2428602 (Refugee) - [2024] ARTA 685

2428602 (REFUGEE) [2024] ARTA 685 (27 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2428602
Tribunal:General Member J Edis
Date:27 November 2024

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

Statement made on 27 November 2024 at 9:07am
CATCHWORDS
REFUGEE – protection visa – China – protested against industrial operations in local area – industry’s links to gangster and local government head – attacked, threatened and detained – candidature in location election – ballot irregularities – bullied and assaulted during employment on ship – fear of harm from gangsters, local authorities, crew member and company – protestors trespassed and actively interfered with equipment and operations – no harm during previous returns to village – religion – Falun Gong member – religion not declared in application – membership accepted but no claims of harm – previous visitor visa application unexplained and given no weight – failed asylum seeker – country information – exit control list – no profile of adverse interest – 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
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The application was initially lodged with the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the 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.[1]
[1] 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.
BACKGROUND
The applicant is a [Age]-year-old Chinese citizen. He arrived in Australia [in] June 2024 as a maritime crew member on a [vessel] known as the [Vessel name]. He jumped ship when the vessel docked at [Location]. Later that day, he met with Australian Border Force officers. He was taken to immigration detention.
The applicant lodged a protection visa application with the Department on 18 July 2024. He was invited by a case officer to provide further information about his claims, which he did via a written statement and some photos.
A delegate of the Minister for Home Affairs refused to grant a protection visa to the applicant on 8 August 2024 pursuant to s 65 of the Act. He applied to the AAT on 16 August 2024 to seek a review of the decision to refuse the visa.
The applicant attended two hearings before me to give evidence and present arguments in support of his application for review. They took place on 20 September and 18 October 2024, respectively.
The applicant was self-represented at each of the hearings. They were conducted with the assistance of a Mandarin interpreter. The same interpreter attended on each occasion.
The applicant submitted a large volume of documentation to the Tribunal in support of his case, in addition to more than 5 hours of oral testimony, which I have considered and discuss below.
I am satisfied the applicant does not wish to return to China. However, for the reasons that follow, I am not satisfied he meets the criteria for a protection visa. Accordingly, I affirm the decision under review.
RELEVANT LAW
At the outset of the first hearing, a basic overview of the protection visa criteria was explained to the applicant, which is summarised below.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth).
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 because they are:
·a refugee (per s 36(2)(a)); or
·entitled to ‘complementary protection’ (per s 36(2)(aa)); or
·a member of the same family unit as such a person and that person holds a protection visa of the same class (per s 36(2)(b) or (c)).
Refugee criterion
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) of the Act.
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: s 5J(1)(a); and
·there is a real chance they would be persecuted for one or more of those reasons: s 5J(1)(b); and
·the real chance of persecution relates to all areas of the relevant country: s 5J(1)(c).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), then the reason(s) must be the essential and significant reason(s) for the persecution: s 5J(4)(a). Further, the persecution must involve:
·serious harm to the person: s 5J(4)(b); and
·systematic and discriminatory conduct: s 5J(4)(c).
Complementary protection criterion
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) of the Act.
The meaning of ‘significant harm’, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).
Pursuant to s 36(2A), a person will suffer significant harm if: they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
Pursuant to s 36(2B), there is taken not to be a real risk that an applicant will suffer significant harm in a country if:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; or
·the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or
·the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
Mandatory considerations
Section 499 of the Act empowers the Minister to give directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Relevantly, Ministerial Direction No.84 (MD 84), made under s 499 of the Act, concerns the consideration of protection visa applications.
In accordance with MD 84, I must take account of:
(a)the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’, prepared by the Department;[2] and
(b)country information reports prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for assessing protection status claims.
OUTLINE OF EVIDENCE
[2] These materials contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision makers on how the law is to be applied.
Country of nationality
The applicant supplied copies of the following identity documents in the course of making his protection visa application:
a.    an ordinary passport issued by the People’s Republic of China (PRC) in Hebei [in] 2022;
b.    a seafarer’s passport issued by the PRC in Hebei [in] 2023; and
c.     a National Identity Card for the PRC valid from [January] 2021 to [January] 2041.
I have no reason to believe that these documents are not genuine. On that basis, I find the applicant is a Chinese national and China is the receiving country in this case.
I also find, based on the information contained in the identity documents, that the applicant was born in Hebei province, and he ordinarily lives in [Village], [Town], Quyang county, Baoding city, Hebei province.
The applicant’s personal background
I accept the following evidence, given by the applicant over the course of the hearings, about his personal particulars and background.
Consistent with his identity documents, the applicant told me he was born in Quyang county, Baoding city, Hebei province in [Year]. His hometown is [Village]. His parents still live there, as does his only [sibling].
The applicant grew up in [Village] and ordinarily resides there, in the same house as his parents. He has not lived there since mid-April 2023, for reasons which are explained below.
The applicant has an ex-wife and two children, a son and a daughter. He was divorced in [Year]. His ex-wife moved away from [Village]. His daughter, who is an adult, left with her mother.
The applicant’s son is [Age] years old. He attends a boarding school, which is not located in [Village]. He returns home for up to 5 days each month.
The applicant left school at 16, and never previously had a formal job as such. He worked on farmland and as a kind of [occupation]. He has carried out labouring jobs of all other kinds too.
Despite marking ‘N/A’ as his religion on the protection visa application form, the applicant told me that he follows the Falun Gong movement. He said his mother first started following it in [Year]; he joined in [Year] or [Year]. I sought an explanation why he didn’t state his religion initially. He said he wasn’t sure if Falun Gong was considered to be a religion in Australia.
I asked the applicant if he had experienced any problems associated with being Falun Gong. He replied to the effect that ‘we were discriminated by the government’ and many people in his village practice Falun Gong, and it is not harmful. I asked him to give me a specific example of discrimination that he had personally experienced. He said that his attempt to be elected as the director of the village in April 2023 was thwarted by the officials involved in the process because ‘they probably thought [his] religion was not as good as someone else’.
The applicant’s protection claims
The applicant has given evidence about and, in support of, his protection claims in a serial manner and a variety of ways. The starting point was the visa application form lodged by him. Thereafter, he provided further information via a written statement addressed to the Department, together with some photos. He gave significantly more evidence to the Tribunal during and after the 2 hearings.
The applicant’s evidence has mostly been consistent about his personal circumstances, various relevant life experiences and events, and the reasons why he fears returning to China. Because he gave much more detail about these matters to the Tribunal than he did to the Department, the scope of his protection claims for assessment by me has expanded compared to what the delegate considered.
The applicant’s case, as presented to the Tribunal, is based on the following factual claims:
(a)In early 2023, together with a group of other residents of [Village], the applicant became involved in protests against [industrial] operations nearby to the village, because the operations were destroying the viability of their farmland and posed a major safety risk, including by causing drownings at the adjacent river.
(b)The [industrial] company was run by gangsters.
(c)The head of the [industrial] company was a prominent gangster and related by marriage to the head of the local government committee in [Village].
(d)The local government officials allowed the [industrial] company to carry out its operations despite the destruction it was causing, because of the familial connection between the two ‘head men’.
(e)The applicant was encouraged by some of the village residents to participate in a local government election taking place in April 2023, so that he could try to put a stop to the [industrial] operations.
(f)The ‘village director’ did not want the applicant to run for election. He confronted the applicant about it one evening (on 10 February 2023) when the applicant was on his own, at around 7pm at night, outside a restaurant in the village.
(g)The applicant was set upon by a group of 5 gangsters who were with the village director. They punched him repeatedly. The local police were called to the scene. Initially, the applicant was threatened with arrest. But there were witnesses who told the police that he didn’t do anything wrong, so he was allowed to go home.
(h)On 25 February 2023, a group of the protestors went to the [industrial] site to complain about the operations and ask them to stop. It led to a ‘group fight’. The protestors were outnumbered by the gangsters and badly beaten and injured.
(i)The applicant decided he still wanted to run in the election.
(j)On polling day, 1 April 2023, the applicant and several others observed that his votes were physically removed from the ballot box and were not counted, to ensure that he did not win.
(k)On 7 April 2023, the applicant and a dozen other villagers accessed the [industrial] site and started damaging the equipment and interfering with the operations. This led to another violent confrontation with the gangsters.
(l)The applicant was kicked and beaten with a weapon, and suffered injuries including broken fingers, and lacerations to his arms and knees. He was forced to search for a bullet that had been shot into a pile of sand, and also forced to eat sand.
(m)The local law enforcement officers arrived on the scene and detained the villagers but not the gangsters.
(n)The applicant’s father paid a substantial sum of money (more than CYN5,000) in order to effect the applicant’s release from detention.
(o)The applicant decided to leave [Village] after these events took place.
(p)On 19 April 2023 the applicant travelled to [Country].
(q)The applicant returned to China in mid-September 2023. He went home for a few days and then headed to Shandong province to undertake studies to enable him to work as a seafarer.
(r)The applicant finished the 40-day course, which took place in the city of Rizhao, in early November 2023. The applicant then worked casual jobs in Beijing while waiting for his results, the processing of his passport, and possible job offers.
(s)The applicant was successful, and his seafarer’s passport was issued in late December 2023.
(t)In early January 2024 the applicant was offered a 6-month contract as a low-ranking crew member on the [Vessel name].
(u)The applicant returned to [Village] for a period of 6 days to say goodbye to family and organise his personal affairs.
(v)On 23 January 2024 the applicant boarded the [Vessel] at Caofeidian and the ship left port.
(w)After around 2 or 3 months of being at sea, the applicant was beaten by 3 of his work mates. The applicant was thereafter verbally and physically bullied by the same work mates on an almost daily basis.
(x)The applicant was sexually violated on at least 3 occasions by the same work mates. The applicant jumped ship at [Location] [in] June 2024 to escape the abuse.
(y)After about one month of the applicant being in Australia, an attempted kidnapping of his son took place at his son’s boarding school.
(z)The authorities visited his home in [Village] and informed his parents that he had jumped ship in Australia and was ‘missing’; the family were instructed to report the applicant’s whereabouts to the authorities, if known.
The applicant told me that he is afraid that he will be harmed if he is returned to China for the following various reasons:
(a)If he specifically goes back to [Village]:
(i)he will be physically harassed again by the gangsters (and fail to be protected by the local authorities) as a result of his prior participation in the vandalism and protests against the [industrial] operations and his oppositional stance; and
(ii)he may be charged with ‘unfair offences’ and arrested by the local authorities;
(b)If he returns to China, as a general proposition:
(i)the primary perpetrator of the assaults on the [Vessel name] will personally track the applicant down and ‘cause trouble’ for him, including by being very violent towards him;
(ii)the shipping company will separately ‘cause trouble’ because his desertion is likely to have adversely impacted the company’s reputation and they will want to find the applicant ‘for retaliation’;
(iii)he will be harassed and arrested and arbitrarily detained by the authorities simply on the basis of being a ‘ship jumper’ and ‘failed asylum seeker’, because it will be assumed that he is an anti-government activist or similar; and
(iv)he will be persecuted because he is a follower of the Falun Gong movement, which is illegal in China.
Evidentiary materials provided by the applicant
Written statements
The applicant provided the Tribunal with numerous very long personal written statements, describing the factual background to his claims in great detail and often repetitively. He also submitted a number of statements purportedly prepared by individuals who still reside in [Village], vouching for what took place in early 2023 with regards to the [industrial] operations, the violent protests, the applicant’s participation in the local election, and the outcome.
English and Mandarin versions of the statements were provided. None of the English versions were certified translations. The applicant was repeatedly informed that the Tribunal strongly prefers all translations to be certified. He explained that he could not afford it. He used a translation software program instead.
There are several portions of the applicant’s statements which are riddled with grammatical errors or simply do not make sense by reason of the word order or word choice or both. I am not satisfied the Mandarin to English translation process was accurate or reliable.
Moreover, the statements from the [Village] residents contain similar wording to each other and are not accompanied by any form of identification (excluding one), although they appear to have been ‘fingerprinted’, which the applicant claims to give them ‘authenticity’. In respect of one of the statements, it is described as ‘joint testimony’ to have been ‘witnessed and testified’ by 5 people. I am not satisfied any of these statements were personally written by the applicant’s Chinese friends, as claimed.
In these circumstances, I have placed minimal weight on the written statements. In so doing, I am not casting aspersions on the applicant’s credibility. I accept that he has financial limitations and was unable to pay for translation services. I also acknowledge there are inevitable practical difficulties faced by applicants who are required to prepare for their hearing in immigration detention and are without legal representation.
I went over the contents of the written statements with the applicant at the hearings. I am satisfied the applicant gave oral evidence about all of the matters contained in the written statements.
Floor plan of [Vessel name] and photos provided to the Department

The applicant provided a diagram entitled ‘Floor plan of the [Vessel name] ship’. I asked him some questions about it at the hearing. I am satisfied that, to the best of the applicant’s ability, it is an accurate representation of the floor plan of the [Vessel name]. It depicts the working, living and sleeping areas.
The applicant also provided 2 photos of a dented ‘stainless steel [object]’ in support of his application. He told me that he took these photos on his mobile phone after being severely beaten by the [co-worker] for whom he carried out work in the [work location]. The basin was an ordinary [object]. The [co-worker] used it to repeatedly hit the applicant on the shoulder. He was beaten so hard by the [object] that it caused dents.
I asked the applicant when and why he took photos of the [object]. He checked the data on his phone to confirm they were taken on 7 June 2024. He said he wanted to show the photos to others to let them know he was beaten. He said: ‘I wanted to use [them] as evidence’.
I asked why the applicant did not take photos of the injuries he sustained as well as, or instead of, the [object]. He gave a convoluted and confusing reply, which was to the effect that he was afraid that his work mates would see the photos and get angry at him if he did so, but he was also worried his parents would later end up seeing photos of his injuries ‘by accident’ and they would be very upset.
I asked whether the application had taken photos after being assaulted on any other occasion, to use as ‘evidence’, noting the assaults began in around March 2024. He said that he had not done so, because he was not previously planning to jump ship.
I have some reservations about the applicant’s explanations insofar as the photos are concerned. However, I am prepared to accept that he took 2 photos of the stainless steel [object] on 7 June 2024 after it had been used by the [co-worker] to assault him. I find the applicant took the photos because he intended to get off the ship at the next port, being [Location].
Screenshots and social media posts
The applicant gave the Tribunal a large number of screenshots and graphic social media posts, without any accompanying explanation. I asked the applicant about them at the second hearing. He explained they are related to the [industrial] operations near [Village] and the multiple drowning deaths of local children, as a result of the damage done to the riverbanks.
The applicant confirmed he was not personally affiliated with these screenshots and social media posts. For example, the dead children shown in the photos were not family members. But he wanted me to understand that these things happened and that is why he protested against the [industrial operations].
I accept this evidence in the manner intended by the applicant. These materials illustrate and corroborate the events that he described as having taken place in his home region in China.
Other information
Interview with Departmental officer before applying for protection
According to Departmental records, the applicant was interviewed on 26 June 2024 to gather information about his circumstances and resolve his immigration status. It was conducted with the assistance of a Mandarin interpreter over the telephone.
At the hearing, I explained to the applicant that I had access to a written record of this interview and intended to ask him some questions about it. He said that he was ‘extremely nervous’ during that interview.
I told the applicant it said on the written record that, in response to a question which asked why he left China, he said words to the effect:
Was working on the ship and was hit by another worker. That person may cause me trouble if I return to China so I want to stay and work here. I don’t want trouble. I just want to earn money to support my family.
I also told him that, in response to a question which asked if he had any reasons why he could not return to China, he said:
It will make everything worse if I return. He is very violent and will cause me problems when he finds me.
I asked the applicant if what he told the case officer comprised the main reasons why he left the ship and did not want to return to China. He said: ‘yes, but it was a combined reason’, in that he was afraid of the [co-worker] who had beaten him on the ship, as well as being afraid that the government would ‘make trouble as well’, even though he did not expressly say anything about the government during the interview.
Visitor visa application
According to Departmental records, the applicant lodged an offshore visitor visa application on 28 July 2022, and it was refused on 2 August 2022. I asked the applicant at each of the hearings what he knew about this application.
The applicant told me that he did not lodge the visitor visa application, nor had he ever applied for any other visa for Australia. He added that he did not have access to his passport as at the date of the application.
After the hearings, the Tribunal received a copy of the Department’s visitor visa application file. The applicant was given a copy of the application form and the supporting documents, and invited by the Tribunal registry to comment on them. The documents included:
·a copy of the applicant’s PRC passport issued on [2022]; and
·the applicant’s National Identity Card for the PRC valid from [January] 2021 to [January] 2041.
The applicant promptly replied to the Tribunal with a very lengthy written statement, and numerous unexplained screenshots, including what appears to be banking transactions during 2022 and 2023. In short, the applicant found the visitor visa application and the documents to be ‘shocking’. He reiterated his oral testimony: he did not apply for an Australian visitor visa and had no knowledge of it.
The applicant expounded that he applied for his PRC passport in the second half of 2021. Although it was issued in March 2022, he did not collect it from the ‘processing agency’ until late December 2022. He suggests that his passport information must have been illegally used to prepare the visitor visa application before he collected it.
The applicant gave detailed submissions about the other documentation which formed part of the visitor visa records, and which had been provided to him for comment. On all accounts, he refutes their authenticity.
I have closely considered the applicant’s response and admit that I am perplexed by this aspect of the case. If I reject what the applicant has told me, then it has a devastating impact on his credibility, for various reasons. On the other hand, I am mystified as to the benefit that would be gained by a third party using the applicant’s passport information to obtain an Australian visitor visa. If the visa had been granted, then only the applicant could have travelled on it. As it turns out, the visa was refused so it is somewhat of a moot point.
I am keenly aware that the first-named primary objective of the Tribunal is to provide an independent mechanism of review that is ‘fair and just’. The applicant has been in immigration detention since June 2024. He has no means whatsoever of meaningfully making his own investigative enquiries about these matters in China. He has been compliant and cooperative in his dealings with the Department and Tribunal to date. With this in mind, I have decided not to place any weight at all on the visitor visa application made in 2022 when it comes to determining the applicant’s case.
Country information
I am required by MD 84 to consider all relevant DFAT country information reports. The most recent DFAT country information report about China was published on 22 December 2021 (the DFAT Report).
The events and circumstances which the applicant described as having taken place in [Village] are broadly consistent with the information contained within the DFAT Report. For example, the DFAT Report notes:
3.79 Article 35 of China’s Constitution states that citizens of the People’s Republic of China enjoy the freedoms of: speech, the press, assembly, association, procession and demonstration. In practice a wide-ranging number of topics are considered sensitive and are censored, with those raising them liable to punishment. Sensitive issues include commentary on: political issues and events […]; serious economic, health […]; land rights and property or environmental issues; labour rights; religious or ethnic issues; or legitimacy of central authorities and the Chinese Communist Party (CCP).
…
3.88 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 […]
3.89 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.
The applicant’s description of the actions taken by the local law enforcement authorities in April 2023 is also consistent with the DFAT Report to the extent that it notes:
· Police maintain public order and social stability, which are overriding priorities for the CCP […][3]
[3] See [5.2] of the DFAT Report.
I also note the following matters reported by DFAT:
·     Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities […] Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list.
·     Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list.
·     If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China.[4]
[4] This information comprises extracts from [5.31] to [5.33] of the DFAT Report.
As for the applicant’s fears about what will happen to him if he returns to China, the DFAT Report relevantly says:
5.28 DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear.
Unsurprisingly, the DFAT Report does not contain any information specifically about how Chinese ‘ship jumpers’ or ‘ship deserters’ are treated when they return home. In this regard, however, I take account of the potentially applicable provisions of the Regulation of the People's Republic of China on Seafarers 2007 and the People's Republic of China Seafarers Assignment Management Act 2011 cited by the delegate in the refusal decision. There is scant detail about the operation of these provisions but, on the face of it, the applicant may face a sanction for having left the ship without approval.[5]
[5] See page 8 of the Protection Visa Decision Record dated 8 August 2024.
For completeness, given the full extent of the applicant’s claims, I confirm the DFAT Report states the practice of Falun Gong is illegal in China and its practitioners are liable to prosecution and imprisonment and face a high risk of official discrimination. Having said this, it also states:
Falun Gong practitioners are generally able to practise privately in their homes.[6]
[6] See [3.70] of the DFAT Report.
I accept the DFAT Report as an accurate and credible source of country information.
CONSIDERATION OF PROTECTION CLAIMS AND FINDINGS
I now turn to consider the applicant’s protection claims and address each of the applicant’s claimed reasons why he fears returning to China.
The local gangsters
The applicant told me one of the reasons he is afraid of going back to [Village] is because the gangsters affiliated with the [industrial] operations are likely to harm him. He referred to the beatings that he previously experienced in this context, the injuries he sustained, and the scars he had to show for them. He expects that to happen again.
I accept the applicant’s evidence about the events that took place in [Village] in 2023, all of which stem from the [industrial] operations and their devastating impact. However, on the applicant’s own evidence, the harassments and assaults took place when the protestors actively interfered with the equipment and services at the [industrial] site.
The applicant told me about how, on 7 April 2023, they arrived at the site under the cover of darkness and ‘pulled apart the equipment’ and tried to stop the vehicles from taking the [product] out of the area. In other words, the applicant and his cohort trespassed onto the [industrial] operations and deliberately vandalised them. It is not surprising the gangsters reacted angrily towards them and the local law enforcement officers later detained them.
While I can sympathise with the protestors’ moral stance, the reality is they engaged in a form of vigilantism. I do not condone the violent reaction on the part of the gangsters. But I do find the gangsters’ violence was triggered by the protestors’ provocative and destructive activities.
I find there was a direct link between the harassment and harm inflicted upon the applicant by the gangsters and his engagement in the protests at the [industrial] site. In other words, I find the applicant will not be harmed by those gangsters if he returns to [Village] and chooses not to resume protesting in the physically damaging and destructive manner as previously.
I do not accept there is otherwise a generalised, ongoing threat of harm posed by the gangsters to the applicant. He did not claim that he was told to leave the village by anyone. His evidence was to the effect that he departed voluntarily in April 2023, firstly to spend time in [Country] and thereafter to Shandong to complete the seafarers’ course, which led him to his job on the [Vessel name]. He did not claim that there were any issues when he returned to the village in September 2023 and January 2024.
For the avoidance of doubt, I do not consider the applicant’s evidence about the incident he described as ‘an attempted kidnapping of his son’ outside of his school in July 2024 is related to the gangsters in [Village]. This aspect of the applicant’s case is particularly lacking in detail and rationale. I cannot be satisfied that whatever it was that happened to his son that day is connected to the applicant in any manner.
Put simply, I find if the applicant goes back to his home village, either for a short period or to live and work longer term, the gangsters will leave him alone unless he engages in unreasonable conduct which provokes them to do otherwise.
The local authorities
The applicant claims that he will be harassed and potentially arbitrarily detained by the local authorities if he returns to his village. In effect, he said he has a high profile as a political protestor and activist and will be targeted by them as he was previously.
Again, I have considered these claims in the context of the previous incidents. I am prepared to accept the ‘village director’ confronted the applicant in February 2023 and instructed others to beat him up, to dissuade him from running in the election. In that instance, when the local police arrived, the applicant was questioned and then allowed to go home.
I am also prepared to accept the election was corrupted via the removal of the votes. But I am not satisfied this constitutes evidence of a likelihood that the applicant will be harassed by the authorities if he returns. Their objective was achieved, after all – namely, the applicant was not elected and was not able to gain any influence.
I have taken account of the fact that, by his own admission, the applicant was actively involved in violent demonstrations against the [industrial] operations and attempted to sabotage them. He was detained, with the others, when they were caught red-handed. The applicant’s father paid a fine, and then he was released. I do not accept that the authorities’ conduct equates to a form of harm or harassment. They were doing their job.
I have had regard to the fact that since the applicant left the village in April 2023, he has returned twice to visit family and (as noted above) did not experience any harm or harassment on those occasions. Additionally, since his departure, he had no difficulties travelling internationally or being issued with a seafarer’s passport. Noting that exit and entry is strictly regulated, and high-profile activists are likely to be on an ‘exit control list’, I consider the applicant would not be permitted to leave China or issued with a second passport if he was genuinely a person of interest to the government.
I am satisfied that if the applicant goes home, he will not be harassed, harmed, arrested or detained by the local authorities either because he has a ‘profile’ linked to the events of early 2023 or for any other reason, including that he jumped ship in Australia and applied for a protection visa (which I consider further below).
The [co-worker]
The applicant claims to be scared that the [co-worker] on the [Vessel name] who was his primary abuser will track him down in China if he returns. He told me: ‘the [co-worker] is very violent and will kill me’. I queried on what basis the [co-worker] would be able to find him, given the population and country size. He said it was because ‘big data is so advanced’ and ‘all [my] personal information [was] posted on the ship’.
I accept the applicant was abused during his time working on the ship. I have some reservations as to the extent and nature of the violence that the applicant claims to have suffered. His evidence about these matters was inconsistent at times and I found his explanation as to why he took 2 photos of the stainless steel [object] but not of any bodily injuries very peculiar. Regardless, I am satisfied 3 of his co‑workers repeatedly assaulted him and that the [co-worker] was the ringleader.
I asked the applicant if he reported the abuse to anyone on the ship and, if not, why not. He explained that he wanted to speak with the captain about it, but he was worried about ending up in a ‘worse situation’ because he figured it would lead to retaliation. There were only 20 staff in total on the ship. It was a confined space and impossible to make a report without others knowing about it. Furthermore, in terms of the staff hierarchy, he ranked last. The [co-worker] was his immediate superior. The ranks then went up, from sailors to the engineers, to the first mate, and then the captain. According to the floor plan, the applicant and the [co-worker] were allocated the lowest sleeping quarters. The captain’s quarters were located 5 floors up.
I accept the applicant’s evidence about the staff hierarchy and the ship layout, and that he was reluctant to formally complain about how he was being mistreated, so he did not do so. I also accept that at some stage the [co-worker] likely learned some of the applicant’s personal particulars, such as the name of his home village.
However, in the event that the applicant goes back to China, I do not accept the [co-worker] will take any steps to locate him and physically harm him. I consider the abuse and bullying perpetrated by the [co-worker] took place in the context of a strict hierarchy of their work environment and under the assumption it could be carried out with impunity. Indeed, the applicant never reported it. As a result, there would have been no repercussions or any investigation into the [co-worker]’s conduct after the applicant jumped ship in [Location]. The [co-worker] got away with his reprehensible behaviour. It makes no sense whatsoever that he would remain interested in the applicant anymore, let alone remain so interested in him that he would be on the look out for him to return home and thereafter track him down (even if he had the means to do so), with the intention of seriously harming him. I find this scenario to be extremely far-fetched, and I reject it.
Ship jumping

The applicant expressed fears about what the shipping company will do to him if he returns to China. I asked him to explain this to me. He anticipated the company’s reputation would have been adversely impacted by him jumping ship. He referred to the company potentially being downgraded in terms of the routes it can access, which would cause a big financial loss. The company may also be fined. He expects the company to take action against him in China and ‘retaliate’.
In one of his statements, the applicant wrote about facing ‘legal sanctions’ at the hands of the shipping company but he is afraid that he will not get ‘corresponding legal protection’. He referred to the fact that the company had already reported his conduct to the authorities, given his parents had received a visit at home and were told he had jumped ship, and instructed to keep the authorities informed of his whereabouts. He considered this to be ominous.
Firstly, I accept the applicant is likely to face legal repercussions of some kind in China for having jumped ship in [Location], instigated either by the shipping company or a relevant government body or both. I consider it highly plausible that such consequences will follow. At the least, I expect the applicant contravened a term of his employment by jumping ship. He may also have breached regulations which govern the Chinese maritime industry.[7]
[7] See [72] above under ‘Country Information’.
Secondly, I consider it was entirely appropriate for the shipping company to have reported his actions to the authorities and, in turn, for the applicant’s family to have been informed about it. I do not accept that these matters imply that there is a sinister outcome awaiting the applicant in China. If anything, they are indicative of an employer owing a duty of care to its employee and following a protocol.
More importantly, however, the applicant has not provided any independent evidence – and there is no country information – which indicates any actions that may be taken by the applicant’s former employer and/or the appropriate authorities in response to the applicant’s decision to jump ship may amount to unreasonable or unfair harassment, let alone any harm. I accept there may be a financial penalty, such as a fine. I accept the applicant may need to pay back some of his wages, depending on the timing of the payment. I accept the applicant’s ability to work as a seafarer again in future may also be terminated. I am not satisfied, however, that he will be physically harmed in China, or face what the applicant described as ‘unfair charges’, or arbitrarily detained, because he jumped ship.
Failed asylum seeker
The applicant spoke about being afraid of getting into trouble with the Chinese government if he goes back because he will not be returned from Australia via the ‘normal channels’. In other words, the government will know that he is a failed asylum seeker. The applicant explained that he will be imputed to be anti-government, and he will face ‘a lot of political charges’. He said he will be imprisoned or face ‘more serious consequences’ than that.
I accept the applicant’s proposition that the Chinese government is very likely to be aware he has applied for a protection visa in Australia. Alternatively, if they do not already know about it, then I do not take issue with the claim that they will find out about it when he returns. But I do not accept that this information will necessarily cause the authorities to impute the applicant with a political opinion that he is opposed to the Chinese government.

102. Notwithstanding the applicant’s protest activities in [Village] in early 2023, including his participation in the local election, I am not satisfied the applicant has a profile which would be of adverse interest to the Chinese government. His previous conduct was not anti‑government. It was targeted at the [industrial] company causing damage in his home region.
103. Moreover, the applicant’s consistent claim has always been that he did not have a premediated plan to jump ship in Australia.[8] Rather it was an opportunistic and impulsive act, to escape the intolerable and relentless abuse from the [co-worker] and 2 other co-workers. He has not wavered from that stance. At the second hearing, he described the circumstances on the ship as an ‘emergency situation’. His decision had nothing whatsoever to do with being anti-government. He will explain these matters to the authorities, if required to do so.
[8] See [56] to [57] above.
104. Additionally, I am required by MD 84 to take account of the DFAT Report and (as cited above) that report says DFAT has no information to suggest that returnees are targeted by authorities merely for having sought asylum. I acknowledge that ‘no information’ does not represent a promise that the applicant will not be questioned at all about his actions by the authorities and asked to explain himself. But I am satisfied that ‘no information’ is a positive declaration to the effect that DFAT does not have any evidence which is consistent with ‘mere’ failed asylum seekers being at risk of harm when returning to China, and I place weight on this statement.
105. In summary, the applicant’s fear of what the Chinese government will do is not altogether fanciful. Nevertheless, I do not accept he is at risk of political charges or imprisonment or other ‘more serious’ outcomes upon return.
Falun Gong

I have some concerns about the applicant’s failure to declare his religion on the visa application form, such that he did not raise a claim about being Falun Gong until after the delegate’s decision had been made. But I am mindful he was never interviewed about his protection visa application, and his explanation to me as to why he answered ‘N/A’ on the form was sufficiently cogent.
Despite my reservations, I have accepted the applicant’s evidence that he has been a Falun Gong follower since [Year] or [Year]. Having done so, I note that the applicant’s only ‘example’ of having experienced discrimination in China as a result of being Falun Gong was the April 2023 election outcome. In that specific regard, I reject the applicant’s claim. I do not consider the interference with the votes cast in his favour at the local election had anything to do with the applicant’s religion. Rather, I find it was because he had participated in a violent protest at the [industrial] site, and he had an agenda to stop the operations.

108. To be clear, I am not satisfied the applicant has experienced any harm insofar as his faith is concerned. On that basis, and taking into account the country information,[9] I find the applicant has only ever practised privately, and he will be able to resume doing so in China without being at risk of harm.
[9] See [73] above.
Cumulative assessment
109. I accept the applicant has experienced hardships and abuse and is fearful of going back to China and he does not wish to do so.
110. I accept the applicant wants to stay on in Australia and work.
111. I find the applicant has been cooperative and compliant in his dealing with the authorities ever since he jumped ship in [Town].

I also find the applicant has presented his case and claims to the Tribunal to the best of his ability, despite minimal legal assistance, a lack of resources and the limitations of immigration detention.

113. However, on the information and evidence before me, having considered the applicant’s personal circumstances and claims both individually and cumulatively, I cannot be satisfied that the applicant faces a real chance of persecution[10] or a real risk of significant harm[11] if he returns to China now or in the reasonably foreseeable future.
[10] Per the ‘meaning of well-founded persecution’ at s 5J of the Act.
[11] Per the exhaustive definition of ‘significant harm’ set out in s 36(2A) of the Act.
CONCLUSION
114. On the basis of my findings and reasons above, I am not satisfied:
·the applicant meets the definition of a refugee,[12] which means that he is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act; nor
[12] Per s 5H of the Act.
·that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm, which means that he is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

The applicant has not claimed, and there is no evidence to the effect, that he is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act, and who holds a protection visa. Accordingly, I find ss 36(2)(b) and (c) of the Act are not applicable.

116. It follows that I conclude the applicant does not meet any of the criteria to be eligible for a protection visa.
DECISION
117. The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…