2101059 (Refugee) - [2025] ARTA 814

2101059 (REFUGEE) [2025] ARTA 814 (25 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2101059
Tribunal:General Member R Johnston
Date:25 February 2025

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 25 February 2025 at 10:57am
CATCHWORDS
REFUGEE – protection visa – China – harm from industrial pollution – applicant’s health and wife’s illness and pregnancy difficulties – participation in protests and official complaints – harassed, beaten and detained by police – bribed at airport – undetailed, inconsistent and some implausible claims and evidence and no documentation – passage of time, now divorced and ex-wife still living in same apartment – country information – exit procedures – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of China, applied for the visa on 10 August 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
On 1 February 2021 the applicant lodged an application for review of the delegate’s refusal decision with the former Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (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.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant lodged a protection visa application on 10 August 2017. In that application he provided the following:
·     He was born in [Year] in Rongcheng, Shandong, China.
·     He married in January 2005. His mother and father reside in China.
·     Whilst in China he resided in Rongcheng, Shandong until December 2004. From January 2005 until July 2015 he resided in Weihai, Shandong. From August 2015 until April 2017 he resided in Rongcheng, Shandong.
·     He speaks, reads, and writes Mandarin. He is Han Chinese and a Buddhist.
·     He attended primary and middle school in Shandong between [Year] and [Year]. He attended a [vocational] school between [Year] and [Year].
·     Between 1996 and 1999 he worked in a factory [doing job task 1]. Between 2000 and May 2017 he was [an occupation 1] [doing job task 2] for a private company in Weihai.
In a statement attached to his protection visa application the applicant made the following claims:
·     He got married in 2005. His wife worked at a [workplace 1] as [an occupation 2]. He was [an occupation 1] in a [workplace 2]. Their wages were low and they came from poor families. They struggled and bought a set of owner-occupied housing in the city finally. The set of housing was bought with a bank loan. Though it was expensive they were happy as they had their own home.
·     On September 2014 the nightmare came. There was a discarded plant area opposite their house, desolate and uninhabited. The property developer told them that a beautiful municipal garden would be built there. The garden was never constructed. A big company called [Chinese company] Branch of [Foreign company] arrived instead. They didn’t know what products were manufactured but the residents of the community felt a pungent odour and dense smoke sent out from the plant area since the factory moved in. The smell was extremely strong and quite unpleasant at night, carrying glue stink and a strong metal smell. It was choking. People often sneezed, coughed, or shed tears after smelling it.
·     His wife got pregnant at this time. They had a [child] and his parents took [the child] in the village. Rural families always expect more children, so they planned to have another child. To guarantee foetal health they had to close their doors and windows all day and prevent the smog entering the house. His wife felt ill. She felt oppressed and the house was poorly ventilated, and she felt dizzy and blurry.
·     At first, they did not care too much as they could not change the conditions and the factory operated legally and handled regular business registration procedures.
·     In her second month of pregnancy his wife felt a sharp pain in her belly and blood clot came from her body. The doctor said theirs was a sign of habitual abortion. His wife suffered several pregnancy reactions and stayed in bed at home most of the time. He went to work as usual. He smoked on the balcony. He cooked her good food. He remained perplexed how foetal development was influenced under good care. A medical examination report showed lead content was too high in her blood. They had to abandon their child via an operation as it would experience many congenital diseases. His blood examination results also indicated elevated levels of lead in his blood and heavy metal invaded his body and a slight toxic reaction was triggered. He could confirm that the toxin came from the factory that sent out poison gases every day. He was healthy before but after moving in felt nausea, listless, feckless, and had vomiting. The factory discharged a large amount of waste water and exhausted gases by violating the environment protection act. As a result all surrounding residents lived in a toxic environment, and both the air and water were contaminated.
·     He had to arrange an artificial abortion for his wife. He immediately contacted the property management company of his community, which took charge of cleaning and public security work for his community. He also contacted the representative family members of the Property Management Council. They prepared a health questionnaire and gave it out to every owner in the community. They hoped they could test their blood and urine. Many suffered many adverse reactions and many people’s blood tests showed bad results presenting chronic intoxication.
·     They reported the event to departments like the sub-district office, environmental management office, and complaints office of the district government hoping the government could solve the problem for them. They received no response. His wife suffered at home. She had a massive haemorrhage from the abortion. She had physical and psychological pain. He was distraught and depressed and in pain and in fear every day.
·     They had to move out of their house. They moved back to their parent’s house in August 2015, creating economic pressure on them. They had to drive from the countryside to the city every day. They dared not live in the new house decorated with more than RMB one hundred thousand Yuan.
·     After waiting for one year until 2016, by repeatedly reporting the situations to and continuously communicating with relevant government sectors, they finally gained a reply from the government. The government said that according to the comprehensive investigation, the factory [Company] handled complete procedures and the waste water and exhaust gases discharged by it did not reach the degree of influencing people’s health.
·     All the residents of the whole community decided to initiate a protest action. In March 2016 all members of the community wrote a banner hoping to remove the factory and protect the environment. They put up the banner at the gate of the factory for demonstration. The gate of the factory was closed and no one gave any reply. They protested loudly but got no reply. They stood for two hours. Towards midday many patrol wagons arrived and a group of policemen holding guns came in with police whistles. They seemed commanding and suppressed them. One policeman asked them to withdraw immediately by holding a microphone. They didn’t compromise. They wanted the government to give an explanation. They were locked in a stalemate for nearly one hour. They policemen dispersed them by using force. They hit their heads with batons, whipped them with belts, and beat them in full spirit. Some comrades were overwhelmed and beaten down to the ground. They spread pepper spray and tear bombs to disperse them. They choked and cough and the smog in their eyes made them see nothing and they could not persist anymore.
·     His wife, himself, and some neighbours ran from the smog. They shouted their grievance in the sub-district office and local police station. They wanted to protest. The director of the sub-district office said this was nothing to do with them and ignored them. One police officer said the police intervened to maintain peace and security and did not use violence. One police officer recorded their names and ID card numbers and phone numbers stating they would contact them after thinking out a solution.
·     The next day all residents of the community submitted a written complaint to the district mayor’s secretary of district government office jointly, and contacted the newspaper office, trying to condemn the policemen atrocity. The newspaper refused to publish the article as it was too sensitive. The district mayor’s secretary did not give a response.
·     The factory of [Company] operated normally. They enhanced the police strength and security system at the gate. They also put up a notice that they would punish all protestors with force. They could do nothing. He and his wife lived at their parent’s house for a long time. They never stopped writing letters to the district government office, environment protection unit, and complaints office, expecting to receive a reply from the government.
·     His wife got pregnant again in August 2016. She was pregnant for three months. One day in August he took his wife to hospital with a motorbike for antenatal care. A group of policemen encircled the motorbike halfway asking him to get down. He stopped, was hustled, asked to take out a certificate, was examined, and was asked to give a penalty. They told him he should not carry another person who was not wearing a hard hat. He apologised. The police officer seemed to discover something and said ‘are you the guy who accused us by writing complaint letters? You are too rampant and arrogant. How dare you challenge the marshal? Don’t you know this factory of [Company] is the key foreign funded project introduced by the government? We just followed the orders. How dare you turn against us? Are you looking for a fight?’. The police officer slapped him, making his eyes blurred and his nose bleed. They gave him bashes and kicks. His wife protected him with her body. She requested the policemen spare his life. They slapped his wife vigorously and kicked her. She was kicked five meters away unable to move. He was kneeled to the ground unable to move. He requested to take his wife to the hospital. They kicked him again, foul-mouthed. He cried and called 120. An emergency ambulance arrived. He was taken to the district hospital. Treatment was conducted to prevent abortion. The abortion happened. His wife’s pelvic cavity was infected and she was extremely weak. She lost the ability to work. They lost a stable income. She was in bed all day unable to do housework. Their sexual life was impacted.
·     He appointed a lawyer to claim compensation from the policemen who beat them but the lawyers refused to accept his case knowing he wanted to accuse government officials. He went to the justice department in person and reported to some officers. All of them shook their heads after he mentioned his experience saying it was impossible as he had no evidence and he was challenging the government and system.
·     In order to improve his life and make more money he borrowed some money from his relative to buy a new car. As [an occupation 1] he had already owned a [car]. By buying another car he would be able to carry passengers at night. He drove cars in the daytime and carried passengers at night, so as to earn two incomes and support the family. After all he needed to support his child and sick wife.
·     Less than two or three months after leading such a busy life he was faced with another difficulty. On 12 December 2016 when he stopped his car near the airport waiting for a customer a policeman suddenly came. He knocked at his window, saying that he illegally parked his car and wrote out a ticket to him. He didn’t take any cash at that time so he promised to pay the fine as soon as possible. When he took enough money to pay the fine in a bank the next day, the payment information shown in the bank was the license number of his other car, so he felt quite angry. The policeman mistook his license number for payment. He was extremely indignant, because he was too busy to waste time on these trivial matters. He immediately called the traffic police department, ready to exchange with them. Their patrol wagon arrived quickly and took him to the patrol wagon without demur. He pushed them due to conditional reflex and they pinned him to the ground immediately. They said ‘you mob again? You are causing trouble all day. Wait a fix you’. He was really astonished and said ‘this is your fault, why are you pecking at me?’. They answered ‘you are on the blacklist now, when you drive or work, we will give you a hard time and put you to death, follow us to the detention house now’. He said ‘what did I do wrong?’. They said ‘we will accuse you of attacking police, you pushed us just now, and hurt us all’.
·     He was sent to the detention office of a nearby police station. They locked him in a black room for one day and night, without any food or water. Thirsty and hungry, he felt as weak as a cat. He really didn’t know what he did wrong. During that period two policemen came in, to torment him rather than visit him. They took quite a bright lamp and pointed it at his eyes. He lowered his head to avoid the hard light, but they dragged his head sharply and tore his hair. His eyes were extremely uncomfortable and suffering under the hard light. They asked him at the same time ‘will you submit? Will you plead guilty? Don’t you know that you were attacking the police? This is a huge criminal liability we can put you into the prison’. They would make trouble with him every one hour on average. Tears ran down from his eyes and he felt painful, bloated, and dizzy. There was no way to avoid this. He begged them to let him go and they asked him to sign a pile of A4 paper. He was not clear about the contents and it seemed to talk about the case. They wrote out a ticket of sky-high price and asked him to pay the fine, saying that this was the compensation for his injury. He didn’t figure out the specific situations now. He was locked in the detention office for twenty-four hours and was discharged finally and his wife picked him up to go home.
·     He wept disconsolately all day, having no idea about how to face the increasingly difficult life. His wife suggested that they should make a living in another city. She stated ‘we have offended the local policemen and public security system. How can we stay here? Let’s find a job in Beijing or Shanghai’. Looking at his sick wife he didn’t know what to say. She was so feeble. He questioned how she could lead a wandering life with him. He is not highly educated and not young anymore. In the current city his parents can look after them and give material assistance to them sometimes. How could they make a living in another city? After arriving in the new city, could they really get rid of them? He would always be faced with the fate of being caught and treated violently in all Chinese cities. His name has already appeared on the blacklist of mobs. How can he lead a free life in China?
·     He decided to go abroad, and this was the only promising way in his mind. He was longing for the free capitalist countries, which are democratized and advocate human rights. There is no corruption there. Besides, no factory dares to release toxic gases and destroy the environment, because human life is more precious than anything else there. He began to apply for the visa immediately. He felt extremely happy to get the visa. He is waiting for the approval for a protection visa from the Australian border and immigration department. He would never ever want to go back to his country as he had been suffering with those abuse and violence for a long time.
Department’s request for information
On 14 September 2020 the Department wrote to the applicant in accordance with s 56 of the Act requesting more information regarding his protection visa application. The Department invited the applicant to provide further information about what he believes would happen to him if he returned to China. The Department explained his claims lacked substantiating details such as dates and locations and he had not provided any further details or documentary evidence to support his claims. It invited him to provide it with copies of land documents and title deeds for the property which the dispute is about, copies of any medical records related to medical issues that occurred as a result of the environmental impacts caused by the manufacturing plant, copies of any letters or petitions he sent the government officials about the matter, and if arrested, copies of any arrest warrants or charge sheets he received over the matter.
The Department outlined that the applicant appeared to be able to depart China through an international airport using a passport issued in his own name. It suggested his ability to depart China through a centralised system with name matching alert capabilities suggests he was not of interest to the authorities when he exited and will not be of interest to the authorities if returned to China. It asked if he had any comment to make.
The applicant did not respond to the Department’s invitation to comment.
Interview with the delegate
The Department did not invite the applicant to attend an interview to discuss his claims for protection.
The delegate’s decision
On 15 January 2021, a delegate of the Minister refused the applicant’s protection visa application. The delegate was not satisfied that the applicant suffered the kinds of adverse treatment or harassment in China as claimed. They were not satisfied the applicant has any profile that would be of adverse interest to the Chinese authorities or anyone else if they return to China in the foreseeable future. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations.
Claims and evidence before the Tribunal
Review application
On 1 February 2021, the applicant lodged an application for review of the delegate’s decision. He has not provided the Tribunal with any additional evidence or submissions since lodging his review application.
The hearing
The applicant appeared before the Tribunal on 19 February 2025 to give evidence and present arguments. No witnesses were called to give evidence in support of the applicant’s claims. The applicant was not represented in relation to the review.

The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal confirmed with the applicant they were able to understand the interpreter. The applicant was able to answer questions without hesitation and his answers demonstrated an understanding of the questions being put to him.
The applicant confirmed at the start of the hearing he felt well and able to discuss his claims and circumstances. The Tribunal reminded the applicant he could request breaks throughout the hearing as needed, in addition to scheduled breaks.
The Tribunal is satisfied that the applicant had a reasonable and genuine opportunity to present evidence and submissions, be heard, and participate fully in the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant claims to be a citizen of China and provided a copy of the bio-data page of his People’s Republic of China passport to the Department. The delegate was satisfied that the applicant is using his own identity and that he is a citizen of China. At hearing the applicant presented his People’s Republic of China passport to the Tribunal. The applicant has consistently claimed to be a citizen of China. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of China and China is his receiving country for the purposes of assessing his claims for protection.
Analysis, reasons and findings
The applicant provided an outline of his protection claims to the Tribunal at hearing, detailing what he claims occurred in China, why he fears returning to China, as well as his work, family, education, medical, and residential history. He advanced the same claims at hearing as detailed in his written protection visa application, stating he would be harmed on return to China on account of harassment and harm he received from the police in China in respect of protests and action he took relating to the [Company] manufacturing plant next door to his apartment in Shandong.
Although the applicant provided the Tribunal with a detailed account of aspects of his claims, the Tribunal found his oral evidence at hearing to be substantially inconsistent with his written claims for protection. The Tribunal also had concerns with his inability to provide personal and persuasive details in respect of other elements of his claims, the plausibility of aspects of his claims, and the lack of any corroborative evidence in support of his claims. The Tribunal’s findings, assessment, and concerns are set out in more detail below.
The applicant’s personal background in China and circumstances in Australia
The Tribunal obtained a personal history for the applicant at hearing and an update as to his family and personal circumstances whilst he has been in Australia.
He explained he was born in Rongcheng, Shandong, China and married his wife in 2005. He explained they had their [child] in [Year]. The Tribunal accepts these personal circumstances of the applicant. The applicant provided a residential history for himself at hearing. He outlined that before he came to Australia, he and his wife and [child] were living in an apartment in Weihai. He stated he purchased the property a long time ago but it was not renovated and it was roughly ten years that he moved into that property. The Tribunal clarified with the applicant if for ten years before he came to Australia, he lived in his apartment in Weihai. In response he stated yes, you can say so. The Tribunal asked him again if it was correct he was living in his apartment in Weihai for ten years before he came to Australia, to which he responded yes. He explained before that ten year period he was living in a rental property which was also in Weihai.
The applicant explained his parents also reside in China and they continue to live in Shandong. He stated they are in a rural area and work in farming. He stated since residing in Australia he and his wife have divorced. He outlined this occurred approximately two years ago. He stated his ex-wife obtained the apartment when they got divorced. When asked in giving his background history if his ex-wife was still living in that apartment he stated yes. He stated she is not well physically but works a bit as [an occupation 3].
In discussing his education and work history, the applicant explained after he graduated from high school, he worked in a factory that produced [products 1], before working in [Country 2] in [job task 3] in [Year] to around the year [Year]. He stated he worked in [Country 1] in [a products 2] factory in [Year] until about [Year]. He worked in [Country 3] for a year before 2015 and explained in around 2015 he commenced doing [occupation 1] work which he did until the end of 2016 when he could not continue because of what happened. He stated he was employed in a [workplace 2] underneath a group. Whilst in Australia he explained he has worked in [job task 4] and other jobs in [work sector] such as [product 3] work.
Claims relating to the [Company] factory next to his apartment
At hearing the Tribunal discussed with the applicant what happened to him in China, whether he was harmed, intimidated, harassed, or persecuted in China, and why he fears harm on return to China. He detailed he fears harm from the police in relation to issues he had in China relating to the [Company] [product 4] factory next door to his apartment.
In discussing these claims with the applicant in more detail at hearing, he outlined the following:
·     The area where he lived had a [Company] [product 4] factor there. He had medical issues as the [Company] [product 4] company’s yellow smoke exhaust made people feel uncomfortable. The drinking water that they had because of it and being beside it was not clean. They had nausea, weakness of the body physically, and dizziness in smelling the smoke. They went to the hospital and with what they told the doctor the doctor said they were inhaling too much exhaust and drinking not clean water and dirty water.
·     The owners of their little area in the district tried to stop the workers entering the factory and blocked the gate and used banners to protest but the factory called the police and the police came to expel the owners. They were hit, his wife was also there, and his ex-wife, because of the violence, miscarried.
·     At that time they knew who led it as it affected him the most, as his windows were directly opposite the factory. That is why they were the people that actively protested the most. They were the leader to do the protest and why several believe they were the leader and they got hit the most.
·     After that they were using all kinds of reasons to trouble them. They tried to contact the Weihai Daily newspaper for an interview but they said the police were involved and the government were involved so they dared not do any report.
·     Later on they troubled him in all aspects, including working, and in the [workplace 2] they tried to trouble him. They contacted the leader of the [workplace 2] company and tried to convince them not to give him jobs, asking him to stay at home and wait.
·     He had no other choice so he got another vehicle and tried to so some work for himself illegally. But because got a vehicle they tried to trouble him everywhere, such as driving the vehicle illegally to get passengers and trying to trouble him because of setting up things to do to say he broke the law. They set him up once, and pretended to be a customer, and said you are doing some illegal business of getting passengers and questioned do you have a legal license or you’ll be arrested. They forced him to admit, saying that they have to impose a fine, saying because it is illegal and they could also say that he attacked the police and if he doesn’t want that to happen, he has to pay a big fine.
·     His wife was pregnant and she could not stand the smell of the vehicle and would vomit so would ride on the motorcycle and breathe in the fresh aid and on the side of the road two police officers popped up and pulled the motorcycle down and his wife was pulled off and they hit him with their foot and he felt really angry. He was hit heavily and his wife was pregnant and fell and because of this she later miscarried. After they hit him, they said that they will take him to the police station and they can deal with the issue, but he was reluctant to go with them but they forced him into the vehicle. After they arrived a person who spoke in higher rank not in uniform said he was driving without a helmet and although he had one his wife didn’t as she felt quite stuffed and so they handcuffed him to a window and he was trying to make a phone call but they confiscated his phone. He said that they were not in uniform and not supposed to do duties of the officer and so they sent someone else in to hit him and then he changed into a uniform and came back. He was detained and not released. Luckly a friend of his saw what happened and tried to call him but for a whole day was not contactable and then that is why the police found out this might become a bit too much and then released him.
·     They caused all kinds of trouble. Once when he was driving, he was illegally parked so they took down his driver’s licence but his licence was linked to two different vehicles and they put the record onto the other vehicle incorrectly. When he received the fine, he didn’t check the details but later on he suddenly found when trying to pay it that the vehicle was the other one. He lodged a complaint against the upper level of the traffic fines police team but was then harassed by that person who said to him ‘you know what relationship I have with the network and how dare you lodge a complaint against me and if I don’t let you drive you wouldn’t be able to drive for a day’. He had all kinds of trouble and threats and was told as long as he is in Weihai he will always be troubled.
·     Two years ago when he got divorced his ex-wife asked the lawyer to pass him on a message that the police officer if he goes back will try to kill him. His ex-wife could not stand the troubles people were making and wanted a divorce and when they got divorced, she told him that is what she heard from those people. She heard that as the people always came to his door and home to trouble him.
·     When exiting China in customs at Xiamen he had a little bit of trouble and he was asked to pay some money, but he had not brought any money with him. He borrowed money from a friend who was travelling with him to Australia.
The Tribunal asked the applicant at hearing when the factory issues began. He stated they roughly began in 2014 and the factory was built in around August or September that year and construction was rather quick and it was half a year before the factory was built up.
The Tribunal asked when the protests started. He stated it was from the beginning and at the beginning it was not strong and later on it was quite obvious the smoke was yellow and close to the window. The Tribunal clarified with the applicant if the protests started when the factory was being built in 2014. He stated yes because once it was being built and they started to work and produce it was a really strong smell and they tried to discuss with the management of the area to protest. The Tribunal asked the applicant when the first protests took place. He stated he cannot really remember as it was a long time ago but when the factory was built. He stated construction was completed in half a year and then three to four months after that they started to find out it wasn’t right with yellow smoke and the protests started.
In discussing whether he undertook any other action in relation to the factory, other than attending the protests and contacting the newspaper, he stated he basically had been there every day to protest and they were not villains and rushing to the factory but protesting outside and at the beginning a security guard tried to expel them but later on as it was related to the government, they contacted the government security bureau. The Tribunal explored with the applicant further if he complained in any other ways about the factory other than through protests and the newspaper. He responded that he called the government and they said with this factory they have a licence and the exhaustion was within standards. When asked who he called, he stated he called. When pushed to explain who it was he called he stated a government hotline. The Tribunal asked the applicant which government agency or body it was he contacted. He responded that it was the agency just belonging to the government. The Tribunal found the applicant was unable to expand on who it was in the government he spoke to and which bodies he complained to. In discussing how often he had contact with the government bodies or agencies to raise issues he stated he made many phone calls but it didn’t resolve. He did not expand in any way on the nature of his calls or complaints and what was said. The Tribunal asked if he made any complaint to the police and he stated that it was not a police issue.
The Tribunal raised with the applicant that he had mentioned medical issues and issues with smoke and with the water. It asked him how he knew of those issues. He stated the smoke smelt quite strong and made him feel dizzy and made him vomit and have nausea and the water coming from the pipes was not clear at all. When asked what made him think those issues were directly related to the factory, he stated because the factory needed to exhaust their waste water. He did not provide any details, unlike in his written claims, about medical reports and blood results for himself, his wife, and his neighbours.
The Tribunal explored with the applicant what occurred at the airport in customs. He stated they were troubling him and asking him to recite his ID card number and stating if he can’t recite it, then it can’t be proved it is his and just troubling him. He stated they asked for five hundred Chinese yuan. He confirmed his friend gave him the money to pay.
Throughout the process the applicant referred to medical issues, medical appointments and test results, being detained, his apartment being next to the factory, protests, and of making multiple complaints to various government bodies and departments. The Tribunal asked him at hearing if he had any documentary evidence in relation to his claims. He stated things like this back in his country won’t be written in documents. The Tribunal found this difficult to reconcile with his written claims, which referred to medical examination reports and blood results showing lead content, and his oral evidence relating to interactions with the police that involved a fine being issued and a period of detention.
In outlining why he fears harm on return to China and what he thinks will happen to him there, he stated the police officers will be able to see in the system his entry and exit records and if he goes back, he has to go to Weihai as his parents are there. He confirmed it is the police he fears harm from on return to China and he does not believe anyone can protect him from that harm as everything works in China on relationships and he doesn’t have a relationship with anyone.
The Tribunal considered the applicant’s evidence throughout the process. The Tribunal has a number of concerns with the applicant’s claims in respect of the [Company] factory, his claimed medical issues as a result of the factory, his claimed protests and complaint action in response to the issues with the factory, and his claims in respect of his interactions with and harm from the police. The Tribunal found aspects of the applicant’s claims to be inconsistent across his written and oral evidence, other aspects of his evidence to be vague and lacking personal detail, elements of his evidence to be implausible, and his claims to be lacking corroborative evidence in circumstances where the Tribunal would expect him to have some supporting materials. The Tribunal’s concerns are set out in further detail below.
Firstly, there are substantial inconsistences across the applicant’s evidence throughout the process. The applicant provided different information in his oral and written claims as to when he started attending protests at the [Company] factory, how many protests he attended, and how he protested and complained about the [Company] factory. His written claims refer to him initially contacting the Property Management Council, then the sub-district office, environment management office, and complaints office to the district government about the issues at [Company]. He claimed he waited for a year until 2016, repeatedly reporting the situations and continuously communicating with relevant government sectors, before finally gaining a reply from the government that they had done a comprehensive investigation and the waste water and exhaust gases discharged did not reach a degree influencing people’s health. His written claims outline in March 2016 all members of the community then wrote a banner hoping to remove the factory and protest the environment, standing in the cold for nearly two hours, with the police dispersing them and hitting them. He claimed after that protest he shouted grievances to the sub-district office and local police station.

At hearing the applicant provided a different account of when and how often he protested at the [Company] factory, how he made complaints, and to which government departments he complained. He stated he started protesting at the factory about 3-4 months after the factory was built, and that it was built within six months of August or September 2014. He stated he went there every day to protest outside. He did not refer to the police dispersing a large protest, or the protest action commencing in March 2016 after receiving news of an investigative report from the government. He presented a very different account of how the protests commenced and their frequency. His oral outline of who he complained to was substantially different to his written claims. He stated at hearing that he complained to a government hotline that is an agency that belongs to the government. He did not refer in his oral evidence to making initial complaints before taking protest action to the sub-district office, environmental management office, and complaints office of the district government.
The applicant provided inconsistent evidence throughout the process as to whether he complained to the police. Whilst his written claims outrightly refer to him shouting his grievances to the local police station, and to the police officer recording their names, ID card numbers, and phone numbers, stating that they would contact them after thinking out some solutions, he stated at hearing when asked if he made any complaints to the police that this was not a police issue.
His claimed interactions with and harm from the police were also inconsistent throughout the process. In his written claims he outlined an instance where he was riding on a motorbike with his wife and that his wife was feeling unwell so could not wear a hard hat. He detailed being stopped by the police for carrying another person who was not wearing a hat, being slapped, being bashed and kicked, his wife being slapped and kicked, and of him requesting them to let off his wife to allow him to take her to the hospital. He outlined the policemen going away after kicking him again and calling 120 and an emergency ambulance arriving and his wife obtaining medical treatment to prevent an abortion, which unfortunately did not work. At hearing however the applicant detailed a motorbike incident where his wife was travelling on the motorbike because she could not stand the smell of his vehicle, and of two police officers hitting him heavily and his wife falling and miscarrying. He outlined being taken by the police to the station after being hit and being forced into a vehicle, upon which he was informed at the station that he was carrying someone without a hard hat. At hearing he described being handcuffed to a window, his phone being confiscated, being hit, and ultimately being released. His oral evidence about the motorbike incident, whilst referring to some of the same elements as his written claims, such as he and his wife being stopped by the police on the motorbike and the lack of a hard hat, contained significant inconsistencies, such as whether he and his wife were left by the police so that he could call an ambulance and obtain medical care for his wife, or if he was forced to the police station or not.
The applicant’s evidence as to why he purchased a vehicle, what type of additional work he undertook, and whether that work was illegal or not was also inconsistent across his oral and written evidence. At hearing the applicant stated the police troubled him with his work, contacting his [workplace 2] leader to convince them to not give him jobs. He stated he had no other choice but to get a vehicle to try to do some work illegally himself. In his written claims he stated he had to accompanying his sick wife every day and in order to improve their life and make more money, he borrowed money from a relative to buy a new car, as given he was [an occupation 1] he already owned [a car], and in buying another car he was able to carry passengers at night to earn two incomes and support his family and sick wife and child. He did not refer in his written claims to his additional driving work as being illegal.
His evidence as to the circumstances in which he was issued with a parking fine was also inconsistent across his oral and written claims. In his written claims he detailed being issued with a fine for illegally parking his car, calling the traffic police department, and a patrol wagon arriving quickly to take him and pinning him to the ground and threatening him. He detailed he was then taken to the detention office, locked in a back room for a day and night, tormented, asked to sign a paper, asked to pay a fine for compensation, and then discharged to his wife. At hearing however he outlined a significantly different account of the parking fine incident, describing being issued with the fine, lodging a complaint, and being harassed and threatened by the upper level of the traffic complaints team, without any reference to the patrol wagon, being pinned to the ground, the torture, his detention, threats to sign something, or request for compensation in relation to this incident.
The applicant provided inconsistent evidence as to his residential history in China, including in relation to his period of residence at his apartment. At hearing the applicant outlined in detailing his background history that he resided in his apartment in Weihai for ten years prior to his departure from China to Australia. In discussing the issues with the factory and his medical problems he stated he had to stay at his parent’s place. When the Tribunal raised the internal inconsistency in his evidence with him as to his address history in China, he stated he didn’t fully understand what was being asked, and outlined when he was in Weihai he stayed in the apartment, but in between they went back to his parent’s place to stay there. He also stated at hearing he and his wife had to leave and stay at his parent’s place because they could not stay there any longer and the government were protecting the big company. In discussing whether his wife remains in the apartment in more detail during the hearing, although the applicant had stated earlier in the hearing that she did, he stated he doesn’t know if they are doing something to the factory or if the factory has been moved or if the environment has been improved or not and the property could not be sold because of where it is. In his written claims he instead stated he and his wife had to move out of their house and they moved to his parent’s house in August 2015 in order to breathe healthy air and they had no other choice and dared not live in the new house, which is inconsistent with his oral evidence at hearing.
At hearing the Tribunal explained to the applicant its concern about the substantial inconsistencies in his evidence before the Tribunal and between his written and oral evidence and that such inconsistencies might lead it to form the view that his evidence is not credible. It explained if it formed that view, it may have difficulty accepting his evidence and this could result in it not relying upon his evidence and thereby affirming the Department’s decision. It provided him with examples of the inconsistencies in his evidence, including the number of protests he claimed he attended and when they commenced, why he obtained a second vehicle and the circumstances of that vehicle and purchase, his claims as to when and how he was forced to go to the police station, the nature of his complaints to the government and the police, and his residential history in China.
The applicant stated in response that at that time all the information provided is facts and things personally experienced. He stated it might be when trying to engage someone to write because his English is not good there are some incorrect things. He stated it’s been so many years and it’s quite unlikely everything he says at this moment is the same as ten years ago and if he had said everything exactly it would be the possibility it would be like he has recited some documents instead of saying what happened. He explained when asking questions about where he lived, he might have misunderstood and stated he lived in Weihai but he also stayed at his parent’s place. He stated he can’t recall correctly but it happened and is on his mind and he can’t forget it. He remembers the police officer deputy leader from the traffic police issuing him a ticket and he can remember he is bald and wearing sunglasses and what he looks like and he is a member of a gang and what he said is just real things that all happened.
The Tribunal considered the applicant’s response. Whilst it appreciates the applicant may not be able to recall exactly what occurred in China given the passage of time, it did not find his response overcame its concerns as to the number of inconsistences across central aspects of the applicant’s claims. It did not find his response that some incorrect things may have been written in his protection visa application by the person who helped him write it persuasive, particularly given the level of detail in the applicant’s written protection claims and his evidence at hearing that he was not assisted with his protection visa application and his confirmation at hearing that its details were true and correct. At hearing the Tribunal asked the applicant whether he engaged a lawyer, migration agent, friend, interpreter or anyone else to assist him with his protection visa application and he stated no. It asked him if he knew what was in his protection visa application and the claims that were made in that form, to which he stated yes. When asked if he was sure that everything he had put in that form was true and correct as far as he knows and believes he stated yes. He stated there were no mistakes or corrections to make to his protection visa application. The Tribunal did not find his response that he might have misunderstood questions the Tribunal asked such as where he was living persuasive in circumstances where the Tribunal asked him to clarify his evidence on that issue at hearing and he confirmed he had lived in his apartment for ten years prior to coming to Australia. Overall, the applicant’s responses did not allay the Tribunal’s concerns as the credibility of his evidence given the substantial number of inconsistencies across his evidence throughout the process.
Secondly, the applicant was unable to provide detailed and persuasive evidence in support of aspects of his claims which caused the Tribunal to doubt he was speaking from personal experience. In his written claims, the applicant outlines that detailed medical tests were undertaken to ascertain if the [Company] factory was at fault for his and his wife’s medical issues. He refers in his written claims to blood and urine tests, blood results revealing lead content and a toxic reaction, a physical examination, and a health questionnaire given to every owner in the community. At hearing when asked to explain how he knew his medical issues were the result of the factory he referred only to smelling strong smoke, of being dizzy, and of vomiting and having nausea and observing unclear water from his pipes. When pushed to explain how his medical issues were linked to the factory he stated because the factory needed to exhaust their waste water. He was unable to expand in any way as to how he knew his medical issues were caused by the factory.
At hearing the Tribunal asked the applicant about how he made complaints about the factory. His written claims refer to him making repeated reports and complaints to various government departments and bodies. In discussing how he made complaints to the government at hearing he stated he complained to the government hotline. When asked what specific government agencies or bodies he contacted he responded the agency just belonging to the government. He was unable to detail which government departments he contacted and expand on the nature of those complaints.
At hearing the Tribunal raised with the applicant its concern that aspects of his oral evidence were vague and lacking in the type of detail it would expect from someone speaking from personal experience. It explained for example for someone who claims they made government complaints personally in China, it would expect him to be able to speak about who he complained to, which government bodies specifically he complained to, and the nature of those complaints. It outlined for someone who claims to be unwell as a result of the factory operating, leading to ongoing protests and action, it would expect him to be able to detail how he knew he was unwell and how those conclusions were drawn and whether investigations occurred leading to those conclusions. It explained his evidence in those respects was brief, lacking in detail, and the vagueness and lack of detail in his evidence might lead it to believe that the evidence he has given to support his claims has been fabricated and lacks credibility, and that this may lead it to affirm the delegate’s decision.
In response the applicant stated it is the truth, he has not fabricated it and even if it is checked now beside his apartment there is a [Company] [product 4] factory. He outlined everything is absolutely true, everything that he told the Tribunal, and in terms of investigations they are not allowed to go into the factory so all they can say is they were just using their senses to know that the water is not clean and is affected by the factory. He stated their body made true reactions when smelling poisonous fumes and then had a genuine reaction from the smell of vomiting. The Tribunal considered the applicant’s response and did not find it overcame its concern as to the lack of persuasive details in his evidence, particularly where his written claims referred to medical results and tests and not just knowing he was unwell from his senses, and to his having made reports to multiple specific government departments and offices.
Thirdly, the Tribunal found aspects of the applicant’s claims to be implausible. It explained to the applicant that he had stated he and his wife were harmed by the police and harmed in the police station, but ultimately released when the police felt it was a bit too much and after his friend had been trying to call him. It explained it may find it implausible the police would target and harm him to the extent claimed and then release him on that basis and in those circumstances. It also explained it might find it implausible he’d be targeted, harmed, and harassed by the police to the extent claimed relating to the protests at the factory because of his claim he was seen as the leader of the protests owing to the position of his apartment directly opposite the factory. The Tribunal outlined given the lack of plausibility of aspects of his oral evidence, it might find he has fabricated or embellished aspects of his evidence and that facets of his evidence are not credible and that this may lead it to affirm the delegate’s decision.
The applicant responded that it indeed happened and the police in China are different to the police in Australia and they will just consider themselves as the big brother or big boss and if there is anything that upsets them or they believe you are doing something which affects them in a bad way they will trouble you to death. He stated in Australia it is different and it is more humane and the police and ordinary people are all equal but in China if you belong to a category of public servant or prosecutor or member of a court it is different. He stated he has never seen the police like in some local areas in China and when he was suddenly pulled over riding the motorbike with his ex-wife behind him and hit by the foot he still remembers it and he has mixed feelings of hatred as he couldn’t understand why a police officer would do things like this and violence. He stated he has said what he has experienced personally and there might be some mis-matchings with translations with what was said in the moment and what is written down. The Tribunal considered the applicant’s response and did not find it overcame its concern as to the plausibility of his evidence that he would be targeted and harmed in China by the police to the extent claimed as the leader of the claimed protests owning to the positioning of his apartment across from the factory. Nor did it find his response alleviated its concerns as to the plausibility of his evidence he was detained and harmed by the police as claimed at the police station and then suddenly released when they felt it was a bit too much. Whilst the Tribunal acknowledges the police in China may not operate in the same way as in Australia, the Tribunal did not find his response addressed the specific concerns with his evidence as raised by the Tribunal. The Tribunal was not persuaded any interpretation errors accounted for the implausibility of the applicant’s evidence.
Fourthly, there is a lack of any supporting evidencing documenting the applicant’s claims in respect of his apartment, the [Company] factory, the protests, his medical issues, tests or appointments, his ex-wife’s medical issues and medical appointments, the blood results, the multiple complaints made to government departments, sub-district offices, and the environmental management office, and of any interactions, fines, or issues involving the police. The Tribunal raised its concern with the applicant at hearing about the lack of corroborative documentary evidence in support of his claims, in circumstances where it would expect there to be available evidence. It explained the lack of documentary evidence in any way may lead the Tribunal to have difficulty believing aspects of his claims and to find they are not credible. In response the applicant stated this kind of stuff is impossible in a written format as these things are in his head but are impossible to transfer into a documentary written format. The Tribunal considered the applicant’s response and did not find it overcame its concern.
Fifthly, the applicant’s claims do not accord with available country information before the Tribunal as to entry and exit processes in and out of China. In his written claims he states he is on a blacklist. The applicant claimed at hearing that police officers will be able to see in the system his entry and exit records if he returns. The Tribunal raised with the applicant at hearing that the Department of Foreign Affairs and Trade (DFAT) report that people may be subject to exit bans in China preventing their departure from the country and that once an exit ban is put in place, it often remained until it was officially removed, especially in cases where an individual is connected to an ongoing investigation. If a person is on an exit control list it is very unlikely, probably almost impossible, that they would be able to leave China[1]. The Tribunal explained that DFAT report that an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials[2].
[1] Department of Foreign Affairs and Trade, Country Information Report, People's Republic of China, 27 December 2024, 5.35, 70.
[2] Department of Foreign Affairs and Trade, Country Information Report, People's Republic of China, 27 December 2024, 5.37, 71. The 21 December 2017 DFAT Country Information Report on the People’s Republic Of China similarly provides this information at 5.30, 42.
The Tribunal explained it may find given his ability to exit the country on a Chinese passport, which he had presented to the Tribunal at hearing and which contains a departure stamp from [May] 2017 for China, that he is not the target of the authorities or anyone else in China, would not be the target of anyone on return to China in the reasonably foreseeable future, and that it may find his claims in respect of being bribed at the airport are not credible. In response the applicant stated he didn’t exit customs in Weihai and he did not bribe any officials. He explained they asked him for money and he couldn’t recite his Chinese ID card and they needed to get that information from the system. He stated the people in front of him were not troubled or asked for ID information. He outlined he travelled from Weihai to Qingdao and transited through Xiamen to come to Australia.

The Tribunal raised with him if he was asked for identity information does that not suggest the system at the airport was a national one, and yet it appears he was able to depart China without issue. He stated he knew what the Tribunal means, but Weihai is his hometown and he has family there and if he goes back to China that is his hometown. The Tribunal raised with him its concern that it appears he was able to depart China without being prevented from leaving the country. He stated he is not a criminal who has been convicted of a serious crime and he got in trouble with some local bureau officer in Weihai and is just an ordinary citizen not a criminal with serious offences and they just like to trouble him and not prevent him from going anywhere. The Tribunal considered the applicant’s response and did not find it overcame its concerns as to whether he was the target of anyone on departure from China. It found the applicant’s response inconsistent with his evidence he was on a blacklist and the police would know if he exited or entered the country.
Considering the above concerns of the Tribunal, on an individual and cumulative basis, the Tribunal finds the applicant’s claims he and his wife became ill from the [Company] factory next door to their apartment, protested at the [Company] factory, complained in any other ways and to any body or department in respect of the [Company] factory, had any interactions with or were harmed or detained by the police or authorities in relation to the [Company] factory or for any other reason, or are on a blacklist are not credible and he has fabricated his claims to enhance his claims for protection. In making this finding the Tribunal has been mindful of factors that may have impacted the applicant’s ability to provide oral evidence at hearing, including the use of an interpreter, the Tribunal environment and the applicant’s unfamiliarity with that setting, and the passage of time since the events occurred.
The Tribunal has considered it has been a number of years since the applicant was in China and since he claimed protection. Whilst the Tribunal would not be concerned with minor variances between the applicant’s oral and written claims or with minor internal inconsistencies in his evidence or errors with certain dates or the chronology of events, considering on a cumulative basis the number of concerns the Tribunal has with the applicant’s claims, particularly on central aspects of his claims, such as when the protest action began and how frequently it occurred, who it was that he complained to and when, in what circumstances he was taken by the police to the police station and what occurred, and whether he attended the hospital with his wife after central events or not, as well as his inability to explain in any persuasive or detailed way what complaints were made and to what bodies, or to provide any corroborative evidence in relation to any of his claims, the Tribunal finds the applicant has fabricated his claims to obtain a positive visa outcome.
Considering the above, the Tribunal finds the applicant and his wife purchased an apartment in Weihai and that the applicant lived there for the ten years prior to his departure to Australia. The Tribunal accepts the applicant is now divorced and that his wife now owns the apartment. The Tribunal does not accept the applicant or his wife became ill when living next door to a [Company] factory, that they obtained medical treatment that revealed they had high levels of lead in their blood, that they protested at the [Company] factory, that they undertook any complaints or protest action of any other kind in respect of the [Company] factory, that they had any interaction with or were harmed or detained by the police at any time or for any reason, that the applicant is on a blacklist, or that anyone has visited the applicant’s former apartment after his departure from China asking after him or threatening him in any way. The Tribunal does not accept the applicant’s ex-wife passed on a warning two years ago that the police will kill him on return to China or that any warning was ever made by the police for any reason against the applicant.
The Tribunal is prepared to accept given the overall straight-forward detail the applicant provided about the incident at the airport that the applicant was asked by a customs officer/airport official to pay five hundred Chinese yuan in order to clear customs on exit from China at Xiamen airport. The Tribunal does not accept on the evidence before it that the bribe that the applicant was asked to pay was connected to his claims he was targeted at any time in China by the police, the authorities, or anyone else in respect of the [Company] factory or any protest action. The Tribunal finds the bribe issued to him by the customs officer/airport official was a spontaneous one-off commercially motivated act by an official seeking instant monetary gain.
The Tribunal raised its concern with the applicant at hearing that it may find on the evidence before it he was not a target of harm when he exited China, he would not be a target of harm on return to China, and that he does not face a real chance of serious harm from anyone, including the authorities, or from anyone from the airport, on return to China in the reasonably foreseeable future. In response he outlined the circumstances of his departure from the country via Xiamen and that he is just an ordinary citizen who troubled the public bureau in Weihai and not a criminal with serious offences. The Tribunal considered the applicant’s response and did not find it overcame its concerns. For the reasons outlined above, the Tribunal has not accepted the applicant had any interactions with or that he was harmed by any authorities or police in China.
The Tribunal raised its overriding concern with the applicant that it may find he does not face a real chance of serious harm or a real risk of significant harm on return to China in the reasonably foreseeable future from anyone or for any reason. In response he stated it is just two years ago when his ex-wife got divorced from him, they asked his ex-wife to send word that they will try to find someone to kill him. He stated it is yet to happen but how can anyone guarantee when he goes back that it will or will not happen. He stated it gives him great pressure psychologically and mentally and he can’t guarantee what is going to happen or not happen in the future. The Tribunal considered the applicant’s response and did not find it overcame its concern. The Tribunal accepts the applicant divorced from his ex-wife two years ago. As outlined above, the Tribunal has not accepted that two years ago the applicant’s wife passed on a warning to him that the police issued her with a warning that he will be killed on return to China or that the police ever issued a warning in respect of the applicant for any reason.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims if he returns to China he will be harmed and killed by the police and authorities. He claims he is on a blacklist and the police will know when he enters China. He claims they issued him with a warning two years ago, via his ex-wife, that they will kill him on return to China.
The Tribunal has found the applicant and his wife purchased an apartment in Weihai and that the applicant lived there for the ten years prior to his departure to Australia. The Tribunal has accepted the applicant and his wife are now divorced and that his wife now owns the apartment. The Tribunal has not accepted the applicant or his wife became ill when living next door to the [Company] factory, that they obtained medical treatment that revealed they had high levels of lead in their blood, that they protested at the [Company] factory, that they undertook any complaints or protest action of any kind in respect of the [Company] factory, or that they had any interaction with or were harmed or detained by the police at any time or for any reason. The Tribunal has not accepted that the applicant is on a blacklist, or that anyone has visited the applicant’s former apartment after his departure from China asking after him or threatening him in any way. The Tribunal has not accepted the applicant’s ex-wife passed on a warning two years ago that the police will kill him on return to China or that any warning was ever made by the police for any reason against the applicant. The Tribunal has accepted the applicant and his ex-wife have divorced approximately two years ago. The Tribunal has accepted the applicant was asked by a customs officer/airport official to pay five hundred Chinese yuan in order to clear customs on exit from Xiamen airport in China. The Tribunal has found the bribe issued to the applicant by the customs officer/airport official was a spontaneous one-off commercially motivated act by an official seeking instant monetary gain and that it was not connected to his claims he was targeted at any time in China by the police, the authorities, or anyone else in respect of the [Company] factory or any protest action.
The Tribunal has considered the findings above, and having regard to the findings above, its assessment of the applicant’s future conduct in China and relevant country information as raised above and discussed with the applicant at hearing, the Tribunal is not satisfied there is a real chance that he will suffer serious harm upon return to China in the reasonably foreseeable future.
To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, whilst s 5J(1)(b) imposes an objective standard, that there must be a real chance of that fear being realised and the person being persecuted.
As outlined above, the Tribunal has not accepted the applicant was involved in any protest action at the [Company] factory, that he made any complaints to any person or body or government department in respect of the [Company] factory, or that he was harmed or detained by the police or had any interactions with the police for any reason whilst in China. It has not accepted he or his wife became ill when living next door to the [Company] factory. It finds he will not be involved in any protest action on return to China in the reasonably foreseeable future for any reason. It finds he was not the target of the police, authorities, or anyone connected to the [Company] factory on departure from China and that he will not be the target of the police, authorities, or anyone connected to the [Company] factory on return to China for any reason. Accordingly, and as raised with the applicant at hearing, the Tribunal finds the applicant does not face a real chance of serious harm on return to China in the reasonably foreseeable future in respect of the police, the authorities, or in connection to the [Company] factory.
The Tribunal has accepted the applicant was asked by a customs officer/airport official to pay five hundred Chinese yuan in order to clear customs on exit from Xiamen airport in China. As outlined above, the Tribunal has found this was a one-off commercially motivated act by an official seeking instant monetary gain and not for any other reason. The applicant paid the money to the customs officer/airport official after borrowing it in that moment from a friend he was travelling with. He was thereafter able to depart China without incident. The Tribunal finds in these circumstances, and as raised with him at hearing, that the applicant does not a face a real chance of being targeted, contacted, or harmed by the customs officer/airport official or any other airport official on return to China in the reasonably foreseeable future.
The applicant did not claim, and there is nothing in the material to suggest, that he fears persecution for any other reason in China.
For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that if the applicant returns to China now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, the applicant does not meet the definition of refugee in s 5H(1) and does not satisfy the criterion set out in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
For the reasons set out above, the Tribunal has found that there is not a real chance that the applicant will experience harm from the police, the authorities, customs officers/airport officials, or anyone in connection to the [Company] factory on return to China in the reasonably foreseeable future. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[3]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicant does not face a real risk of significant harm for any reason.
[3] MIAC v SZQRB [2013] FCAFC 33.
On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to China that he will be arbitrarily deprived of his life or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
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 the criteria in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date of hearing: 19 February 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.
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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.
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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.
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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.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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