2100218 (Refugee)

[2025] ARTA 1438

2100218 (REFUGEE) [2025] ARTA 1438 (25 MARCH 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2100218

Tribunal:General Member F Russo

Date:25 March 2025

Place:Sydney

Decision:The Tribunal affirms the decision under review.

Statement made on 25 March 2025 at 3:05pm

CATCHWORDS

REFUGEE – Protection Visa – China – made petition to reveal the government’s officials’ corruption – identical or near-identical claims – applicant has not provided any documentary evidence – inconsistent evidence – not satisfied that the applicant faces a real risk of serious or significant harm – credibility concerns – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Administrative Review Tribunal Act 2024 (Cth), ss 99, 106

Migration Act 1958 (Cth), ss 65,359, 368, 379, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
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 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF 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 24 December 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 national of China, applied for the visa on 28 August 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

3. The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 7 January 2021. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal).

4. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)(the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

   Initial dismissal and reinstatement of the application for review

5. The applicant was invited to attend a hearing before the Tribunal on 6 November 2024 at 9:30am. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. After reviewing the Tribunal file, the Tribunal was satisfied that the applicant was properly invited to a hearing in accordance with s 379A(5) of the Act, and the invitation had not been returned to sender. The Tribunal was also satisfied that two separate SMS reminders were sent to the applicant about the hearing, and there was nothing from the Tribunal’s SMS delivery system to indicate that the SMS reminders failed to be delivered. There was no evidence that the applicant had contacted the Tribunal to request that the hearing be adjourned or rescheduled. Accordingly, on 7 November 2024 the Tribunal dismissed the application under s 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) without further consideration of the application or the information before the Tribunal.

6. On 30 November 2024, the applicant provided the Tribunal with an email containing an explanation for his non-appearance at the hearing, as well as a Change of Contact Details form. In his email, the applicant stated that he was unable to access his old email account or find his case number. He stated that while he received an SMS from the Tribunal, he believed this was a scam similar to other immigration scams he had received. He claimed that he asked a friend to check the SMS for him, and he then realised it may have been a genuine message from the Tribunal.

7. In reinstating the application for review on 5 December 2024, the Tribunal noted that it had doubts about the applicant’s claims and noted that the applicant had not sufficiently explained how he became aware that the Tribunal had dismissed his application for review if he was unable to access his old email account. The email address which the applicant claimed he could not access ([email]) was also not the email address he provided to the Tribunal with the application for review, but rather was the email address he had provided to the Department in a signed forms in March and April 2019. This email address was not used by the Tribunal to notify the applicant of the initial dismissal decision, but rather he was notified using the email address he had provided with his application for review to the Tribunal ([email]).

8. Despite these concerns, given the applicant’s explanation regarding the SMS reminder, the Tribunal considered the transition from the AAT to the Tribunal on 14 October 2024 may have contributed to the applicant considering that the SMS reminder was a scam. The Tribunal therefore considered it appropriate to provide the applicant with a further opportunity to attend a hearing. On 5 December 2024 the Tribunal reinstated the application for review under s 368C(3)(a) of the Act.

   Hearing held on 7 January 2025

9. The applicant appeared before the Tribunal on 7 January 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. After raising a number of concerns with the applicant regarding his claims, including the lack of lack of documents in support of his claims, the Tribunal indicated that it would adjourn the hearing to a date to be advised in order to allow the applicant to provide supporting documents. The Tribunal advised the applicant that at the resumed hearing it would discuss with him the relevant country information regarding the situation in China, as well as put further concerns to him regarding his evidence or claims for protection.

    Non-attendance at resumed hearing

11. On 9 January 2025, the Tribunal invited the applicant to a resumed hearing at 2:00pm on 19 February 2025.

12. The applicant did not respond to the hearing invitation, which was sent to the most recent email address he provided in connection with the application for review (the updated email address provided in the Change of Contact Details form submitted on 30 November 2025). The invitation has not been returned to sender.

13. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. This was confirmed by an officer of the Tribunal, who conducted checks of the Tribunal’s reception areas at 2:00pm, 2:15pm and 2:30pm on the day of the hearing. The Tribunal is also satisfied that two separate SMS reminders were sent to the applicant five business days and one business day before the scheduled hearing. There is no evidence to indicate that the applicant contacted the Tribunal to request that the hearing be adjourned or rescheduled, and no satisfactory reason or explanation for the non-appearance has been given despite the passing of over a month.

14. The Tribunal notes that with the hearing invitation provided to the applicant on 10 December 2024, the applicant was advised that if he did not attend a scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or it may dismiss his application for review without any further consideration of the application or the information before the Tribunal.

15. Further, on 11 March 2025 the Tribunal wrote to the applicant pursuant to s 359A of the Act and invited him to comment on the particulars of information which it considered, subject to his comments, would be the reason, or part of the reason, for affirming the decision under review. The Tribunal’s letter also advised that the applicant did not attend the hearing which had been scheduled for 19 February 2025 and he had not provided a reasonable explanation for his non-attendance. The Tribunal advised the applicant that it would therefore be making a decision on the review without holding a further hearing. The applicant was given until 18 March 2025 to respond to the Tribunal’s letter. No response has been received from the applicant.

16. For the reasons set out below, pursuant to ss 106(1) and 106(5) of the ART Act, and after considering all the document, things and evidence given to the Tribunal, the Tribunal has decided to make a decision in relation to the application for review without holding the resumed hearing.

    BACKGROUND

17. The applicant is a [age]-year-old Chinese national from Shandong province, China. In his Protection visa application form, the applicant declared that he first arrived in Australia on [date] July 2017, holding a Visitor visa. He claimed that he was persecuted in China because he made a petition revealing corruption by the local government in relation to the payment of compensation for expropriated land.

    Evidence before the Department

18. The Tribunal has had regard to the documents on the Department file, which include a system-generated copy of the Protection visa application and the pages of the applicant’s Chinese passport containing biodata, visa and entry and exit stamp information.

19. The Tribunal also notes the following electronic forms updating the applicant’s address and contact details:

    a.Form 929 (Change of Email Address Details), generated 19 March 2019, in which the applicant provided an updated email address;

    b.Form 956A (Appointment or withdrawal of an authorised recipient (including migration agent)), generated 17 April 2019, listing the applicant as the authorised recipient in relation to the visa application and providing his postal address and email address;

    c.Two further Form 956As (Appointment or withdrawal of an authorised recipient (including migration agent)), generated 27 April 2019, in which the applicant ended the appointment of [Ms A] as authorised recipient and listed himself as authorised recipient;

    d.A Form 929 (Change of address details); and

    e.A Form 1193 (Communicating with the department by email), dated 27 April 2019.

    Claims for protection

20. In his Protection visa application, the applicant provided the details of a [Ms A] as his authorised recipient in relation to the applicant, including listing [Ms A]’s postal address and mobile telephone number. The applicant provided the following responses to questions about his reasons for leaving China. The text of these responses was in capital letters.

    a.Provide reasons why the applicant left that country or those countries

    I was persecuted by Chinese government because I made petition to reveal the government’s officials’ corruption.

    My family has a land and the field of land was very good all the time. One day the local government noticed us that our land would be collected, but the compensation only have half price of the market price, so we disagree to sign the collection agreement.

    One day the local government sent people came to my home to collect land. They destroy all good of land and threaten me. They also forced us to sign the collection agreement, my father was beaten by them because prevent their behaviour. After that, I called the police, but the police ignore our case. So I and my father wrote complaint letter to submitted to city government, to hope that get a reasonable explanation and compensation. However, after the officials knew my behaviour, they sent police to catch us. I and my father were very scared, and then we escape China and fled to Australia. Please protect me.

    b.Give details including: where this applicant tried to move, why this applicant was unable to move, where this applicant moved and what happened

    The whole situation in China was the same. The government was corruption. They colluded with the police. They only care their own benefits.

    c.Explain what the applicant thinks will happen to them if they return to that country or those countries

    If I return to China, I will suffered persecuted by the police. Once I went into prison, I will die.

    d.Give details including: the type of harm or mistreatment this applicant is likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat this applicant

    If I went to China, I will be persecuted by the police. Once I went into prison, I will suffered persecution on mental and physical.

    e.Give details about why this applicant thinks the authorities could not, or would not, protect them

    The Chinese government was corruption. The government officials are colluded with the police. They only care their own benefits

    f.Give details as to where this applicant could relocate

    The whole situation of China was the same. The government was corruption. The police was colluded with the government’s officials. Government was the protective umbrella of the police. They only care their own benefits.

    Delegate’s reasons for decision

21. The applicant provided the Tribunal with copies of the delegate’s reasons for decision and notice of the decision from the Department with his application for review.

22. The delegate’s reasons for decision indicate that on 14 October 2017 the Department sent the applicant a letter acknowledging he had made a valid visa application. The letter informed the applicant that a decision could be made on his application without another opportunity for him to present further information. The delegate’s reasons also indicate that on 14 October 2020 the applicant was sent a letter under s 56 of the Act, inviting him to provide additional information about some of the claims in his application and to provide clarification on particular points. A copy of the letter is on the Department file. The Department’s letter set out the applicant’s claims in brief and then advised that his claims lack substantiating details including dates and locations, as well as evidence to support his claims. The delegate invited the applicant to provide the following evidence:

    a.Copies of land documents/title deeds for the property which was the subject of the dispute;

    b.Copies of offers of compensation received;

    c.Copies of letters or petitions sent to government officials about this matter;

    d.Copies of any arrest warrants, charge sheets or court summons in relation to his claim that local officers wanted to ‘catch’ him; and

    e.Copies of the document he claims he refused to sign.

23. The applicant was also asked to comment on his departure from China through an international airport, using a passport issued in his name. The Department noted the use of a centralised system with name matching alert capabilities, as well as facial recognition technology at Chinese airports, and put to the applicant that his ability to exit China would suggest he was not of interest to Chinese authorities. The applicant was again advised that a decision on his application may be made on the information in his visa application and any response to the Department’s letter, and he may not be given another opportunity to provide more information about his claims.

24. The delegate’s reasons for decision indicate that the applicant did not provide further information about his claims or request an extension of time to respond to the s 56 letter. There is nothing on the Department file to suggest otherwise.

25. The delegate considered country information regarding petitioners and protestors and exit controls in China. The delegate also considered there was a lack of detail or evidence to support the applicant’s claims. The delegate was not satisfied that the applicant had participated in the activities described in his visa application, nor that he had experienced adverse treatment or harassment for the reasons claimed. The delegate was not satisfied that the applicant’s claims are credible and was not satisfied the applicant had a profile that was of adverse interest to the authorities or anyone else in China. The delegate was therefore not satisfied that applicant is a person in respect of whom Australia has protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act.

    Correspondence sent to the Department after the delegate’s decision was made

26. On 3 January 2021 the applicant sent an email to the Department, attaching a copy of the biodata page of his passport and attaching a Form 929 and Form 929A. In the email, the applicant states:

    I realised my visa 866 application was refused by the department when I checked my visa by myvevo. I can not find my agent in [Suburb]. Could you send my decision record to me?

    Evidence before the Tribunal

    Documents provided to the Tribunal

27. The applicant applied for review of the delegate’s decision on 7 January 2021. With his application for review form, the applicant provided a copy of the delegate’s reasons for decision and notice of the decision from the Department. The applicant has not otherwise provided the Tribunal with any documentary evidence in support of his claims.

28. On 30 November 2024 the applicant sent the Tribunal a request for reinstatement of the application for review, following the initial dismissal of the application by the Tribunal. The request for reinstatement was accompanied by a completed Form MR6 (Change of Contact Details) and copies of the biodata pages of the applicant’s passports issued in [2010] and [2021].

29. On 10 December 2024 the applicant responded to a hearing invitation for the hearing scheduled for 7 January 2025. In response to the question ‘Do you intend to rely on any documents at the hearing, e.g. written witness statements, written submissions, country information, or other evidence?’ the applicant ticked ‘Yes’ and stated, ‘I will have evidence to support my claims, and its in overseas, I will try to have it.’

30. The applicant did not respond to a letter of the Tribunal dated 11 March 2025, which put the particulars of adverse information to the applicant under s 359A of the Act.

    Evidence given at the hearing on 7 January 2025 regarding the preparation and contents of the visa application

31. At the start of the hearing held on 7 January 2025, the applicant gave evidence that he made the Protection visa application on his own and claimed that he filled the application form out himself. The Tribunal put to the applicant that the responses to the application form are written in English and questioned how he was able to fill out the form. The applicant responded that he used Google translate software and then stated that he relied on translations with the help of his mobile phone.

32. The applicant stated that he could not remember the full details included in his visa application, through he remembers the gist of it. He confirmed that the contents of the visa application form are true and correct. When asked whether he would like to make any changes to the information contained in his application or add to the claims, he responded that he thinks he can provide more detail.

    Evidence regarding the applicant’s background and travel to Australia

33. The applicant confirmed that he is a citizen of China and that he is not a citizen of any other country, nor does he have a right to enter and reside in any other country. The applicant told the Tribunal that he has previously travelled to [Country 1] from October 2010 to November 2013. After he finished school in China, he worked for a Chinese factory, and was sent to [a city in Country 1] to undertake an internship. The applicant confirmed that he has no religion.

34. The applicant gave evidence that his hukou in China was in [a] village, [a] town, [a] county, Jining city, Shandong province. He stated that he lived at this address the entire time he lived in China, and he had no other addresses. He confirmed that he was living there immediately before departing for Australia. The applicant gave evidence that his parents, wife and two sons live at the address which is his hukou, although his wife is registered as living at a different hukou. He stated that he has no siblings.

1. The applicant told the Tribunal that he completed junior high school in 2004, then went to high school, and then to a technical college for a few years. He told the Tribunal that he worked as a [Occupation 1] on a construction site. The Tribunal put to him that he stated earlier in the hearing that he worked for a Chinese factory in machinery related work. The applicant responded that this was before he married, and that after he married, he worked as a [Occupation 1].

2. The applicant confirmed that he arrived by plane in Australia, holding a Visitor visa, on [date] July 2017. He used his Chinese passport to travel. He stated that he departed China from Jinan city and transferred to [an] Airport in [a country], from where he flew to either the Gold Coast or Brisbane. He stated that he came to Australia because his land was taken away in China. He confirmed that he arrived in Australia with his father. When asked again where his father is now, the applicant told the Tribunal that his grandfather passed away around 20 January 2024, so his father had to return to China at the risk to his own safety.

3. The applicant claimed that his father organised the visa to Australia. He stated that they spent a lot of money, but he does not know the details. He stated that his father used his connections so they could escape from persecution. When asked whether there was any reason why he did not bring his wife with him, he stated that at the time they applied for the visa to Australia, they wanted to stay here temporarily to escape persecution and they did not plan to stay here this long.

   Evidence regarding claims for protection

4. The applicant told the Tribunal that he and his father had been persecuted in relation to land transactions in China, so they came to Australia to seek protection. When asked whether the land was taken back or taken off them by the authorities, the applicant responded that the land had not been taken away as he had not signed the contract that was provided. He stated that the land in question is agricultural land in his hometown, though separate to the land on which his family lives. He claimed that the land is under his name and he has an ownership certificate for the land, as the title was transferred to him by his father when the applicant married.

5. The Tribunal questioned how the land could be ‘transferred’ to him by his father when rural land in China is owned collectively by village committees. The applicant responded that this land is different, not like other land which has to be returned every three years. He stated that the land was initially their home base and that they exchanged it with neighbours and used it for agricultural purposes. When asked if he has evidence of his ownership of the land, such as the ownership certificate, the applicant stated that he does not have a copy of his mobile phone but stated that he can obtain a copy.

6. The applicant claimed that an offer for acquisition of the land was made to him around August 2016 by the village leader, [Mr B], who wanted the land for development of apartments or some other development purpose. When asked if he was offered compensation, he stated that the government had issued a document which listed some prices, but what they were then offered was half of the amount. He stated that he could not remember the amount of money that was offered, only that the contract he was asked to sign listed half the price of that included in the government-issued document. When asked if he had copies of either of these documents, he stated that he could look it up the government-issued document. When asked if he has a copy of the contract he was asked to sign, he stated that he does. When asked why he had not provided a copy to the Department or Tribunal, he stated that he did not receive any legal assistance and did not know what documents are required.

7. The applicant told the Tribunal that he refused to sign the contract, after which the village leader got really angry, and he and his father were beaten. When asked who beat them, he stated that it was [Mr B], as well as [Mr C], the head of the development company, and three other men he didn’t know. He claimed that they were beaten in December 2016 in the village committee office. He told the Tribunal that his father was knocked to the ground and suffered serious injury to his left side, including his head, left eye, bruising and bleeding. He stated that he was also seriously injured, with injuries to his left shoulder, lower back and skin. He stated that some villagers heard the noise from the fighting and he and his father were sent to hospital. On the way to hospital, five people came out and tried to block their way and then kept beating them. He claimed that he was hospitalised for one-and-a-half months and that his father was hospitalised for more than three months.

8. When asked what treatment he received in the hospital, he stated that he received anti-inflammation injections and had plasters so his right arm could be fixed. He also received stitches. When asked what treatment his father received at hospital, the applicant stated that they were in different rooms, and he only got to visit his father after he was himself discharged from the hospital. He stated that after he was able to walk, he was still recovering from his injuries. He was told his father needed more rest and that there was still some blood in his head. The applicant stated that he has certificates for he and his father’s hospital admissions, which he can provide to the Tribunal.

9. The applicant gave evidence that after he left hospital, he and his father wanted to address the issue by petitioning to higher levels of government, but when they tried to do this, the police blocked their way. He claimed that they wrote a complaint letter to the town leader, which he wrote by hand and delivered directly to the town government’s letterbox, but they received no response. He stated that he does not have a copy of the letter as it has been a long time. He stated that he went back to the town government’s office two days later, but the town leader did not want to accept the complaint as the applicant’s father had not yet fully recovered from his injuries. When questioned why this was a reason for not accepting the complaint, the applicant stated that the town leader and developer have strong connections.

10. The applicant stated that they next went to the petitions office at the county level. There was a display window for receiving petitions, but it was not really functioning. He stated that he could not even get inside the gate of the petitions office. When asked why this was the case, he stated that someone was watching them closely and wouldn’t let he and his father lodge the petition.

11. The applicant claimed that following this, the town leader became aware of their attempts to petition, so he and his father were arrested by local police. He claims they were held in [the] town police station for two days, where they were beaten seriously. They were threatened not to make petitions again when they were released. After they were beaten, they agreed not to attempt to lodge any further petitions. When asked if he has any photographic evidence of the injuries from either of the beatings he received, he stated that he does not, though he can produce medical records for the first time he was injured.

12. The applicant confirmed that nothing else happened in China. He stated that he and his father said goodbye to their family and prepared to come to Australia. He told the Tribunal that they had no difficulties leaving China as his father had paid a lot of money, including arranging visas and using his connections with government officials at the county government level. The Tribunal put to the applicant that if his father had connections at the county government level, why had he not used them to obtain a more favourable outcome in relation to the compensation offer or his attempts to petition? The applicant gave a confused and unconvincing explanation which was inconsistent with his earlier claim about the utility of his father’s connections at the county government level, stating that the businessmen and government officials were only at the county level, and they could not get any help from the county level, so they instead had to arrange to come to Australia.

13. When asked whether he received any threats after leaving Australia, he stated that his family had received threats. He stated that not long after he came to Australia, people would go to their property to harass his family and intimidate them. He stated that the frequency was roughly every half year, and the last time they were harassed was around January 2019. The applicant gave evidence that his family continues to use the land. His father uses a small portion of it for agriculture, and the majority is ‘outsourced’ to other farmers through oral agreements.

14. When questioned why he would be harmed if he were to return to China, the applicant stated it is because they didn’t ‘deliver’ the land to the government and developer, and they are therefore hated. The applicant stated that in 2024 his father went back home, and after learning about this, someone was sent to harass him. The applicant stated that the person demanded that his father pay compensation for the economic loss. He stated that his father’s freedom of movement is also being limited and any attempts by him to make a petition will be blocked. The applicant told the Tribunal that nothing else had happened to members of his family.

15. When asked whether he had filed any petitions after he came to Australia, the applicant stated that he and his father could not make petitions while they were here. The Tribunal put to the applicant that he could have filed a petition by post from Australia. The applicant stated that when they were in China, they delivered letters to the government directly and they were not accepted, so it would have been no use to send them by post.

16. The Tribunal put to the applicant that on his own evidence the government has not expropriated the land in question. The Tribunal put to him that it was having difficulty accepting why the government would not have expropriated the land if it wanted this land 7 years ago. The Tribunal put to the applicant that country information indicates that rural land in China is owned collectively by village committees, and that land can be expropriated by government authorities in China. The Tribunal put to the applicant that the fact this land has not been expropriated in the 7 years since the events he claims, may indicate that the land is of no interest to the authorities. The applicant responded that the land has been owned and used by his family for many generations and he has a certificate of ownership under his name. When asked to explain why this land would be treated differently from other rural land in China, the applicant conceded that land can be expropriated by the government without obtaining a person’s consent when large projects are involved, but this is not the case here, and he believes the nature of this land is different as it is not ‘rollover land’ but land with a fixed land usage. When asked whether he could provide evidence that the land is of fixed use and is treated differently from other rural land in China, the applicant stated that he thinks there are regulations governing land ownership, and that if there are such regulations, he will find them and provide a copy to the Tribunal.

17. The Tribunal put to the applicant that he had not provided any documentary evidence to support claims, such as evidence of his ownership of land in China and the nature of the land, evidence of the offer which was made, hospital or medical records, photographs of the injuries he claims he and his father sustained, police records, copies of petitions and any evidence that he or members of his family had received threats. The Tribunal put to the applicant that it would adjourn the hearing for one month to allow him time to provide such evidence, and that the evidence would need to be provided to the Tribunal at least 7 days prior to the next hearing date in order to allow the Tribunal to consider the documents and discuss them with him at the hearing.

    Concern raised regarding truthfulness of the applicant’s evidence of how he made the application

18. At the hearing on 7 January 2025 the Tribunal put to the applicant concern that in his evidence earlier, he stated that he made the visa application himself and that he translated the contents himself using Google translate. The applicant responded that he used Google translate and he then had help from a friend. When asked the name of this friend, he stated he had not contacted that person for a long time. He stated that the friend was living with him as a roommate in [Suburb 1]. When asked whether the claims in the visa application were his own or were given to him by the roommate, he stated that they were his own claims. The Tribunal put to the applicant that in his visa application, he listed an authorised person as his contact. When asked again his friend’s name, the applicant stated that he could not remember. The Tribunal put to the applicant that it had trouble accepting this, given he lived with this person and knew them well enough to receive assistance to make a Protection visa application.

19. The Tribunal put to the applicant that a person by the name of ‘[Ms A]’ was listed as the authorised recipient. When asked who this person was, the applicant stated a couple of times that was his roommate. He stated that he has not contacted this person for years and his surname is probably [name], but he does not know his first name. When asked whether he was sure about the evidence he was giving, the applicant then stated that the person was a bit younger than him and ‘We all called him [name].’

20. The Tribunal put to the applicant that given the Tribunal’s experience in hearing protection cases, the name [Ms A] is familiar to the Tribunal as the same person is listed as an authorised contact on a number of other applications. The Tribunal indicated that it had not made up its mind, but the fact that [Ms A] had been listed as his authorised recipient in his visa application may raise concerns that his claims are not his own and were given to him by someone else. The applicant did not respond to the concern.

    Failure to appear at resumed hearing

21. As noted above, on 9 January 2025 the Tribunal invited the applicant to attend a resumed hearing on 19 February 2025 at 2:00pm. The applicant did not attend the hearing and there is no evidence that he requested an adjournment or postponement of the hearing.

    Adverse information put to the applicant in writing pursuant to s 359A of the Act

22. On 11 March 2025 the Tribunal wrote to the applicant in accordance with s 359A of the Act, inviting him to comment on certain information which it considered would, subject to his comments, be the reason, or part of the reason, for affirming the decision under review.

23. The Tribunal put to the applicant that in his Protection visa application, he had nominated [Ms A] as his authorised recipient and listed this person’s address and mobile telephone details. The Tribunal set out written claims which the applicant had made, which are also set out at paragraph 21 of these reasons for decision. The Tribunal put to the applicant that it had identified 6 other Protection visa applications in which decisions have been made by the Tribunal which list [Ms A] as the authorised recipient and which contain identical or near-identical claims to those included in his visa application, including claims which contain the same errors of expression and typographic errors. The Tribunal listed the Tribunal application numbers for each of these cases, which had been lodged with the Department between 23 June 2017 and 15 March 2018 (the applicant’s claim was lodged with the Department on 28 August 2017, after four of the applications had been lodged with the Department).

24. The Tribunal put to the applicant that:

    a.All six of the visa applications contain identically worded claims to his claims which are set out in paragraphs 21(b) to (f) of these reasons for decision;

    b.In five of the visa applications, the applicant claims that they were offered only half of the market price as compensation for their land; and

    c.One of the six cases was appealed to the Federal Circuit Court of Australia, which published its decision in [deleted]. Given the Court’s decision is a published document, the Tribunal set out the text of claims that had been included in the visa application for that claim and highlighted the text which was identical to claims made by the applicant in the current case (the identical wording is underlined below):

    I was persecuted by Chinese Government because I protest against the Government’s officials’ corruption.

    I have a cornfield in my hometown and the field of land was very good all the time. One day the local Government noticed us that our land would be collected. The compensation only have half price of the market price.

    One day when I was working, my wife called me and siad that the local Government sent people to my land to remove. They smashed all goods of land and forced us to sign the collection agreement. We were beaten by them because refused to sign it. We were very angry and have no chioce.

    My neighbour told me that we can wrote complaint letter to reveal the officials’ corruption behaviour.

    After we submitted the complaint letter to city government, they sent police to catch us. I was so scared, escape China and fled to Australia. Please protect me.

25. The Tribunal also put to the applicant information from an article published in the [newspaper] on 24 December 2018, which indicates that Ms [Ms A] was arrested in December 2018 and charged with offences under the Migration Act, including giving immigration assistance while not being a registered migration agent, receiving fees while not being a registered migration agent, falsely representing herself as a migration agent and advertising immigration assistance when not a registered agent, and that she submitted more than 1700 visa applications to the Department. A copy of the article was sent to the applicant.

26. The Tribunal put to the applicant that the information may be relevant because it may indicate that the claims contained in his visa application are not his own and have been provided by someone else for the purpose of claiming protection. The Tribunal put to the applicant that the evidence he gave at the hearing about the preparation of the visa application may not have been truthful, and that he may have shifted his evidence about the assistance he received in making the visa application in response to questions and information put to him by the Tribunal. The Tribunal also put to the applicant that the information may suggest that the applicant is not a truthful or credible witness.

27. The Tribunal invited the applicant to comment on the information in writing by 18 March 2025. No response was received in relation to the Tribunal’s letter.

    Making a decision in the proceeding without holding a hearing

28. Under s 106(3) of the ART Act, the Tribunal may make a decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.

29. Under s 106(5) of the ART Act, where a party to the proceeding fails to appear at a Tribunal case event that relates to the proceeding, the party is not a non-participating party and the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event, the Tribunal may make its decision in the proceeding without holding a hearing where it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

1. In this case, the hearing record and a case note of the Tribunal officer who assisted the Tribunal with the resumed hearing scheduled for 2:00pm on 19 February 2025 indicate that checks of the reception areas of the Tribunal Registry were conducted at 2:00pm, 2:15pm and 2:30pm on the day of the hearing and the applicant failed to appear. ‘Tribunal case event’ is defined in s 4 of the ART Act to include ‘the hearing, or part of the hearing, of the proceeding’. I am satisfied that the resumed hearing scheduled for 19 February 2025 was part of the hearing of the proceeding. I am therefore satisfied that the applicant failed to appear at a Tribunal case event that relates to the proceeding, and therefore paragraph 106(5)(a) is satisfied.

2. The applicant is not a non-participating party to the proceeding or Tribunal case event, and therefore paragraph 106(5)(b) is satisfied.

3. Having reviewed the Tribunal file, I am satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event. A hearing invitation was sent to the applicant on 9 January 2025 using the last email address the applicant provided in connection with the application for review, namely, that provided by the applicant with the Change of Contact Details form submitted to the Tribunal on 2 December 2024. Therefore paragraph 106(5)(c) is satisfied.

4. The Tribunal has also considered whether it appears that the issues for determination in the proceeding can be adequately determine din the absence of the parties to the proceeding, as required by paragraph 106(5)(d) of the ART Act.

5. In reviewing a decision to refuse to grant a protection visa, the issues which the Tribunal is required to determine are:

   a.Whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in s 5J(1)(a) of the Act if he is returned to his home country; and

   b.Whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

6. In this case, it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of holding the resumed hearing. The Tribunal notes that it held a hearing in this case on 7 January 2025 which was of over two hours duration. At that hearing, the Tribunal gave the applicant a detailed introduction which explained the hearing process and the issues which the Tribunal is required to determine. The Tribunal heard evidence from the applicant for over 90 minutes, including evidence as to his background and his claims for protection. The Tribunal also raised a number of potential concerns with the applicant regarding his evidence and his claims for protection and gave the applicant the opportunity to respond to these. The Tribunal also briefly discussed with the applicant country information about the system of rural land ownership in China. The Tribunal adjourned the hearing for one month to allow the applicant to provide supporting documents, given his repeated evidence that he could obtain documents in support of his claims. All that remained for the Tribunal to do at the resumed hearing was discuss with the applicant the country information regarding the situation for petitioners and protestors in China, raise additional potential concerns regarding the applicant’s evidence and claims for protection and discuss with the applicant any supporting documents which he provided.

7. Over two months have now passed since the hearing on 7 January 2025 and the applicant has not provided any documentary evidence in support of his claims, despite the Tribunal discussing with him at the hearing the types of evidence he could provide and summarising this for him at the end of that hearing. The Tribunal also notes that in his response to the hearing invitation for 7 January 2025, which was signed by the applicant and dated 10 December 2024, the applicant indicated, ‘I will have evidence to support my claim, and its in overseas, I will try to have it.’ The Tribunal considers the applicant has had sufficient time to provide supporting documents.

8. As noted above, on 11 March 2025 the Tribunal used the process in s 359A of the Act to put to the applicant in writing certain information which would, subject to his comments, be the reason, or part of the reason, for the Tribunal affirming the decision under review. The applicant was given until 18 March 2025 to respond to the information. No response has been received from the applicant. Given the concerns which are set out below regarding the applicant’s evidence and claims for protection, the Tribunal finds it is able to make its decision without relying on the country information regarding the situation for petitioners and protestors in China.

9. The Tribunal notes that in addition to the above, it has before it a copy of the Department file, which includes a copy of the applicant’s Protection visa application form, which contains his background information and his claims for protection. The applicant has also provided the Tribunal with a copy of the delegate’s reasons for decision and copies of his Chinese passports. The Tribunal is able to determine the applicant’s identity and receiving country. Based on the information and evidence before the Tribunal, it is able to form conclusions about whether the applicant meets the criteria for a Protection visa in ss 36(2)(a) and 36(2)(aa) of the Act without seeking further evidence or submissions from the applicant.

10. I have also considered whether under the circumstances it would be preferable to exercise the Tribunal’s discretion to dismiss the application for review instead of making a decision without holding the hearing of the proceeding, or whether it would be preferable to schedule a further hearing. Under the circumstances, I consider it preferable to make a decision without holding the hearing of the proceeding, rather than to dismiss the application for review. This is because the Tribunal has part-heard the hearing and taken evidence from the applicant regarding his background and claims for protection, as well as put concerns to him about his evidence and claims, both at the hearing held on 7 January 2025 and in writing under s 359A of the Act, and considers it appropriate to address the evidence given by the applicant rather than dismiss the application for review. I also note that the Tribunal has dismissed the application for review on one occasion already, on 7 November 2024, following the applicant’s failure to attend the hearing which was scheduled for 6 November 2024. Under the circumstances, I consider it preferable to make a decision without holding a hearing of the proceeding, rather than dismiss the application for review a second time.

11. I also do not consider it preferable to schedule another hearing given the opportunities which the applicant has already had to attend hearings, which are set out in the reasons above, as well as the lack of explanation from the applicant as to his non-attendance at the hearing despite over one month having passed since the hearing date.

12. After considering all of the documents, things and evidence given to the Tribunal, the Tribunal has decided to make a decision in relation to the application for review without holding the resumed hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for protection visa

13. 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.

14. 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.

15. 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).

16. 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.

17. 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

18. 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.

    REASONS AND FINDINGS

19. The issue in this case is whether the applicant is a refugee, in particular, whether he has a well-founded fear of being persecuted in China for one or more of the five reasons set out in s 5J(1) of the Act. If he does not meet the refugee criterion, the Tribunal must consider whether the applicant meets the criteria for complementary protection, in particular, whether as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that he will suffer significant harm. The Tribunal also needs to consider whether the applicant satisfies s 36(2)(b) of the Act on the basis of being a member of the same family unit as a non-citizen who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a Protection visa.

20. The applicant provided the Department and Tribunal with copies of his Chinese passports. The Tribunal is satisfied on the basis of this information that the applicant is a citizen of China. It has assessed him against that country for determining both whether he has a well-founded fear of persecution for the purposes of s 36(2)(a) of the Act and in determining his ‘receiving country’ for the purposes of s 36(2)(aa) of the Act.

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

22. 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 themselves, in as much detail as is necessary to enable an examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Ngalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169).

23. On the basis of the applicant’s Chinese passports, I accept that he was born in Shandong province, China.

24. The applicant is a [age]-year-old Chinese man. In his written application he claims that he was persecuted by the Chinese government because he made a petition which revealed corruption of Chinese government officials. He claims that his local government issued a notice for acquisition of his family’s land, but the compensation offered was only half of the market price, so they disagreed and did not sign the agreement.  He claims that the local government sent people to ‘collect’ the land and forced he and his father to sign the agreement. He claims that his father was beaten. He also claims that he called the police, but they ignored his case. He claims that he and his father then submitted a complaint letter to the city government, but when officials knew of his behaviour, they sent the police to catch them. He claims that he and his father were very scared, so they fled to Australia.

25. In his oral evidence at the hearing on 7 January 2025, the applicant stated that he holds the certificate for the land in question, as the land was transferred to him by his father when he married. He claims that the village government and a developer wanted him to sign a contract for the expropriation of the land, but he refused to sign it because the amount offered was half that which was set out in a government document which had been circulated. He claims that the village government and developer were not able to take the land as the applicant owns the land and it is different from other ‘roll-over’ rural land owned communally by the village. He claims that both he and his father were beaten by the village head, the head of the development company and three other men in the village committee office when they refused to sign the contract. He claims that as they were taken to the hospital, they were stopped by three men and beaten further. He claims that he was hospitalised for one-and-a-half month and his father was hospitalised for three months. He claims that he and his father petitioned to the town government, but their petition was rejected. He claims they then petitioned the county government, but they were closely watched by officials and were unable to lodge the petition at the petitioning office. He claims that around April 2017, he and his father were detained for two days at a police station and were beaten and threatened not to continue their petitioning. He claims that after this, he and his father prepared to leave China. He claims that after he left China, his family in China continued to be harassed every six months, with the last time this occurred being in January 2019. When questioned about his father’s return to China in January 2024, the applicant subsequently contradicted this evidence and claimed that his father has received harassment, including demands that he make payments for economic loss. He claims that his father’s freedom of movement has been restricted, which includes blocking his father’s ability to lodge a petition.

26. The Tribunal has a number of concerns with the applicant’s claims. Firstly, the applicant has provided no documentary evidence to support his claims, despite claiming at various points in the hearing that he can obtain documents from China. At the hearing on 7 January 2025, the Tribunal discussed with the applicant examples of evidence he could provide to support his claims. These included land certificates or evidence of ownership rights to the land in question, a copy of the contract or offer which was made to the applicant, the government document which he claims listed the amount of compensation he should have been paid, evidence of his and his father’s hospital treatment, any police records, copies of petitions or complaint letters to government and any evidence of threats he or his family members have received. The applicant told the Tribunal that he has a copy of the land ownership certificate, a copy of the contract he was offered for the land and medical certificates. The Tribunal adjourned the hearing for approximately one month to allow the applicant to provide documentary evidence, but despite this, no supporting documents have been provided.

27. The applicant’s Protection visa application was lodged with the Department on 28 August 2017, and yet despite the passing of over 7 years and 6 months, he has not provided any documentary evidence in support of his claims. I also note that the Department sent a s 56 letter to the applicant on 14 October 2020, inviting him to provide additional information about his claims. The Department’s letter advised the applicant that he had provided no evidence in support of his claims, and invited him to provide such evidence, including copies of land documents/title deeds, copies of the offers of compensation he received, copies of letters or petitions to government officials, arrest warrants and other documents related to his claimed detention and copies of the document he claimed he refused to sign. The applicant did not respond to the Department’s letter. Further, on 12 December 2024 the applicant responded to the hearing invitation for 7 January 2025. In his response to the hearing invitation, he stated that he will have evidence to support his claims, which he had overseas.

28. The Tribunal has concerns that the applicant has provided no supporting evidence, despite his claim that he possesses a land certificate, a copy of the contract he was offered and medical records of his and his father’s hospital admissions. The Tribunal considers a person in the applicant’s position, who claims he fled his country for his safety and arrived in Australia to seek protection, would as a key priority take probative confirming evidence, and considers it would also be a priority for him to provide documents to the Tribunal which he claims are in his possession in China. The Tribunal also adjourned the hearing to allow the applicant to find the documents he claims are in his possession, but despite this, no supporting evidence has been forthcoming. Whilst the Tribunal does not consider this a determinative factor in adverse credibility findings, it nevertheless considers the applicant’s failure to provide any documentary evidence in support of his claims adds further concern to the credibility concerns which are set out below.

29. Secondly, the Tribunal has concerns with the applicant’s evidence that the land in question has not been expropriated because it is different to other rural land in China. He claimed that the land, which is agricultural land, has been owned by his family for generations and was given to him by his father when he married. He claims that he has a certificate for the land in his name. He claims that because of this, the village and developer can not take the land unless he agrees, and that they hate him because he has not agreed to sign over the land. The applicant’s evidence in this regard is not consistent with the country information, which indicates that, all land in urban areas continues to be owned by the state and that rural areas are collectively managed by villages.[1] DFAT advises that disputes often arose when local officials try to sell land and evict existing tenants after paying low amounts of compensation. While China’s Civil Code (2020) came into force on 1 January 2021 and requires that fair and reasonable compensation be paid for expropriated land, the Code does not define ‘fair and reasonable’.[2] DFAT advises that land sales remain an important source of revenue for local governments, and that corruption in land dealings is commonly alleged.[3]

    [1] DFAT Country Information Report, People’s Republic of China, 27 December 2024, para 3.149.

    [2] DFAT Country Information Report, People’s Republic of China, 27 December 2024, para 3.149.

    [3] DFAT Country Information Report, People’s Republic of China, 27 December 2024, para 3.149.

1. The Tribunal does not accept the applicant’s claim that the land his family owns is different to other rural land in China and cannot be expropriated without their consent. Private land ownership is banned in China, and under the Household Responsibility Scheme which began in the early 1980s, all rural land in China is owned by rural collectives which allocate contract rights for parcels of farmland to households.[4] Article 10 of China’s Constitution states that land in cities is owned by the state, and land in rural and suburban areas is owned by collectives, with the only exception to this being land which belongs to the state as prescribed by law.[5] Article 10 of the Constitution states that housing sites and cropland which has been allotted for private use are also owned by collectives. Article 10 also states that the state may, in order to meet the demands of the public interest and in accordance with the provisions of the law, expropriate or requisition land and furnish compensation. Under this system, Chinese farmers are unable to legally resist land acquisition.[6]

   [4] Li, M., W. Zhang, and D. Hayes. (2018). ‘Can China’s Rural Land Policy Reforms Solve its Farmland Dilemma?’ Agricultural Policy Review, Winter 2018. Center for Agricultural and Rural Development, Iowa State University. Available at Constitution of the People’s Republic of China, amended 14 March 2004. English translation available at Li, M., W. Zhang, and D. Hayes. (2018). ‘Can China’s Rural Land Policy Reforms Solve its Farmland Dilemma?’ Agricultural Policy Review, Winter 2018. Center for Agricultural and Rural Development, Iowa State University. Available at >

   The Tribunal put to the applicant at the hearing on 7 January 2025 that all rural land in China is owned by village collectives and his claim that his land is different to this and cannot be expropriated by the village without his consent may raise concerns about the credibility of his claims. The applicant responded that the Tribunal was right in one sense, as the Chinese government can expropriate land where a large project is involved, but he claimed that his land is different in nature because it is not ‘rollover land’ but land with a ‘fixed land usage’. The applicant claimed that there are regulations which allow for this kind of land and that he would find them and provide them to the Tribunal. The applicant has not provided evidence of such regulations to the Tribunal despite the passing of over two months since the hearing on 7 January 2025.

2. The Tribunal does not accept the applicant’s claim that his family’s land is different to other rural land in China owned by rural collectives. The Tribunal prefers to accept the country information regarding the system of land ownership in China, and notes in particular that China’s Constitution indicates that all rural land in China is owned either by collectives or by the state. The Tribunal notes that the applicant’s claim that the land is different to other rural land because it has a ‘fixed land usage’, has been passed down from previous generations and involved land swaps with other families is entirely consistent with the land being rural land owned by a collective. The Tribunal notes that collective land is allocated for the purpose of agricultural production and cannot be converted to other land uses, although households may lease their land to other households for agricultural production.[7] The contractual rights which rural collectives allocate to households can also be renewed, thus the same land continuing to be held by later generations of the one family.[8]

   [7] Ibid.

   [8] Ibid.

3. The Tribunal finds the applicant’s evidence regarding the ownership of the land raises serious concerns about the credibility of his claims, in particular, his stated reason why the land has not been acquired by the village authority. The applicant gave evidence at the hearing that his family continues to own the land and that his father uses of some of it for agriculture and leases other parts out to other villagers through oral agreements. Given the country information indicates that rural households are unable to legally resist land acquisition by rural collectives, I do not accept the applicant’s claim that the land has not been taken by the village authority because it requires his consent, but rather, consider this suggests the land is of no interest to the village authority given over 8 years have passed since the events claimed by the applicant. The applicant’s lack of knowledge regarding the system of collective rural land ownership in China also raises doubts about his claim that he was involved in any way in negotiations for the expropriation of land or in the lodging of petitions.

4. Thirdly, I have concerns that the applicant provided untruthful evidence to the Tribunal regarding the preparation of his visa application and his claims. The applicant claimed at the start of the hearing on 7 January 2025 that he prepared the visa application himself, with the help of Google translate. When this evidence was put to him towards the end of that hearing, the applicant claimed that he translated the contents himself with Google translate and then had a friend help him by looking at what he had written. The applicant claimed that he was unable to remember his friend’s name, despite also telling the Tribunal that the friend had been his roommate. After the Tribunal put to the applicant that an authorised person by the name of ‘[Ms A]’ was listed in his visa application, the applicant stated that this was his roommate. He claimed that he has not contacted this person for a number of years but stated that this person’s surname is probably [name] and then recalled that his roommate was called ‘[name]’ because he was a bit younger than the applicant.

5. I do not accept the applicant’s claim that his roommate was known as ‘[name]’, nor do I accept that the person listed as the authorised recipient in his visa application was his roommate. I note that the contact details listed for the authorised representative in the applicant’s visa application are the same as those listed in the other six claims that were put to the applicant using the s 359A letter. I consider that the applicant’s evidence that ‘[name]’ was his housemate was manufactured in response to the Tribunal putting to him that the authorised recipient listed on his visa application was called [Ms A]. I find that the applicant’s evidence regarding the preparation of his visa application was untruthful and demonstrates his willingness to provide false information to the Tribunal. This is of particular concern given my concern that his claims for protection may not be his own, which is set out below. The applicant’s willingness to mislead the Tribunal about the preparation of his visa application also raises concerns about his truthfulness in general and whether he is a credible witness.

6. Fourthly, I have serious concerns that the claims contained in the applicant’s visa application are not his own and were provided to him by someone else for the purpose of claiming protection. In this regard I note the particulars of information which the Tribunal put to the applicant in the letter dated 11 March 2025. As noted above, this letter provided a list of six other applications which had been made with the assistance of [Ms A], who was listed as the applicant’s authorised recipient in his visa application, including one application in respect of which there is a decision of the Federal Circuit Court. All six visa applications contain identical claims to those which are set out at paragraphs 21(b) to (f) of these reasons for decision. All six applications contain the same errors of expression and issues with the tenses used in this text, such as ‘The government was corruption’ and ‘If I return to China, I will suffered persecuted by the police. Once I went into prison, I will die.’

100.   In addition, the reasons provided by the applicant in his visa application for leaving China contain information which is identical of near-identical to the claims contained in the six applications referred to in the Tribunal’s s 359A letter. All six applications contain reasons which are structured in the same way and contain a similar narrative, other than individual details being inserted such as whether the applicant lived in a rural or urban setting, as well as references to different family members. Three of the applications (Tribunal case numbers 1726482, 1726484 and 1729615) contain the same first sentence, including the same punctuation error, namely:

I was persecuted by Chinese government because I made petition to reveal the government’s officials’ corruption.

101.   All six applications refer to attempts by local authorities to expropriate the land, with five of the applications containing claims that the applicant was offered only half of the market price (Tribunal case numbers 1726484, 1729615, 1731105 and 1809945 and [a case]). A number of the claims contain identical phrases to those used in the current application for review, including ‘They destroy all good of land and threaten me’. A number of the claims also claim that ‘they sent the police to catch us.’ All six of the claims contain the phrase ‘escape China and fled to Australia’, with five of the claims also containing the final sentence ‘Please protect me.’

102.   In addition, the Tribunal put to the applicant information which indicates that the authorised recipient for his visa application, [Ms A], was arrested in December 2018 and charged with offences under the Act, including giving immigration assistance while not being a registered migration agent, receiving fees while not being a registered migration agent, falsely representing herself as a migration agent and advertising immigration assistance when not a registered agent, and that she submitted more than 1700 visa applications to the Department.[9] The Tribunal notes that while the [article] refers to Ms [A] as ‘[full name]’, the Tribunal is aware from its experience in hearing protection matters that the person referred to in this article is [Ms A], whose mobile number and postal address in [Suburb 1] are listed in the visa application under review and are identical to the contact details contained in the above six visa applications and others within the Tribunal’s files. The applicant was provided with this information in writing and given the opportunity to respond to it in writing. No response has been received from the applicant.

103.   I find this information raises significant concerns about the claims made by the applicant, including whether they are his own claims or were provided to him for the purpose of claiming protection. The wording contained in the applicant’s visa application is either identical or substantially the same as that used in at least six other visa applications, all of which list [Ms A] as the authorised recipient.

104.   While I have considered whether the similarities between the applications could merely be the result of the use of ‘template’ responses by the person or persons who prepared these applications, with the claims of the applicant being his own, I do not consider this to be the case for a number of reasons:

a.Firstly, the applicant had the opportunity to respond to the concerns raised in the Tribunal’s s 359A letter, but has not availed himself of that opportunity;

b.There are marked similarities between each of the claims made in the current application for review and the six other applications which have been noted, including the claim that only half of the market price of compensation was offered in five of these applications, as well as the use of a number of phrases that are common between the applications and which describe events that are critical to the applicant’s claims. For instance, common phasing is used to describe the disagreement about signing a ‘collection agreement’, the destruction of land by local officials, the use of beating (in the current case, of the applicant’s father), attempts to obtain protection from the police and this being ignored, the writing of a complaint letter, the hope of obtaining a ‘reasonable explanation and compensation’ and the police being sent to catch the applicant;

c.As noted above, the applicant provided untruthful evidence to the Tribunal about how he made the application for review and the assistance he received, as noted in my findings above. He shifted his evidence about the preparation of his application after the Tribunal raised concerns with him, and he unconvincingly attempted to explain that [Ms A] was his roommate, raising serious concerns that he attempted to conceal from the Tribunal the assistance he received in making the application; and

d.Fourthly, the applicant’s evidence regarding land ownership and his claims that his land is different from other collectively owned rural land, suggests a lack of knowledge on the applicant’s part regarding the system of land ownership in China and raises doubts that the applicant was ever involved in discussions with government authorities regarding the expropriation of land or attempted to lodge petitions in response.

[9] ‘[source deleted].

105.   Having considered the evidence as a whole, I am not satisfied that the applicant’s claims for protection are his own and have concerns that they have been provided to him by someone else for the purpose of claiming protection.

106.   When considered cumulatively, these concerns seriously undermine the applicant’s core claims and his credibility in general. They cause the Tribunal not to be satisfied with the applicant’s claims. The Tribunal does not accept that local government or village government authorities attempted to expropriate his land and offered him only half of the market price for the land. The Tribunal also does not accept that the government was unable to expropriate the land without obtaining the applicant’s signature or approval. The Tribunal considers that if a local government or village authority wished to expropriate the applicant’s land, it had the ability to do so under China’s Constitution. The Tribunal accepts the applicant’s evidence that the land has not been expropriated by government authorities and that it continues to be used by his family, in addition to parts of it being leased out to other families. The Tribunal considers that since the land continues to be occupied by the applicant’s family and over 8 years have passed since the events claimed by the applicant, the land is of no interest to government authorities. The Tribunal does not accept that a local government or village authority or a developer wishes to harm the applicant or his family because it wishes to expropriate land owned by the applicant’s family or for any other reason.

107.   The Tribunal does not accept that the applicant or his father were forced to sign a contract for the acquisition or expropriation of land, not that they refused to sign such a document. The Tribunal also does not accept that the applicant and his father were beaten up when they refused to sign such a document, nor that they were hospitalised as a result of their injuries. The Tribunal does not accept that people were sent to destroy the land, nor that the applicant and his family were threatened. It follows that I do not accept that police officers were called to assist the applicant and his family but refused to help, nor that the police were later sent to catch the applicant or his father. I do not accept that the applicant and his father were arrested by the police and detained for two days, nor that they were beaten by the police or anyone else while in custody. I do not accept that the applicant or his father wrote a complaint letter or that they made any attempts to lodge a petition. I also do not accept that the applicant’s family received threats after he and his father departed China, nor that his father has received any threats or restrictions on his movement on his return to China in January 2024.

108.   The Tribunal notes that there are a number of other concerns with the applicant’s evidence, which it did not have an opportunity to put to him because he did not attend the resumed hearing. These include concerns regarding inconsistencies in his written claims and evidence and the plausibility and credibility of aspects of his evidence. Given the findings I have made regarding the applicant’s truthfulness as a witness and the credibility of his claims on the basis of concerns which were put to the applicant at the hearing on 7 January 2025 or in writing, I consider that I do not need to rely on these additional concerns.

Does the applicant satisfy the refugee criterion for protection?

109.   Given the above findings, I do not accept that the applicant, his father or any member of his family are of any adverse interest to local government or village authorities or to developers in connection with plans to expropriate land owned by the applicant or his family. I do not accept that the applicant or any member of his family experienced any past harm on this basis in China, nor do I accept that he is of any interest to anyone in China on the basis of the claims he has made in his visa application or in his evidence at the hearing on 7 January 2025. I note that on the applicant’s own evidence at the hearing, his father returned to China in January 2024 and resides at the family home where the applicant lived prior to arriving in Australia. He gave evidence that his father continues to use the land for agriculture and leases some of the land to other villagers. I have not accepted the applicant’s claims about threats made to his family members after he departed China, nor that his father has been threatened since returning to China in January 2024. I do not accept that the applicant would seek to lodge a petition or to protest on return to China in relation to his family’s agricultural land, which on his own evidence, they continue to possess and use. I find there is no credible evidence that the applicant would be of adverse interest to anyone upon return to China in connection with his or his family’s possession of this land or for any reason.

110.   On the evidence before it, the Tribunal is not satisfied that the applicant has experienced persecution in the past, nor that he has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of his membership of a particular social group if he returns to China in the foreseeable future. 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) of the Act.

Does the applicant satisfy the complementary protection criterion for protection?

111.   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).

112.   For the reasons set out above, the Tribunal has found that there is not a real chance that the applicant will experience any harm from anyone due to his political opinion or any other reason if he returns to China, now of in the reasonably foreseeable future. I have not accepted that the applicant was harmed in any way as a result of his or his father refusing to sign a contract for the expropriation of land, nor that he would experience any harm on this or any other basis on return to China.

113.   On the evidence before it, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture, to cruel or inhuman treatment or punishment or to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future on the basis of his claims regarding petitioning about the expropriation of land, or for any other reason. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

CONCLUSIONS

114.   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).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. 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

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

Dates of hearing(s):    7 January 2025

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 uo

(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.

…