2015919 (Refugee) - [2024] ARTA 782

2015919 (REFUGEE) [2024] ARTA 782 (3 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2015919
Tribunal:General Member Matthew Currie
Date:3 December 2024

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

General Member M. Currie

Statement made on 3 December 2024 at 10:34 AM
CATCHWORDS
REFUGEE – protection visa – China – political opinion – social media protest and complaint to district government about local government official’s extravagance and corruption – campaigned against official’s re-election – official delayed processing applicant’s documents – previous departure and return – unhindered departure and new passport – new claims of forced sale of family’s land for development, no customary allocation of land and mother’s salary not being paid – no reasonable explanations for delay or supporting evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of China, applied for the visa on 17 November 2017. The delegate refused to grant the visa, noting that the applicant had not provided any supporting evidence for his claims, and having not been satisfied that the applicant had participated in the activities, or suffer the kind of adverse treatment of harassment he claimed in China and that he did not have a profile that would be of adverse interest to the Chinese authorities or anyone else in that country.
On 27 October 2020, the applicant lodged an application for review with the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 29 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
This applicant claims to be a citizen of China. He arrived in Australia on [date] October 2017 and lodged a protection visa application on 17 November 2017. As part of the protection visa application the applicant submitted a photocopy of his genuine Chinese Passport and a four-page personal statement which outlined his claims for protection (the 2017 Statement of Claims).
Evidence before the Department
The department considered the applicant’s protection visa application, his 2017 Statement of Claims and his Chinese Passport.
The claims for protection outlined in the applicant’s 2017 Statement of Claims are as follows:
·He was born [Year] in a village in Huadu District, Guangzhou City, Guangdong Province, China. The Village Head in his village had a domineering personality and used his position of influence to obtain personal benefits for himself. Many villagers were unsatisfied with his performance and behaviour.
·In early 2017, the son of the Village Head was married, and all villagers, including the applicant, were invited to attend the wedding. The applicant was obligated to attend and to give a gift at the wedding. The wedding was extremely expensive and luxurious. It included a theatrical troupe who performed for several days and luxury cars. The applicant was frustrated by these events, and he believed the Village Head was unfairly using his influence for personal benefit. He took photos of the wedding and posted them online as evidence of corruption. His online posts attracted much attention, however, somehow, the photos he posted online were deleted. The applicant was unsure how they were deleted.
·The Village Head called the applicant and was angry. The applicant learned that the village head had requested the photos be deleted. The Village Head and held a grudge against the applicant and told him that his actions would attract trouble. Thereafter the Village Head sought revenge against the applicant.
·In response, the applicant wrote a letter of complaint to the Huadu District government office which detailed the Village Head’s corruption and requested that the government take action against him. One month later, the Village Head invited the applicant to his office and told him that he had seen the letter of complaint and the issues had been resolved in his favour. The Village Head threatened the applicant that if he continued to act against him, then he would take revenge. The applicant was scared and took no further action against the Village Head.
·Thereafter the Village Head was ‘sluggish’ at signing routine paperwork on behalf of the applicant and embezzled a portion of the applicant’s basic living allowance.
·In May 2017 the committee of the applicant’s village announced there would be an election for the role of Village Head. In conversation with other villagers the applicant stated he would not vote for the incumbent Village Head and advised the villagers to vote for other candidates.
·Unfortunately, the incumbent Village Head won the election by bribing and threatening voters. The re-elected Village Head learned that the applicant had not voted for him and that he had advised other villagers not to vote for him. He was angry with the applicant.
·The applicant feared the village head would seek further revenge against him and did not know how to continue his life in China. In October 2017, he departed China and came to Australia. The applicant fears that if he returns to China, he will suffer further persecution.
In August 2020, the Department sent a letter to the applicant under s 56 of the Act (the s 56 letter). The s 56 letter noted that the applicant’s claims for protection, as advanced in his application, lacked substantiating detail, including failing to identify key dates and locations. The s 56 letter invited the applicant to provide further information about his claims for protection. The letter specifically asked the applicant to provide copies of any letters or petitions he sent to the government; any evidence of the harm caused by the Village Head; and an explanation for what harm he fears would happen to him if he were to return to China.
The section 56 letter also noted discrepancies between the information the applicant has provided about his travel prior to coming to Australia. In particular, the letter noted that in September 2017 the applicant’s Passport indicated he had travelled to [Countries 1 and 2] and then returned to China. The letter noted that the applicant’s return to China in September 2017 suggested that he did not hold a subjective fear of returning to China that time. This the letter asked the applicant to provide an explanation why he returned to China in 2017, if he genuinely feared harm from the Village Head.
The s 56 letter indicated that if the applicant was unable to provide more information about his claims for protection or copies of relevant supporting documents, then he should provide a detailed explanation of why he could not provide them. The letter warned the applicant that he may not have another opportunity to provide information or evidence to the Department and noted that if the applicant did not respond the Department may make a decision in relation to his case on the information that was ready before it.
The applicant did not provide any response to the Department’s s 56 letter and did not provide any further evidence, or explanations, or claims to the Department. On 1 October 2020 the Department proceeded to make a s 65 decision in relation to the applicant’s case.
In the October 2020 s 65 decision, the delegate accepted that the applicant was a citizen of China and found that China was his receiving country. However, the delegate noted the lack of detail provided by the applicant regarding his claims for protection. The delegate was not satisfied that the applicant had faced any of the problems he claimed in China. The delegate was not satisfied the applicant had a profile that would be of any adverse interest to the Chinese authorities, or anybody else in China in the foreseeable future. The delegate did not accept that the applicant met refugee criteria, or the complementary protection criteria.
Evidence before the Tribunal
The Tribunal has considered the applicant’s protection Visa application, his 2017 statement of claims, his passport, and a departmental movement record relating to his arrival in Australia.
In June 2024, the AAT sent an email to the applicant. That email notified the applicant that his case file was being prepared to be issued to a Member of the AAT. The email asked the applicant to complete a ‘Pre-hearing information form’ which, among other things asked the applicant to provide any additional information about his claims for protection. The applicant returned a signed copy of the prehearing information form dated 7 June 2024 to the Tribunal.
On 6 November 2024, the Tribunal sent a ‘Notice of Hearing’ (the Hearing Notice) to the applicant. Two additional documents were attached to the Hearing Notice. These were a ‘Response to hearing notice’ (the hearing response form) and factsheet titled ‘Information About Hearings’ (the hearing factsheet). The hearing information factsheet explained the purpose of the hearing and noted that a hearing was an opportunity for the applicant to give evidence and present arguments relating to the issues arising in his case.
On 7 November 2024, the applicant responded to the hearing notice via email. In his email he indicated that he would attend the Tribunal hearing on 29 November 2024. In the same email the applicant provided a signed copy of the hearing response form which also indicated that he would attend a hearing before the Tribunal.
At his hearing before the Tribunal, the applicant provided oral evidence about a range of issues including his existing claims for protection, which had been considered by the Department. During the hearing, the applicant also advanced a series of new claims for protection.
In the hearing the applicant put forward the following information:
·He was responsible for preparing his protection visa application, which he completed with assistance from a friend. He personally drafted and translated his 2017 Statement of Claims. His biographical details, as outlined in his protection visa application were correct. His Chinese Passport was genuine.
·He is a Chinese citizen of Han ethnicity who was born in [Year]. He grew up with his family in Guangzhou, Guangdong Province, China. After he completed his education, he principally worked as a farm worker on the family farm between [Year] and 2017 when he came to Australia. He had lived in the same house in China for his entire life before coming to Australia. His family, including his parents and his [sibling] still resided in the house. During his early [Decade], the applicant had travelled to [Country 1], and later [Country 2] for tourism.
·Though the applicant’s family had owned a farming plot for generations, their land had been sold to a developer in 2015. [A facility] was built on their land. They received inadequate compensation for the forced sale of their land.
·In early January 2017, the applicant was invited to the wedding of the Village Head’s son. The applicant, and other visitors faced pressure to attend. The wedding was very lavish. The applicant was concerned by the luxurious wedding. He took photos of the wedding and posted them online using [a Chinese social network].
·Somehow, the wedding photos he posted on [Social media] were deleted. He does not know how. He suspects the Village Head used his influence to have them removed. The Village Head summoned him to his office and told the applicant not to make further trouble. The applicant does not have copies of the photos or other evidence about these issues.
·The applicant subsequently wrote a letter of compliant to higher Government authorities. In the letter he complained about the lavish wedding and asserted that the Village Head was exploiting villagers from his village in a corrupt way. The applicant provided copies of the wedding photos in the compliant letter. Somehow, the Village Head learned of his complaint letter to the higher authorities and summoned the applicant to his office. He warned the applicant not to make further trouble for him. The applicant does not have copies of the wedding photos or his compliant letter, or other evidence about these issues.
·The applicant’s village held an election for the Village Head role in May 2017. The applicant voted against the incumbent and advised others to vote against him. Nevertheless, the incumbent won the election by bribing voters. The re-elected Village Head learned the applicant had spoken against his candidature and was angry with him.
·Thereafter, the applicant faced a range of problems. In his village, it was customary when a person came of age for them to be granted 100sqm of land. However, when the applicant applied for his customary land allocation, the Village Head did not grant it. The applicant’s brother also failed to receive his customary land when he came of age. However, villagers who had closer relations with the Village Head were granted their customary land allocation.
·Similarly, the Village Head would sell village land that was owned communally to developers and would not provide villagers with an appropriate dividend. This practiced damaged the interest of all the villagers, including the applicant. The applicant wanted to revel this corruption. Other villagers felt the same way, but they were scared and refused to do more than talk amongst themselves in private. They did not make any complaints as the applicant had done.
·From 2020, the applicant’s mother worked as [an occupation 1] in the village. She would [do a job task at] the village [workplace]. Around 2022, when China was affected by COVID-19, the village stopped paying her salary. She remained unpaid until recently (2024) when she went into hospital and was unable to pay her medical bills. Subsequently she received her back pay. He has no supporting evidence about this issue.
·The applicant came to believe that he could not live in China any longer. He departed China legally via Hong Kong and travelled to Australia. He used his genuine Chinese Passport. That Passport was subsequently damaged and in 2021 he obtained a new Chinese Passport from the Chinese consulate in Australia.
·In Australia the applicant has worked in several jobs, including as [occupations 2-4] in the [work] sector.
At the end of his Tribunal hearing, the applicant was asked whether he had advanced all of his claims for protection and whether he wanted to submit any further evidence in relation to his claims. In response, the applicant indicated that he had put forward all of his claims, did not wish to discuss other matters, and that he did not intend to obtain or submit further evidence.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the refugee criteria or the complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
As evidence of his identity and citizenship, the applicant has provided a photocopy of a genuine Chinese passport issued in his name as part of his protection visa application (the 2017 Passport). At his hearing before the Tribunal, the applicant said that the 2017 Passport had been damaged, and so he brought original copy of his replacement Chinese Passport to his hearing before the Tribunal (the 2021 Passport). The Tribunal has reviewed the photocopy of the 2017 Passport and the original of the 2021 Passport. The applicant has established his identity to the Tribunal’s satisfaction. The tribunal accepts that he is a Chinese citizen, who was born in [Year] and who lived in Guangzhou City, Guangdong Province, China. For the purposes of this decision finds that China is his receiving country.

According to the applicant’s protection visa application and his oral evidence before the Tribunal, he lived throughout his life in the same house in his village in the Huadu District, of Guangzhou City. After he completed school in [Year], he worked as a farm labourer and in a variety of other short term roles. There is no reason to dispute these claims. The Tribunal accepts the applicant lived a village in Huadu District, Guangzhou City, Guangdong Province, China throughout his life, and that from [Year] he worked as a farm labourer and in other roles.
Analysis and reasons
As indicated in the summaries above, there are some substantial differences between the claims advanced by the applicant in his 2017 protection visa application and the claims advanced in his 2024 hearing before the Tribunal.
Notably, before the Tribunal the applicant put forward several new claims for protection. These new claims related to his family losing their farmland in 2015; the applicant and his brother being denied a customary land allowance by the Village Head; and the village council failing to pay the applicant’s mother her salary for several years. He cited these three new claims as additional reasons why he could not return to China.
These new claims were not made in the applicant’s protection visa application and had not been mentioned prior to the applicant’s November 2024 Tribunal hearing. At his hearing, the applicant said he was unable to provide any supporting evidence, or any documentation for any of his new protection claims.
New Claims
2015 - Farmland lost to developers
The applicant says that in 2015 his family’s farming plot was forcibly taken from them and sold to developers. He says that they received inadequate compensation for the loss of the farmland. He says that [a facility] was built on the site of the land his family had formerly owned. The applicant identified the location of the [facility], and his nearby family home, on a map.
During his Tribunal hearing, the applicant was asked why he had not mentioned this claim in his 2017 Statement of Claims. In response, the applicant said that he forgot about the lost farmland at the time he was writing his Statement of Claims. It was put to the applicant that his earlier evidence was that he personally had spent around four days preparing his 2017 Statement of Claims and that it seemed unlikely that he would forget about such a major issue as the loss the family land. The applicant continued to assert he forgot about the issue when he prepared his protection visa application.
The applicant was asked whether he could provide any supporting evidence about the lost farmland, such as documents relating to the forced acquisition of the land or relating to the compensation received by his family. He said he could not provide any such evidence and that the entire matter, including notification of the land acquisition, and compensation to his family, had been conducted orally. Consequently, he said there were no documents.
The applicant was asked why he had not provided any evidence about this issue to the Department, especially since the s 56 letter had asked him to provide further information and evidence about what had led to him claiming asylum in Australia. The applicant offered no explanation for why he had not mentioned this issue to the Department after he received the s 56 letter. He continued to assert he forgot about the lost farmland when he had prepared his protection visa application.
During his hearing, the applicant was advised that s 5AAA of the Act provides that it is the responsibility of the applicant to specify the particulars of his claim for protection, and to provide enough evidence to substantiate the claim. He was also advised that it is not the Tribunal’s responsibility to identify claims on his behalf or to obtain evidence to support such claims.
The applicant’s failure to mention his family’s lost farmland at any time prior to his November 2024 Tribunal hearing is a major concern. This is not a minor or insignificant claim, instead, it relates directly to his conflict with the Village Head, which is his principal reason for seeking asylum in Australia. The Tribunal put it to the applicant that his failure to mention this issue when he arrived in Australia was a major omission and that the loss of land was not a small or minor detail. The applicant agreed that his failure to mention this issue was a major omission, though he continued to assert that he simply forgot to mention this claim in his protection visa application or his 2017 Statement of Claims. The Tribunal found the applicant’s explanations about this issue to be unpersuasive, noting that the applicant had earlier given evidence that he personally had drafted his Statement of Claims over a period of four days. The Tribunal also notes that the applicant’s protection visa application indicated he worked as a farmer between [Year] and 2017, and that early during his Tribunal hearing, the applicant had indicated that during this period he had worked on the family farm.
The Tribunal is also concerned that the applicant also failed provide information about this issue in 2020, after the Department’s sent s 56 letter which asked him for further details about his claims for protection. His failure to mention this new claim in 2020, when he had been asked to provide further information about his reasons for coming to Australia is also a major concern. The Tribunal notes that the applicant has not provided any independent supporting evidence for his claims about the farmland, including any evidence pertaining to his family’s ownership of the farmland, or evidence they had been notified that the land was to be sold to developers, or evidence that the family had received compensation, or evidence that the compensation was inadequate.
Taking all these factors into account, and noting the lack of any supporting evidence for any aspect of this new claim, the Tribunal is not satisfied that the applicant’s family did lose a plot of farmland in 2015. In the circumstances, the Tribunal is not satisfied that the applicant was affected by such a problem in China, or that this issue would affect his profile upon return to China now, or in the future.
2017 – Customary land allocation
The applicant says that in his village, it was customary that when a person came of age, they would be allocated 100sqm of land upon which to live. He said that when he applied for his allocation of land, that the Village Head refused him. He says that other persons in the village, who maintained better relations with the Village Head were granted a land allocation. He said his brother was also denied his customary allocation of land. He asserted that this land allocation was not a Chinese Government policy, and was not applied in other locality’s. Rather, it was merely the custom in his particular village. The applicant attributes his failure to obtain land in this way to the animus of the Village Head.
The applicant had not mentioned this issue before his November 2024 Tribunal hearing. It is not reported in his protection visa application or his 2017 Statement of Claims. As noted earlier, he did not respond to the Department’s s 56 letter and this claim was not advanced to the Departmental delegate. When asked why he did not mention this issue earlier, he said he did not know about the asylum process and did not know he should mention it.
The applicant has not provided any supporting evidence for his claims about failing to obtain a customary a land allocation in his village. He has also failed to provide any evidence that there is such a land allocation policy in his village. The applicant’s account of his failure to receive a customary land allocation from the Village Head would seem to be a source of conflict and a significant factor in his adversarial relationship with the Village Head. His failure to mention tis issue in his protection visa application or his 2017 Statement of Claims is concerning. The applicant says his failure to mention this issue was because he did not understand the asylum process, but as the remainder of the applicant’s protection claims derived from his conflict with the Village Head, the Tribunal found this explanation unpersuasive.
When asked by the Tribunal whether other persons in the village had received their customary land allocation, the applicant stated that they had, if they were married and had children. As the applicant’s answer seemed to indicate that land was only allocated to people who had come of age, and who were married with children, the applicant was asked to clarify these requirements. Subsequently, the applicant denied there was a requirement for a person to be married and to have children in order to be allocated land. He said that everybody was entitled to land when they came of age. The Tribunal found the applicant’s explanations for these matters unpersuasive. Relevantly, this applicant is not married and does not have children.
Noting again the requirements of s 5AAA of the Act, the lack of any supporting evidence, and the applicant’s failure to mention this issue until around seven years after he arrived in Australia, the Tribunal is not satisfied that the applicant or his brother were entitled to a customary land allocation in his village, or that he was denied such an allocation by the Village Head. In the circumstances, the Tribunal is not satisfied that the applicant, or his brother, was affected by such a problem in China, or that this issue would affect his profile upon return to China now, or in the future.
2022 – Mother’s salary
The applicant says that around 2020, his mother started to work as [an occupation 1] for the village committee. She was responsible for [doing a job task as] the village offices. According to the applicant, around 2022, the village stopped paying his mother’s salary. He says she remained unpaid until recently, when she was hospitalised due to illness and was unable to pay her hospital bills. The applicant asserts that his mother recently paid the money she was owed. The applicant has not provided any evidence for any aspect of this claim, such as receipts, or payslips or bank statements or hospital records.
The applicant did not mention this issue in his protection visa application, or his 2017 Statement of Claims and he did not provide any details about this issue to the Department. However, as the applicant’s explanation indicates, his mother’s problems only started in 2022, well after his submitted his application and two years after the s 56 letter was sent to him. In the circumstances, the Tribunal accepts that this issue could not have been mentioned to the Department before the s 65 Decision was made.
At his hearing, the applicant implied that this issue arose due to his previous conflict with the Village Head. However, during his Tribunal hearing, the applicant provided an alternative reason; he said that the village was “broke” due to problems associated the COVID-19 crisis. Furthermore, the applicant indicated that though this issue had caused some hardship for his family in China, the money owed to his mother had been recently repaid. The Tribunal asked the applicant how these issues related to his claims for asylum, and he said that something similar may happen in the future. The Tribunal found the applicant’s explanation to be speculative and unpersuasive.
Notwithstanding the lack of any supporting evidence for this claim, the Tribunal accepts that the applicant’s mother did not receive her salary for a period of time in China. However, on the applicant’s own account, the money owed to her was recently repaid. Given that his mother received the money she was owed, it does not seem that this issue would have any further effect on the applicant, or his family in China now. Taking into account the applicant’s alternative explanation - that the failure to pay his mother related to the village’s lack of financial resources - the Tribunal is not satisfied that this issue relates to conflict between the applicant and the Village Head. In any case, given the money owed to his mother has been repaid, the Tribunal’s is not satisfied that this issue would have any further effect on the applicant or his profile in China now.
Existing Claims
2017 – Lavish wedding & Complaint, election of Village Head, Applicant’s overseas Travel
According to the applicant’s protection visa application, the principal reason he departed China was because of a conflict with the Village Head. He says that this conflict emerged due to his attendance at the lavish wedding of the Village Head’s son and his attempts to publicise the luxuriousness of the wedding online. He says that he posted pictures of the wedding to [the social network]. He says that the posts were later deleted by persons unknown, and that he suspects the Village Head was responsible. He says the Village Head summoned him to his office and told him not to make further trouble for him.
Following this event, the applicant lodged a complaint with higher government authorities, but the Village Head was able to have that compliant squashed also. The applicant was summoned to the Village Head’s office again and warned not to make further trouble for him. Thereafter the applicant did not make further complaints.
The applicant also says that the Village Head learned that he did not vote for him in village elections held in May 2017, and that he had learned the applicant advised others not to vote for him. He says the that thereafter, the Village Head held a grudge against him.
Despite the complaints about the wedding and corruption being the basis for the applicant’s principal claims for protection, the applicant has not provided any supporting evidence for any aspect of this claim. He has not provided the wedding photos which he says were the original evidence for his claims about the Village Head, and he has not provided a copy of the compliant letter that he says he sent to the higher Government authority. When asked why he had not provided this evidence, the applicant says it was hard to obtain. He says that he replaced his phone when he arrived in Australia and could not obtain the photos now. He says he did not have a copy of the compliant letter.
The applicant says that the Village Head is still in power in his village. However, when questioned about the Village Head, the applicant described him as a very low-level official of limited power. The Tribunal noted that on the applicant’s own evidence, his parents and his brother continued to reside in the village and that he had indicated that his brother was a university graduate. These factors suggest that the applicant’s family was not affected by any problems with the Village Head, and that they were able to reside safely in the village. Furthermore, the Village Head had not prevented the applicant from obtaining the 2017 Passport which had been issued in August 2017, or prevented him from departing China.
As noted earlier, as part of his protection visa application the applicant provided a complete copy of every page from his 2017 Passport. While the applicant no longer has the 2017 Passport in his possession, the photocopy he provided with his protection visa application indicated the 2017 Passport had been issued to the applicant in August 2017. Furthermore, the Passport also indicated that in September 2017, the applicant had departed China, travelled to [Countries 1 and 2] and then returned to China. This travel occurred around a month prior to the applicant’s final departure from China and travel to Australia. September 2017 is during the period the applicant says he was in conflict with the Village Head.
The s 56 letter detailed the applicant’s September 2017 travel to [Countries 1 and 2] and his subsequent return to China. The letter asked the applicant to provide an explanation for his international travel at that time. Notably, the s 56 letter indicated that the applicant’s return to China may indicate that he did not hold a subjective fear of returning to China in September 2017 and may cast doubt on his claim to fear harm from the Village Head. The applicant did not respond to s 56 letter and has not provided any explanation about why he returned to China in September 2017.
In his hearing before the Tribunal, the applicant disclosed that he had travelled to [Countries 1 and 2] for tourism purposes. However, he stated that this travel had occurred in his early [Decade], prior to the problems he had faced in 2017. Regardless of whether he had travelled internationally before 2017, the photocopy of his 2017 Passport indicates that the applicant did travel internationally in September 2017 and did return to China at that time. The Tribunal considers that the applicant’s return to China in September 2017 weighs against accepting his claims about fearing harm from the Village Head.
There are other factors of concern. Many of the claims made by the applicant are the types of claims that leave a documentary record. For example, the photos he says he took and posted online, financial records and other documents. The applicant says the Village Head was sluggish to process some documents after their conflict emerged, however, beyond the claims mentioned above, which I have not accepted, the applicant has not explained what documents or signatures the Village Head had refused to sign.
The applicant has not explained details about the wedding photos he took and which he says he posted online. Though he says he took the photos, and he posted them online, and that he lodged copies with the higher Government authority, he has not provided copies of these photos. He has not provided a copy of the compliant letter he says he wrote and lodged with the Government. Though the applicant gave evidence about corrupt land sales by the Village Head and stated that information about these sales was published in China. He has not provided copies of any of this information.
The applicant has been on notice since at least August 2020 that there were significant deficiencies in the information he had provided about his life in China. In the s 56 letter the delegate expressed a clear written concerns to the applicant about his claims for protection, the lack of evidence of how provided and other matters and invited him to provide further information explanations and evidence. The Tribunal raised further concerns about these issues in the hearing. The applicant did not respond to the s 56 letter and has not provided any further supporting evidence about any of his protection claims to the Tribunal.
The Tribunal asked the applicant why the Village Head would care about him now, over seven years after the election in 2017 and when he had posted photos online. The applicant said that the Village Head would always hold it against him since he was the first to complain. When asked what he feared would happen upon return to China, the applicant says he hoped nothing would happen, but he feared retribution.
When asked why he could not live in another part of China, the applicant said that he had recently seen a video suggesting that there were around 700,000 corrupt village officials in the country. He did not provide a copy of the video or any evidence for this claim and did not explain how this would affect him living in another part of China. He speculated the Village Head may have a wide network of contacts who could harm him. This explanation was unpersuasive.
The Tribunal pointed out to the applicant that recently published country information indicated that there were hundreds of millions of Chinese who did not live in their place of birth in China which suggested he could live in another part of the country. The applicant made no comment in response, and instead stated that, “at the end of the day” he liked living in Australia, paid his taxes, and wanted to stay.
Overall, the Tribunal is not satisfied by the applicant’s claims for protection. The Tribunal is not satisfied that this applicant was ever in conflict with the Village Head in his village, or that he posted lavish wedding photos online, or that he complained to a higher Government authority about the Village Head. The Tribunal is not satisfied that the Village Head ever cared that the applicant did not vote for him in the May 2017 election or held a grudge about this issue, or anything else. The Tribunal is not satisfied that the applicant ever had any conflict about these issues in China. Tribunal is not satisfied that at the time of his departure, the applicant was of adverse interest to the Village Head, or anybody else in China.
Does the applicant satisfy the refugee criterion for protection?

For the reasons provided above, the Tribunal has concluded that this applicant was not of any adverse interest to the Village Head, or anybody else in China at the time of his departure. Beyond his claims about conflict with the Village head, the applicant has not claimed that he would be of any adverse interest to any other party in China. In the circumstances, Tribunal is not satisfied that the applicant would be of any interest to anybody in China, if he returned to that country now.
In the circumstances, the Tribunal is not satisfied that the applicant would face a real chance of any harm for any of the reasons he has claimed if he was returned to China now, or in the reasonably foreseeable future. The Tribunal is not satisfied he would face a real chance of any harm for any other reason.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has found that this applicant would not face a real chance of any harm arising from any of his claims for protection and would not be of any interest to the Village Head, or anybody else in China. As ‘real chance’ and ‘real risk’ have been found to meet the same standard[1], it follows that he would not face a real risk of significant harm for these reasons. The Tribunal is not satisfied the applicant would face a real risk of significant harm for any other reason.
[1] MIAC v SZQRB (2013) 210 FCR 505
In the circumstances, the Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk of significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 29 November 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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