2016067 (Refugee) - [2024] ARTA 559

2016067 (REFUGEE) [2024] ARTA 559 (28 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2016067

Country of Reference:China
Tribunal:General Member R Da Costa
Date:28 October 2024

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

Statement made on 28 October 2024 at 1:54pm
CATCHWORDS
REFUGEE – protection visa – China – land resumption without compensation – complaint letters – physical assault – fear of detention – employment – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZDCDv MIBP [2019] FCA 326
SZTAL v MIBP [2017] HCA 34
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 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 is a national of China, applied for the visa on 13 March 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (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.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following relevant information. He was born in China in Yancheng city, Jiangsu province in [specified year]. He is married and has [number] children who live in China, as well as his parents. He is in contact with his relatives by phone. He speaks, reads and writes Mandarin. He is not religious.
In China, he always lived in Yancheng city. He completed middle school. From [year] to December 2017, he was employed as a worker.
He had a previous passport which is lost. He travelled to Australia on his current Chinese passport, as the holder of a Visitor visa. He arrived [in] December 2017.
Evidence before the Department
Claims for protection
The applicant’s claims for protection are contained in his protection visa application form lodged with the Department of Immigration and Border Protection[1] (the Department) on 13 March 2018. He claims as follows:
[1] Now the Department of Home Affairs.
·His family has land in his hometown and the land was good;
·One day, the local government notified him that the land would be taken;
·The compensation was only one third of market price;
·The applicant and other residents refused to sign the agreement;
·One day, the local government sent people to take the land. They destroyed the ‘goods of land’ and threatened the applicant and beat him because he refused to sign the agreement. After that, the applicant called the police but the police made him wait and he did not receive any results;
·His neighbour told him the compensation was corrupted by the local government;
·The applicant decided to make a petition and wrote a complaint letter and submitted it to the city government. He hoped he would get a reasonable explanation;
·After the officials knew his behaviour they sent police to catch him;
·He was so scared he escaped China and fled to Australia;
·The government is corrupt and they colluded with the police and only care about their own benefits;
·If he returns to China, he will be persecuted by the police and if he goes to prison he will face mental and physical persecution.
On 24 September 2020, the Department wrote to the applicant inviting him to provide additional information regarding his claims for protection, including evidence to support various aspects of his claims. The applicant did not respond to the letter.
The delegate’s decision
The applicant was not invited to an interview with the Department to discuss his claims for protection. On 28 October 2020, the delegate made their decision. The delegate found that based on the information before them, they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 30 October 2020, the applicant lodged his application for review of the delegate’s decision with the Tribunal. He provided the Tribunal with a copy of the delegate’s decision.
The applicant did not provide any additional documents or relevant information to the Tribunal prior to his hearing.
After the hearing, on 4 September 2024, the applicant provided the Tribunal with a copy of a discharge document dated [in] January 2023 from [Hospital 1] Emergency Department. The document is not addressed to anyone in particular and refers to the applicant having suffered a “right macular hole repair after a traumatic globe injury” in August last year. According to the discharge plan, the applicant told the examining doctor he could not see out of the eye but other than that has no complaint. The discharge plan refers to the applicant being contacted for a follow up appointment with an eye specialist at [Hospital 2] and the applicant being advised to see a General Practitioner for his primary health needs. The document does not refer to the applicant having any other medical issues.
The hearing
The applicant appeared before the Tribunal on 2 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal is satisfied that the applicant had the opportunity to participate in the hearing in a meaningful way.
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the hearing, the applicant gave evidence that a lawyer, [named], helped him fill out his protection visa application form. The applicant confirmed that he knew the information contained in the form, it came from him, and everything in his protection visa application was true and correct as far as he knows and believes.
In the hearing, the Tribunal discussed with the applicant his personal and family background, his residential and employment history, his migration history, the claimed events that took place in China and why he fears returning there. The Tribunal has a number of concerns about the truthfulness of the applicant’s claims and evidence, including because of discrepancies between evidence provided by the applicant in his protection visa application form and in the hearing, as well as the applicant changing his evidence in the hearing about certain matters in response to concerns expressed by the Tribunal. The Tribunal’s concerns are discussed further below.
The applicant’s claims about events in China
In his protection visa application form, the applicant states that he always lived in Yancheng city, Jiangsu province, but he does not provide an address.
In the hearing, the applicant gave evidence that his wife, daughter and son all live together in a house in [Village 2], Yancheng city, Jiangsu province. They started living there about eight years ago, in 2016, which is before the applicant came to Australia. This is where the applicant also lived before coming to Australia. Prior to this, the family lived in the village where the applicant was born, which is [Village 1], [Town 1], Yancheng city, Jiangsu province.
In his protection visa application form, the applicant says that in China he was employed as a worker in Yancheng city, Jiangsu province, but does not provide further details.
In the hearing, the applicant gave evidence that in China, for about 10 years before coming to Australia he did [casual work] in Shandong province. He used to go away for a few months and live [at the work] sites, then he would come home, and then he would go back for several months. He did this for about 10 years.
The Tribunal asked the applicant why his family moved from [Village 1] to [Village 2]. He said it was because he was not at home and because they wanted to be away from the lower levels of the government. The Tribunal asked him who the lower levels of government were and he said it was an official of the village, [Official A]. The Tribunal asked why he wanted to move away from [Official A] and the applicant said [Official A] was in charge of the land in the area. The Tribunal asked the question again and the applicant said they wanted to be further away from [Official A] and settle down in a new environment. The Tribunal asked the applicant whether things were good for him when he moved to the new place and the applicant responded that he lived a normal life. The Tribunal asked him whether he had any problems after he moved to [Village 2] in 2016 and he said he said he did not, and confirmed that his wife and children also have not had any problems in the village since he has been in Australia.
The Tribunal asked the applicant why, in that case, he can’t go back to China and live with his family in his village. The applicant responded that the government officials will come after him because he wrote the complaint letters. The Tribunal reminded him he had said he didn’t have any problems since moving to [Village 2] in 2016, and asked why he would have problems if he returned. He said the officials would find him and there will be a problem because he wrote complaint letters. The Tribunal expressed its doubt about this.
The Tribunal asked the applicant whether he was ever harmed in China. He said he was harmed once in China in around May 2016 when he was still living in [Village 1]. In response to questions from the Tribunal he gave evidence that one evening while he was living in his old home in [Village 1], the officials sent people who looked as though they were from a gang to the applicant’s house. They asked the applicant to sign an agreement saying he agreed to the small amount of compensation. He signed the agreement. The Tribunal asked the applicant what happened after that and he said he signed, but after that he wrote materials to complain. The Tribunal asked him whether anything else happened to him. He did not respond directly to the Tribunal’s question and said “if you don’t sign, they will beat you”. The Tribunal then asked the applicant whether they beat him and he responded “yes, so I signed”. The applicant said he was not severely injured and bought some traditional Chinese medicine to treat himself. In his protection visa application form, the applicant claims that after being beaten he called the police and they did not help him. In the hearing, he did not mention being beaten until asked directly by the Tribunal and he did not refer to calling the police afterwards.
The applicant gave evidence that he wrote the complaint letter after he moved to [Village 2] in August 2016 because the money he was paid for his house in [Village 1] was too low and the officials took the rest of the money. He does not have a copy of the letter which he sent to the upper levels of government in Nanjing city. The Tribunal clarified with the applicant that he lived in [Village 2] from August 2016 to December 2017. He said he was in Shandong. The Tribunal reminded him that he had earlier said he went back and forth to Shandong and the applicant said he only came back for two days. The Tribunal suggested to the applicant that if the officials had wanted to find him then they would have been able to do that when he came home from Shandong. The applicant responded that he was not at home. Later, the applicant said he did not have any problems in [Village 2] because he was not at home and at another point, he said that when he needed to return to [Village 2] he returned in the evening and left in the day so nobody apart from his family saw him. The Tribunal expressed concern that he appeared to have changed his evidence during the hearing.
The Tribunal asked the applicant why he decided to come to Australia. He said it was because the people threatened him when he was in [Village 1] and he was in shock. The Tribunal put to the applicant that he didn’t leave China for about 18 months after the beating in [Village 1] and so it might doubt this was the reason he came to Australia. He responded that after they threatened him in [Village 1] he went to Shandong and he was not at home. If he returns, they will find him and come after him. He confirmed there are no other reasons he fears returning to China.
The Tribunal asked the applicant where he would live if he returned to China. He said he will take his family and find a new place to live out of Yancheng city because they will be scared. The Tribunal put to him that it might find he would return to live with his family in the place they are living now.
In the hearing, the Tribunal put to the applicant that it had a range of concerns about aspects of his evidence, including that parts of it were vague and lacking in the type of detail it might expect from someone who was speaking about events they had truly experienced, as well as other concerns about changes in his evidence, which raised concerns about the credibility of his claims. The applicant responded that what happened was real, he was in shock and scared and his memories were quite blurred. The Tribunal asked him whether he had ever had medical treatment for memory issues. He said he was scared and in shock so he thinks he has something wrong with his mind. The Tribunal asked him again and he said he was told he should not think too much about his past or use his brain too much because things will get worse. He said this was in 2022 when he had dizziness and a headache. He does not have any medical evidence about this. The Tribunal put to the applicant that it might find, based on the evidence, that he can return to [Village 2] and he would not face a real chance of serious harm or a real risk of significant harm.
In light of the discussion above, the Tribunal has a number of concerns about aspects of the applicant’s evidence which raise doubts about the credibility of aspects of his claims and evidence. These concerns include:
·     discrepancies between information provided by the applicant in his protection visa application form and what he told the Tribunal in the hearing, for example, about where he lived in China, where he worked in China, and whether he called the police after being beaten. These discrepancies raise concerns about the truthfulness and reliability of the information provided by the applicant in his protection visa application form which he confirmed in the Tribunal hearing was true and correct, as well as concerns about the truthfulness and reliability of the applicant’s written and oral evidence more generally;
·     the changes in the applicant’s evidence during the hearing about whether he experienced problems while living in [Village 2]. The applicant initially gave evidence in the hearing that after moving to [Village 2] he had no problems and lived a ‘normal life’. This evidence changed during the hearing to him either not being in the village at all or only visiting for a very short period, to him visiting in secret briefly at night and departing in the day so nobody apart from his family knew he was there, in order to avoid the officials finding him. These changes raise concerns for the Tribunal about the reliability and truthfulness of the applicant’s evidence about this matter and his claims as a whole;
·     the fact that in the hearing, the applicant did not specifically mention being beaten until asked directly about this by the Tribunal, or referring to calling the police afterwards, which is something the Tribunal would expect the applicant to have mentioned without prompting if it truly occurred, particularly given its significance and the context of the questions the applicant was being asked by the Tribunal at that point in the hearing;
·     the applicant’s claim in the hearing that the reason he left China was because the people threatened him when he was in [Village 1] and he was in shock, but he did not depart China until 18 months after this event, which raises doubts for the Tribunal about the credibility of this claim and his claims about events in China more generally.

Cumulatively, these concerns raise doubts for the Tribunal about the credibility of the applicant’s claims and evidence relating to events in China.
Findings about claimed events in China
Having considered all of the applicant’s written and oral evidence and in light of the Tribunal’s concerns set out above, the Tribunal finds as follows.
The Tribunal accepts that until about mid-2016, the applicant and his wife and children lived in [Village 1] and finds that they moved to a new house in [Village 2] after their house in [Village 1] was compulsorily acquired. The Tribunal is prepared to accept that the applicant was notified that his land in [Village 1] would be acquired, that he was paid compensation by the local government authority in [Village 1] and that he was unhappy with the amount of compensation paid. The Tribunal is prepared to accept that the applicant’s neighbour told him the compensation was corrupted by the local government. The Tribunal is prepared to accept that the applicant and his family wanted to move away from [Village 1] and settle in a new environment. These circumstances are consistent with country information about land acquisition in China, which indicates that compulsory acquisition of land by local governments is common, there is often corruption involved and while compensation for expropriated land is required to be ‘fair and reasonable’, low amounts of compensation are frequently offered.[2]
[2] DFAT Report 3.86 – 3.89.
The Tribunal accepts that for about 10 years before coming to Australia, the applicant did [casual work] in Shandong province and that he used to go away for a few months and live on the [work] sites, come home, and then go back for several months. The Tribunal accepts that the applicant and his family moved to [Village 2] in 2016, he did not have any problems after that and he lived a normal life. The Tribunal also accepts that his wife and children have not had any problems in the village since he has been in Australia.
For the reasons explained above, the Tribunal does not accept the remainder of the applicant’s claims about events in China. The Tribunal does not accept that the applicant refused to sign the compensation agreement. The Tribunal does not accept that people connected to the local government beat the applicant because he refused sign the agreement, or that they came to take the land and that they destroyed his land or his house or his goods. As the Tribunal does not accept the applicant was beaten by officials or people from a gang, or that he bought some traditional Chinese medicine to treat his injuries, or that his property was destroyed when people came to take the land, if follows that the Tribunal also does not accept that he called the police after being beaten, or that the police made him wait and did not help him. The Tribunal does not accept that the applicant made a petition or wrote a complaint letter and submitted it to the city government in Nanjing city or anywhere else. The Tribunal does not accept that after the officials knew his behaviour they sent police to catch him. The Tribunal does not accept that he was so scared that he escaped and fled to Australia. The Tribunal does not accept that while working in Shandong, the applicant only came home to [Village 2] very briefly or not at all, or that he only came home in the evening and left in the day so that nobody other than his family saw him, in order to avoid government officials finding him or for any other reason. The Tribunal finds that the applicant does not have a diagnosed medical condition that affects his memory.
The applicant’s claim about his eye injury
When asked at the end of the hearing whether there were any other matters he wanted to raise, the applicant said [one] eye was injured in Australia and he won’t be able to work in China. The Tribunal asked him whether the injury had stopped him from working in Australia and he said it had not and he was working at a casual low level. He had earlier told the Tribunal he works casually helping others do [one job] and had been in this job for about six years (which precedes his injury). The Tribunal asked him whether he had any medical evidence about his eye. He offered to provide it after the hearing. The Tribunal put to him that it might find his eye injury would not prevent him from working in China. He responded that in China there are too many able-bodied people. The Tribunal explained that it might find that he would not face a real chance of persecution or a real risk of significant harm for this reason if he returned to China. The applicant said it is easier for him to work in Australia.
The Tribunal has considered the evidence provided by the applicant about his eye injury, including the letter referred to in paragraph 12 above. The Tribunal accepts that the applicant sustained an eye injury in 2022 and that he has low or no vision in [one] eye.
Does the applicant satisfy the refugee criterion for protection?
In his protection visa application form, the applicant claims that if he returns to China he will be persecuted by the police and if he goes to prison he will face mental and physical persecution. This claim is made in the context of the applicant’s claims about the acquisition of his property and what happened afterwards. The Tribunal has found above that the applicant did not protest or complain against the local government in China in relation to the acquisition of his property, that he did not suffer physical harm or harm to his property as claimed and that he was not pursued by, or otherwise of interest to, the police or other government officials. On this basis, the Tribunal does not accept the applicant’s claims about what would happen to him if he returns to China. Therefore, the Tribunal finds that if the applicant returned to China in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
The Tribunal has considered the applicant’s claim in his protection visa application form that the government is corrupt and they colluded with the police and only care about their own benefits. The Tribunal considers that this claim is related to the applicant’s claims about events in China relating to the acquisition of his property, rather than a separate claim arising out of different events or a more general claim about the situation in China. For the reasons explained above, the Tribunal does not accept the applicant’s claims about the harm he suffered in China as a result of this property being acquired and it has found he would not face a real chance of serious harm arising from those events if he returned to China. For the same reasons, the Tribunal does not accept this claim either and finds that if the applicant returned to China in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
The Tribunal has considered the applicant’s claim that he won’t be able to work in China and that it is easier for him to work in Australia than in China due to his eye injury. The Tribunal notes that based on the applicant’s own evidence, he has continued to work in Australia both prior to and since sustaining his eye injury. On this basis, the Tribunal finds that the applicant would have the physical ability and capacity to work in China if he returned there in the reasonably foreseeable future, despite his eye injury, and so to this extent it does not accept his claim. The applicant’s response to the Tribunal that there are too many able-bodied people in China and that it is easier for him to work in Australia indicates to the Tribunal that the applicant is concerned that he will be discriminated against in finding work in China because of his eye injury and this will affect his economic prospects. The applicant has not provided any independent evidence, such as country information, to support this claim and the Tribunal does not accept it on the basis that it is speculative. Therefore, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to China in the reasonably foreseeable future.
In more general terms, the Tribunal is prepared to accept that the applicant would not be able to earn as much money in China as he does in Australia due to the difference in wages and overall economic conditions, which would amount to a form of harm. However, the Tribunal finds that such general economic harm would not be directed at the applicant for reasons of his race, religion, nationality, membership of a particular social group or political opinion, as required s 5J(1)(a). The Tribunal also does not accept that any harm he might experience as a result would involve serious harm to him, as required by s 5J(4)(b), as the Tribunal does not accept that he would be denied the capacity to earn a livelihood of any kind, where that denial threatens his capacity to subsist, which is one of the instances of serious harm contained in s 5J(5)(f). Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution under s 5J(1) for this reason.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he 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).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[3] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm as a result of persecution by the police or being sent to prison or due to government corruption and collusion with the police in connection with his property-related claims or due to his eye injury.
[3] MIAC v SZQRB [2013] FCAFC 33
In relation to the Tribunal’s finding that the weaker economic conditions and lower wages in China could result in harm to the applicant due to reduced earnings, the Tribunal has considered whether these circumstances amount to ‘significant harm’ to the applicant. ‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
In light of the evidence referred to above, including the country information, there is no suggestion that the death penalty will be carried out on the applicant as a necessary and foreseeable consequence of him being removed from Australia to China, or that the applicant will be arbitrarily deprived of his life. The definitions of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”, which are the other circumstances that fall within the definition of “significant harm” in s 36(2A), all involve the element of intention on the part of a third party to bring about the suffering by their conduct[4] and all are directed to serious forms of human rights abuses.[5] Based on the Tribunal’s findings above, the evidence does not indicate that there will be the intention on the part of any third party to deny the applicant the ability to earn a livelihood or impede his economic prospects such that it would amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
[4] SZTAL v MIBP [2017] HCA 34; s 5(1)
[5] SZDCDv MIBP [2019] FCA 326
Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). 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 under review.
Hearing date: 2 September 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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