2109600 (Refugee)

2109600 (Refugee) [2022] AATA 1360 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2109600
COUNTRY OF REFERENCE:                   China
MEMBER:Alan McMurran
DATE:11 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 May 2022 at 11:57am

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – imputed political opinion – fear of harm from local government and police – father and uncle’s protests against compulsory acquisition and demolition of family business premises and land – beaten, detained, threatened and surveilled – credibility – vague and contradictory claims and evasive evidence – applicant in Australia at the time – elapse of time, no current issues, little or no interest from authorities and low likelihood of continuing protests – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 19A(1), 19D(4), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
MZXRE v MIAC (2009) 176 FCR 552
Selvadurai v MIEA (1994) 34 ALD 347
SZEPZ v MIMA (2006) 159 FCR 291
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 7 December 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant faces a real chance of persecution under the Act for reason of his actual or imputed political opinion arising from the demolition of his family’s [business] in 2015 and his father’s opposition and protest to that event.
The Tribunal affirmed the delegate’s decision on 16 October 2020, and that decision was set aside by the Federal Circuit Court [in] July 2021. The matter was considered by the presently constituted Tribunal (the Tribunal) pursuant to the order of the Court. The procedural history is set out below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural history
The applicant initially sought review of the delegate’s decision in the Tribunal on 23 March 2017.
The applicant attended a hearing before the Tribunal, differently constituted, on 4 September 2020 and again on 16 October 2020. The Tribunal delivered an oral decision on16 October 2020 affirming the Department delegate’s decision.
On 21 July 2021, the Court quashed the Tribunal’s decision and remitted the application for review to the Tribunal for determination according to law. The court found that, in its assessment, the Tribunal had not considered the applicant’s claim that he would challenge the Chinese government himself if returned to China.
The matter is now before the Tribunal, differently constituted, pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The application was allocated for determination in February 2022.
The applicant appeared before the newly constituted Tribunal on 26 April 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 applicant was unrepresented.
The applicant gave evidence in relation to his background, claims for protection, his conduct in Australia and other relevant matters.
The Tribunal explained the reasons for remittal and consideration and indicated that the evidence given to the Tribunal at hearing on both occasions in September and in October 2020[1], could be taken into account in the review. The Tribunal explained that it had access to Department information, including the applicant’s migration history and the Court’s decision.
[1] Tribunal case 1705757
At the end of the hearing, the applicant was provided at his request a further period until 9 May 2022 to provide any further information he thought relevant, or seek an extension if required, in order to do so.
On 8 May 2022 , the applicant emailed a statement, with information that was not before the delegate or the previous Tribunal. The information contained a letter dated 2 May 2022, as translated into English from Mandarin, from [Mr A], the applicant’s father. No translation certificate was provided. The letter is referred to below in these reasons.
What information can be considered on remittal?
Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[2] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[3] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
[2] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).
[3] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].
In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision was set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[4]
[4] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.
In doing so, however, the Tribunal must consider all the available information afresh and make its own decision as it determines according to the information and may accept or reject any earlier findings and provide its reasons.
In conducting the review, the Tribunal has considered afresh the material provided to the Tribunal, completed a further hearing, and listened to the oral evidence given at the previous hearing held by the Tribunal on two occasions in September and October 2020, differently constituted. The Tribunal notes that although invited to an interview, the Department record shows the applicant did not appear for that appointment.
What information and documents are relied upon by the applicant?
The applicant made an application for protection on 7 December 2016. In the section asking him reasons for claiming protection he referred to his attached statement in English, made 6 December 2016.
The statement has been set out in full in the Tribunal’s reasons. The Tribunal refers to the applicant’s claims arising from the statement and the application below.
The applicant provided to the Department for consideration:
·    the application form;
·    his statement made 6 December 2016;
·    his passport (expiring 2023).
No additional information or documents were provided to the previous Tribunal or this Tribunal before the hearings occurred.
The applicant informed this Tribunal upon inquiry that he had provided all the information that he had available. He said he had nothing else to provide. During the hearing, however, the applicant asked for additional time for his father to provide a supporting statement from China. A letter from the applicant’s father dated 2 May 2022 is now also before the Tribunal for consideration.
Nationality
The applicant claims he was born and raised in China and is a citizen of the Peoples’ Republic of China. He has provided copies of his Chinese passport. He has consistently claimed that he is of Chinese nationality, appears to speak Mandarin fluently and has familiarity with the geography and culture of the area in China where he claims to have lived.
It is accepted that the applicant is a national of China on the basis of his Chinese passport submitted to the Department with his biometric record, and his oral evidence, and the Tribunal will assess the applicant’s claims on that basis.
The Tribunal further accepts that the applicant does not have the right to reside in any country other than China. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and China is the receiving country for the applicant for the purposes of s 36(2)(aa).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If not a refugee - complementary protection
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.
The Issue
The issue in this case is whether the applicant meets the refugee criterion, because of a well-founded fear of persecution. The persecution must involve ‘serious harm’ to the person. The Tribunal must consider all claims and integers of any claims.
Following on from the Court’s reason for remittal, and as a necessary consideration under s.36(2), the Tribunal must consider in its complementary protection assessment the applicant’s claim that he would challenge the Chinese government himself if returned to China.
‘Serious harm’, without limitation, includes[5]: a threat to the person’s life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; and denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
[5] s.5J (5)
If the applicant is not a refugee, the Tribunal must consider whether there are substantial grounds for believing that the applicant meets the complementary protection criterion, and that there is a ‘real risk’ that the applicant will suffer ‘significant harm’[6].
[6] 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.
‘Significant harm’ is defined to mean: the non-citizen will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the non-citizen; or the non-citizen will be subject to torture; or the non-citizen will be subject to cruel or inhuman punishment; or the non-citizen will be subject to degrading treatment or punishment.
The Tribunal has had regard to the Act and Regulations as set out in the attachment, policy, and to the applicant’s provided information and the oral evidence from the Tribunal hearings referred to below.
First Tribunal hearing
The Tribunal found and accepted the applicant’s claim that the applicant’s family attempted to challenge the compulsory acquisition which resulted in resistance of that challenge by government authorities.
The Tribunal also found that the challenge to the compulsory acquisition likely resulted in the family being monitored in China by local authorities in terms of their behaviour.
The Tribunal went on to find that there was no material before it to suggest that the authorities’ continued opposition to the family’s protests were for reasons relating to either race, religion, nationality, or membership of a particular social group or political opinion. Rather, it was for reason of the government applying a law that resulted in the compulsory acquisition of land which the government sought to acquire.
In its finding on the complementary protection criterion, the Tribunal found that the applicant had not been directly involved with the incidents and had only spoken with one government official on one occasion by phone in 2015. Because of the passage of time and the fact there had been no recent trouble with the family, the Tribunal did not find there was a real risk of significant harm if the applicant returns.
This tribunal has re-considered those events and findings.
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.
Background
The applicant is a [Age] year-old citizen of China, of Han ethnicity and from Henan province. He has no relatives in Australia, and is College educated in China. He is separated from his wife, who remains in China with their [Age] year-old son.
His parents live in the same rural village and area where the applicant was born and raised. The applicant came to Australia in April 2014, on a temporary student visa to study English. Shortly after that visa expired on 16 November 2016, the applicant applied for a Protection visa, claiming fear of persecution on return to China by local government authorities who were targeting his family.
The applicant has been employed fulltime in Sydney since obtaining work rights on his Bridging visa in 2016, and for at least the last 5 years has worked as [an Occupation] on [Workplaces].
He has not returned to China since 2014 and for the reasons expressed below, has stated that he never wants to return.
CONSIDERATION OF CLAIMS AND EVIDENCE
Hearing in the Tribunal- 26 April 2022
The Tribunal had initial difficulty contacting the applicant on his mobile at the appointed time to resume the hearing. When contacted, the applicant said he did not realise that the hearing would be happening. He was asked if he was ready to proceed and to continue.
He confirmed his email address as the address recorded by the Tribunal and having received the invitation. He said he probably did not notice the emailed invitation as he had changed his mobile and had not logged on to the address recently. He said he wished to proceed and did not want an adjournment as he wanted the matter to be finalised.
The Tribunal explained to the applicant the purpose and reasons for continuing the hearing process in the Tribunal. The applicant was unrepresented. The Tribunal explained that the Member had listened to the audio of the previous two hearing days on 4 September and 16 October 2020 and read the decision record. The applicant confirmed that what he had said to the Tribunal (differently constituted) on those occasions was correct. He did not wish to amend or alter his statements on those occasions. He said it had been difficult because the family had been unable to provide him with any additional information.
The applicant was asked if he now had anything further to submit or if he had any other witnesses to rely upon. He said he would like to call his father on his mobile. He said he is the best person who understands his position. He asked if he could call his father from the hearing. He said he had been worried to call him because of his father’s [health] condition and did not want to stress him.
The Tribunal offered to connect the applicant’s father into the hearing, or, alternatively, give the applicant an opportunity to have him provide a written statement to avoid him being stressed in the moment. He accepted the proposal to provide his father’s statement, which he said his [sister] could assist him with. He said he would have an accredited interpreter provide a translation into English and could arrange for that in about 14 days. The Tribunal directed the applicant to provide any additional information by 9 May 2022, which he said he could do, or apply for an extension with reasons.
The applicant said he wished to continue with the hearing. The Tribunal explained to the applicant that his father needs to address the issue of the applicant’s fear of persecution arising from the applicant’s claims.
The Tribunal attempted to explain to the applicant further that in order for him to succeed, he must be able to show there is a real chance of persecution by the local authorities in China, based upon a well-founded fear, and which might involve serious harm to him in the future, and where the chance of it happening was not exaggerated or fanciful, or in light of all the available facts, not unrealistic or unlikely. He said he understood, and that he still believes there is a ‘real chance’ he will be persecuted.
The applicant told the Tribunal he will try and contact a migration representative or lawyer to assist him with his responses. He said, “I will do that”, because “my wife used to do all that and take care of the issue, but my wife is divorcing me and does not want to help me and I do not know”.
The Tribunal pointed out that on remittal by the Court, the judge had noted for the applicant that the Tribunal was required “In its complementary assessment (to)…turn its mind to the applicant’s claim … that he would challenge the Chinese government himself if returned to China.”

The Tribunal explained it was not necessary to repeat all the information which the applicant had confirmed was correct, including the statement he made 6 December 2016 attached to his application setting out his claims, and from which the Court has noted the claim still to be dealt with.
The applicant said he still maintains that on his return to China he will be persecuted for the reasons he had set out in his application statement and where he maintains that on his return “my father and I would definitely appeal together”.
In this hearing, the Tribunal, although not limited to a single issue when hearing the matter afresh, is not required to re-hear all the evidence, and is entitled to accept earlier evidence and findings, in addition to dealing with the issue raised from the appeal.
This is the approach adopted by this Tribunal, as the applicant states and has confirmed the evidence he gave is correct, without alteration or addition, and the tribunal process is in effect a continuing process.
Applicant’s claims
It is helpful at this point to set out in full the applicant’s statement made 6 December 2016 detailing his claims of apprehended persecution. He states as follows:
“Personal Statement
My name is [the applicant]. I was born in Shading District, Luohe City, Henan Province
on [Date]. I came to Australia to study in April 2014. My family members tried
to ask for help from the higher authorities, but what they received was the
persecution from the local government. My student visa expired in Nov 2016
recently but I was so scared to go back because I did not want to be persecuted by
the Chinese government as well. A friend of mine told me that I could apply for the
protection visa from the Australian Government based on my situation. I sincerely
hope that the Australian government could consider my situation carefully and grant
me the protection visa.
My family was well known in Shaoling because we had a [Size] square meter big,
[Number] employees, very successful [business], which was started by my grandfather
and passed on to my father and my aunty after his retirement. The business was very
successful. The annual gross income was about [amount] million RMB; the annual net
profit was approximately 20%.
My father took over the business and started running it with my uncle ever since
year 2014. In December 2014, my father was notified that the land where our [business]
was located would be taken by the local government to become a new economic
zone which was part of the investment project. We were also told to stop all the
manufacturing before [date] July 2015 and dismantle the [business] by ourselves. Otherwise
the government would dismantle it by force. On the notification document, it also
stated that we would be compensated with 2200 RMB per square meter, which was
the amount the local government used to compensate residential areas. My
grandfather signed a 50 year land lease agreement with the local government in
1983 when the government encouraged him to start the [business] and
promised him that our family could use the land for more than 70 years. Besides they
promised they would provide us another piece of land and give us enough time and
compensation if they would take the land for other use. Now, with the 2200 RMB per
square meter compensation and six months’ time, we would never be able to rent
another piece of land to rebuild the [business]. In addition to it, what to do for us for
those employees and heavy equipments?
After receiving the notification, dad went straight to the local government
office, hoping that the government would consider our situation carefully and came
up with the best solution to our case. Unfortunately, the government officer refused
to do anything for us but to ask him ’to fully corporate with the "government
development scheme". My father and uncle felt being treated unfairly; therefore
they prepared an appealing statement, planning on giving them to the higher
authority in Lou he City. Unfortunately, my father and uncle did not get to meet with the officer in charge although they tried a couple of times, so they had to leave the
appeal there and wait for the reply at home. A few months passed, my family never
got any answer from the government, and my father was frustrated because it was
almost the due date of dismantling. During that period of time, director [B] of the
dismantling office in our town, kept coming to our place and urged my father to sign
on the dismantling agreement. [Mr B] even threatened my family that we would face
severe consequence if the agreement was not signed soon.
At about 9 am [in] June 2015, a few policemen came to the [business]
and took my father and uncle to the police station. The police tried to force my father
and uncle to sign on the dismantling agreement. When dad and uncle refused, they
were beaten badly. The police thought of every way to torture my father and uncle.
They only provided them one meal a day during the detained period. What's the
worse; the police broke into our [business] and dismantled it by force [in] July
while my father and uncle were detained. Many expensive types of equipment were
destroyed. The [business] workers were shocked when they saw the mess. This caused
quite a stir in the town at the time.
My dad and uncle were released after being detained for seven days. My father
was devastated when he saw what the whole family worked so hard for two
generations, had all been destroyed.
In the morning of [date] July 2015, my father and uncle, together with our relatives
and some of our employees, had a protest in front of the Louhe City government,
with a scroll of "dismantle by force, barbarian action, where's my justice?". Their aim
was only to get the attention of the government officers so they could consider our
situation and compensate us fairly. Unfortunately, within about twenty minutes, over
ten policemen came. They took away the scroll and arrested my family members
under the accusation of public disturbance. Although some of the family members
were set free not long after that, my home was under surveillance 24 hours a day.
While detained, my dad was threatened by [Mr B] again, saying that if our family
would not stop our action against the government, we would end up with worse.
When I told father my student visa was about to expire in March 2016, my dad
told me not to go back to China because he was afraid that I would be persecuted
and hurt. My family's place was under the surveillance of the police all day so my
father and uncle couldn't go to appeal to the upper authority in person. So they had
to send letters of appeal. Unfortunately, he never got a reply, no matter how many
letters of appeals they sent.
My father has determined to keep on appealing to higher authorities until we
receive the fair compensation. My father and I would definitely appeal together with my dad if we go back to China because what he experienced was just so unfair. But
the government would not stop persecuting us if we don't give up appealing. In that
case what happened to my dad would happen to me. Therefore I am very scared of
going back to China. The only thing I could do now is to apply for the protection from
the Australian Government; hoping that the Australian Government could provide
me a safe future. Thank you very much.”
The applicant said again the statement is correct, and a lawyer in Australia had helped him write it down. He said since that statement in 2016, his family circumstances have changed as his wife now wishes to divorce him and his uncle has now passed away, which he thought was sometime in 2019, as he told the earlier tribunal.
He said his family was still living in the same place in the countryside in Henan. He said the village has a population of around [number] people. He said his father has not retired and still works casually [and] someone “who [does a job task]”, meaning in the English equivalent of someone like [an Occupation].
He says his mother does not work. He said his parents are old and not in good health. According to the application, his father is approximately [age] years old, and his mother [age]. He said he sends money to his parents, several hundred dollars every month. He said he has reduced the amount recently because his own income diminished during the pandemic. He said he currently earns around [amount] per annum, working with a friend on [Workplaces] where he does [a Job task]. This is similar to the evidence he gave previously. He said he recently spoke to an accountant about preparing a tax return, which he thought he would lodge in May 2022 and which might confirm the amount he declared as income for the last financial year. The Tribunal accepts the income evidence as stated by the applicant and the personal circumstances he has outlined.
He agreed he worked before coming to Australia in Beijing where he was living while working for about 4 years. He said he had worked in a management role. The Tribunal reminded him the application said he had worked [in a particular role] in “[product]” and asked what that meant. He said he had worked in a factory for a little while after he graduated, but had “never worked [in that role]”, but rather in “management”. He did not elaborate.
He was asked where he had lived in Beijing, and he responded that he was living in the south of the city renting with some roommates. He was asked if there was any reason he could not return to live and work in Beijing. He said because his family had called him not to return to China and because he wanted a better life in Australia. The Tribunal repeated the question, and the applicant said, “in Beijing the pressure was too great, so I chose to leave”. He said he was talking about the “environment pressure”, for example, paying rent, and also the “family issues which have always affected me”.
The Tribunal asked what he meant by “family issues”. He said “I’m not sure about that, but the local police have always caused trouble to my family. It creates a psychological pressure, and I cannot work well”.
The applicant was asked to explain about any contact between him and the local authorities. He said there has been some conflict as his parents live close to the police station and the police are always raising issues with them, even small issues. He said it is still the same police commander in charge. He said the Police managed to get his contact number, he thought in about 2017, although he did not say how. He said the Police called him on his phone number and asked him to return to the village.
The Tribunal asked about the date of that contact which he had not mentioned before, and the applicant corrected himself to say it was not in 2017, but in 2007, when he was living in Beijing. He said he was asked to return to the village because his mother, who he said is not well educated, often argued with authorities, and had conflicts with the local police. He said his parents lived close to the police station when they had the [business], and that they still live nearby in the village.
The Tribunal found the applicant’s answers to be vague and non-responsive when asked to explain about the “family issues”. The Tribunal understood from the evidence that the applicant had concerns raised in 2007 about his mother constantly arguing, particularly with local police, which was a constant conflict for the family, and this was occurring while the applicant’s father ran the [business] with the applicant’s uncle. These local issues were occurring with the family well before 2014 and 2015 when the [business] was dismantled following compulsory acquisition. According to the applicant, his parents still live in the same place close to the police station, and still have issues from time to time.
The applicant did not elaborate about specific conflicts, other than to say that he was involved in some way as being a member of the family. He said that living in the countryside, as opposed to a large metropolis, even small issues can cause trouble for local people.
He was asked when he was told about the last “trouble” between his parents and police. He said it was when his uncle passed away in 2019. He said his parents had not told him of any specific issues, but his father had just said “you can’t come back”. He did not elaborate on any specified “trouble” since the dismantling of the [business] in 2015.
The Tribunal found the applicant’s answers vague and that he was uncertain as to the events, which occurred when he was not present and living in Australia. No additional evidence has been provided as to any on-going ‘trouble’ with local police or any other local authorities since the events described in late 2014 and mid-2015.
Relocation issues discussed
The Tribunal asked where the applicant would return in China to live. He said he would return to his hometown. He said his parents have never lived anywhere else.
The Tribunal reminded him he had lived in Beijing for nearly 10 years, as a student from 2005 until 2009 and then working from 2010 until he departed voluntarily in 2014, when he said he chose to leave. He responded that “it was a long time ago” but did not elaborate. The applicant said he had no family or friends anywhere else in China. He said he did not have a property in Beijing where he could live, although he had been safe when living there.
He said he may find work away from his home, but he wanted to be near his parents. He said he would be able to find a job in the village but would still have some issues, because of the family, with the local authorities. He said he thought they would remember him.
The Tribunal put to him that he could live somewhere else and work somewhere else quite safely. He said authorities would find him because of his mobile number and use him to threaten his parents if he did not return. He said his parents are old and not in good health and are a burden for him. The Tribunal understood that to mean he was saying that he would have responsibility to look after them if he was in China, as he has been doing from Australia by sending them money.
The Tribunal reminded him that he had said to the previous Tribunal that he wanted to remain in Australia “forever” and never return to China, so he would not see his parents again or his wife, or his son. If he was prepared to live without seeing them again, why could he not live somewhere else in China if he returned, but not in his home village. The applicant was asked why the proximity to his parents was important if he returned to China, when it was not important to him while remaining in Australia.
The applicant did not respond directly to the question, saying if he returned to the village, there would be no change and the Police would know him and find him. He said he has been in Australia for more than 9 years and “if I go back, I don’t know what else I would do for living somewhere else”.
The applicant was asked whether the police had recently harassed his parents. He said they have not harassed his parents but he still cannot go back. He said that his parents “are old and their health is not good, my father has a [health] condition and there are some conflicts, but the local police are not doing anything to my parents because they are both old and sick.” The Tribunal repeated his answer to him and asked the applicant if it was correct, which he confirmed.
The Tribunal asked why he wanted to stay in Australia, when his parents in China were unwell. He said his father had told him not to return. He said, “I have been here (Australia) a long time, I am young and I want a bright future.” The Tribunal asked if he intended to see his parents, his wife or son ever again and he responded “no”, he said “my son lives with my wife and he will grow older, but it is my parents I am worried about”.
The Tribunal found the applicant’s answers contradictory. On the one hand, he accepts responsibility for his parents, and would live close to them if living in China. On the other hand, he stated he could live elsewhere safely, that he felt safe living in Beijing, although he did not like that ‘environment’. He said he does not want to return to China ever again and is accepting that he will not see his parents, or his wife or son as well, for that matter. He states as his reason that life in Australia is much better and offers him a better future than life in China.
The Tribunal accepts that the applicant left China wanting to improve himself by coming to Australia, and that he spoke plainly about wanting to remain in Australia “forever”, as his primary objective, with the encouragement of his father, who wants the applicant to have a better life outside China.
Making any claims in China with his father
The applicant did not make mention of continuing the claim for compensation with his father referred to in his 2016 statement, or how they would do that, or whether his father was still interested in pressing the claim.
The Tribunal asked when he last had contact with Chinese authorities. The applicant said there was a phone call last year (2021) to his [sister], saying authorities were still interested in him. He did not elaborate on why or what that ‘interest’ concerned. He did not relate it to the 2015 event.
When asked to explain, he said even after 7 years, local authorities will not give up the issue of the land. The Tribunal asked why this would still be happening after such a long period. The applicant responded that the issue never goes away.
The Tribunal asked whether on his return to China he would cause trouble over the 2015 land acquisition himself. The applicant responded that “if they continue to cause trouble, I will not give up that’s for sure”. The Tribunal pointed out the time elapsed and the fact his uncle had now passed away, the issue had been dealt with, his parents were not being harassed, and that it would not seem to remain a matter of some importance. The Tribunal asked the applicant if he understood why the Tribunal may not believe that what had happened 7 years ago might still result in further action being initiated against himself and his parents by the local authorities, particularly police, over the now completed land acquisition.
The applicant said in response “that is not the case, the issues do exist and in the countryside we do not have any legal rights”. The applicant did not directly respond to the question and gave no indication of what further action from the local authorities he anticipated. The applicant was unable to inform the Tribunal why the 2015 land acquisition issue was still important to local authorities and an issue he would still have to face on his return. The applicant did not take the opportunity to explain further what he and his father would do, if anything, to agitate the 2015 claim, other than to indicate if authorities made trouble for him, he would react by not ‘giving up’.
Would the applicant challenge the Chinese government on his return?
The Tribunal asked about the applicant’s statement in 2016 that he “will appeal to higher authorities”, and what he intended by that statement. The Tribunal pointed out it was now 2022 and since the applicant has been in Australia since 2014, he has taken no steps to ‘appeal to higher authorities’, so why would he do so now on return to China after so many years. In fact, any steps protesting taken in 2015 were by his father and uncle, not by the applicant himself and without any support from him.
The applicant responded that his father’s health is not good. He said Chinese authorities would not hurt his father, but that his father will still want to continue to take some action because of the acquisition if he (the applicant) was back in China with him. He did not elaborate as to what action might occur and how or when that might happen, other than on his return to his home. The Tribunal did not regard this response as genuine, especially as his father does not want him to return, and told the applicant so, and that it may not be prepared to accept that after nearly 7 years that he would want to continue to appeal or make a claim in the foreseeable future with his father, or that they would be able to do so, as the matter was completed and his father’s health was not good.

The applicant was asked who he would seek to challenge if he returned home, and he said the local authorities who were responsible. The Tribunal put to him that it did not seem likely he would want to cause trouble or be able to still appeal for compensation. The applicant responded that “I understand what you mean, but I am afraid of the environment and I am afraid some accident will happen to my father and he would lose his life, that is what I fear”.
This answer gave no clear indication of what action or challenge was proposed, or what the applicant feared for himself, as opposed to what he feared for his parents, and his father for his [health] issue. The Tribunal found the applicant’s responses vague and evasive and does not accept them as a true and fair indication of his intentions if he returns to China or what action he might undertake with his father in the future.
The Tribunal asked if the applicant would like to elaborate or say anything further. The applicant said firstly, that the “family issues exist and I cannot return”. He said secondly, “I am used to life in Australia, I am young, I want a brighter future, and I do not have a family for myself in China”. He explained that he is here in Australia, and his wife has filed for divorce in China, and there is no prospect of him returning to his family.
Father’s statement – 2 May 2022
The Tribunal has had regard to the statement submitted after the hearing from [Mr A].
It is useful to set out the statement in full as follows:
“Dear officer,
My name is [Mr A] and I am [the applicant]’s father. Our family is in the countryside of Luohe City , Henan Province. In 1983, my father set up a small [business] in our home town. After he retired, the [business] was handed over to my brother and I can manage it. My brother and I developed the [business] very successfully. But the local government wants to requisition our land, our [business] has to be demolished. During the process of demolition, we were treated very unfairly.
My brother and I went to the government to ask for an explanation, hoping they would handle it fairly, but what we got was fear and threats! I hope that you could understand my felling, I was not reconciled, so I took the workers to the government department to demonstrate. We sat in the front door of the Luohe Municipal government, hoping to attract the attention of the leaders and give us an explanation. But within 20 minutes, more than 10 police officers and several police cars came. The police detained my brother and I on charges of disturbing public order and inciting disturbances. During my detention, the police put on my home under residential surveillance, and my family lost their freedom. Director [B] of the town government once went to the police station to warn me: “if you dare go against the government, you will not end well.” While my brother and I were in custody, we were severely beaten by the police, and our [business] building was forcibly demolished by them. After the [business] building was demolished, the police let us out, but we were very unwilling. My family and I went to the government department many times to beg for an explanation, but the begging was fruitless. Later, the police station learned that my son [the applicant] was working in Beijing, and they started calling my son himself and my son’s company, asking him to return to the police station in our hometown to report. My son also lost his job because of this. Our family is now living under surveillance, which makes me feel very uneasy and helpless. I’ve been hospitalised twice because of a bad [health] in 2021, and my [brother] died at home during that time because he lived in fear for a long time. After my son came to Australia, the local police station kept calling my son to return to China, and threatened that the matter was not end and that my son should not hide abroad.
If my son returns to China, the local police station will definitely continue to detain my son, and he will live under the surveillance of the local police station just like us. The injury done to a family by the local police station is irreparable. Now we just want my son to have a good life and stop being persecuted by the government. I hope the Australian government can take in my poor child, if anything happens to him, I really have no reason to live anymore. My son was raised by us from a very young age, he is a very smart and responsible person. After graduating from university, he came to Beijing to work. He always sent money to us, so that we could have a good life. After he came to Australia, he kept sending money back to us to support our family. He has a strong sense of responsibility. I have seen his achievements in Australia now and he has confidence in his current job, he also talked about his career planning to us many times. His development has been getting better and better. I believe he will bring positive energy to the society and the community. My son’s family broke down because of the forced leave of my son. My daughter-in-law has given up my son because she can’t stand the trivial matters of our family. I am very sad. The original happy family has also been torn apart because of the government’s inaction. What happened to our family is known to the whole village, and they have witnessed my family’s tragic experience. If what I have said is not enough to testify for my son, then I can contact the people around me to testify for us and I hope you can give us justice.
I pray to the Australian government to protect my son and allow him to stay in Australia and start a new life. Our generation has lost hope, but I hope the Australian government can give my son hope and let me, an old man in China, see hope!
The Tribunal notes the father’s statement recites the history of the land acquisition and [business] demolition. The Tribunal accepts the [business] was demolished and there was a subsequent dispute about the compensation in 2015 resulting in threats to the family and the applicant’s father’s detention.
There are some discrepancies, however, in the events described by the father with the applicant’s explanation. The applicant’s father states that he brought the protest before the [business] was demolished, taking the workers to sit outside the municipal office, and which led to his arrest for disturbing public order. His father says that after the police learned that his son was working in Beijing, the police “started calling my son himself and my son’s company, asking him to return to the police station in our hometown to report”. He says his son “lost his job” because he was contacted by police in Beijing. This cannot be correct because the applicant was not living in Beijing at the time (2015), having already departed for Australia as a student more than 12 months’ prior to the events leading to the demolition and the applicant’s arrest.
The statement makes no reference to any further or subsequent claims by the applicant’s father or any intention to continue doing so. The Tribunal finds that the statement is very supportive of the applicant remaining in Australia but does not accept that it is for reason that his father apprehends the applicant himself will suffer harm by returning to China.
The father says the injury done by the police is “irreparable” but makes no mention of any ongoing threats of punishment or retribution, other than anticipated continuing “surveillance”. The Tribunal can accept that it is the case that in China, as identified in available country information, authorities are watchful of all citizens for any anti-government protests or comments and which might undermine public security and safety, and that it is against the law to publicly comment adversely against the government. This is a law which affects all citizens and which is a law arbitrarily but also stridently enforced.
The Tribunal does not accept that the applicant has any intention if returned to China, of a challenge with his father for claims against the government or authorities arising from the demolition of the [business] in 2015 and termination of the family’s lease. The Tribunal concludes that the applicant’s father has no intention of doing so either, or of involving the applicant in such action.

100. The Tribunal finds there is nothing in the statement by the applicant’s father, or from the applicant’s additional oral evidence, from which it can be concluded there is a likelihood that the applicant faces a real chance of persecution in the foreseeable future for challenging a government decision to compulsorily acquire the applicant’s father’s land.
Complementary protection
101. The Tribunal put to the applicant that there was nothing preventing him living safely somewhere else in China.
102. The applicant responded that his parents are at home and it is hard for them living in the countryside. He agreed he would be “safe” living somewhere else, but it would not be so for his parents as the local authorities would bring up the issues and cause his parents stress, they are old, and the ‘focal point’ would be around the applicant.
103. He said he did not agree his parents would not be harmed if the applicant returned to China to live somewhere else, saying, “that is not the case, I have a Chinese mobile number and they will threaten me and force me to return to my home village because of my parents”.
104. The Tribunal again asked why the applicant would challenge the authorities or the Chinese government on his return. The applicant responded that he would not challenge the authorities, but it is the local police who would want to cause him trouble. He said they will find him.
105. He said he cannot live elsewhere because of his parents, as they would be “hostage” to police threats to make him return to the village. The Tribunal asked whether that was his claim for his fear of persecution, to which he responded, “that is what I fear”. He said that he is fearful now, and does not know what to do, and that if he returns it will have a negative impact on his parents which may in turn threaten their lives because of their health.
106. He says he does not know what he will do if he has to return. He said he is doing well here in Australia and wants his parents to be released from their burden of concern for him if he were to return.
Country information on China and civil protest – DFAT information
107. Country information reports[7] that DFAT assesses that people who organise or participate in protests over land, local corruption, or any other matter critical of the state are subject to a high risk of official discrimination.
[7] DFAT Country information report on People’s Republic of China 22 December 2021
108. The report states that disputes with government (e.g., over resumptions) may be raised at petitioning offices, also called ‘letters and visits’ offices, a type of government service office. Millions of disputes are raised every year. Local authorities participate in incentive programs to have disputes handled at a local level before they escalate to higher authorities. In practice, this means local authorities are incentivised to retaliate against petitioners, which might include charges such as ‘picking quarrels and provoking trouble’.
109. According to the 2020 US Department of State Human Rights Report, local governments have sent personnel to Beijing to force petitioners in the capital to return home. While examples of violence and, in extreme cases, deaths are reported, many complaints are resolved through the petitioning process.
110. The report states that land disputes are a particularly common reason for protest. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. Land policies and the process to compulsorily acquire land vary from place to place but, across China, land in urban areas is owned by the state and rural areas are collectively managed by villages. Disputes arise when local officials try to sell land and evict existing tenants with low amounts of compensation (thus, disputes are generally complaints against local government which may escalate to the national government, as outlined above). China’s new Civil Code (in force 1 January 2021) requires fair and reasonable compensation to be paid for expropriated land but does not define ‘fair and reasonable’. Land sales are an important source of revenue for local governments and corruption in land deals is commonly alleged.
111. People who advocate for human rights and their families are subject to surveillance, threats, and detention. DFAT is aware of human rights activists who work in areas such as gender or labour rights who have been detained for their activism. Families of activists have been threatened with the loss of jobs if they speak out. Those who speak out about their treatment by authorities face further detention, limiting the number of available sources and information about the treatment of activists.
112. High-profile activists and critics are particularly targeted but DFAT is also aware of examples of low-profile but outspoken activists being targeted. Profiles of those who may be affected are difficult to predict accurately. DFAT assesses that high-profile activists are at high risk of official discrimination in the form of detention and imprisonment.
113. The Tribunal finds in this application that there is no evidence that the applicant or his father are or were ‘high-profile’ activists, such as to increase the level of risk attracting official discrimination, detention, or imprisonment.
114. The Tribunal finds that the available country information does not support a finding that the applicant faces a real chance of persecution either in his former home in the village, or in Beijing, or elsewhere within China. The Tribunal finds on the information, that there is no reasonable degree of likelihood or a real or substantial risk of persecution occurring elsewhere in China which is other than remote or insubstantial.
Summary - analysis
115. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness, and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons.
116. The Tribunal formed the view at the hearing that the applicant did not appear unduly anxious or nervous and that his memory as to dates and names and some detail overall was aligned with what might be expected when asked questions covering a period since 2014. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.[8] A similar approach is endorsed in the Department’s Refugee Law Guidelines[9] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’).[10]
[8] SZLVZ v MIAC [2008] FCA 1816 at [25].
[9] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines). Note that Ministerial Direction No. 84, made under s 499 of the Act, requires the Tribunal to have regard to those Guidelines, where relevant.
[10] UNHCR, re-issued February 2019 at [203]–[204]. Note that the Handbook is not binding on decision-makers.
117. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant.
118. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[11]
[11] See Selvadurai v MIEA& Anor (1994) 34 ALD 347 at [348].
119. The applicant is unrepresented. The applicant made no written submissions and relies upon his 2016 statement with the completed Department application form and his oral evidence, summarised above. The applicant has asserted his evidence as to past events and what he believes might happen in the future is all correct.
120. The events giving rise to the applicant’s claims for protection all occurred in a period of approximately 6 months, from December 2014 to July 2015. There is no evidence of any prior ‘high profile’ activism before or after that period, and which dispute according to the evidence was handled at a local level.
121. The applicant was not compelled to ‘return’ in 2007 from Beijing, when a separate issue arose, and which has not been specified or detailed. Had the authorities either locally or higher up sought to take more severe action to punish the applicant’s parents or other family members, such as the applicant’s sister or his spouse, due to family activism or imputed political anti-government sentiments, such action could have occurred. It did not, which lends weight to the finding that the local authorities had dealt with the matter and there was no further interest in the family for continued harassment and persecution, or which required more strident and severe punishment, other than warnings not to do so.
122. The Tribunal can accept that the applicant may be at some greater risk of attention should he choose to challenge the compensation decision himself with or without his father’s involvement but does not accept there is a likelihood of the applicant choosing to challenge the compensation decision at all. The applicant in his recent evidence has said he will not challenge the decision.[12]
[12] Par 106 above
123. The Tribunal has rejected the applicant’s claim that the applicant fears persecution from local authorities or police either in retribution for what occurred in 2015, or due to possible claims the applicant’s father or he himself might make on the applicant’s return to China on his father’s behalf. His real fears expressed at the hearing are for his parents and their health.
124. The Tribunal’s reasons can be summarised as follows, and at the risk of some repetition:
·Firstly, there is no substantive evidence of any threatened retribution by police, or conversely, any action to be taken or challenge made by the applicant and his father. The Tribunal does not accept that the applicant and his father are contemplating any action to follow-on from the 2015 [business] demolition. No information to that effect has been provided either by the applicant in his oral statements or by his father’s written statement.
·Secondly, there has been only one phone call, apparently through the applicant’s sister, since 2015, seeking the applicant’s whereabouts. There is no evidence of any persistent threats against the applicant personally, or his parents, and the Tribunal does not accept the father’s statement that police continually telephoned the applicant in Beijing after the demolition for him to return to the village and caused him to lose his job. There appears on the evidence little or no interest from the authorities in China of pursuing the applicant’s whereabouts or for his return to China.
The Tribunal rejects entirely that the local authorities or police are intending action themselves against the applicant personally, or his family, or that there is any remaining interest in the applicant since what occurred in 2015. The Tribunal has rejected in its entirety the father’s statement that “Later, the police station learned that my son [the applicant] was working in Beijing, and they started calling my son himself and my son’s company, asking him to return to the police station in our hometown to report. My son also lost his job because of this.”

The available information is that the applicant was in Australia from April 2014 on a student visa, well-before the events described before, during and following the [business] demolition in late 2014 and mid-2015. The applicant’s father has not corroborated the applicant’s conversation with police or the events which ‘coincidentally’ according to the applicant’s oral evidence to the first tribunal, occurred when the applicant happened to ring his parents when the police were present. The Tribunal can accept that the applicant was angry when he heard of the events and may have spoken to a police officer but does not accept that this event may cause him harm on his return or that he will be ‘revenged’.
·Thirdly, the applicant’s evidence is that his parents are both suffering from ill-health and have not been harassed, threatened, or intimidated by police. The applicant does not wish to exacerbate their present condition while they are still living in the village, by agitating any action or claim. The applicant said he would only do so if the police or local authorities initiated something. There is no evidence objectively to expect what, when, or why that would occur, and the applicant’s evidence is that police in fact do not want to harm his parents. The applicant himself said he would be ‘safe’. The Tribunal rejects the claim that the applicant would retaliate or himself take action against the local authorities on his return in order to protect his parents, as there is no evidence his parents or more particularly his father due to his ill-health, intends any further action at all or requires the applicant’s intervention and assistance.
The Tribunal can accept that the applicant’s father did continue to attempt a claim for compensation after 2015 by persistently writing to higher authorities, but according to the applicant, never received a response. This indicates a lack of interest or concern over the claims, or any likelihood or prospect of any success, and which if continued on the applicant’s return may only serve to cause further anguish for the applicant’s parents, and which the family is anxious to avoid.
·Fourthly, there is no evidence that the applicant’s father wants the applicant to return so that he can continue claiming compensation. On the contrary, the applicant’s evidence and that of his father is that the applicant remain in Australia where he has prospects of a better life and employment, and so that the applicant can continue to send home to his parents some financial support, and not because action has been threatened by local authorities or police. The applicant’s evidence is that his father told him that he should stay in Australia, when his student visa was expiring in late 2016, so he could “have a good life and stop being persecuted by the government”. It was only then in late 2016 that the applicant sought his protection visa, and at which stage he had not been persecuted by the government at all.
The Tribunal does not accept that the applicant will be the author with his father or without, of any challenge to which he referred in his statement because of the land acquisition issue from 2014, and does not accept the claim that he will challenge the Chinese government himself if returned to China.
For the reasons expressed above by the applicant himself over concerns for his parents health, the Tribunal finds that the applicant will not seek to put his parents, who are his only concern, under any pressure or risk. The Tribunal rejects entirely the applicant’s evidence that his father would want to continue claiming compensation if the applicant returned.
·Fifthly, the Tribunal rejects entirely the applicant’s claims that either he or his family will be harassed because of his imputed political opinion for challenging the local authority and/or the Chinese government. There is no evidence that the applicant’s family has been threatened or harassed since 2015, other than generally surveilled, and there is no evidence provided from the applicant’s sister that she is aware of any threats against him personally.
There is no evidence the applicant has involved himself in any action, other than when his father rang him in 2015, and the applicant spoke to someone whom he then swore at in the heat of the moment. The applicant has not been summonsed or charged or threatened as a result and the Tribunal finds he is of no interest to authorities for the reasons asserted, and to be ‘revenged’. The applicant gave no reason as to why the authorities would still be interested in him after 7 years. He produced no evidence of any action taken by authorities against him. The only evidence was persistent threats to his family not to cause trouble. The Tribunal rejects the claim that the applicant will be “revenged” by the Police for swearing over the phone.
·Sixthly, the applicant has said his parents health is not good and his father risks [health] issues. He said that is his only concern. The Tribunal can and does accept that the applicant has concerns for his parents’ health and general well-being and is responsible in that regard, but that does not translate into a concern for threatened persecution against himself.

125. The Tribunal has found the applicant’s evidence often vague and generally unresponsive, and there is no independent or objective basis for finding any real fear he has of persecution for himself, that is either well-founded, or more than a low possibility. His family and particularly his mother have been in disputes with the police, whom they live near, over many years and which has not only to do with the events arising in 2014/2015 leading to dismantling the [business].
126. The applicant’s makes reference himself to only one police telephone request that he return home from Beijing, in 2007, because of earlier local issues well before and which did not result in any action against him.
127. The Tribunal finds there is no evidence of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, or that there is a real chance the applicant would be persecuted for one or more of those reasons either upon his return or in the foreseeable future.
Complementary protection
128. The applicant has accepted that it is safe for him to live elsewhere in China, as he did in Beijing previously for many years.
129. The applicant said, however, he would choose to return to live with his parents, in part because they would be threatened if he did not. The Tribunal rejects that claim. The applicant’s parents could be threatened, or ‘hostaged’ as the applicant asserts, from wherever the applicant is located, either overseas or in China itself. There is no evidence to support such a claim.
130. The reason the applicant is not prepared to relocate anywhere else in China is because his father has asked him not to return at all and has not said it is because his father is being threatened. The applicant himself has said he does not intend to see his parents again. The applicant has no reason to return to his wife who is divorcing him, and he says means he has no other family ties. The Tribunal finds that the applicant can live away from his parents safely, should he choose to do so.
131. The Tribunal finds that the applicant can relocate to other places in China where he can find work and not be a threat either to his parents by putting them at risk, or to himself from the authorities locally or from the Chinese government.
132. The Tribunal rejects the applicant’s claim that he would challenge the Chinese government with his father on his return and which might otherwise impact his choice as to where he might live in China either close to his parents or elsewhere.
Conclusion
133. Having considered all of the evidence in its entirety, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.
134. 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).
135. The Tribunal, for the reasons expressed 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.

137. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
138. The Tribunal affirms the decision not to grant the applicant a protection visa.
Alan McMurran
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1360

11 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction