-hearing submissions

Post-hearing submissions were not provided to the Tribunal by the applicant or her representative.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. The relevant law is summarised below and extracted in Attachment A to this decision record.
Relevant law
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 Attachment A to this decision record.
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 Attachment A to this decision record.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility considerations
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence.
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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case must be supplied by the applicant in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The Tribunal is not required to make the applicant's case, nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.
Relevant country information considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of 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. The Tribunal considers the information set out in Attachment B to this decision record to be relevant in the context of the applicant’s claims for protection.
Analysis, Findings and Reasons
The Tribunal accepts that the applicant is a citizen of China who was living in Australia when she made her protection visa application and at the time of the hearing.
The Tribunal has significant concerns about the credibility of, and does not accept, the applicant’s claims and evidence regarding the following issues:
36.1.The ownership of the [apartment] property by the applicant and her husband.
The Tribunal notes that the applicant stated in her written submission dated 8 June 2022 that her land title and property documents were confiscated by police when they demolished her home. The Tribunal notes however that this does not accord with the applicant’s evidence at hearing that she was in Australia at the time the property was demolished, on a date unknown to her, perhaps September 2017, that she thought her husband had told her about the demolition, but she couldn’t provide any further details about the demolition, including about what happened to their tenants.
The Tribunal further notes that the applicant stated in her evidence at hearing that her husband was living at the [Street 1], Jinan home when the apartment building was demolished, and the applicant has not given evidence that police came to the home at that time and confiscated the land and property documents.
36.2.The existence and timing of the demolition notice.
The Tribunal notes that the applicant was inconsistent in her evidence at hearing stating: on one occasion, that a demolition notice was delivered to her husband at home in December 2016, and that she wasn’t there at the time and didn’t see the notice, and couldn’t now get a copy because her husband is too ill; on another occasion, that she didn’t know if there was a notice; on another occasion, that there was a notice in 2010; and on another occasion, that there was no notice, only that the husband had been in negotiations with the government.
36.3.The occurrence, timing, and circumstances of the applicant’s fight with the property developer and subsequent detention and forced signing of the demolition agreement.
The Tribunal notes that in the applicant’s protection visa application she stated that she and other residents in the apartment building refused to move out because the compensation was not enough for them to relocate, so they took turns to stand in front of the building to stop the demolition, and police arrested her. The Tribunal notes however that this does not accord with the applicant’s evidence at hearing where she stated that she and her husband moved out of their apartment in the building in 2002, that tenants were living there until 2019, which she corrected to 2017, that she and her husband had purchased and sold a number of other properties over the period 2002 to 2012, and that she and her husband had been living at the [Street 1], Jinan home since 2012.
The Tribunal further notes that the applicant stated in her evidence at hearing that she had never seen the demolition agreement and could not recall any other details about her detention, which does not accord with her protection visa application in which the applicant stated that she was put in a dark room for 2 days, denied food, was hurt, and scared she would die.
36.4.The occurrence, timing, and circumstances of the applicant’s involvement in the complaint and petition about the demolition compensation.
The Tribunal notes that in the applicant’s protection visa application she stated that after she was released from detention, she went to the Beijing Letters and Calls office and they took her written statement, and she otherwise made a lot of calls to many different authorities, including the Beijing office. The Tribunal further notes that in the applicant’s written submission dated 8 June 2022 she stated that she didn’t write anything at the Beijing office, yet in her evidence at hearing, she stated that an official took notes of the complaint, the building leader signed the petition, and that was the only occasion the applicant went to Beijing to make a complaint, although she could not recall the date nor produce any documentary evidence of any statement or petition lodged.
36.5.The occurrence, timing, location, and circumstances of the property developer demanding that the building leader withdraw the petition, and on the same occasion the applicant being hit by the property developer on her head and face.
The Tribunal notes that the applicant’s evidence at hearing about her involvement in this incident was vague and generalised, and provided no verifying information. The applicant stated in her evidence that she went to the hospital for treatment so that she would have a record. The Tribunal does not accept that t is credible that the applicant would not have known or been motivated to produce the record in support of her claim if the record existed.
36.6.The occurrence, timing, and circumstances of the applicant’s involvement in the incident at the local government building where she and others went to complain about the property developer’s demands.
The Tribunal notes that the applicant’s evidence at hearing about her involvement in this incident was vague, lacking detail, and inconsistent. The applicant stated that she didn’t know whether it occurred in July or August 2017, but later stated that she purchased her plane ticket to Australia on the day of the incident and departed China the following day, a known date being 8 August 2017. The applicant also stated that she couldn’t recall any other details about the incident.
36.7.The occurrence, timing, and circumstances of the demolition of the [apartment] property.
The Tribunal notes that the applicant stated in her evidence at hearing that she was in Australia at the time the property was demolished, on a date unknown to her, perhaps September 2017, that she thought her husband had told her about the demolition, but she couldn’t provide any further details about the demolition, including about what happened to their tenants.
36.8.The occurrence, timing, and circumstances of the police attendance at the [Street 1], Jinan home while only the applicant’s husband was present, looking for the applicant.
The Tribunal notes that the applicant’s evidence at hearing about this incident was vague and lacking detail, including the timing relative to the local government building incident, the demolition, and the payment of compensation.
36.9.The occurrence, timing, payment, and amount of the demolition compensation.
The Tribunal notes that the applicant’s evidence at hearing was specific as to the amount of demolition compensation paid in cash to the husband (around 420000 RMB plus a subsidy of 10000 RMB), however she could not provide any other details about the payment or what happened to it, she was only told about it by her husband, and there is no documentary evidence of the payment.
The Tribunal also notes that in her protection visa application, the applicant stated that she didn’t get compensation, and they couldn’t relocate, and yet she and her husband had purchased and lived at the [Street 1], Jinan home since 2012, and the husband was living there at the time the applicant claims the [apartment] building was demolished.
Further, the Tribunal notes that in her written submission dated 8 June 2022, the applicant stated that she received 50000 Yuan in compensation, which does not accord with her evidence at hearing.
36.10.The applicant not having any memory nor being aware of the circumstances in which her passport was applied for and granted, nor the contents of her protection visa application and related statements, and that her husband looked after these things.
The Tribunal notes that these claims by the applicant do not accord with her evidence at hearing that she confirmed that the information in her protection visa application and written submission dated 8 June 2022 was true and correct; that she was the one involved in the various complaints and incidents forming the basis of her protection claims, not her husband; and that her husband has over a long period been of seriously declining health. The Tribunal does not accept that it is credible that the applicant or the applicant’s husband bribed a passport official to get her passport.
Based on the evidence and reasoning set out above, and taking into account the relevant country information, the Tribunal finds that:
37.1.The applicant had no difficulties with Chinese authorities when departing China, including at the airport.
37.2.The applicant’s evidence overall relating to her claims for protection fails to substantiate her claims.
37.3.The applicant is unlikely to be a person of interest to the Chinese authorities.
37.4.If the applicant were returned to China, there is not a real chance that she would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
37.5.There do not exist 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 the applicant will suffer significant harm.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
On the evidence before the Tribunal, there is no suggestion that the applicant satisfies s 36(2)(b) or (c) 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)(b) or (c).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
Member

CASE NUMBER 2015336 DECISION RECORD – ATTACHMENT A
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.
…
CASE NUMBER 2015336 DECISION RECORD – ATTACHMENT B
Relevant Country Information
The Department of Foreign Affairs and Trade (DFAT) Country Information Report People’s Republic of China, 21 December 2017 provides in part the following information:
Under the heading ‘Political Opinion (Actual or Imputed)’ at 3.65:
The CCP has little tolerance for public dissent on a wide-range of matters considered politically sensitive, including social stability, the legitimacy of central authorities and one-Party rule and other topics which authorities consider might aggravate social unrest. Examples of issues which authorities deem sensitive include commentary on serious economic, health and environmental concerns, financial risks, land and property issues, ethnic and religious unrest, labour disputes and official responses to natural or anthropogenic disasters.
Under the heading ‘Groups of Interest – Protesters/petitioners’ at 3.75:
An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption.
At 3.76:
Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT considers credible reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.
At 3.77:
China’s Constitution and State Compensation Law enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level.
Under the heading ‘Cruel, Inhuman or Degrading Treatment or Punishment – Arbitrary Arrest and Detention’ at 4.17:
Amendments to China’s Criminal Procedure Law, which took effect in January 2013, require the prompt delivery of suspects to detention facilities following arrest. The law stipulates that interrogations must take place in the detention facility, and must be recorded in audio and video.
At 4.24:
Conditions can be overcrowded, and detainees can be required to sleep on the floor and be denied regular exercise. Meals are regularly served but nutritional quality is poor and quantities are small. Many detainees rely on supplemental food, medicines and warm clothing provided by relatives. Prison officials sometimes deny these privileges as a form of punishment, particularly for political dissidents (see Torture). Prisoners do not always receive adequate medical care (see Deaths in Custody).
Under the heading ‘Prevalence of Fraud’ at 5.30:
Chinese passports use sophisticated technology and Chinese authorities have a high surveillance capability, particularly at train stations, airports and ports. An ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well paid status of public security officials.
The Department of Foreign Affairs and Trade (DFAT) Country Information Report People’s Republic of China, 22 December 2021 affirms the 2017 information above and provides in part the following additional information:
Under the heading ‘Political Opinion (Actual or Imputed) at 3.79:
In practice a wide-ranging number of topics are considered sensitive and are censored, with those raising them liable to punishment. Sensitive issues include commentary on: political issues and events (including the policy direction of the CCP and nation and sensitive anniversaries); serious economic, health (including COVID-19 origins and the government’s handling of the outbreak); land rights and property or environmental issues; labour rights; religious or ethnic issues; or legitimacy of central authorities and the CCP. The sensitivity of topics can change quickly and it is impossible to make a comprehensive list of sensitive topics.
Under the heading ‘Groups of Interest – activists and civil society’ at 3.84:
Some private criticism (for example among friends and family) of government is generally tolerated. If the criticism is more widely disseminated, for example on an online platform or deemed too inflammatory or in relation to a particularly sensitive subject, authorities might reprimand the individuals involved.
Under the heading ‘Protesters and petitioners – including land protests’ at 3.86
All gatherings of more than 200 people must obtain approval from public security authorities. The Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges. Public demonstrations are rarely approved. Spontaneous protests sometimes occur. Common protest themes are related to labour disputes, environment, land disputes and local corruption. Recent estimates on numbers of protests are not available, but DFAT understands they have become much less common under President Xi.
At 3.87
Disputes with government may be raised at petitioning offices, also called ‘letters and visits’ offices, a type of government service office. Millions of disputes are raised every year. Local authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means local authorities are incentivised to retaliate against petitioners, which might include charges such as ‘picking quarrels and provoking trouble’. According to the 2020 US Department of State Human Rights Report, local governments have sent personnel to Beijing to force petitioners in the capital to return home. While examples of violence and, in extreme cases, deaths are reported, many complaints are resolved through the petitioning process.
At 3.88
Land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villages. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation (thus, disputes are generally complaints against local government which may escalate to the national government, as outlined above). China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs’, who intimidate protesters or cut utility supplies, have been used and are allegedly hired by local governments.
At 3.89
DFAT assesses that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.
This report defines the term ‘official discrimination’ as:
-    Legal or regulatory measures applying to a particular group that impede access to state protection or services that are available to other sections of the population (examples might include but are not limited to difficulties in obtaining personal registrations or identity papers, difficulties in having papers recognised, arbitrary arrest and detention);
-    Behaviour by state employees towards a particular group that impedes access to state protection or services otherwise available, including by failure to implement legislative or administrative measures.
Under the heading ‘Women’ at 3.116
Overall, DFAT assesses that in general women China face a low risk of official discrimination.
Under the heading ‘Detention and prison – detention’ at 5.17:
Conditions in administrative and pre-trial detention facilities are typically harsh, and often worse than in prisons. Pre-trial detention is highly controlled, and there are no opportunities to work to reduce sentences or for family visitation. Cells in pre-trial detention are approximately 12 metres long and five metres deep, with up to 24 detainees held in each cell.
At 5.19:
Hygiene, medical services and food and water provisions are rudimentary at best. Cellmates generally share one open toilet per cell. While detention centres will generally have on-site doctors, they have limited capacity for treating routine or complex medical problems.
Under the heading ‘Treatment of Returnees’ at 5.28:
DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear.
Under the heading ‘Exit and entry procedures’ at 5.31:
Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list.
At 5.33:
If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China.
At 5.35:
DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.
The Department of Home Affairs Common Claims People’s Republic of China 24 March 2022 provides in part the following additional information:
Under the heading ‘Political Opinion’ at page 24:
The government is required by law to resolve complaints raised in petitions within 60 days. Most petitions are about land, housing, entitlements, environment or corruption and most petitioners present their complaints at local offices. There are millions of petitions each year. Regulations encourage all litigation-related petitions to be handled at the local level through local or provincial courts and local officials may be rewarded for preventing petitions from being escalated. Local authorities may detain petitioners in ‘black jails’ for brief periods of time and local officials have been known to send security personnel to Beijing to force petitioners to return to their home to prevent them from filing complaints against local officials with the central government.
Under the heading ‘Personal Documentation’ at page 24:
Passports may be refused to people deemed to be political threats. Passports may be refused to people suspected of a crime, who are of interest on ‘national security grounds,’ activists or human rights defenders, or members of ethnic minorities. Sophisticated criminal networks may supply fraudulent passports. However, due to extensive databases, it is likely that a fraudulent passport would be detected within China.
Under the heading ‘Freedom of Movement’ at page 25:
The government monitors internal movement and maintains an exit control list (ECL). The
government uses various technology to monitor people entering and exiting China, and various government agencies ‘feed data’ into databases to create the ECL. Travel bans may appear arbitrary. The ECL is used to deny foreign travel to certain people, and it is very unlikely those on the ECL will be able to depart China. There has also been at least one case of a person on the list being able to leave the country, however it is not clear how commonly this occurs. Generally, citizens are permitted to undertake foreign travel unless included on the ECL. Departure from China outside of official border crossings would be difficult, and it is generally not possible to leave China without the government’s knowledge.
Under the heading ‘Land and Property Issues’ at page 27:
Some local governments colluded with property developers to pay little or no compensation to displaced residents who were left without strong legal remedies, sometimes resulting in violent protests and the arrest of resident protesters. The practice of evicting residents and selling land rights to developers can be lucrative to corrupt local government officials. The central government claims it has cracked down on this practice, but disputes continue to be reported, according to the US Department of State.
Under the heading ‘State Protection’ at page 27:
Police are generally not held accountable for their actions. Police and public security agents generally, enjoy impunity for abuses, including suspicious deaths in custody and police brutality. Alleged human rights abuses include arbitrary or unlawful deprivation of life, executions without due process, torture, and coerced confessions of prisoners. Authorities detain and hold individuals at undisclosed locations for extended periods of time. Public security officers have broad administrative detention powers allowing detention for long periods without formal arrest or charges.
The Department of Home Affairs Standard Q & A Report: China 20200708142538 Land Disputes in Shandong 29 July 2020 provides in part the following information:
At page 3:
‘Thugs’
The use of government-hired ‘thugs’ has long been reported in dealing with land protesters across China. These thugs keep the state at a distance from any actual violence. Along with thugs, DFAT notes (but ‘cannot verify’) reports of overly aggressive private security contractors who may perpetrate violence. The most prominent recent example of the use of thugs that COISS found from Shandong happened in 2015. A land protester remained within his house while ‘100 thugs’ allegedly threw debris at him before setting the house on fire, according to witnesses. The 46 year old victim was later found burnt to death. COISS did not find any other recent reports of similar levels of violence.
Land appropriation occurs across China. An academic review of land disputes between 2006 and 2016 noted that land disputes are more ‘intense’ (involving more people, violence or economic loss) in southern China (e.g. Yunnan and Guangdong) than northern China (for example, Shandong)
The Department of Home Affairs Extended Q & A Report: China: Protesters and Petitioners 4 December 2017 provides in part the following information:
At paragraph 4 on page 10:
Those who oppose expropriation of land or property are often subject to verbal threats, intimidation, loss of basic services, dismissal from jobs and the use of force and violence by local authorities. Affected residents increasingly engage in demonstrations to express their anger over low compensation and the lack of transparency in the distribution of compensation and sale proceeds, which often benefit local governments and individual officials involved in expropriation. One study found that over 100,000 ‘mass incidents’ (demonstrations involving more than 100 people) took place every year, and that 60 per cent of them were related to land disputes. Low compensation standards and weak legal protections have facilitated land seizures by local officials, who often evict the residents and transfer the land rights to developers.
The Department of Home Affairs Standard Q & A Report: China: CI150130192145089 Land Acquisition-Compensation-Urban Land 6 May 2015 provides in part the following information:
At pages 3-4:
In relation to land expropriation in urban areas in China, a 2012 report on social unrest in China published by the Europe China Research and Advice Network states that in urban neighbourhoods, land disputes occur when local governments seek to tear down older residential areas in order to make way for profitable office space or expensive apartment complexes. The report also states that urban residents were increasingly engaging in popular resistance in order to express their grievances about a range of issues affecting their livelihood, including the expropriation of land and residential property for development. An earlier February 2011 article in The Economist indicates that on January 21st, with much fanfare, the central government announced new regulations aimed at curbing the often brutal eviction of city residents to make way for urban development.
The article continues: The need for such rules has also long been debated, but the central government has delayed taking action in the face of stiff resistance from local governments. For them, grabbing residential land and reselling it to developers is a huge source of revenue. The new regulations clarify the “public interests” that allow local governments to take over residential property. These include government building projects related to energy or transport infrastructure, or housing for the poor. They do not include commercial projects, which local governments often use to justify land appropriations. Forcing people out of their homes by cutting off utilities or road access is banned. Courts are to settle disputes. But it is mainly poorer homeowners who are affected by these evictions, whereas the new rules leave local governments with great scope for carrying on as usual. The rules do not apply to evictions from rural land, where most disputes occur. In such cases, even more than usual, the courts are under the thumb of local governments.
Another article in The Economist gives further information on the regulations. Information in a July 2011 Immigration and Refugee Board of Canada response to information request, which refers to sources that report on 21 January 2011, China’s State Council passed new regulations on the expropriation and compensation of housing in urban areas that took immediate effect, indicates that among the requirements included in the new regulations was that owners must be compensated at the market price of similar properties.
The US Congressional-Executive Commission on China also reported that the PRC Regulations on Expropriation and Compensation for Housing on State-owned Land (Urban Expropriation Regulations), if fully implemented, should offer greater protection to urban land rights holders… Unlike previous legislation, the Urban Expropriation Regulations also provide for payment of market value, grant rights holders some procedural protections, such as payment of the purchase price before the owner vacates the property, and include a process for administrative review of the compensation amount if desired.

[2022] AATA 2864

6 July 2022

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction