2017453 (Refugee)

2017453 (Refugee) [2022] AATA 1261 (3 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2017453

COUNTRY OF REFERENCE: China
MEMBER:Phoebe Dunn
DATE:3 March 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 March 2022 at 1:28pm
CATCHWORDS
REFUGEE – protection visa – China – particular social group – women – imputed political opinion – environmental complaints – health impacts of air pollution – forced abortion – forced sterilisation – intrauterine device – access to healthcare – family planning policy changes – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 42, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 dependants.
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 2 December 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 6 February 2019. The delegate refused to grant the visa on the basis that the applicant had not provided sufficient detail in support of her claims for the delegate to be satisfied that the applicant was a person in respect of whom Australia has protection obligations under either s 36(2)(a) of the Act or s 36(2)(aa) of the Act.
By letter dated 30 November 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the Tribunal, by video conference using Microsoft Teams, to give evidence and present arguments at a hearing scheduled for 3:00 pm on 16 December 2021.
The hearing was held during the COVID-19 pandemic and the Tribunal determined it was appropriate to hold the hearing by video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal by video on 16 December 2021 to give evidence and present arguments and subsequently at a resumed hearing of this matter on 10 February 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Claims
The applicant made the following claims in her protection visa application:
a.The applicant has suffered from a respiratory illness since she was a child and the illness got worse as she grew up. She had to call the ambulance many times because of her symptoms.
b.She went to many doctors in China and they advised her that her respiratory illness is incurable because of the air pollution in China. The doctors informed her that she has a chance of getting lung cancer if she stayed in an environment like China.
c.She believes the Chinese government should pay more attention to the air pollution issues. She tried to report the air pollution issues to the Chinese government but did not receive a positive response from them. She also wrote letters and emails to the relevant authorities and received a negative response.
d.If she returns to China, her health will be harmed due to air pollution. The Chinese government will not help her because they are on the same side as the heavy industry which pay the government money so they can pollute the environment. She does not have money or social status compared to the government and heavy industry.
e.She can’t move anywhere else because the whole of China is polluted which will harm her health and she does not want to get cancer and die at a young age.
The Department requested that the applicant provide additional information in support of her claims in accordance with s 56 of the Act. Specifically, the applicant was invited to provide further information about what happened to her in China including the dates and locations of any events and copies of any documents or other evidence in support of her claims. The Department also invited the applicant to provide the following evidence or an explanation as to why this evidence could not be provided and details of efforts made to obtain them:
a.Evidence that the applicant has been suffering from a respiratory illness since she was a child.
b.Evidence of any medical reports/correspondence that the applicant has received from doctors in China regarding her illness.
c.Evidence of correspondence that the applicant had with the government and the relevant authorities, regarding air pollution.
d.Evidence of any harm/mistreatment that the applicant received while living in China.
The applicant responded by letter dated 6 November 2020 as follows:
I came to Australia because the environment pollution in China harmed my health. I was suffered from respiration illness since I was a kid. Unfortunately, I did not keep all the evidence from previous hospital record. And it is impossible to get the evidence now as it is very long time ago. But my situation is real. The air pollution in China is so severe and I cannot live in that environment.
I hope you will understand my condition. Sorry for any inconvenience.
Evidence at initial hearing
At the first hearing, the Tribunal asked the applicant to confirm that the claims she made in her protection visa application were true and correct whether there were any details that she wished to correct before the Tribunal. The applicant gave the following oral evidence regarding her claims:
a.There is severe smog in China and she lives in a rural area with no access to clean water. There is a garbage site 7 km away.
b.She suffered from a chronic cough and had symptoms of bleeding. She suffered from very bad health and would get frequent throat infections. The doctors couldn’t help her.
c.She came to Australia and her health issues started to ease. She went to see a doctor several years ago and then didn’t continue the treatment. She was told to take medication in the form of an asthma puffer. Her issues gradually settled. She no longer coughs.
The Tribunal asked the applicant if she had any other claims or if these were her only claims. In response, the applicant stated that the main reason she came to Australia was because she had received inhuman treatment from the birth control office. She stated that she had accidentally fallen pregnant and was forced to have an abortion.
The Tribunal noted that these were new claims that had not been raised in her protection visa application and explained the operation of s 423A of the Act, noting that the Tribunal was required to make adverse findings in relation to claims that were not raised before the original decision maker unless there were good reasons why she had not done so. In response, the applicant stated that she told the migration agent at the time about these claims but he had told her to focus on the environmental claims for the application. She stated that at the time she did not understand why but that the migration agent told her to focus on the cough.
The applicant then provided the following additional detail about her new claims:
a.She accidentally fell pregnant. The birth control office got involved and had her arrested. She was arrested in 2012. They terminated her pregnancy.
b.Around July or August in 2013 the birth control office forced her to be fitted with an intrauterine contraceptive device.
c.The device is still in place. It causes her lower back pain and tiredness.
d.She was required to undergo mandatory quarterly checks to ensure it was still in place and that she wasn’t pregnant.
The Tribunal asked the applicant if she had any supporting materials. The applicant stated that the migration agent asked if she had supporting material and she had told him that she did not. She stated that she can’t get the documents to prove what happened to her because she had to escape. The Tribunal asked the applicant if she had ever tried to have the intrauterine contraceptive device removed. The applicant stated that she had not had it removed because she did not have the money to pay for the surgery required to have it removed.
The Tribunal determined that the matter should be adjourned to enable the applicant to collate any supporting materials to advance any of her claims. The hearing was subsequently adjourned to 10 February 2022.
The applicant provided the following documents and submissions in advance of the resumed hearing:
a.Statement by the applicant dated 27 December 2021.
b.Statement by the applicant’s husband, [name], dated 2 January 2022.
c.Family Planning Service Book issued to the applicant [in] June 2003 by the [Town 1] Family Planning Office. The certificate includes the following entries:
i.[In] July 2013, noting that the applicant has an intrauterine device and is not pregnant.
ii.[In] November 2013, noting that the applicant has an intrauterine device and is not pregnant.
d.Preferential Certificate of One Child issued by the [Town 1] Family Planning Office on [date] in respect of the applicant’s son, Yuanyao Yan, born [on date].
The applicant’s statement is set out in full below (typographical, spelling and syntax errors not corrected):
[The applicant’s name], female, born on [date], gave birth to a child in [earlier year].
In the middle of 2012, the medical examination of the family planning office showed that I was pregnant, and I was directly detained by three staffs of the family planning office. Without notifying my family member, I was escorted to the hospital for forced abortion. At that time, I couldn't resist and escape. The two staffs escorted me by force, and the doctor soon injected me with drug. After the injection, the staff also informed my family member (my husband [name]), under the influence of the drug, I didn't even have the strength to speak. I watched my vagina shed bright red blood. A living life was killed by them. It's like my stomach is torn and cut by something. The heartache of losing my child, the damage to my body and being bullied make me have to bear it silently under such a one-party dictatorship.
In [2013], the staff of the villagers' committee once again enforced me to placed intrauterine device (they bound me with the planned enrolment figure). On [a date in] 2013, accompanied by government staff and my husband ([name]), I was placed intrauterine device (with Family Planning Service Certificate) in the local hospital. On the operating table, I only felt that my cervix was opened by the doctor, and I felt a slight stomach-ache, which lasted for more than ten minutes. After completing the operation, I obviously felt uncomfortable in my stomach. I covered my stomach and walked out of the door of the operating room. When I woke up, I was lying on the mobile hospital bed. At that moment, my tears surged out, I have a stomach-ache, I feel heartache for losing my child, and the persecution I have suffered make me feel that women have no human rights and dignity.
The sequelae of abortion, the intrauterine device in my body, has brought indelible damage to my body. I often have a pain in the back and irregular vaginal bleeding. I have to have a physical examination under their supervision every quarter. In addition, the domestic air haze pollution is severe and the water source pollution is severe, which leads to my existing mild asthma, frequent diarrhea, skin allergy and other symptoms.
At that time, the network was not very developed. I learned that Australia was a humanitarian country, so I came to Australia hoping to get the humanitarian protection of Australian government.
After coming to Australia, I found hysteromyoma in GP's physical examination in 2019. Recommended by GP, I went to [a specified] Clinic for specialized examination [in November] 2019. The examination results showed that there were many sequelae of my uterus, and it is recommended to remove the uterus. The uterus is the symbol of women and the cradle of life. I haven't accepted the fact that I have to remove the uterus so far. I don't know what to do.
The above statements are my true situation and facts.
The applicant’s husband’s statement is set out in full below (typographical, spelling and syntax errors not corrected):
In the middle of 2012, I suddenly received an emergency telephone notice from the government family planning office during working hours: I was told that my wife ([the applicant]) was pregnant illegally and had been escorted to the hospital for induced abortion. In the uncertain situation at that time, I hurried to the hospital and saw that my wife ([name]) was pale and lifeless, and the blood under her calf had not been completely cleaned up. In this case, the staff of family planning office just informed me to take [the applicant] away, and the staff of family planning office forcibly dealt with my pregnant wife ([name]), as the father of the fetus, I am regarded as having no right to intervene. They (staff of family planning office) ignore the direct relatives, act in violation of law and discipline, and regard life as an ant. Under such a system, we have no dignity and human rights!
[In] 2013, my wife ([the applicant]) told me that the family planning office enforced she to place intrauterine device and needed to be accompanied. On the morning of [specified date], my wife ([the applicant]) entered the operating room carefully and nervously. I waited for about 20 minutes in the whole process. I saw [the applicant] coming out of the operating room with her stomach covered. Before I could go up and help her, [she] had fainted on the ground and was unconscious. The applicant] had white lips, sweaty forehead and trembling all over. When she woke up, I only heard her said that her stomach was very painful and she was cold.
The above statements are witnessed by myself and are facts!
Evidence at resumed hearing
At the resumed hearing, the applicant provided further detail in support of her claims. The applicant stated that she came to Australia because of her health problems which included throat problems, a chronic cough and frequent diarrhoea. She also had skin allergies. She stated that the throat and cough gradually eased when she came to Australia because the air quality is better.
When asked if she sought medical support for her health problems in China, the applicant stated that she went to a small clinic in her town because she had frequent diarrhoea. She said they stated that she had a weak digestive system and that it was because of bad hygiene and eating unsafe food. She also saw doctors for her throat problems and her allergies and they said she had chronic inflammation of the throat because of the air pollution and her allergies were caused by her weak immune system. She stated that she was never hospitalised for her health problems but she was treated with a lot of traditional Chinese medicines. She stated that the medical system and conditions are not advanced in the countryside. She stated that she is afraid that her cough and allergies will get worse if she returns to China because the air pollution is very bad.
When asked if she sought medical attention in Australia for her health issues, she stated that she gets a supplement from a chemist to support her nutrition when she gets diarrhoea which she still gets occasionally. She stated that she saw a doctor in a clinic in [Suburb 1], Victoria last year for a pain in her hand from a grass allergy. She stated that she has also seen a doctor for her gynaecological problems around five or six times.
The Tribunal asked if the applicant had ever protested or taken action in relation to her views about the environment and pollution and its impact on her health or any other issue. The applicant stated that she had not. The Tribunal asked if she had ever written to any authorities about her opinions. In response, the applicant stated that she had told the authorities in her village that the water coming from the pipe was yellow and they said that they couldn’t do anything about it.
The Tribunal then asked the applicant for further details about her claims regarding the impact of China’s family planning policies. The applicant stated that at the time they required her to do a pregnancy test every three months as part of the program. Between April and June in 2012 she went to get the test and discovered she was pregnant. They forced her into a vehicle and took her to a hospital. She couldn’t run away or contact anyone. When she arrived in the hospital they conducted a termination of her pregnancy. Her husband was contacted after it was finished. Later they made her have an intrauterine device (IUD) inserted to stop her getting pregnant. The IUD is still in place and she has never had it removed. It gives her pains in the abdomen and suffers from fatigue. She saw a specialist in Australia in 2019 and has had two scans which have revealed cysts (hysteromyoma) and she has been advised to have a hysterectomy. She stated that the doctor told her that there is damage to her uterus caused by the forced termination and from the IUD. She has not come to terms with the recommendation to have a hysterectomy and has not had the IUD removed because she has not been able to do so due to COVID-19. She stated that she did not feel like there was respect for her dignity or human rights because of the forced termination and because she was only allowed to have one child and that this has impacted her emotionally.
The Tribunal summarised and discussed with the applicant independent country information regarding the health system in China:
a.China has a near universal healthcare system within its broader welfare system. Basic healthcare is provided free of charge by the government, as well as a basic health insurance system that caters to both urban and rural residents.
b.For the economically vulnerable, local governments fund a medical assistance program in urban and rural China that covers basic medical insurance premiums and out of pocket expenses or gaps.
c.Approximately 95 per cent of the population has access to public healthcare insurance. The two major components of the healthcare system are of voluntary public insurance and mandatory public insurance. Healthcare entitlements under insurances vary between those who hold an urban hukou or rural hukou and according to whether an individual has employee insurance or resident insurance.
d.Urban Employee Basic Medical Insurance is financed mainly from employee and employer payroll taxes, with minimal government funding. Participation is mandatory for workers in urban areas. In 2018, 316.8 million had employee-based insurance.
e.Urban-Rural Resident Basic Medical Insurance covers rural residents in addition to urban, self-employed individuals, children, students, elderly adults, and others. The insurance is voluntary at the household level.
f.In 2018, 897.4 million people were covered under one of these two insurance schemes. The Urban-Rural Resident Basic Medical Insurance is financed through annual fixed premiums, meaning individual premium contributions are minimal, and government subsidies for insurance premiums make up the majority of insurer revenues. In regions where the economy is less developed, the central government provides a much larger share of the subsidies than provincial and prefectural governments do.
g.In more developed provinces, most subsidies are locally provided (mainly by provincial governments).
h.For those who cannot afford medical insurance premiums or out-of-pocket expenses, local governments fund a Medical Assistance Program.[1]
[1] ‘How does China’s healthcare system actually work?’, China-Britain Business Council, 27 August 2020

The Tribunal also noted that the average life expectancy in China is 76.9 years and that the top causes of death are stroke, heart disease, lung disease and cancer. High use of tobacco and air pollution are leading health risks.[2]
[2] DFAT Country Report – China, 22 December 2021, [2.13]
The Tribunal noted that this information suggests that the applicant would be able to seek support for her health issues if she were to return to China and that this would be covered by the universal health scheme including funding for the economically vulnerable. In response, the applicant stated that she had lost all her insurance in China already. She came to Australia because she was unwell and is not sure whether she would be able to get healthcare if she were to return.
The Tribunal then summarised and discussed with the applicant independent country information regarding the implications of having actual or imputed political opinions noting that people who protest or take action about politically sensitive issues, including the environment, pollution and family planning policies are likely to come to the attention of the authorities.[3] The Tribunal also noted country information about exit and entry into China and exit control lists, noting that anyone of profile would likely have difficulties leaving or returning to China.[4] The Tribunal noted that the applicant had been on a holiday to [Country 1], returned to China and then travelled to Australia without issue and that this suggests that the applicant would not have come to the attention of the authorities for any views she has or any protest activity she has engaged in about the environment, pollution, family planning policies or any other sensitive issue. In response, the applicant stated that at the time no one was allowed to protest because it is forbidden and any different opinion is not allowed. She stated that her situation is not just about her but that a lot of people had the same experience.
[3] Ibid, [3.79]– [3.89]
[4] Ibid, [5.31] – [5.35]
The Tribunal discussed with the applicant independent country information about changes to China’s family planning laws, noting that China has now relaxed its family planning laws and has introduced a three-child policy.[5] In response, the applicant stated that the damage to her has already been done and it’s too late for her to have more children because of her age and the damage that has been done to her reproductive system.
[5] Ibid, [3.117] – [3.121]
The Tribunal raised with the applicant some concerns it had with inconsistencies with her evidence and her protection visa application. The Tribunal noted in particular that her application stated that she had never been married and did not have children. The Tribunal also noted that it stated that she was not in contact with relatives in China. The Tribunal noted that this was inconsistent with her oral and documentary evidence, including in relation to her son and her husband. The Tribunal noted that this may lead the Tribunal to doubt the claims in her protection visa application and to consider that her claims were not genuine. In response, she stated that she did not know why her application had incorrect information in it, noting that her migration agent filled it out. She stated that when she first came to Australia she did not speak to her husband and son for a very long time because they did not have a smart phone and she did not have an Australian number but now she speaks with them on [a messaging service] every two to three weeks.
The Tribunal also noted her evidence at an earlier hearing suggests that she had been arrested by the authorities but she made no mention of this in the statements she had supplied to the Tribunal. She stated that she considers her forced termination to be an arrest. The Tribunal noted that her protection visa application states that she had written to the government about her protest activities but had stated in oral evidence that she had not made written complaints. The Tribunal noted that these inconsistencies may lead the Tribunal to consider that these claims are not true. In response, she stated that she did complain to village leaders about pollution and smog and the factory burning rubbish but they said they could not help. She said she did not protest because it was not allowed. She said that she told her agent what had happened and he completed the application. She stated her agent advised her that she did not need to attend this or the earlier hearing but she wanted to do so to tell the truth.
The Tribunal raised with the applicant its concerns that it took over five years after the applicant came to Australia to apply for protection. The Tribunal noted that the applicant arrived in November 2013 but did not apply for protection until October 2017 and that this delay may lead the Tribunal to consider that her claims for protection were not genuine and that the applicant applied for protection to prolong her stay in Australia rather than out of a well-founded fear of persecution for a refugee ground or complementary protection ground. In response, the applicant stated that when she first came to Australia she did not have internet access and she was struggling with her health conditions. She was not aware that there was a way she could seek protection or apply to stay in Australia. It wasn’t until her friends told her about the protection visa that she applied.
The Tribunal raised with the applicant the operation of s 423A of the Act again, noting that the applicant had raised new claims in relation to the impact of family planning policies with the Tribunal that were not before the original decision maker. The Tribunal invited the applicant to provide any further evidence about why these claims were not raised with the original decision maker. In response, she stated that she has spoken to the migration agent about these claims as well as her air pollution and health claims and he said to focus on the latter claims and not on her family planning claims.
The Tribunal noted that the applicant had been asked by the Department and the Tribunal whether she had further documents, such as medical records, to support her claims in relation to her health conditions in China, such as her cough and throat issues and the many visits to doctors since she was a child but that she had not produced any documents in relation to those claims. The Tribunal asked the applicant if she was able to provide any documents or supporting material relating to her cough and throat issues from either China or Australia. The applicant stated that she did not have any from China as it was too long ago but she could provide records from Australia. The Tribunal invited the applicant to provide any such documents to the Tribunal and afforded her two weeks post hearing to do so.
The Tribunal noted that not all reasons for wanting to leave a country and not wanting to return to a country give rise to protection claims. The Tribunal reiterated that the Tribunal had to apply the law to the facts and make findings as to whether the applicant was owed protection and that it was not a question of whether the applicant was a good person or would make a good contribution to Australia. The applicant stated that if she does not meet the test she is hoping to be able to stay in Australia until flights are more affordable.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in China and, if not, whether 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 she will suffer significant harm.
In reaching its decision, the Tribunal has considered all evidence available to it, including the Departmental and Tribunal files, all evidence provided to the Tribunal in oral and written form and independent country information about the situation in China.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Assessment of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Environmental pollution health related claims
The applicant has claimed that she suffered from a cough and throat issues and skin and other allergies caused by air and water pollution in China and that this will worsen if she returns. She has also claimed that she has a weakened immune system and suffers from regular diarrhoea associated with air and water pollution in China. She stated that she saw a doctor in Australia and her condition has improved such that she no longer requires treatment for her cough, respiratory and throat issues. She also stated that she has seen a doctor for her skin allergies and has taken pharmacy medication for her stomach and bowel issues.
The Tribunal considers that the applicant’s claims for protection on the basis of her environmental pollution related health claims to be vague, lacking in detail and unsupported by any corroborating evidence.
The Tribunal sought further information from the applicant regarding her claims, including any medical records from China or Australia relating to any of her claims. The applicant has not produced any documentation to support her claims to the Department or the Tribunal, such as copies of doctors’ reports, hospital reports, prescriptions or any such records regarding her claimed medical conditions or that these have been caused or exacerbated by water, air or food related pollution in China.
The Tribunal has carefully considered the applicant’s explanation for not being able to produce any medical or other health related records from China and accepts that it is not always possible for applicants to provide any supporting documentation from their country of origin and that any failure to do so is not, of itself, a basis on which to not accept the applicant’s claims. However, the applicant claims to have sought medical attention in Australia for her environmental health related conditions but her oral evidence of doing so was vague and lacked detail. She stated that she went to a doctor several years ago but provided very little detail about the recommended treatment and why she didn’t continue her treatment other than to say that her issues gradually settled and she no longer coughs and that she was using an asthma puffer for ‘mild asthma’. She also stated that she saw a doctor last year in relation to a grass rash on her hand and uses treatments she obtains from a chemist to support her nutrition when she has diarrhoea. However, the applicant has not provided any medical or other health related records or documents to support her claims, despite this being raised with her at hearing and despite being invited to do so on a number of occasions.
In this context, the Tribunal has carefully considered the applicant’s evidence that her symptoms gradually settled after coming to Australia and that she didn’t continue treatment as claimed. The Tribunal has considered whether this provides an explanation for the applicant not providing more detailed evidence about her conditions, any prescribed or other treatment for those conditions or any supporting documentation. However, the Tribunal is not satisfied that this explains the vague nature of the applicant’s evidence regarding her claims and the lack of detail regarding treatment sought and obtained for her environmental pollution related health claims, both in China and Australia. The Tribunal considers that the vague nature of the applicant’s evidence and the lack of detail regarding her environmental pollution related health issues and the treatment she obtained in Australia gives rise to a concern about the genuine nature of these claims and whether she did suffer the health conditions to the extent claimed or whether the claims were exaggerated. The lack of supporting evidence of the treatment she claims to have obtained in Australia adds weight to these concerns.
The Tribunal notes that the applicant delayed making a claim for protection for over five years after coming to Australia. The Tribunal considers that this considerable delay in applying for protection adds to its concerns about the genuine nature of the applicant’s health related claims. The Tribunal has carefully considered the applicant’s explanation for the delay that she did not have internet access and was dealing with her health conditions. The applicant provided very little detail to support these explanations. Having regard to the lack of detail and the vague nature of the applicant’s health related claims together with the considerable delay in applying for protection, the Tribunal considers the applicant’s explanation to be vague and lacking in substance and detail. The Tribunal considers this adds weight to its concerns that the applicant made up or exaggerated the claims to prolong her stay in Australia and to secure a successful visa outcome.
In her protection visa application, the applicant claimed that she reported her concerns about the air pollution to the Chinese government but did not receive a positive response from them. She also wrote letters and e-mails to the relevant authorities and received a negative response. She also stated that if she returns to China she will be harmed and mistreated by the Chinese government. At hearing, the applicant stated that she had not engaged in protest activities, had never been arrested for any protest activities and had not written to any authorities.
The Tribunal raised with the applicant at hearing its concerns regarding the inconsistent information provided by the applicant regarding her complaints to the government, noting the inconsistent information provided gave rise to concerns that the applicant had never raised any issues with the authorities in relation to environmental pollution or her health conditions arising from the pollution and had never engaged in any form of protest activities in relation to environmental pollution as claimed. The applicant stated that she had raised her concerns about the colour of the water in her village with the local authorities but they said they couldn’t do anything about it.
In relation to the applicant’s claims to have made many complaints to the government officials in China about air and water pollution in China, the Tribunal notes independent country information that the Chinese Communist Party (CCP) has little tolerance for public dissent on a wide-range of matters considered politically sensitive, which includes environmental matters. Further, the country information suggests the government has refused passports to millions of people on the basis of public dissent on politically sensitive issues. The Tribunal also notes that the government maintains an immigration exit control list and that security monitoring capabilities at airports are comprehensive.[6] The Tribunal notes that the applicant has confirmed that she was never questioned, warned or detained in relation to the complaints she made regarding environmental pollution. The Tribunal also notes that the information before it shows that the applicant was able to exit China on a holiday and return and exit again to come to Australia without difficulty. Accordingly, the Tribunal finds that the applicant is not of adverse interest to the Chinese authorities arising from any claimed protest activities relating to environmental pollution.
[6] DFAT Country Information Report, People’s Republic of China, 22 December 2021,[3.79] – [3.89], [5.31] – [5.35].
The Tribunal has also had regard to independent country information that suggests that high rates of tobacco use and exposure to air pollution are key risk factors in China.[7] The Tribunal also notes that the latest report indicates that the average life expectancy of Chinese people from birth is 76.9 years, which is favourable compared to the global average of 72.6 years in 2019.[8] The Tribunal also notes the country information outlined above which suggests that the applicant would be able to access high quality public health care in China for any health related issues. The applicant has not claimed that she would be denied any treatment on the basis that she is a woman or for any other reasons if she were to return. The applicant also has the option to reduce her exposure to air and water pollution by wearing a face mask and drinking bottled water.
[7] Ibid, [2.13]
[8] According to The World Bank: accessed 28 February 2022.

The Tribunal is willing to accept that the applicant may have suffered some health conditions associated with the environment in China. However, having regard to the evidence before it, the Tribunal is not satisfied that the applicant suffered health related issues caused or exacerbated by environmental pollution in China to the extent claimed. In particular, the Tribunal does not consider it has enough to accept the applicant’s claims, having regard to the vague nature of the information before it, the lack of detail, the inconsistencies identified and the lack of any supporting documentation. Having regard to the information before it, the Tribunal does not accept that the applicant would face a real chance of serious or significant harm amounting to persecution now or in the foreseeable future if she were to return to China associated with these claims.
Further, the Tribunal does not accept that she wrote letters or emails to any department or authority regarding her concerns about the impact of environmental pollution on her health or protested regarding environmental pollution in any way. The Tribunal does not accept that she raised her concerns about the water colour in her village with the authorities and they ignored her. The Tribunal is not satisfied that there is a real chance that the applicant would be harmed or mistreated by the Chinese government on this basis if she were to return to China as claimed. Accordingly, the Tribunal does not accept that the applicant faces a well-founded fear of persecution for a refugee reason because of environmental pollution in China or due to the actions of, or inaction by, the Chinese authorities, or anyone else should she return to China.
People affected by family planning policies
In oral evidence at hearing, the applicant claimed that she has been adversely affected by China’s family planning policies. Specifically, the applicant claimed that she was forced to have a termination and to have an IUD inserted which continues to cause her back pain and fatigue.
As outlined above the applicant did not raise these claims in her original protection visa application and as such, unless there is a reasonable explanation for not doing so, the Tribunal is required to draw an adverse inference from this failure. The Tribunal has carefully considered the applicant’s explanation for not doing so, being that her migration agent told her to focus on her health related claims arising from environmental pollution as opposed to any claims associated with the application of family planning policies. Having regard to the applicant’s oral evidence and supporting information provided to the Tribunal, the Tribunal is willing to accept the applicant’s explanation for not raising these claims earlier.
Having regard to the applicant’s oral evidence and supporting information provided to the Tribunal, the Tribunal is willing to accept that the applicant has suffered emotionally and physically as a consequence of the application of the family planning policies in China occurring in 2012 and 2013 prior to coming to Australia. Specifically, the Tribunal is willing to accept that the applicant was forced to have a termination and was required to have an IUD inserted as a birth control measure and that this caused her emotional distress. The Tribunal is willing to accept that either or both of these incidents have impacted on her reproductive capacity such that, combined with her age and other claimed gynaecological issues (which may or may not be linked to these incidents), she is no longer able to have any children. The Tribunal is willing to accept that the applicant suffers from ongoing pain as a consequence of her gynaecological issues. The Tribunal does not consider it has sufficient information before it to determine that these issues will result in a real chance of serious or significant harm if she returns, noting that the applicant has not provided any medical records or other supporting documentation from treatment sought in Australia associated with her claims.
Notwithstanding these findings, having regard to current independent country information about the relaxation of family planning policies in China and the introduction of a three-child policy, the Tribunal does not accept that the applicant’s circumstances gives rise to a real chance of serious or significant harm if she were to return to China, now or in the foreseeable future. The Tribunal also considers that the country information regarding the availability of health care, including for the financially vulnerable, means that the applicant could access health care services for treatment for any gynaecological or other health related issues.
There is nothing to suggest and the applicant has not claimed that she has engaged in any actual or imputed political protests associated with the application of family planning policies in China or that she would be targeted for any views she may hold regarding the CCP or the application of family planning policies in China. Accordingly, the Tribunal does not accept that the applicant faces a well-founded fear of persecution on a refugee ground or a complementary ground associated with any actual or imputed views about China’s family planning policies that could be considered anti-CCP.
Accordingly, the Tribunal does not accept that the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm arising out of the application of family planning policies now or in the foreseeable future.
Does the applicant have a well-founded fear of persecution if she returned to China?
For the reasons given above, the Tribunal does not accept there is a real chance that the applicant will suffer persecution involving serious harm arising from the circumstances claimed by the applicant, or for any other reason set out in s 5J(1)(a), if she was to return to China, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[9] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm because of her claims or for any other reason.
[9] MIAC v SZQRB [2013] FCAFC 33
Considering the available evidence and having regard to the findings of fact set out above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.
Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Phoebe Dunn
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 1261

3 March 2022

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