2100998 (Refugee)

2100998 (Refugee) [2022] AATA 1361 (16 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2100998

COUNTRY OF REFERENCE: China
MEMBER:Jane Marquard
DATE:16 March 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 March 2022 at 4:22pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – opposition to government corruption – particular social group – one-child policy – land resumption – forced relocation – fear of physical assault – social compensation fee paid – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 2A, 18B
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 420, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is [an age]-year-old man from the People’s Republic of China (China).
He arrived in Australia [in] September 2017 on a [Visitor] visa.
He applied for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 13 October 2017. He sought protection from persecution by his village head, claiming that he had been threatened by the village head after he complained about corrupt behaviour.
A delegate of the Minister for Home Affairs refused to grant the visa on 28 January 2021.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criterion, the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.
SUMMARY OF FINDINGS
For the reasons set out below, the Tribunal has decided to affirm the decision under review.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
Australia acceded to the 1951 Convention relating to Status of Refugees[1] in 1954 and to the 1967 Protocol relating to the Status of Refugees[2] in 1973, thereby undertaking to apply their substantive provisions.[3] For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]
[1] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[2] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
[3] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’)
[4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
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). Extracts of the relevant legislative provisions are set out in the Attachment to this decision.
An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Act. 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.
Refugee criterion
Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J (2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs 190 CLR 225 (Brennan CJ).
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–5LA of the Act, which are extracted in the Attachment to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in the Attachment to this decision.
The applicant must satisfy the statutory elements
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.
The applicant must satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia (1999) 197 CLR 510).
Mandatory considerations
In accordance with Ministerial Direction No.84,[5] made under s.499 of the Act, the Tribunal must take account of the ‘Refugee Law Guidelines’[6] and ‘Complementary Protection Guidelines’[7] prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. While the Tribunal should have regard to policy, as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[8]
[5] Ministerial Direction No.84, Consideration of Protection Visa applications, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, 24 June 2019
[6] Policy – Refugee and humanitarian – Refugee Law Guidelines, Section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines), Department of Home Affairs
[7] Policy – Refugee and humanitarian - Complementary Protection Guidelines, Department of Home Affairs
[8] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
DECISION OF THE DEPARTMENT OF HOME AFFAIRS
The Department was not satisfied that the applicant had suffered the harm claimed, due to lack of detail in his claims.
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, evidence to this Tribunal and independent sources about China.
Summary of evidence in Department files
The applicant provided details of his claims in an application form to the Department, as well as supporting documents. A summary of his evidence follows.
The applicant stated in his application that he was born in [Town 1 in] Pizhou City, Jiangsu Province. The applicant said that he completed [school grade], then did some part-time jobs in a town factory. He was married [in] December 1991. He and his wife lived with his parents. Hie said that when his [child] was growing up they wanted to build a new house.
He said that the village committee announced that they could apply for rural residential lands in 2016. Their family members were happy that they could build a new house. The ownership was collective, but villagers had the right to live there permanently. The price was lower than normal market prices. However, the applicant’s application for a house was refused one week later on the basis of ‘no vacancies’. His neighbour had submitted later than the applicant did and was granted land. The applicant said that he went to see the village head, [Mr A] to ask the reason that his family had been refused. [Mr A] hinted that if the applicant gave him 8000 RMB he could help him. Other villagers told the applicant they had paid sums to the village head.
The applicant said that he felt angry about this corrupt behaviour, so he ‘collected relevant materials’ and wrote to the town government. Two weeks later he had not received a response. [Mr A] then asked the applicant to go to his office and said he had seen the letter and told the applicant that if he continued to complain, he would not be allowed to live in the village anymore. The applicant said that he felt scared. From then on, the village head had a ‘bad attitude’ towards his family.
The applicant stated that he then went to the [named town] Office. He reported [Mr A] and the town government. The officer at this government office said that they would investigate. The applicant then received an anonymous message, threatening him that his legs would be broken if he continued to report. He said that [Mr A] continued to be hostile to his family, and embezzled part of his family’s subsidy. The applicant felt depressed and wanted to flee, so he applied for a visa to Australia in 2017. He fears persecution from [Mr A] and other local officers.
Evidence before the Tribunal
The applicant appeared before the Tribunal by telephone on 8 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The evidence at the Tribunal hearing is summarised in the findings set out below.
FINDINGS AND REASONS OF THIS TRIBUNAL
Key issues for determination
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
· Whether the incidents described by the applicant took place in China (findings of fact).
· Whether there is a real chance of serious harm or a real risk of significant harm if the applicant were to return to China.
These issues and other threshold issues are discussed below.
Providing an opportunity to be heard
The Tribunal exercised its discretion to hold the hearing by means of telephone and is satisfied that this format provided a real opportunity to be heard.
In exercising this discretion, the Tribunal took into consideration the legislative requirement that the Tribunal must pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick. The mechanism of review must also be proportionate to the importance and complexity of the matter and promote public trust and confidence in the decision-making of the Tribunal.[9] The Tribunal also had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.[10]
[9] Section 420 of the Act and s 2A of the Administrative Appeals Tribunal Act 1975 (Cth)
[10] Issued under s 18B of the Administrative Appeals Tribunal Act 1975 (Cth)
The Tribunal was satisfied that it was reasonable to hold a hearing by telephone due to restrictions imposed by the COVID-19 pandemic and having regard to the nature of this matter and the individual circumstances of the applicant – most importantly that there has already been significant delay and the matter should be heard expeditiously. The applicant requested a telephone rather than a video hearing.
The applicant and interpreter confirmed that they could hear well. There was appropriate communication between all parties during the hearing. The Tribunal is satisfied that the hearing provided a real opportunity to give evidence and present arguments in the format utilised.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’, or if they do not have a nationality, outside the country of former habitual residence. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country, or a country of former habitual residence.
The applicant has a passport from China, issued in 2016. The Tribunal is satisfied on the basis of his passport and testimony that the applicant is a national of China, and that China is the receiving country for the purposes of the legislation.
Findings of fact
When assessing claims the Tribunal must make findings of fact in relation to the claims made. Asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Experiences in an applicant’s home country may also lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may be impacted by cultural or psychological issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[11]
[11] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, >
Assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[12] Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[13] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[14]
[12] Fox v Percy (2003) 214 CLR 118
[13] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511,< Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
The Tribunal is conscious and mindful that there may be factors that consciously or otherwise influence decisions.[15] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[16] in ensuring that the process of credibility assessment is reflective and fair. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[15] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[16] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[17] A similar approach is taken in the Department’s ‘Refugee Law Guidelines’[18] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’),[19] which provides useful guidance for this Tribunal. The Tribunal has also taken into consideration the Tribunal’s ‘Guidelines on the Assessment of Credibility’,[20] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind.
[17] SZLVZ v MIAC [2008] FCA 1816
[18] Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[19] UNHCR, re-issued February 2019 at 203-204]
[20] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, >
In making its findings, the Tribunal has been guided by the decisions and commentaries above, noting however that the Tribunal is not required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437).
The Tribunal accepts the applicant’s evidence to the Tribunal that he was born in [Town 1], Pizhou City, Jiangsu Province and that his parents, wife and children are living in China. The Tribunal accepts that in China, he had irregular work in [a specified industry] and that he lived with his wife and children. This is evidence consistent with his Department evidence.
The Tribunal has considered the applicant’s evidence as a whole (as suggested in Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997) and the Migration and Refugee Division ‘Guidelines on the Assessment of Credibility’.[21] The Tribunal is not satisfied that the applicant is a credible witness in regard to his claims for protection and has thus not given him the benefit of the doubt, as suggested in a number of cases and guides.[22] The reason for this finding is that the applicant provided entirely different evidence to the Department and to the Tribunal about his claims for protection, without any reasonable explanation, as discussed in detail below.
[21] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, SZLVZ v MIAC [2008] FCA 1816; Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
In his application forms for the protection visa, he claimed that in China he lived with his parents in the village and his [child] was growing up and they wanted a house. He claimed that in 2016 his village committee announced that villagers could apply for rural residential lands, with a price lower than normal market prices. He claimed that his application was refused and the village head, [Mr A] asked for a bribe in order to have his application approved. The applicant claimed that he felt angry about this, so he collected ‘relevant materials’ and wrote to the town government. The applicant claimed that [Mr A] then told the applicant that the applicant would not be allowed to live in the village anymore if he continued to complain and from then on, the village head had a ‘bad attitude’ to his family. The applicant claimed that he continued to report the village head and he then received an anonymous message, threatening him that his legs would be broken if he continued to report. He claimed that [Mr A] embezzled part of his family’s subsidy. He claimed that he left China because he feared persecution from [Mr A] and other officials.
The applicant’s evidence to the Tribunal was entirely different. He said that [in] September 2017 he came to Australia on a tourist visa and in October 2017 he applied for a protection visa using a lawyer recommended to him. He said that he has lost contact with this lawyer. He said that the reason he needs protection is that there is a one-child policy in China. He said that he and his wife are fond of children. His first [child] was born on [date] and the second on [date]. He said that they then had a third child, in breach of the one-child policy. He said that in 1996/7 they had to pay a fine of $40,000 which ‘took up all their assets’, as their annual income was $3000 to $4000 a year.
The applicant was asked by the Tribunal why he fears returning to China. He said that he has been in Australia for more than four years. He said that there is protection of human rights and freedom in Australia, so he wants to stay and live in Australia. He said that this is his fear about returning.
The Tribunal asked the applicant if he has any other fears of returning to China. He said that he has difficulty talking about it. The Tribunal explained that it was important he present his claims for protection to the Tribunal. The applicant said that he was nervous. The Tribunal asked him if he fears returning because of other reasons as well as the one-child policy. He said that China no longer has the one-child policy. He said that now the main reason he fears returning is that he likes the lifestyle in Australia and can get the life he wants in Australia. He said that as a worker you go to the office to get a driver’s licence and can be treated very nicely. He said that if you wear workers’ clothes and go to hospital you are treated well. In China people wearing dirty workers’ suits are ignored. He said that he likes that people are treated equally in Australia.
He said that he was against the one-child policy, so he had no land in the village and they borrowed money for the ‘cheapest apartment in town’. He said that his wife and one child are living in town still, and the other children are living elsewhere.
He was asked if there was any other reason he fears returning to China. He said that there was ‘nothing else’.
The Tribunal suggested to the applicant that as he had paid the social compensation fee in the 1990s there would be no on-going interest in him from the authorities now that the one-child policy has changed. He agreed with this proposition, and said that he has no fears relating to the one-child policy anymore. He said he is more concerned that he cannot save money in China.
Towards the end of the hearing, the Tribunal discussed with the applicant that he must face a real chance of serious harm or a real risk of significant harm in order to meet the protection visa criteria. He then said that there was an election and he did not give his vote to someone who was nominated in 1998 and 1999. He was asked why this would be of any concern to him in 2022. He said that this is the reason he seldom goes back to his hometown.
The Tribunal put the differences in evidence to the applicant at the Tribunal hearing pursuant to the natural justice provisions in the legislation[23] providing him with the opportunity to comment or respond. The Tribunal explained to the applicant that such central inconsistencies caused the Tribunal to question the veracity of his claims, subject to his comments or response. The applicant said that the reasons he provided to the Department for his fear of returning to China, were similar to the reasons provided to the Tribunal. He said that as he was against the one-child policy his land was confiscated. The Tribunal asked him why he did not mention his opposition to the one-child policy in his application or that his land was taken for this reason. He said that he mentioned information about his land being taken. He said that he does not know why his lawyer did not mention the one-child policy.
[23] Section 424AA of the Act
The Tribunal does not accept that the evidence given to the Department and Tribunal was ‘similar’ as claimed by the applicant. In his evidence to the Department, the applicant claimed that he lived with his parents in the village, and feared returning to China because a village head, [Mr A], had refused to grant him land, and then asked for a bribe. He claimed that when he reported this village head to a number of levels of government, [Mr A] threatened him and caused difficulties for his family, which has caused him to fear returning. At the Tribunal hearing he did not mention [Mr A], or a dispute with the village head, or reporting the village head which led to threats. Rather, he claimed that he had to pay a fine in the 1990s for breaching the one-child policy, and that he had no land in the village for this reason and lived in the town, rather than the village as claimed in his application. He did not claim to fear a village head or local officials. He told the Tribunal that he feared returning because he likes the lifestyle in Australia and can get the life he wants in Australia. When asked if he had any other fears, he said that he did not. He also claimed that he no longer had any fears associated with the one-child policy and did not want to leave Australia as he liked the freedom and respect of Australian society, as well as his ability to save money in Australia.
Clearly the evidence of the applicant to the Department and to the Tribunal of what took place in China, as well as the reasons for his fears, is inconsistent. The Tribunal has taken into consideration in assessing the credibility of the claims, this overall lack of consistency and coherence in the applicant’s account.[24] In doing so, the Tribunal recognises that psychological research on memory of trauma[25] does suggest that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. The Tribunal has taken care in assessment of evidence to acknowledge that not all memory deficit correlates with lack of veracity, as research demonstrates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[26] However in assessing the significance of the inconsistencies within the evidence as a whole,[27] the Tribunal finds that the differences are material to the claims[28] and in this case are not explainable by trauma or other factors. Furthermore, this is not the type of case in which a part of the evidence is credible even though other parts are not. The Tribunal has considered issues raised in Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan,[29] in which Foster J counselled that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’ There may for example be instances where applicants have lied or exaggerated about one aspect of the evidence. There is no doubt that in some cases specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.[30]
[24] As suggested in Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, M Conway, ‘Episodic Memories’ (2009) 47 Neuropsychologia 2305; J Herlihy, L Jobson, and S Turner, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’ (2012) 26 Applied Cognitive Psychology 661; C Brewin, ‘The nature and significance of memory disturbance in posttraumatic stress disorder’ (2011) 7 Annual Review of Clinical Psychology 203
[26] H E Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law 469
[27] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
[28] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, - ‘claims. contradictions, omissions or inconsistencies are material to an applicant’s claims and would lead to an adverse finding of credibility’
[29](1996) 40 ALD 445
[30] J Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
However in this case, the applicant provided a different set of claims altogether, which causes the Tribunal to conclude that the evidence has been fabricated in entirety for the purposes of the refugee claims.
The Tribunal does not accept therefore that the applicant was refused a piece of land by the village head, that the village head requested a bribe, or that the applicant reported the village head to various levels of government. The Tribunal also does not accept that the applicant was threatened by the village head or that the village head stopped benefits to his family. The Tribunal also does not accept that the applicant faced repercussions in regard to the one-child policy (other than paying the social compensation fee), including not being able to get land or having land taken away.
Late in the Tribunal hearing, the applicant referred to an incident in 1998/9 when he did not support a political candidate in his village. The Tribunal asked the applicant why he did not mention this incident in his Department application or earlier in the Tribunal hearing when he had been asked if he had other fears of returning. He said that he has provided all his reasons. This response does not explain why this evidence was added at the end of the Tribunal hearing, although earlier the Tribunal had asked the applicant if he had any other fears. It also does not explain why he did not include this incident in his Department application. The Tribunal does not accept in light of the discrepancies in evidence that the applicant fears returning due to not supporting a political candidate in the 1990s.
The refugee criterion
Well-founded fear of persecution – principles
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 themself of the protection of that country.[31]
[31] Section 5H(1) of the Act
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for one of the stated reasons?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.
The Tribunal is not satisfied that the applicant fears being persecuted for one of the stated reasons. The Tribunal has not accepted that the applicant was threatened by a village head, nor that he did not support a particular candidate in elections in the 1990s. The Tribunal is not satisfied therefore that the applicant fears returning to China on the basis of these incidents. The applicant has confirmed that he does not fear returning to China on the basis of past breaches of the one-child policy. The applicant has also indicated that he wishes to stay in Australia to save money, and because in Australia in contrast to China people are treated with respect and equality. A desire to remain in Australia does not equate with a genuine fear of returning for one of the reasons set out in the legislation. Lack of respect in a community does not amount to persecution for one of the stated reasons.
The Tribunal is not satisfied therefore that the applicant fears being persecuted in China for one of the stated reasons.
Is there a real chance of serious harm if the applicant were to return to their home country?
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act provides an objective element to that concept;[32] not only must a person fear persecution, there must be a prospect of that fear being realised.
[32] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees>
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[33]
[33] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171
In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation.’
The Tribunal has also taken into account the High Court’s guidance in MIEA v Guo (1997) 191 CLR 559, ‘Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’
The Tribunal is not satisfied that the applicant was harmed in the past for breach of the one-child policy, or because he reported a village head to various levels of government or because he did not support a particular political candidate. It follows that the Tribunal is not satisfied that there is a real chance of serious harm from the authorities or particular individuals on the basis of these past acts. This conclusion is reinforced when considering that the applicant has said that he wishes to remain in Australia because it is easier to save money and because of the respectful and tolerant nature of Australian society. The applicant’s experience of Australian life may be far preferable than his experience of life in China, however this does not mean that there is a real chance of serious harm for one of the reasons set out in the legislation. Being treated disrespectfully in China is not serious harm, as that is envisaged by the legislators. The Tribunal is not satisfied on the evidence provided that there is a real chance of serious harm if the applicant were to return to China in the reasonably foreseeable future on the basis of past events, or from any party, including local authorities or individuals for any other reason.
Summary of findings – refugee criterion

The Tribunal has considered the applicant’s claims, individually and cumulatively. It is not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s 5J(1), now or in the reasonably foreseeable future, if he returns to China. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: the complementary protection criterion.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
In accordance with Ministerial Direction No.84, the Tribunal must have regard to the Department’s PAM3 Refugee and Humanitarian – Complementary Protection Guidelines.[34] Unless policy is unlawful or there are cogent reasons as to why the Tribunal should depart from the policy, the Tribunal should have regard to government policy or policy from regulatory agencies. However policy should not simply be applied without independent government scrutiny and to do so would be an error of law (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60). The Complementary Protection Guidelines are comprehensive and useful, and do not appear to be inconsistent with authoritative case law regarding s 36(2)(aa).
[34] Department of Home Affairs, PAM 3, Refugee and humanitarian – complementary protection guidelines, re-issued 21 May 2015
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that the applicant has a real chance of any kind of serious harm, for reasons set out earlier in this decision. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.
Summary of findings – complementary protection criterion
The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
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).
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).
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

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

[2022] AATA 1361

16 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Natural Justice

Statutory Construction