2016460 (Refugee)

2016460 (Refugee) [2024] AATA 4263 (12 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2016460
COUNTRY OF REFERENCE:                   China
MEMBER:Tania Flood
DATE:12 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 September 2024 at 9:56am
CATCHWORDS
REFUGEE – Protection Visa – China – claimed acquisition of land – two accounts appear to be significantly different – produced no evidence to date to support his claims – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 November 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 citizen of China, applied for the visa on 9 August 2017. The visa was refused on the basis that the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to China for the reasons claimed.
The applicant appeared before the Tribunal on 10 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.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims and evidence
In his application for a Protection visa the applicant stated that he was born in Sishui in Shandong Province. He said he was married and that his wife and two children reside in Sishui as do his parents. He claimed to also have been residing in Sishui until the time of his departure from China. He listed his occupation in China as “worker”. He indicated that he was issued a Chinese passport and departed China on [date] August 2017.
The applicant outlined his claims for protection as follows:
He had land in his hometown which was very productive. One day the local government advised that the land was to be given to a developer to build a new warehouse. He said he did not receive any compensation for the land and so he and other residents did not agree to sign any agreement.
One day the local government sent people to take over the land. They forced them to sign a collection agreement and threatened them. They destroyed all the goods on the land and beat him. He called the police but they ignored him.
He and other residents decided to petition about the corrupt behaviour of the government officials. They wrote a public letter to distribute in a bid to attract attention to their cause. However, when officials found out about his behaviour they sent police to catch him. He was scared and escaped China.
If he returns to China he will be persecuted by the police and if sent to prison he will die.
Apart from providing a copy of his passport the applicant provided no other information in support of his claims.
Delegates Decision
The delegate considered the applicant had provided insufficient information to substantiate his claims. The delegate was also of the view, based on country information referenced in the decision record, that the applicant would not have been able to obtain a Chinese passport and depart China lawfully if he was indeed a person of adverse interest to the Chinese authorities. The delegate found that there is not a real chance or a real risk the applicant will face serious or significant harm on return to China for the reasons claimed.
Evidence given to the Tribunal
The applicant provided a copy of the decision to refuse to grant him a Protection visa to the Tribunal. He also gave oral evidence at a hearing held on 10 September 2024. During that hearing the Tribunal discussed with the applicant his background in China, the reasons why and the manner in which he departed China and why he still fears returning to China. Where relevant his testimony is summarised in the below findings and reasons.
FINDINGS AND REASONS
Country of reference
Attached to the Departments file is a copy of the applicant’s passport which verifies his claimed identity and nationality. Based on this documentation and in the absence of any information to the contrary, the Tribunal accepts the applicant is a national of China and has assessed his claims against China.
The claimed acquisition of his land
When asked at hearing why he fears returning to China the applicant stated that he fears that gangsters working for the government will exact revenge on him. When asked for further information about what had occurred in China he said that his mother-in-law’s residence was forcibly demolished by the government in 2014 for high rise commercial construction. He said that he and his wife and son had spent the night in her house and were present when the demotion occurred. He said that they objected to the demolition and they were all beaten up. He said that he, his wife and son and his mother-in-law were taken away and detained separately in different locations and beaten. He said that his mother-in-law lost 90% of her physical function from the beating and he claimed he was hospitalised for two weeks. He said that after his release from hospital he went to the police to complain but they rejected him and threatened him not to initiate any action against the government. He said that despite this he and his wife published some information on social media and tried to take the matter up with the local government but they were stopped from doing it. He said they were locked up again and detained two or three times. He said that his mother-in-law was detained on more occasions. Noting that his passport was issued in February 2017 and that he only departed China in August 2017 the Tribunal asked the applicant why he delayed his departure for several months given the problems he claims to have been enduring. He said that he and his mother-in-law were trying to seek justice since 2014 and the last time they were detained was in March or April 2017. He said that he realised there was nothing else he could do so he left China.
The Tribunal put it to the applicant that the above account of what is claimed to have occurred in China is significantly different to what is claimed in the application for the Protection visa. The Tribunal summarised his written claims and asked him to comment on why the two accounts appear to be significantly different. The applicant’s only response was to state that there might be some information online about the demolition. The Tribunal noted that he has produced no evidence to date to support his claims and notes he did not offer to do so during the hearing.
The Tribunal considers the applicant has given vastly different accounts of what is claimed to have occurred in China. On the one hand he claims that it was his land which was forcibly acquired by the government whereas on the other hand he contends that it was his mother-in-law’s residential property which was demolished. The Tribunal considered whether this difference could be attributed to a miscommunication however it does not believe so because the applicant’s written claim that his land was very productive indicates that it was a parcel of land which was acquired and not a home.
Further, the applicant has given differing accounts of the harm he suffered in China. In his written claims he references one occasion on which he was beaten by people sent by the local government when he refused to sign a collection agreement for his land whereas he testified orally to the Tribunal that he and his wife, his mother-in-law and his son were all beaten when they objected to his mother-in-law’s residence being demolished and also while they were held separately in detention. There is also no mention in his written claims of him being hospitalised for two weeks as was claimed at hearing. Additionally, in his written claims he states that the police were sent to catch him for his efforts to raise public attention about their situation but he managed to escape China and flee to Australia. This suggests that the applicant avoided being detained in China whereas he testified orally that he was detained once when his mother-in-law’s residence was demolished and at least two or three more times after that for trying to seek justice from the local government.
The Tribunal has considered whether the applicant’s oral testimony may have been affected by the passage of time but as the two accounts of what is claimed to have occurred in China are so significantly different it has discounted this possibility. The applicant’s changing evidence over time causes the Tribunal to seriously doubt that the applicant’s claims are true.
Additionally, during the hearing the applicant testified that he applied for his passport in his home county and despite the processing being delayed by about six months he said he obtained the passport without any further enquiry. When asked if he encountered any difficulties passing through customs at the airport he said he did not but he claimed to have travelled to the airport secretly. The Tribunal put it to the applicant that his ability to obtain a passport and exit China without hindrance despite criticising and petitioning local government officials over a three-year period and being detained several times is highly unlikely based on country information it has sourced. By way of response he maintained that the demolition of his mother-in-law’s residence did occur.
The latest DFAT country information report on China[1] states that Chapter 2 of the Constitution covers the rights and duties of citizens. It includes among other things the right to criticise state organs and their employees and freedom of speech. The situation in practice differs and these rights are heavily restricted, especially if they are perceived as a threat to political or social stability. A wide-ranging number of topics are considered sensitive with those raising them liable to punishment. Sensitive issues include commentary on land rights and property issues. Social media is heavily censored and DFAT assesses that people who use an internet platform to mobilise others in relation to politically sensitive issues face a high risk of official discrimination.
[1] DFAT Country Information Report, December 2021
DFAT[2] further reports that exit and entry from China is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from tax, customs, police or judicial authorities. This technology is used to create an exit control list. National security might be cited as a reason for refusing permission for a person to leave the country. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or if they already have one may be prevented from leaving the country due to being on an exit control list. DFAT assesses that it is impossible to exit China without the authorities’ knowledge.
[2] ibid
Given this information and given the applicant’s claims which include being detained by the authorities on several occasions for defiance of government orders and attempting to raise public awareness about a land dispute, the Tribunal considers his ability to obtain a passport and depart the country without hindrance also casts serious doubt on his claims.
In light of the above the Tribunal is not satisfied that the applicant has given a truthful account of the reason for his departure from China. The Tribunal notes his speculative comment at hearing that his wife might have some evidence of their social media posts but as noted above he did not offer to provide this evidence to the Tribunal. In any event, the issues discussed above raise serious doubts for the Tribunal about his credibility. Based on the available evidence the Tribunal rejects the applicant’s claims entirely. The Tribunal does not accept for the reasons outlined above that the applicant was, or would be on return to China, a person of adverse interest to the Chinese authorities or persons acting on their behalf for the reasons claimed or for any other reason.
The Tribunal concludes that there is not a real chance that the applicant will face serious harm on return to China for the reasons claimed or for any other reason. The Tribunal finds he does not have a well-founded fear of persecution in China now or in the reasonably foreseeable future. Therefore he is not 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). For the same reasons articulated above 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 the applicant will face significant harm for the reasons claimed or for any other reason. 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).
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.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4263

12 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction