2016815 (Refugee)

2016815 (Refugee) [2022] AATA 3544 (1 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Chang Liu (MARN: 1281423)
CASE NUMBER:  2016815
COUNTRY OF REFERENCE:                   China
MEMBER:David James
DATE:1 July 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 July 2022 at 11:24am

CATCHWORDS
REFUGEE – protection visa – China – land protests – house demolitions in village – unfair compensation – claims vague and lacking particularity – credibility concerns – departed country legally on own passport – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee v MIEA (1989) 169 CLR 379
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 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 30 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 citizen of The People’s Republic of China (China), made their application for a protection visa on 25 September 2017.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 18 November 2020. The applicant provided a copy of the delegate’s decision with their application for review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(a) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of persecution occurring is well below 50 per cent: Chan Yee v MIEA (1989) 169 CLR 379.
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.
‘Significant harm’ for these purposes 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 inhumane treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhumane treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a risk that the applicant will suffer significant harm; or where the risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The’ real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this review are whether there is a real chance, if the applicant returned to China, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk that the applicant will suffer significant harm.
Protection visa application
On 25 September 2017 the applicant made application for a protection visa. According to his application, the applicant was [age] years of age (now [age] years of age) having been born on [date] in China. The applicant claims to be a Chinese national and was born in Fuqing in the Chinese province of Fujian. In his application he states that he is married and was so married [in] August 1990; and he indicates that his wife, [age] year old son and parents all remain in China. He has indicated that he has regular contact with his family by phone. As to language, he indicates that he can speak, read and write Mandarin. He indicated that, prior to departing China for Australia using his Chinese passport in his name, [in] September 2017, from Changsha China, he resided in [Town 1], Fuqing in the Chinese province of Fujian. He states that he resided at this address from [birth] to March 2011; he then lived in [District 1], in the [Country 1] province of [Province 1] from March 2011 to July 2014; and he then again lived in [Town 1], Fuqing in the Chinese province of Fujian from July 2014 to September 2017. He arrived in Brisbane, Australia [in] September 2017 on a visitor visa.
The applicant stated in his application that his reasons for leaving China were:
I took part in the protest against the unfair house demolition, and reported corrupt officials. I faced revenge and persecution. My town government notified me that our home town area would be demolished and renovated. The developer explained the compensation to me with bad and arrogant attitude. They can only offer ¼ of the market price. How households would suffer huge losses. I strongly disagreed. So my friend and I organised a protest with other relocation households. We came and gathered at the county government building. Who could expect, shortly afterwards the protest, police ransacked relocation households homes including my friend. I was lucky enough to escape. I heard that protesters were cruelly tortured in detention centre. The police knew that I took part in the protest to, so they wanted to arrest me. I was too afraid to go back to China, I fled to Australia and seek help.
Further, in his application, in response to the question as to moving to another part of the country, he stated that:
No, Chinese official corruption is very serious. Officers try to protect and cover each other. The police is the bully of offices.
In reply to the question as to what he thinks will happen to him if he returns to China, he stated that:
If I return to China, I will be arrested by the police and I was convicted of opposing the Chinese Communist Party. I will be arrested in the prison and be abused to death.
If I go back to China, offices colluding with the police will continue to harm me. The whole political system is corrupted and they work together with each other. They will not set me free.
As to Chinese authorities protecting him, he stated that:
The police colluded with officers, they cover and hide each other. They will kill all opponents.
In relation to being able to relocate within China, he stated:
The entire China is the same, they cover each other and no matter where I go, they will find me out and kill me.
Department interview
The applicant was not offered an interview by the Department.
Request for more information
The delegate’s decision record indicates that after the Department’s letter of 6 December 2017 to the applicant acknowledging the applicant’s protection visa application and indicating to the applicant that he could provide additional information relating to his claims, the Department, on 28 September 2020, sent a further letter to the applicant, inviting him to provide additional information about his claims under s 56 of the Act. In this letter, under the heading of ‘Request Detail’, the Department highlighted that the claims made in relation to the offer of unfair compensation, his protests and the subsequent harassment over that issue, lacked substantiating details such as dates and locations of events and what happened to him in China. This correspondence also explained to the applicant that if he was unable to provide more information about his claims or copies of documents, he was invited to provide a detailed explanation of why he could not provide such material. As at the time of the hearing, the applicant has not responded to the Department’s request.
Delegate’s decision
The delegate’s decision to refuse the applicant’s application for a protection visa was made on the information before the delegate. The delegate refused to grant the visa as they were not satisfied that the applicant was a refugee as defined by s 5H of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to China, there was a real risk they would suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore, the delegate found that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Invitation to attend hearing
On 30 May 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 16 June 2022. On the same day the applicant responded to the Tribunal indicating that he would take part in the hearing as scheduled and that his representative would not be participating in the hearing. Further, he indicated that he would not be relying upon any documents or oral evidence from another person at the hearing.
Country information
The DFAT Country Information Report - People’s Republic of China, 22 December 2021 (the DFAT Report), provides the following information under the heading of ‘Protesters and petitioners – including land protests’ (at 3.88):
Land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villages. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation (thus, disputes are generally complaints against local government which may escalate to the national government, as outlined above). China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged. ‘Thugs’, who intimidate protesters or cut utility supplies, have been used and are allegedly hired by local governments.[1]
Under the heading of ‘Treatment of Returnees’, at 5.28 it states that:
DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China ands may know that applicants have applied for asylum. The consequences for those applicants are not clear.[2]
[1] Department of Foreign Affairs and Trade, DFAT Country Report, People’s Republic of China, 22 December 2021, at page 25.
[2] Ibid at page 39.
The DFAT ‘Country Information Report - People’s Republic of China’, 21 December 2017, provides, under the heading of ‘Exit and Entry Procedures’ at 5.20, that:
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight.[3]
[3] Department of Foreign Affairs and Trade, DFAT Country Report, People’s Republic of China, 21 December 2017, at page 40.
Hearing of the Tribunal on 16 June 2022
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The Tribunal confirmed with the applicant that they understood the interpreter and then provided a brief overview of the refugee and complementary protection criteria.
The applicant told the Tribunal that his application form had been filled in by his solicitor and he was not familiar with the details of that application form. The Tribunal then read to the applicant the details of his claims contained within his application for a protection visa which had been completed and submitted by his solicitor. The applicant confirmed that the claims contained in his application form were in fact his claims and they were a truthful statement.
The applicant provided the following evidence (in summary):
·The applicant is a citizen of China and did not have a current Chinese passport as his passport had expired in 2021.
·The applicant was born in Fuqing, in the Chinese province of Fujian and was brought up by his farming parents in the countryside around Fuqing. He had been a farmer until he was about [age] years of age when he then started working in [Industry 1].
·When asked about his former life in Chine he stated: “nothing to talk about”.
·He told the Tribunal that as to family in China he had a wife and son. He explained that his wife was still living in their home, which was a two story house in the countryside about 10 km away from Fuqing. He explained that his wife still worked the farm field attached to their home and that his son had since moved to [Country 2]. He explained that his wife was working the farm that the government had distributed to his family ages ago. He told the Tribunal that his mother is now deceased and his father, who is [age] or [age] years of age, lives with his brothers, who also reside in their village near Fuqing.
·The applicant told the Tribunal that he was in regular phone contact with his wife and that such contact was normally weekly.
·He informed the Tribunal that he had previously left China and worked in [Country 1] between 2011 and 2014 as a farmworker. He also indicated that he had returned to [Country 1] in 2015 to visit former friends he had met when working in [Country 1]. He explained he is now not in contact with his former [Country 1] friends.
·When asked about his involvement in land protests in China, he informed the Tribunal that he had “just protested” against local government house demolitions and the low compensation that was being offered to those who were to have their houses demolished. He was unable to provide the specific date of his involvement in the protest that he took part in at his village and stated: “I can’t remember it has been several years”. He stated that after the demonstration he was afraid of getting arrested and punished, so he ran away. He said that he had been informed by a friend that his house, and the houses of some of his friends who had also protested, had been ransacked by the police. He explained that that he fled to a relative’s home to avoid being arrested.
·He explained that his property, house and farm land had not been taken by the local government and developers, and that his wife still lived in their house and worked their farm land. However, he had supported friends in their protest regarding local house demolitions.
·He informed the Tribunal that the government was corrupt and inhumane and he did not believe that he could avoid arrest by relocating to any other area in China.
·He told the Tribunal that the police had up until about a year ago been enquiring with his wife as to his location. When asked what his wife had told the police when they had enquired about his whereabouts, he replied that she told them she had no idea and didn’t know where he was.
·He informed the Tribunal that he left for Australia a year after the demonstration. During that time, he had stayed with friends and relatives for a few days here and there. He explained that these homes that he had stayed at were not in his village, but about 10 km away.
·As to the demonstration that he took part in, he said some friends and passers-by were also involved in the demonstration. He indicated that none of the passers-by were arrested, but a number of his friends were arrested. When asked about his friends, he indicated that he had not contacted them yet and did not know where they were.
·When asked about who these friends were, he told the Tribunal that they were not really friends.
·When asked about whether he had any documentation relating to the house demolitions in his village, he replied that he had no such documents. He further explained that he did not make any formal complaints to the Chinese authorities about the house demolitions in his village but had only joined the demonstration in support of others in his village.
·When questioned why he came to Australia, he stated he was afraid of being arrested and did not want to return to [Country 1] as his [Country 1] visa had expired and that safety in Australia is better than that in [Country 1]. He further explained that he was leaving China as they were treating him as a criminal and he was afraid of going back. He said that he still believed that the Chinese authorities wanted him, notwithstanding that the last enquiry that allegedly was made by the police with his wife was over 12 months ago.
·As to his departure from China, he said a friend helped him to get to Changsha where he departed China on his own passport for Australia. When questioned about his friend, he said he was not in contact with him and further that his wife had not been in contact with any of his friends since his departure. He indicated that he arrived in Australia on a visitor visa and that the purpose of his visit to Australia was to avoid harm in China.
·He indicated that he was working one to two days a week now in Australia in [Industry 1]. He was unable or unwilling to provide to the Tribunal any information about who or where he was working. He said that he was introduced to the work by friends in Australia and he did not know the name of the [companies] or [businesses] that he worked for and could only indicate that he worked [at] various locations throughout Brisbane. He said he was paid by the boss in cash. He indicated that he lived with friends in Brisbane and that these friends were Chinese.
·When further questioned as to why he could not relocate within China, he indicated that he would be caught and punished and was afraid of going back.
·The applicant in reply to the Tribunal’s further questions as to his involvement in the demonstration in China was: “just as is, we had demonstration and then we ran away, they want to catch us so we had to run away”.
·He did indicate that he forgot who was involved in the demonstration but that it involved some people from the next village and some passers-by, but that there were a lot of people having this argument.
·He indicated that some people at the demonstration were arrested and some ran away. Further, he didn’t know whether those who had been arrested had since been released as he never contacted them and didn’t even know their phone numbers.
·As to some of the demonstrators who ran away, he indicated he didn’t know whether they have since returned to his village.
·It was put to the applicant that given the passage of time and his weekly contact with his wife, it seems strange that he had not asked his wife about his friends or any of the other demonstrators. His reply was that none of the demonstrators were even close friends and that he didn’t really know any of them. The Tribunal queried why the applicant would not want to know what happened to the other demonstrators; he replied, “I just don’t want to know”.
·After a short break, the Tribunal raised with the applicant country information explaining that the Tribunal accepted that there was a practice of government land appropriation being conducted throughout China. The Tribunal discussed country information relating to the treatment of returnees and that there had been an assessment in that information indicating that it is impossible to exit China without the authorities’ knowledge.
·When asked to comment specifically about his ability to depart China in circumstances where he had indicated that he was wanted by the authorities, he stated that he did not wish to comment, but that he couldn’t go out in the same province and had left from a different province. When further questioned by the Tribunal as to the country information and his ability to have departed China without incident, he replied that his province has nothing to do with the other provinces.
·When asked whether he had any further information that he could provide to the Tribunal as to his involvement in the demonstration, he indicated there was nothing to talk about and he just run away as what else could he say.

As of the date of this decision, no additional information has been provided to the Tribunal by the applicant.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa. As such, the Tribunal has not relied upon the delegate’s decision record in forming its assessment and coming to its decision.
The applicant claims to be a citizen of China and provided a copy of his passport to the Department, together with details of his National (Chinese) Identity Card with his application for a protection visa. Based on this material, the Tribunal finds that the applicant is who says he is and a national of China, and assesses his protection claims accordingly.
There is no evidence that the applicant has a right to enter and reside in a country other than his country of citizenship, China. The Tribunal finds that s 36(3) does not apply to him.
The Tribunal accepts that the Chinese Government has expropriated extensive areas of land to make way for property developments, and that there have been many protests about the confiscation of land and the payment of compensation in China.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee criterion’ or on ‘complementary protection’ grounds.
The Tribunal finds that the applicant’s evidence about his involvement in the protest against the house demolitions in his village vague and lacking particularity, as to his actual involvement, the involvement of other persons, including so called friends, and the date of the actual demonstration. The Tribunal has also considered the applicant’s evidence that he has not sought to find out what has happened to other alleged demonstrators in his weekly telephone contact with his wife, and this evidence has caused the Tribunal to doubt his truthfulness and the overall credibility of his evidence.
As to the applicant’s fear of arrest by the Chinese authorities. The evidence that his wife has been able to remain in their home and work their farm, notwithstanding some alleged inquiries of her by Chinese authorities as to the applicant’s location, seem inconsistent with the applicant being of any interest to the Chinese authorities, and being actively sought for arrest regarding his alleged involvement in a demonstration against the Government house demolitions.
Further, the applicant’s evidence as to his ability to have departed China without incident from another province, whilst he was being sought by the Chinese authorities, in circumstances where he stated that the provinces do not communicate with each other, is inconsistent with the country information as to the security monitoring capabilities at airports. This evidence is also inconsistent with his other evidence to the effect that he could not relocate within China as the authorities would be able to locate him anywhere in the country.
The applicant’s evidence was equally vague in relation to his recent conduct in Australia and his inability or refusal to provide details of his work in the [industry] and his employers in that industry. The applicant was vague as to his employment arrangements, indicating that unknown persons organised work for him and that unknown employers would collect him and take him to building sites where he would work. However, the applicant was either unable or unwilling to provide locations, times and details of with whom he worked for in this capacity. The Tribunal found the applicant’s responses in relation to this matter to be vague and non-specific and as such found the applicant to again be a unreliable and/or untruthful witness.
The failure of the applicant to provide details as to his actual involvement in the demonstration against the house demolitions in his village and also the particulars as to where and with whom he stayed after fleeing his village, together with his apparent ability to depart China without incident, and his inability or refusal to provide details as to his recent work endeavours in Australia lead the Tribunal to find that the applicant was both an uncooperative and unreliable witness at the hearing.
As such, the Tribunal is not satisfied that the applicant has given a truthful account of his experiences in China or his present living and working arrangements in Australia. Therefore, the Tribunal does not believe that the applicant’s evidence can be relied upon.
In this regard, the Tribunal notes that it is for the applicant to make their case. In this case, the Tribunal observes that the applicant has not provided a level of detail necessary to satisfactorily establish the relevant facts.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[4] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[5] This is consistent with the established proposition that it is for the applicant to make his or her own case.[6]
[4] Section 5AAA of the Act.
[5] Section 5AAA of the Act, inserted by item 1 of Schedule one of the Migration Amendment (Protection and Other Measures) Act 2015 (Cth), with effect from 14 April 2015.
[6] Prasad v MIEA (1985) 6 FCR 155 at 169-70; SZBEL v MIMIA (2006) 228 CLR 152 at [40];Re Ruddock; Ex-parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]); MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The Tribunal finds that the applicant was not involved in a demonstration against the alleged unfair house demolitions in his village and did not gather at the county government building and participate in such a demonstration. Further the Tribunal finds that the applicant did not have any role in organising such a demonstration.
The Tribunal also finds that the applicant was not sought and is not sought by Chinese authorities for his alleged involvement in such a demonstration. The Tribunal is also not satisfied that the applicant’s home was ransacked by Chinese authorities, nor that he escaped Chinese authorities, leaving his village and seeking sanctuary with friends and relatives at various homes in locations about 10 kms away.
Therefore, the Tribunal does not accept that the applicant’s reason for travelling to Australia was to avoid arrest and persecution by the Chinese authorities.
The Tribunal does not accept that if the applicant was to return to China he would be arrested, imprisoned, convicted, and face the death penalty for opposing the Chinese Communist Party. Nor does it find, given the country information, that he would face a real chance of serious harm as a failed asylum seeker if he returned to China.
The Tribunal is not satisfied that should he return to China now or in the reasonably foreseeable future, there is a real chance that he will be harmed for any of the reasons set out in s 5J(1)(a) of the Act. The Tribunal finds that the applicant does not have a well-founded fear of persecution in China.
For the reasons 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).
The Tribunal has also considered whether the applicant is entitled to complementary protection. Having rejected the applicant’s claims on the evidence before the it, 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.
The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additionally, there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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.
…

[2022] AATA 3544

1 July 2022

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Immigration

Administrative Law

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Procedural Fairness

Natural Justice

Standing

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