2017116 (Refugee)

[2024] AATA 1780

2017116 (Refugee) [2024] AATA 1780 (21 March 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  2017116

COUNTRY OF REFERENCE:       China

MEMBER:Rosa Gagliardi

DATE OF DECISION:  21 March 2024

DATE CORRIGENDUM

SIGNED:22 April 2024

PLACE OF DECISION:  Australian Capital Territory

AMENDMENT:  The following corrections are made to the decision:

In paragraph 79 of the Decision the Tribunal erroneously refers to whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm.  This was a typographical error and should read:

The Tribunal has also considered whether it has 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 the applicant will suffer significant harm. 

Statement made on 22 April 2024 at 9:07am

Rosa Gagliardi
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2017116

COUNTRY OF REFERENCE:                   China

MEMBER:  Rosa Gagliardi

DATE:  21 March 2024

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 March 2024 at 4:42pm

CATCHWORDS

REFUGEE – Protection Visa – China – forced expropriation – acquisition of land – leader of the petitioners – detention and physical and mental harm – the absence of verifiable medical evidence – applicant was not a credible witness – claims had been fabricated for the applicant to achieve a migration outcome – not satisfied that the applicant has a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 424, 499

Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 November 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China (a matter the Tribunal accepts based on the information before it), applied for the visa on 3 July 2018.

3. The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.

4. The applicant appeared before the Tribunal on 27 February 2024 to give evidence and present arguments. The Tribunal also called the applicant’s father during the course of the hearing.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

1. 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

1. 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

1. The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant was returned to China now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and whether he would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Claims at the time of application

3. In his application at first instance, the applicant stated that the Department should refer to his statement in response to questions about, among other things, why he could not return to China, who would harm him on return, and why he could not seek protection in China. The undated and unsigned statement in the main reads as follows:

   My name is xxxx…..

   The village committee, in September last year, informed the villagers that the highway the government had been building was to pass through our village, so some farmland and houses would be expropriated. My family’s [number] mu land was to be entirely expropriated. As the compensation was too low and the resettlement issue was not resolved, the villagers refused to transfer the cultivated land.

   On October [date], some workers suddenly came to the village and started the construction. They drove the bulldozers to push out the farmlands. The wheat and corn on the dozens of mu of land were all destroyed. Dozens of villagers tried to stop the construction, but did not succeed. So we called the police. Many police arrived on the scene, but they did not come to help the villagers. On the contrary they took batons to suppress the villagers and resulted in some villagers being injured and more than a dozen being taken away by the police.

One villager came out, carrying a one year old child. The police injured the baby’s leg while beating the villagers. When the villagers went to a number of nearby hospitals for medical treatment, the hospitals refused to provide treatment to them. We thought they must be under the pressure from the government. The villagers had to go home to recover from their injuries.

When losing the cultivated land, the villagers lost the source of income. In mid- October, I led some villagers to the Bureau for Letters and Calls of [County 1] County for petition, we were retaliated. I was intercepted by several triads and was beat up by them. I was beaten so badly that blood stains were all over me. Then I was tied up against a big tree in the village. A note was put on it, saying “This is what is going to happen to the petitioner”. They were trying to frighten the villagers.

In February 2018, we decided to go for petition in Shijiazhuang city government. In order not to leak the information, more than 20 villagers took buses to Shijiazhuang in different groups. Then we met in front of the Shijiazhuang city government. The staff of the municipal government stopped us from the gate and said that there were too many of us. Finally, another villager and I were allowed to go inside to meet the government leaders. However, the answer we got was still waiting. After we both came out, some police cars came up to arrest people. They knew that I was the leader. We were all taken to the police station. At the beginning, the police asked me to abandon my petition. After I refused, they began to punch me up. A police officer also hit my chest and head with a truncheon until I fainted. The police also instructed the prisoners of the same cell to bully me. They deliberately overturned my meals. They also drenched my bed and quilt in the middle of the night. A few days later, I really couldn’t stand it any more. At the same time I lost hope on the government. In order to protect myself, I promised not to petition again.

In order to survive, I had to leave China. I came to Australia and request the Australian government to allow me to live here.

The Tribunal hearing

1. The applicant stated he came to Australia twice including in 2018. The applicant confirmed he had entered Australia twice as he was permitted multiple entries on his Visitor visa. He had come to Australia with a group, and they found a suitable tour to undertake.

2. The applicant stated he was divorced as his wife left him and ran away with someone else in 2017. He received the divorce certificate [in] December 2017. She did not want to stay with him because he was subjected to harm. According to the applicant, she took him to court. They had two children together who were in China. In the beginning they were living with the applicant’s mother, but she died and now they live with his father. The applicant stated that the eldest is [age] years of age and the other is [age] years of age. He contacted the children but had no contact with his ex-wife. As she already has another family, she would only occasionally see their children when they were young.

3. The applicant stated he completed junior high school in China. He had worked on a farm. In terms of Australia, he had been undertaking [work] to make a living. He could not do anything strenuous as he had an injury to his harm. The applicant stated that when he was persecuted, the people hired by “them” twisted his arm. And because treatment was delayed the result was such. He showed the Tribunal his arm which appeared to have a protruding bone from the elbow. The applicant recounted that he did not receive any treatment for the injury. He should have had surgery, but he did not so and therefore could not provide contemporaneous evidence that the injury was sustained in the way he claims. The applicant added he was not allowed to receive treatment so at a later stage he had a

village bone doctor to treat it, but not at hospital. The Tribunal asked whether the village bone doctor would be able to testify that he treated the applicant and to provide the reasons. The applicant stated he was not sure whether the bone doctor was still alive as he was an older gentleman. He was a traditional doctor.

1. Now that the applicant was working in Australia, the Tribunal asked whether the applicant had had his arm examined by a medical doctor. The applicant replied he had not. He hardly used the arm but if the weather was bad, his arm hurt.

2. The Tribunal asked the applicant to start at the beginning when his difficulties relating to the land started. He stated that it was in September 2017; they were informed of the government at the higher level that they would build a motorway over their land. The land belonged to the applicant’s family, his parents and brother.

3. The Tribunal asked whether the applicant had documentation showing that the government had requisitioned the land, such as a contract or exchange of title. The applicant stated no. The Tribunal observed that if the government had made an offer to his family, such a formal offer would be in writing and there would be evidence of such. The applicant stated it was just a verbal offer. The Party secretary of the village informed them of the forced expropriation. Asked how he was informed precisely, the applicant stated that the village Party office had a speaker, and everyone was told over the loudspeaker.

4. The Tribunal attempted to seek detail from the applicant about the expropriated land. He stated that the entire land of his family was occupied by the government. He told the Tribunal that a little over 30 households were affected. In their case their entire land was overtaken but some households had part of their land occupied. The Tribunal asked in the case of those whose land had not been totally confiscated whether the motorway ran through their properties, the applicant responded, yes through the land that was taken away.

5. The applicant provided the two names of motorways built at the same time and in the vicinity of his village. The Tribunal asked the applicant to show on google maps where precisely these motorways had been built in relation to where his family resided. He produced a map on his phone, but it was in Mandarin and the Tribunal asked that the applicant have it translated so the Tribunal could see where in relation to his village the motorways were built. The applicant stated that the red spot represented his village, and the motorways were close by. The applicant did not know for how many kilometres the motorway that affected his family ran for. The applicant stated that his family house was joined to the motorway by a ramp.

6. The Tribunal noted that there would have to be some independent information to show that this motorway was built in 2017 and went through a village and people were compulsorily divested of their lands (or paid little for it). The applicant queried whether he could ask the village head to put a stamp on the map. He stated that the leaders were replaced every three years so there was no danger that he would be drawing adverse attention to himself by the authorities who he fled.

7. The Tribunal stated that it would welcome evidence from the village head but that the village head had to provide evidence from their own knowledge and not simply put a stamp on something that the applicant provided him. Further, the Tribunal noted that the compulsory requisitioning of the land must have attracted media attention given the applicant claimed that people were being thrown out of their homes. The applicant stated that this was not published. It was kept in darkness. The Tribunal stated that it was inquiring about evidence to link the applicant to a motorway built over land for which he was not compensated or not compensated for appropriately. The applicant responded that he had to ask his father about

it. Before his mother passed away, she was taking care of everything and after she died, they lost many things. It was not his father who took care of things.

1. The applicant stated that his father was still living in the village in the same house the applicant grew up in. The Tribunal noted that the applicant stated that the motorway had overtaken the whole property. The applicant stated no, it was just the land for growing crops that had been sequestered. The applicant clarified that the motorway occupied their land but not their house. The Tribunal encouraged the applicant to obtain evidence of this. The Tribunal stated that the government must have plans of the motorway running through the village – it would have been documented in some way. The applicant replied no because the land had not been redivided in over 30 years. There was no plan. He stated that his family’s [number] mu (arable) land was to be expropriated entirely.

2. The Tribunal noted that surveyors and engineers must have plans showing the motorway went through his address covering the arable land as he claimed. The applicant stated that such people did not communicate with them - only with the leaders of the village. They actually bullied the villagers. The applicant then stated that they asked them to provide a bank card to deposit the compensation. The Tribunal asked whether the government had in fact deposited the money in their bank card account. The applicant responded no, there were two motorways, so the compensation was really low. They gave them a little money at a later stage and that is why they tried to protest against it. He, however, did not receive anything.

3. The Tribunal noted that the authorities would want to cover themselves and keep a record that the villagers had been compensated and would have given them a receipt of some sort to say the amount of compensation received, no matter how minor. The applicant explained that they did not have anything like that. As soon as the villagers signed the document, they consented but only received a little money. The Tribunal asked the applicant again whether he or his family were personally compensated for the cultivated land it is claimed the government compulsorily took. The applicant responded that he did not know. Some people signed the agreement, but he was not sure if they received the money. They would not let him know. He disagreed so they did not sign anything.

4. The applicant reinforced that his family could not make a living without land as a farmer. The Tribunal asked whether the applicant and his family had preferred to have nothing, as opposed to some small amount of money offered by the government. The applicant stated

   that the [number] mu of land was taken away and they had no income. The applicant explained that if you worked for someone else as a labourer you received a low salary. The Tribunal stated that it would have made sense for the applicant to take some compensation rather than nothing at all. The applicant responded that they wanted to ask greater compensation because all their land was confiscated; if they had to work for someone else, they would have to work as labourers and would earn little per month. Had they been able to keep their land they could grow wheat and corn and would have something to eat as you ground the wheat into flour.

1. The Tribunal asked the applicant did he know how much the low compensation offered totalled and he replied that it was 7000 RMB for 1 mu. He confirmed that meant they would have been compensated [amount] RMB for [number] mu.

2. The Tribunal asked the applicant when precisely he came to Australia in the first instance. The applicant stated that it was in 2017. The Tribunal asked the applicant whether he objected to the Tribunal obtaining his movement records to verify exactly when he was in Australia. He stated, no but he could look on his phone. Ultimately, he was not able to produce the information. The Tribunal asked the applicant to cast his mind back to whether on the first occasion he came to Australia it was summer or winter. The applicant stated that

it was possibly in the summer. The Tribunal noted that if the applicant came in December 2017, and he claimed he was having all those difficulties in the village in September 2017. Was it the case, therefore, that he just decided to leave the issue of the land to come on a touring holiday in Australia. The applicant stated that it happened as soon as he went back to China. The Tribunal noted that the applicant had stated that the issue of the acquisition of land had occurred in September 2017 (“last year” according to the applicant as at date of application in July 2018). The applicant stated yes, that was the beginning of the problems. That was when they were notified of the acquisition by the village head. The Tribunal observed that it was odd that the applicant would go on a holiday in the circumstances. The applicant answered, no it was not the case. It was in September that the village received notification of the expropriation. They did not want to accept it so in October they asked for more compensation but in the very beginning it was his friend who brought him to Australia.

1. The applicant stated that after that they tried to appeal to the higher authorities and asked the leaders of a county government to help them, but their request was rejected. Asked precisely where this county was the applicant stated it was not near their village.

2. The applicant stated he has a younger brother who is [age] years of age. The Tribunal asked whether his father and brother had attended the county government to seek assistance and he replied they had not otherwise nobody could take care of the parents and children. The Tribunal asked the applicant what his father had thought of the expropriation. The applicant responded that of course he supported the applicant.

3. The Tribunal asked for clarification regarding his written statement that [in] October construction workers started work in the village. He said it was in 2017. The wheat and corn on their [number] mu holding was destroyed and dozens of villagers tried to stop the construction but failed. The Tribunal asked whether the applicant was part of the group. He stated he was. The Tribunal asked how they had tried to stop the construction of the motorway. The applicant replied that he and the villagers stood on the land to stop them. The bulldozers did not dare drive forward. It was reported to the police, and they tried to drive them away. The Tribunal noted that he had written that villagers had been injured and inquired how this had occurred. The applicant responded that they used police batons and pushed them. He actually lost a part of his teeth. It was knocked out. The Tribunal asked whether the applicant went to see a dentist and whether the dentist had asked him about how he had sustained the broken tooth. The applicant stated he did not tell the dentist about that. The Tribunal seemed incredulous that the dentist would not have asked him how the knock had occurred. The applicant stated he did not tell him about this.

4. The applicant stated that because they were driven away, they could not do anything to fight back or resist. The only thing they could do was appeal to a higher authority.

5. The Tribunal referred to the child who he claims was injured by the police on the leg while beating the villagers, and that when those who were injured went to a number of hospitals, they were refused treatment. The Tribunal noted that it was a major event that a child would be injured in a major confrontation with the authorities, and it would have expected that newspapers and human rights groups would have reported on such a critical event. The applicant replied they would not allow this sort of information to go public because it would make the Chinese government look bad so they would suppress it.

6. The Tribunal asked whether the applicant would object to the Tribunal ringing his father to take evidence about the events the applicant claimed occurred. The applicant answered, “No problem”. The Tribunal asked whether the applicant’s father was injured at all. The applicant stated no, because he would not allow his father to get involved in this kind of thing. He would prefer to protect him.

1. The Tribunal spoke to the applicant’s father in China. The Tribunal asked whether he thought his son would stay in Australia. He stated he could not hear clearly and said do you mean whether he is considering staying in Australia? He replied he thought this was the case. Asked why he thought his son wanted to stay in Australia permanently, the applicant’s father replied that his son was working in Australia and was doing a job. The Tribunal asked whether that was the only reason his son would want to stay in Australia. The applicant’s father responded there was no other reason; he used to work at home. The Tribunal asked the applicant’s father whether his son had ever had a problem with the police. He responded no, his son was making a living there and doing labour work. Again, the Tribunal asked the applicant’s father whether his son had ever been in trouble with the police, and he responded no, he had owed someone money, but he had repaid that money. The applicant’s father stated that if the loan was paid off it was fine. The Tribunal asked whether the applicant’s father cultivated land. The applicant’s father answered, yes, there was a little, but not much. The Tribunal asked why they only had a little land. The applicant’s father stated they had a little bit over [number] mu which they had received from the village.

2. The Tribunal put to the applicant under s.424AA of the Act that it was evident that the applicant’s father gave spontaneous evidence because he did not know that the Tribunal would ring him. His father had made no mention of the problems with the land, however. The Tribunal stated that the information was relevant to the review because if the applicant were fleeing China, the Tribunal would have thought that his father would give evidence to assist verify his claims, instead it seemed that the applicant’s only problem in China had been regarding a loan which had now been extinguished.

3. The Tribunal stated that it relied on this information, it would find that his own father who he claims was also at the heart of all the difficulties of the expropriation of the land, made no mention of land being confiscated, inconsistently stating that he did have some land which the government gave him. The Tribunal stated that if the Tribunal relied on these claims, it would find that the applicant was not a credible witness and that his claims had been fabricated for the applicant to achieve a migration outcome. Asked if the applicant wanted a break to respond, the applicant stated no. The applicant stated that he had told his father he was going to have a hearing, but his father was afraid that someone might come to Australia to arrest him. The applicant had told his father that he was doing well in Australia.

4. The applicant added that because his father always believed that someone would come to Australia to arrest him, he only talked about the money - he was trying to avoid this (the land) issue. The applicant added that his father also mentioned that each family member had about [number] mu – his father was referring to the average owned by each family member. The applicant stated that his father only spoke about the loan as he dare not say anything bad about the government in China otherwise you would suffer. His father was worried that the message would be passed on to Australia and the applicant would be arrested. The Tribunal asked the applicant why he had not told the Tribunal that he would be placed in danger if the Tribunal rang his father. The applicant replied that he did not expect the Tribunal would ring his father. He stated he “did not expect that result”. He stated that his father does not know about other things. He added that he only told his father good things as he did not want to hurt his father mentally. He had not even seen his mother for the last time when she passed away.

5. The applicant stated that when they lost the cultivated land the villagers lost their source of income. In mid-October the applicant stated that he led some villagers to the bureau to petition the authorities but there were too many and were told to go home and wait for a notice. They did not receive a response, so they went to the bureau to inquire about the result. They were not given a reply and after they left there was retaliation. The applicant stated that he was intercepted by several triads and beaten up by them. He was beaten so badly that blood stains were all over him. The Tribunal asked whether he had attended a

hospital and he replied no, they only had small clinics in the village – he attended an ordinary small clinic; they had no hospital in the village.

1. The Tribunal asked whether the applicant could obtain evidence from the clinic, and he replied yes, but he did not know how to get such evidence. The doctor in the clinic was also a villager. The applicant stated he did not know how he could get the evidence because maybe this person did not want to get hurt.

2. The Tribunal asked how the applicant knew that these people who beat him were triad members. The applicant stated they were not wearing anything special - just wearing ordinary clothing. The Tribunal again asked how the applicant had identified that these persons were triad members. The applicant responded that in China it was always like that. After that he recuperated and then he went to the higher-level authorities to petition to the capital city of their province. The applicant stated that two people were involved and they went there and were told to wait for the notice. As soon as they came out everything was different. He was taken to a detention centre – a temporary one. Asked where the detention centre was the applicant replied, in their county.

3. The Tribunal asked what happened at the detention centre. The applicant stated that there were other prisoners who had been in there longer than him, and for example, when it was time for meals he had to wait until they finished first. They ate the meals before them and had to clean up the dirty plates. They did not allow them to have a good sleep, wetting the quilts and sometimes they were beaten. The Tribunal asked whether it was true as he had written in his statement that he was hit on his head and chest with a truncheon until he fainted. The applicant stated, yes, they were subjected to this sort of harm. The applicant stated he was released on the condition he not to proceed with the petition or they would persecute him. The Tribunal asked whether the applicant had to sign anything to confirm he would not petition. The applicant stated, no, because he did not commit any crime, so they were trying to treat him badly physically and mentally badly.

4. The Tribunal asked the applicant to explain the documents he had provided to the Tribunal. The applicant stated that the court documents showed he had borrowed money from a friend because his mother and father were ill, and they had to sell his belongings to repay the loan. The person to whom he owed money took legal action against him. His mother fell ill and he was coming to Australia and did not have money.

5. The applicant explained that the death certificate was certifying his mother’s death in 2021. He had not dared to return during her illness, and this had weighed on him heavily.

6. The Tribunal noted that the applicant had written in his statement that he was the leader of the petitioners who went to Shijiazhuang city government. The Tribunal put to the applicant the country information prepared by the Department of Foreign Affairs and Trade indicating that if the applicant was a leader in petitioning the government who had been in such difficulty with the authorities, he would not have been able to leave the country. The applicant stated he had no difficulty leaving.

7. At hearing the applicant submitted evidence of:

   ·Court proceedings in relation to resolving a loan the applicant had made.

   ·A copy of a divorce certificate demonstrating the applicant was divorced from his previous spouse [in] December 2017.

   ·A copy of the applicant’s mother’s death certificate.

1. The Tribunal had provided the applicant an opportunity until 10 March 2024 to provide additional specified material after the hearing to support his case. The applicant submitted:

   ·An unsigned letter, dated 2 March 2024 by the applicant stating:

   I am grateful to the Australian government for giving me the opportunity to provide more evidence of what happened to me. China is a large country with a large population. The life threats and physical injuries faced by farmers living in rural areas are a fear and pain that developed countries in Australia cannot understand.

   In order to save my life and not to involve my family, I had no choice but to come to Australia for help. When I first arrived in Australia, I was unfamiliar because the language barrier and fear of being excluded. Surprisingly, people here are so helpful. My biggest regret is that my mother is ill and cannot go back to take care of her and see her one last time. I know clearly that the visa I hold can give me a chance to go back to visit my relatives. But I really don’t dare. I’m afraid of encountering it again. You may not be able to understand the fears I have stated, because Australia attaches great importance to human rights. No matter which state you are in, as long as you are in Australia, your life will be protected, this is a choice I feel lucky to make.

   Thank you to the Australian government.

   ·A map in mandarin showing two converging highways set apart from the applicant’s village. The map appears to have the imprimatur of [Villagers’] Committee, [named] Line, [County 1] County, Langfang City, Hebei Province.

   ·Identification card for the applicant showing the applicant was living in [named Village].

   ·Identification card for the applicant’s father showing he lived at the same residence as the applicant.

   ·An article posted by view.iinews.qq.com on 26 February 2021 titled, ‘Review of Seven Years of Coordinated Development of Beijing, Tianjin and Hebei, Transportation integration, Opening of Jinshi Expressway: A Transportation Artery brings Tianjin and Hebei closer’, stating:

In the National Highway Network Planning, Jinshi Expressway is an important part of G0211 Link and an important component of Beijing-Tianjin-Hebei Transportation Integration Planning Network. On 16/09/2017, the construction promotion meeting of Renqiu Section of Jinshi Expressway was held at the construction site of Guyanghe Bridge, Renqiu City. The builders took the lead in the construction of the first pile of the whole line on Guyanghe Bridge, marking the official start of the construction of Jinshi Expressway.

A Transportation Artery Brings Tianjin and Hebei Closer

Tianjin and Shijiazhuang, a municipality directly under the central government and a provincial capital city, had no direct highway before. It changed on 22/12/2020. On that day,Jinshi Expressway, which is 233.5 kilometers long and has six lanes in both directions, was opened. The journey time between Tianjin and Shijiazhuang was shortened from 4 hours to 3 hours, and the journey of the two places will no longer detour through Baoding or Cangzhou.

Since its operation for more than two months, Jinshi Expressway has become a major traffic artery between the two cities of Tianjin and Shijiazhuang, promoting the rapid economic development of the region along the route.

Construction of Green Highway Model Project, Science and Technology Demonstration Project, Quality Demonstration Project.

Jinshi Expressway starts from Jinghai District, Tianjin City, passes through Dacheng County, Wen'an County, Renqiu City, Gaoyang County, Li County, Boye County, Anguo City, Dingzhou City, Shenze County, Wuji County, Gaocheng District, and Zhengding County, and ends at the hub intersection of corner paving section of Xinyuan Expressway, which is connected with the north ring of Shijiazhuang Ring Expressway.

The Jinshi project crosses canals, rivers, villages, and railways, connects ordinary highways and expressways, and passes through thousands of power lines and communication lines. Despite the difficulties, the engineering standards have not been lowered in the slightest.

At the Shahete Bridge, the bridge of Beijing-Kowloon Railway and other bridges of Jinshi Expressway, many tall and majestic bridges span over rivers and railways. These seemingly ordinary bridges hide unimaginable technological innovations.

Hongbin Wei, Deputy General Manager of China Power Construction Jijiao Expressway Investment Development Co., Ltd., introduced that as an important achievement of technological innovation, the "self-propelled hydraulic template" technology was used in the production of prefabricated box beams in the section from the boundary of Tianjin and Hebei to the boundary of Baoding and Shijiazhuang of Jinshi Expressway. That is, the steel formwork is adjusted by the hydraulic contraction system and other machinery, which replaces the manual operation to the greatest extent and greatly improves the accuracy of the formwork. This also improves the turnover utilization rate of the beam base and formwork, so that the construction quality and efficiency of the box girder are more guaranteed.

Driving along Jinshi Expressway, the technician introduced that the technologies of moving sliding mode of box culvert, one-time bridge deck pavement, green subgrade filling, one-time formation of side ditch excavation, construction of perpetual pavement, etc. have been applied in Jinshi Expressway. They have made every effort to build a typical demonstration project of green highway, science and technology demonstration project, quality demonstration project, and PPP project demonstration project.

Only a few days after the opening of Jinshi Expressway, the average daily traffic volume reached 25,704 vehicles. In early January of this year, due to the impact of the COVID-19 in Shijiazhuang, the daily traffic volume of Jinshi Expressway gradually declined. During the Spring Festival, the traffic flow increased significantly, and the average daily traffic volume in recent days reached over 20,000 vehicles.

The straight-line distance between Tianjin and Shijiazhuang is about 260 kilometers. Before the opening of the direct expressway, the vehicles can detour either the northern line or southern line. If they take the northern route, they will detour Beijing- Hong Kong-Macau Expressway and Rong Wu Highway, with dense traffic and only four lanes in both directions for a long section of the expressway; if they take the Huangshi Expressway on the southern line, the vehicle detour mileage is longer, and there are fewer lanes and more large vehicles. Now, Jinshi Expressway is opened, and the length of the route is reduced at the same time,

the vehicles are smoother.

·An original of the above article in Mandarin has been submitted. The article has photographic material demonstrating a highway(s) cutting through fields,

accommodating cars and at one particular point having building structures on either side of the highway.

·Letter on letterhead of [named] Village, [named] Town, [County 1] County by the Village Committee dated 29 February 2024, stating that the applicant’s rural doctor had passed away in 2020, and the applicant was “unable to provide the original medical certificate. This situation is true”.

1. On 6 March 2024 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act inviting the applicant to comment on or respond to certain information the Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review. Arguably the Tribunal had already provided the applicant with the country information below but considered it was important for the applicant to have an appreciation of the extent of the information and hence put it to him nonetheless in writing. In essence the s.424A letter states:

   The particulars of the information are:

·     At hearing you claimed that forcible confiscation of your family’s arable land by the government to build a motorway occurred in September 2017. You made this statement on several occasions during the hearing. Having had regard to your movement records they show that:

-    You were granted a subclass 600 visa (Visitor) on 7 December 2017 -(multiple entries). You came to Australia on [date] January 2018 for the first time. You then departed Australia on [date] January 2018 and arrived in Australia again on [date] May 2018.

-    You lodged your protection visa application on 3 July 2018, several months after your second travel to Australia ([May] 2024).

This information is relevant to the review because you claim you had significant difficulties with the authorities over the confiscation of land and yet failed to lodge a protection visa application on your first visit to Australia in January 2018.

This information is also relevant to the review because notwithstanding you claim that you fear serious harm in China from the authorities, you remained exposed to danger in China after having left Australia for 3 months, instead of attempting to return to Australia to seek protection, as soon as possible.

This information is also relevant to the review because it is incongruous that even after returning to Australia a second time you would take two additional months to lodge a protection visa application even though you claim you fear for your life in China from the authorities and others.

If we rely on this information in making our decision, we may find that your inactivity in not lodging a protection visa application on your first arrival in Australia after you experienced difficulties with the authorities in China in September 2017, undermines your claims that you have a genuine and abiding fear of returning to your home country because you claim that you had been beaten by triads and harmed and harassed in detention by the authorities. Consequently, the Tribunal may not accept your claims that you were ever harmed in any way by the authorities of China for reasons related to land sequestration or for any other reasons.

If we also rely on this information in making our decision, we may find that your preparedness to remain in China for 3 months after having left Australia, is not consistent with someone who has a deep and abiding fear of persecution in their home country and the Tribunal may not accept that you have a well-founded fear of persecution on return to China.

If we also rely on this information in making our decision, we may find that it is inconsistent with your fears of the Chinese authorities and related triads and other state and non-state actors, that you should have delayed lodging a protection visa application even on your second return to Australia, by some two months. If the Tribunal relies on this information, it may find that you do not have a genuine

fear of persecution on return to China and may reject your claims that your family’s land was ever forcibly confiscated for any reason.

The particulars of the information are:

·That you suffered serious harm at the hands of the Chinese authorities in September 2017 as you, amongst others, opposed the building of a motorway that was supposed to be built over your farming land by the government. You claim you were beaten and tied to a tree to be made an example of and that you went to jail and were harassed.

The country information shows, however, that a dissident of the magnitude you claim you were, and who had come to the attention of the authorities in a significant way as claimed, would not have been permitted to leave China on 3 occasions with ease as exit and entry from China is strictly regulated.

The country information states: Exit and entry procedures

5.31    Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.

5.32.     National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. 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 list…

5.33    If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons. There is a legitimate risk that family members of an individual under investigation by Chinese authorities could be subject to an exit ban. This is not only for sensitive charges but also economic charges such as fraud.

….

5.35    DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult for example to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.1

This information is relevant to the review because the Tribunal may find that it would have been very difficult with someone with a history of clashing with the authorities to be able to leave your country on 3 occasions without incident.

If we rely on this information in making our decision, we may find that you never had any difficulties with the Chinese authorities and were never of any interest to them for any reason, including for clashes due to sequestration of your family’s land by the authorities.

1 Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report, People’s Republic of China, 22 December 2021, dfat.gov.au/sites/default/files/country- information-report-china.pdf.

1. The applicant was given until 20 March 2024 to provide a response. At the time of writing this decision the applicant has not provided a response to the above matters and has not sought an extension.

FINDINGS AND REASONS

1. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision- making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR

   191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

2. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.

3. On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

   Claim regarding loan, death of mother and the applicant’s divorce

4. The Tribunal based on the court information submitted to the Tribunal accepts that in China the applicant had owed money to a friend and that he was taken to court and was ordered to sell his belongings to repay back the loan.

5. The Tribunal has had regard to the applicant’s father’s evidence (who at hearing the Tribunal called without prior notice) that the applicant had had such a loan but that the loan had now been repaid in full. The Tribunal accepts that the matter of the loan by the applicant is now resolved and is no longer a live issue.

6. On the basis of the documentation before it the Tribunal also accepts that the applicant is divorced and that his mother has passed away.

   Claims of land expropriation, detention and physical and mental harm

7. The Tribunal has had regard to the applicant’s evidence at hearing and the documentation submitted by him but continues to have serious concerns about the applicant’s credibility regarding his claims that the government took his family’s cultivated land to enable a highway to run through it. The applicant has not established his claims. The Tribunal made it clear at hearing that it had little evidence that there was a nexus between the building of the intersecting highways and the expropriation of his family’s land. While the Tribunal

accepts that the information and the map provided by the applicant show that his village is close to a highway, the Tribunal has little verifiable evidence that the applicant’s family’s income or livelihood was affected by the building of the highway.

1. The Tribunal has had regard to the map the applicant has submitted which the Tribunal accepts is a genuine map. However, even without taking into consideration such matters as a ratio of centimetres on the map corresponding to centimetres, feet or kilometres on the ground (there appears not to be such a legend on the map), and the scale of the map is unclear, having regard to where the applicant claims his village is (as marked by a round pin) the Tribunal cannot make out that either of the highways are running through either the village of the applicant, let alone his residence. The applicant’s village appears to be set to the right of the highway but proportionally does seem to be a good distance from any highway, such that there is no crossing over of the highway into the village. The Tribunal does not find this map probative evidence of the applicant’s claims that the government expropriated [number] mu of his family’s arable land to build a highway. Had they done this, the Tribunal would have expected that the highway would have been portrayed significantly closer to the applicant’s village on the map. From what the Tribunal can determine the highway is built independently of the village.

2. The applicant has also produced country information confirming that indeed the highways as claimed by the applicant were built and that Tianjin and Shijiazhuang (among other places) became connected by a highway on 22 December 2020, which is roughly in keeping with the applicant’s claimed timing that constructions started in 2017. Beyond this factual information, however, the Tribunal does not accept any of the applicant’s claims regarding the highways and how they impacted his family and himself. The Tribunal has not been able to find any independent information pointing to a village obstruction of the construction of highways, or that [in] October 2017, the police took with batons to the villagers causing injury to the villagers, including to a baby’s leg while beating the villagers.

3. While the Tribunal appreciates that the government in China might suppress news of its violence towards inhabitants, the Tribunal would have expected that local newspapers would have reported on the day-to-day events involving the building of the highways from the perspective of the government, decrying that villagers would dare to obstruct the building of such a large enterprise. Information that the highways (which it would appear from the country information submitted by the applicant shows have been beneficial to the communities living in the area), had been obstructed could have been reported as facts without censorship. It was open, for example, to national and local newspapers to report that despite village opposition these state-of-the-art highways were able to be completed.

4. The applicant at hearing stated that he wanted to get a letter from the current village head even though the Tribunal was perplexed that the applicant would approach the village head who was part of the events involving the forcible acquisition. The applicant stated that the village heads were moved on every three years (a matter the Tribunal is prepared to accept) so he would not be dealing with the same village head. The Tribunal also cautioned the applicant from dictating to the village head what he wanted the village head to say in the letter. The Tribunal was clear that the village head should narrate from his own memory and the village history what had happened to the applicant, and to confirm that the applicant’s family’s arable land had been confiscated with a minimum of compensation offered. No such probative evidence from an official of any sort has been provided to the Tribunal. Even an independent third party such as an engineer involved in building the highways could have testified that there were protests at the time of their construction. Any such information would have led the Tribunal to accept that the applicant and his family were involved in protests to try to obstruct the building of the highways.

1. The claims that the hospitals refused to treat any of the villagers who were beaten by the police also seems implausible as the applicant claims the hospitals were working in collusion with the government and that those who were victims to the beatings had to recover at home. There is limited evidence to suggest that a whole group of people (unspecified and unidentified) had in fact turned up to hospitals in the area of the village but were turned away by the staff, even those suffering life threatening injuries which could not be seen to at home, and the Tribunal does not accept this claim, given it does not accept that the applicant was ever involved in protests to stop the building of highways near his village or in any other location.

2. The applicant claimed that the injury he sustained on his arm was perpetrated when he was “persecuted”, and the people hired by “them” twisted his arm. The applicant showed the Tribunal his arm which appeared to have a bone jutting out of his elbow and which is indicative of an injury. The Tribunal does not have medical expertise to conclude what has caused such an injury. The applicant claims that he never sought treatment for the injury and that he should have had surgery. The Tribunal, however, has no evidence before it that would lead it to accept that the injury was caused by those who persecuted him and who twisted his arm. This is particularly so as the information provided about this event is undetailed and lacks specificity. The Tribunal does not accept that at some point the applicant could not have either in China or Australia sought an opinion about rectifying the problem (if it can be rectified) or sought a medical opinion in Australia about how such an injury might have been sustained. In the absence of verifiable medical evidence and given that the Tribunal has rejected the applicant’s claims that he was ever part of a protest involving being injured by police or others in detention or anywhere else, the Tribunal does not accept that the applicant’s injury to his arm is related to any of his claims regarding the alleged confiscation of his family’s land.

3. The applicant has submitted a letter from the village committee that his treating doctor passed away in 2020 – a matter the Tribunal is prepared to accept. Even this being the case, the letter submitted does not say specifically that the doctor treating the applicant had seen the applicant for injuries caused during the course of confrontation with police officers, detention guards, or any other State or non-State officials on account of opposition to building of a highway in his village.

4. The Tribunal also finds it fanciful that the negotiations for the forcible acquisition of the land were not conducted via documentation and that instead the village head simply announced the matter over a loudspeaker, and that therefore there is no evidence of the Chinese government having offered the applicant’s family compensation for land to build a highway.

   It seems implausible that such offers would have been made to the villagers without a written statement indicating how much each of the villagers were set to gain from relinquishing their land. The Tribunal does not accept that in 2017 the Chinese authorities were not sophisticated enough to be able to document exchanges about the forcible acquisition of land with the villagers involved.

5. The Tribunal rang the applicant’s father without prior notice to see if the applicant’s father could provide a realistic account of why the applicant was in Australia and whether his son was planning to stay here permanently. The applicant’s father stated that the only trouble the applicant had had in China was the court matter involving the debt the applicant had now reconciled. The Tribunal accepts that the applicant’s father has a hearing problem, but the interpreter was able to resolve these by speaking loudly and the Tribunal does not consider that the applicant’s father’s impairment obstructed the hearing significantly. The applicant’s father did not mention anything related to having had a highway built over his arable land. He stated that he had [number] mu even though the applicant stated that they had [number] mu. The applicant explained this away by saying that every person in the family had a mu each and they were a family of four. In any event, nothing turns on this discrepancy and the Tribunal

places no adverse weight on such an inconsistency. However, having spoken to the applicant’s father about his land holding it was an opening for him to discuss any difficulties he may have had with the authorities over the land. Instead, the applicant’s father stated that he held the amount of land granted to him by the government and did not mention land had been taken away from him by the government.

1. The applicant has claimed that his father made no mention of the land problem because he thought someone might be sent to Australia to kill him. The Tribunal did not have any impression, however, that the applicant’s father was reticent at all. While the Tribunal cannot place weight on demeanour, the Tribunal considers that it would have gauged had the applicant’s father been at all hesitant or reluctant to speak. The fact the Tribunal spoke to the applicant’s father in an impromptu manner would indicate that his father did not have time to prepare himself for the Tribunal’s questions and to think about whether he might have been under surveillance or not, but instead finds that he gave spontaneous and truthful evidence. The applicant’s father’s understanding was that his son was in Australia working and he gave no other reason for the applicant being in Australia, such as fleeing the authorities in China.

2. The Tribunal’s findings that the applicant never had any difficulties with the authorities over acquisition of his family’s land are reinforced because the applicant claimed at hearing that his father continued to live in China without difficulty. He stated that he tried to shield his father from the problems concerning their joint land. The Tribunal does not accept that had the Chinese authorities wanted to seriously harm the applicant and in not being able to locate him, would not have harassed his father for information about the applicant’s whereabouts or caused harm to the applicant’s father, given the applicant had been involved in the claimed obstruction of, and petitioning, against the building of the highway that overtook their land.

3. The applicant did not respond to the Tribunal’s concerns about his travel pattern to Australia and the delay in lodging his protection visa application. While a short delay in lodging a protection visa application may not of itself be indicative of a lack of genuine claims, together with the fact that the applicant travelled to Australia in May 2018 after he claims he was, among other things, beaten badly by triads, tied up against a big tree, was arrested and taken to a police station and on refusing to abandon the petition was beaten with a truncheon across the chest and head until he fainted, and then waited several months to lodge a protection visa, is not consistent with someone who has a deep and abiding fear of returning to his country due to the serious harm caused to him by the authorities.

4. The Tribunal acknowledges that some of the extreme events claimed by the applicant (the detention, bullying, and being harmed with a truncheon) occurred after the applicant returned to China post January 2018, however, even prior to coming to Australia the applicant claims he had part of his tooth knocked out and that villagers were beaten by the police. It was only in obtaining the applicant’s movement records that the Tribunal has been able to put together what the applicant would have been claiming about when things happened in relation to the claims of persecution relating to land acquisition by the government– all claims the Tribunal does not accept.

5. The applicant claims that in February 2018 he experienced serious harm at the hands of the authorities including being beaten by a truncheon, was bullied in detention by other prisoners who at the behest of the police overturned his meals, drenched his bed and quilt to disturb his sleep in the middle of the night. Yet the applicant rather than fleeing China immediately after these claimed events, continued to remain in his country for a further few months without taking advantage of his multiple entry visa to flee to Australia to seek safety only returning to Australia in May 2018.

1. The Tribunal notes that in its s.424A letter the Tribunal had stated that the applicant left China on three occasions before lodging a protection visa application. This was an error on the part of the Tribunal. The applicant only left China on two occasions: once in January 2018 and then on a later date when he arrived in Australia on [date] May 2018. Even having made this error, the applicant did in fact leave China twice and then there continued to be a lengthy delay in lodging a protection visa application on his second return to Australia.

2. The applicant claimed in his statement that he was a leader in the petitioning of the government for greater compensation, based on the country information before it however, the Tribunal does not accept that the applicant with such a history of controversy with the authorities would have been permitted to leave and enter his country on two occasions without any difficulty from the authorities. The Tribunal finds instead that the reason the applicant did not have difficulties with the authorities is because the applicant’s family’s arable land was never confiscated for a low sum, and he never protested against any such low payment. The Tribunal finds that the applicant, based on the strength of the country information, was never of interest to the authorities in China or anybody else in respect of having his family’s land taken without appropriate compensation. It follows that the applicant’s subsequent claims about having experienced serious harm at the hands of the authorities also fall away, particularly as the applicant’s claims are generalised and provide little detail.

3. The Tribunal therefore does not accept:

   ·That the applicant’s wife abandoned the applicant because he was being persecuted.

   ·That his injury to his arm (elbow) has been caused by unidentified people hired to cause him serious harm.

   ·That in September 2017 the applicant and his family were informed via a loudspeaker in the village that their arable land was going to be taken over to build a highway.

   ·That of two motorways being built, one was over the applicant’s family’s arable land, and that the entire arable land of [number] mu was taken over.

   ·That the applicant’s family was offered an unfairly low amount of compensation.

   ·That as the compensation was too low and the resettlement issue was not resolved, the villagers refused to transfer the cultivated land.

   ·That the confiscation would deprive the applicant’s family from being able to earn a living because they grew wheat and corn on such land.

   ·That the engineers and surveyors bullied the villagers.

   ·[In] October 2017 (prior to the applicant’s departure to Australia) the workers who were going to build the highway came to the village and started construction using bulldozers to push out the farmlands.

   ·The applicant and other villagers tried to stop the construction of the highway.

   ·They called the police who took to the group with batons to suppress them and some villagers were injured, and more than a dozen were taken away by the police.

·A one-year-old child was carried out by a villager whose leg had been injured while the police were beating the villagers.

·The applicant as a result of the beatings of the police lost a bit of his tooth.

·The injured villagers went to a number of nearby hospitals for medical treatment only to be refused treatment because they may have been under pressure from the government to refuse them treatment.

·In mid-October 2018 (prior to the applicant initial arrival in Australia) the applicant led some villagers to the Bureau for Letters and Calls of [County 1] County to petition against their land being taken over.

·The authorities retaliated and the applicant was intercepted by several triads who beat him so badly that he was covered in blood stains.

·That the applicant was tied against a tree in the village with a note saying “This is what is going to happen to the petitioner” to frighten the villagers.

·In February 2018 (after the applicant returned to China) more than 20 villagers decided to petition the Shijiazhuang city government by breaking up and taking different buses so that the intent of their travel would not be leaked.

·The villagers including the applicant were stopped at the gate of the municipal government and were told there were too many of them.

·The applicant and another villager were allowed to go inside to meet the government leaders however they did not get an answer.

·After they both came out police cars came to arrest them.

·They knew the applicant was the leader and they were all taken to the police station/temporary detention centre.

·The police asked the applicant to withdraw the petition, but he refused.

·The police began to punch the applicant.

·Police officers instructed other prisoners in the same cell to bully and beat the applicant.

·They deliberately overturned his meals.

·They also drenched his bed and quilt in the middle of the night.

·The applicant was mentally and physically harmed by the authorities.

·That the applicant’s fear of authorities prevented him from returning to China to see his gravely ill mother.

·Finally, the applicant could no longer cope and to protect himself promised not to petition again.

1. Having considered the evidence individually and cumulatively the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on return to China now or in the

reasonably foreseeable future for any reason under s.5(J)(1) of the Act on account of serious harm to be perpetrated by the State, their associated instruments or any other non-state actor. The Tribunal also does not accept that the applicant would suffer serious harm on account of not being able to subsist in China as his father has been able to subsist there and the applicant himself has been industrious in finding work in Australia and has proven to be resilient and able to survive in a foreign country, even with an injury to his arm. The applicant’s father also gave evidence that the applicant had been working in China.

1. 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).

2. 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).

3. The Tribunal has also considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that the applicant will suffer significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of a well- founded fear of persecution. The Tribunal having rejected the applicant’s claims, individually and in their totality, and finds that it is not satisfied that there are substantial grounds for believing that there is a real risk he will suffer significant harm due to any adverse profile with any state or non-state actors in China. The Tribunal rejects that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment by non-state or state actors because it has rejected the applicant’s claims that he was ever of interest to the authorities in China on account of petitioning against the building of a major highway near his village.

4. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

5. 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

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Rosa Gagliardi 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.

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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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