1409708 (Refugee)

[2015] AATA 3519

1409708 (Refugee) [2015] AATA 3519 (8 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1409708

COUNTRY OF REFERENCE:                  China

MEMBER:Paul Millar

DATE:8 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 08 September 2015 at 12:03pm

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of China, first arrived in Australia [in] December 2010 as the holder of a visitor visa.[1]  He left Australia [in] February 2011 and returned to China.  [In] March 2011 the applicant returned to Australia using the same visitor visa.  [In] May 2011 he made an application for a Protection visa which the department refused. 

[1] This chronology of the applicant's travel to and from Australia as well as his various visa applications comes from the decision of the delegate a copy of which was enclosed with the application for review form.  The Tribunal’s finding as to citizenship is based on the applicant's Chinese passport which he produced at the hearing.

2.    [In] December 2011, that decision was affirmed by this Tribunal (differently constituted and referred to in this decision as ‘the first Tribunal’).[2]  The applicant sought judicial review of the decision of the first Tribunal but he was unsuccessful.  He then applied to the Minister to intervene in his case and this culminated in the applicant making a second application for a Protection visa [in] August 2013.  The department accepted this Protection visa application pursuant to the decision of the Federal Court in SZGIZ v MIAC [2013] FCAFC 71.

[2] See RRT Case Number 1108241 9 December 2011.

3.    Consequently, in essence, the department and this Tribunal were restricted to determining whether the applicant met the complementary protection criterion.  The delegate refused to grant the visa [in] May 2014.  The applicant appeared before the Tribunal on 26 June 2015 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.  The applicant was represented in relation to the review by his registered migration agent.  The representative attended the hearing.

RELEVANT LAW

4. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

5.    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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6.    Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7.    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 a Protection 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 the applicant 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’).

8.    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration (‘the department’) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[3]

[3] In this respect, the Tribunal has taken account of DFAT Thematic Report Unregistered religious organisations and other groups in the People’s Republic of China dated 3 March 2015 and DFAT Country Report People’s Republic of China dated 3 March 2015.  However, the Tribunal does not rely on the former report in determining this review.  The Tribunal relies on the latter report in determining this review only to the extent it is cited further below in this decision.

FINDINGS

9.    The Tribunal has concluded that the decision under review should be affirmed.   According to his evidence to the department and the Tribunal, the applicant claimed protection on two grounds.[4]  First, the applicant fears harm in China because of certain activities he undertook when he lived there and in which he criticised the government.  Second, the applicant fears harm in China following his dealings with an officer at the Chinese Consulate in [City 1] in which the officer told him that because he had applied for protection he was a ‘dissident’ and had to be interviewed by officials.  The Tribunal holds the following concerns about the applicant’s credibility.

Credibility concerns

Evidence about his dealings with the Chinese consulate

[4] The applicant's evidence to the department and the Tribunal comprised the contents of his Protection visa application forms lodged [in] August 2013; a written statement dated [in] May 2011 but lodged with this current Protection visa application; his evidence at his interview with the delegate held [in] April 2014 for which there is an audio recording on the Tribunal file and to which the Tribunal has listened; a written statement made by the applicant and received by the department [in] April 2014 (see folios 113-120 of the department file) and the applicant's evidence at the hearing with this Tribunal.

The Tribunal had access to the department file relating to the application the applicant made for a visitor visa to come to Australia but there is no information in that file which is material to the grounds on which this review has been determined.

10.  To the Tribunal, the applicant said that in 2014 his daughter was to commence studies at university and for that reason, to cover increased living expenses, he wanted to sell a piece of land he and his wife owned in China.  He said that due to his fear of harm in China they could not return there and sell the land.  Accordingly, he found out from the internet that through the Chinese Consulate in [City 1] he could obtain an ‘authority document’ (or Power of Attorney).  For this purpose, in January 2014, the applicant took the requisite forms to the Chinese Consulate in [City 1] to obtain this authority document.

11.  The Tribunal asked the applicant whether, on this occasion, they asked him about his visa status in Australia.  In response, the applicant said that they did.  He told them that he was applying for protection and they thought that he was a ‘dissident’ and ‘anti - China’.  The Tribunal reminded the applicant that it was referring to the occasion on which he approached the consulate in January 2014.  The Tribunal again asked the applicant whether the consulate questioned him as to what visa he held or was trying to get on that occasion.  In response, the applicant again said that they did ask him about that and he told them that he had a bridging visa.  He said they then checked his passport and saw that he had applied for protection.

12.  The Tribunal asked the applicant whether he was certain it was on this occasion in January 2014 that the officials said those things to him.  In response, the applicant said that was correct.  They saw that he had applied for protection and said that he was anti-government, but, they did nothing else and gave him the authority document.  The applicant said that, subsequently, the person appointed under the authority document to sell the properties in China told the applicant that officials there required that they be given two more copies of that document.  For that reason, he went back to the Chinese Consulate to obtain those further copies.

13.  He said that on this occasion they asked in detail about what visa he held and it transpired that he had applied for protection for which they said that he had complained against the Chinese government.  They told him that he would have to be interviewed by officials in the consulate and at that point the applicant just ran out of the building in fear.  He said that he took no further steps to obtain copies of the authority document.  In addition, he said that he never went back to the consulate after that because he was afraid that they had put him on a black list.

14.  At this point, the Tribunal put to the applicant its understanding of the evidence that he had just given.  The Tribunal put to the applicant that, according to his evidence, on January 2014 he went to the Chinese consulate to obtain the authority document and they told him he had applied for protection and he was anti-government.  Nevertheless, they gave him the authority document and he went back to the consulate at a later time to obtain two further copies of the authority document when they again said he had applied for protection and accused him of being anti-government following which he ran away from the consulate and never went back.  The applicant said that the account the Tribunal put to him was correct.

15.  The Tribunal put to the applicant that this account was inconsistent with the account he gave to the department about this matter (that is his evidence at his interview with the delegate and in the further written statement he provided and which was received by the department [in] April 2014).  According to this account, the applicant approached the Chinese consulate in January 2014 to obtain the authority document.  He said that he received this document without difficulty and made no mention of any official at the consulate at that time asking him what visa he held, discovering that he had applied for protection and accusing him of being either a dissident or anti-government.

16.  To the department, the applicant said that he returned to the consulate in March 2014 to obtain two further copies of the authority document and it was on this occasion that he was spoken to by a female officer who enquired as to what visa he held and who became aware that he had applied for protection.[5]  This woman told the applicant that he must be a dissident and he would have to be interviewed by officials at the consulate who were from foreign affairs or diplomats.  Although the applicant left the consulate in fear for his safety, he went back there on a third occasion, in early April 2014, the same day as his interview with the delegate.  On that occasion, officials again wanted to know about his visa status and the visa he was trying to obtain. They refused to assist him. 

[5] In his evidence to the delegate and in his written statement, the applicant indicated that the assertion that he had applied for protection arose from the fact that he had been granted a Bridging Visa E.  The officer at the consulate thought this indicated the applicant was applying for a visa of a different type and wanted to know what it was.  He said that at the insistence of the officer he produced documents one of which indicated he had applied for protection which appears to be a further letter from the department with respect to Medicare and which referred to him as an applicant for a protection visa (see folio 84 of the department file).

17.  To the department the representative attempted to corroborate the applicant’s claims about his dealings with the consulate.  She provided to the department a number of documents with respect to her dealings with the applicant and his dealings with the department.[6]   None of these documents, on their face, corroborate any claims the applicant is making.  To the department the applicant said that on his visit to the consulate [in] April 2014 he telephoned the representative to ask her to provide a letter acknowledging the visa that he was applying for.[7] 

[6] See folios 78 – 95 and 135 - 137 of the department file.

[7] He makes this claim in his written statement at folio 116 of the department file.

18.  At the interview with the delegate the representative also said that the applicant made that request to her on that date by telephone.  She said that she emailed to him a letter from the department of January 2014 advising him that he had been granted a Bridging Visa E and told him that this was sufficient evidence of his status.[8]  However, the applicant’s evidence is that the officials would not accept that letter as indicating what visa he was trying to obtain.  The Tribunal put to the applicant that according to his account to the department, he approached the consulate three times with respect to the authority document and not two as he had told the Tribunal.  The Tribunal put to him that, in contrast to his evidence to the Tribunal, on the first occasion he went to the consulate, according to his account to the department, nothing was said about the applicant having applied for protection and being a dissident.  In response, the applicant said his health and memory were not good.

[8] A copy of this letter appears on the department file at folio 98.  At folio 136 of the department file the representative said she was attaching a record to show that she sent that email on that date and the email appears at folio 78 of the department file.

19.  The Tribunal asked the applicant to confirm which account was correct.  In response, the applicant said that possibly there had been a miscommunication with the interpreter at the hearing and he said that his first visit to the consulate went smoothly.  It was on his second visit that trouble began as referred to above.  He said that he did not recall actually going to the consulate a third time but his evidence to the department was ‘more correct’ and he just got his occasions confused. 

20.  At the hearing, the representative submitted that the applicant had difficulties with his mind and memory and the account put forward in his written statement to the department (provided in April 2014) should be preferred because he was healthy then and this was translated with an accredited interpreter.[9]  She said that the only other reason the applicant said at the hearing that, on the first occasion he approached the consulate in January 2014, he was accused of being a dissident, was a mistranslation or misunderstanding by the interpreter.  She again repeated her claim that he called her from the consulate telling her that they wanted an ‘acknowledgement letter’ indicating what visa he was trying to obtain and they were not satisfied with the letter she had emailed to him which showed that he had been granted a bridging visa.

[9] The representative made a similar submission in a letter dated [in] July 2015 received after the Tribunal hearing.

21.  The Tribunal can allow for the injury the applicant said that he had to his neck and spine and his claims that this made him forgetful (his injury is discussed further below).  However, the Tribunal does not accept that his injury and claims about miscommunication with the interpreter explain the inconsistency between his account to the Tribunal and his account to the department about his dealings with the consulate.  Those accounts are significantly inconsistent in respects discussed above. 

22.  While the applicant’s representative has tried to corroborate his evidence by claiming that he called her from the consulate telling her the officials wanted evidence of the visa he was trying to obtain, that does not demonstrate that the applicant’s account of what was said to him by the officials with respect to him making an application for protection, being a dissident and having to be interviewed by other officials, is true.  The evidence of the representative about him calling her on the occasion he went to the consulate in April 2014 does not overcome the concern the Tribunal holds about the applicant’s account because of the significant inconsistency in his evidence discussed above.  If anything, these are just claims the applicant was making to the representative and she was not present at the consulate and, therefore, did not witness the accusations the applicant claims were made against him.

23.  The applicant also provided to the department tickets issued [in] April 2014 by the consulate for people to take when waiting to see an officer at the counter.[10]   He also produced to the department an application form he appears to have completed but which is not dated and is presumably the application form to obtain the further copies of the authority document.[11]  At best, those documents only indicated that the applicant was seeking another copy of the authority document and he or someone attended the consulate [in] April 2014.  These documents do not demonstrate that the officials of the consulate made the accusations against him as he has claimed.

Concerns about the consulate speaking to the applicant in the manner claimed

[10] See folio 112 of the department file.

[11] See folio 109 of the department file.

24.  The Tribunal had concerns about the overall incongruity of the consulate being interested in whether or not the applicant had applied for protection; discovering that he had applied for protection; labelling him anti-government or a dissident and telling him that he had to be interviewed by consulate officials about that.  The Tribunal put to the applicant that country information indicated that the Chinese government was only concerned about its nationals applying for protection in Australia where they already had some profile with the government as opponents or perceived opponents.  Otherwise the Chinese government saw its nationals applying for protection here as a means of being able to spend more time here and not as an expression of dissent or disloyalty.[12]

[12] In 2007, DFAT indicated that the likelihood of harm for a Chinese national returning to China after an unsuccessful asylum application in Australia was related to the particular circumstances of that person namely whether they belonged to groups DFAT named as ‘Falun Gong, underground church and political dissidents’, DFAT stating that high profile activists would be treated more severely.   According to DFAT, media publicity that a person applied for asylum would not necessarily lead to harsh treatment for that person on return to China because Chinese authorities viewed seeking to remain in Australia through a protection application as commonplace behaviour as opposed to a sign of political disloyalty.  DFAT stated that the exception to this would be cases where the person concerned had publicly criticised the Chinese government or belonged to one of the groups referred to above and the applicant does not (see  See DIAC Country Information Service 2007, Country Information Report No. CHN8980 – China: Publication of Client Details (sourced from DFAT advice of 22 March 2007), 22 March <CISNET China CX174138>). 

25.  The Tribunal does not believe that the applicant has any such profile with the Chinese government (the Tribunal disbelieving the applicant’s account of his claimed activities in China, for reasons given further below).  The Tribunal also had some difficulty accepting that a serious allegation would be made by an official across the counter to the applicant followed by a demand that he be interviewed but the applicant could simply freely leave the consulate.  He told the Tribunal that although he contacts family in China every so often he has not been told the Chinese officials have gone to them to question about him because of this particular incident and that is further evidence that they hold no such interest in him and that this claimed conversation with consulate officials did not occur.  In response to these concerns, the applicant said that he was telling the truth.  He did not understand why they refused to help him with the authority document.  He then said that he had lived in China for a long time and he knew that the government just did what it liked.  His broad assertions do not overcome the Tribunal’s concerns about the incongruity of his account and the fact that it is in stark contrast to the position expressed in available country information.

The applicant’s account of undertaking political activities in China

26.  The applicant claimed to fear harm in China because of certain activities he undertook there which involved criticism of the government.  In essence, the applicant relies on the protection claims he made to the first Tribunal and on which his first Protection visa application was based.  The first Tribunal found the applicant’s evidence in this respect to be not credible and the Tribunal agrees with that finding.  This Tribunal discussed with the applicant at the hearing the various grounds on which he was disbelieved by the first Tribunal and, pursuant to s.424A of the Act, by letter dated [in] June 2015, the Tribunal invited the applicant to comment on or respond to the decision of the first Tribunal and a copy of its decision was provided to him.  In response, the representative provided submissions dated [in] July 2015.  The Tribunal has dealt with below the response given by the applicant at the hearing and that given on his behalf by the representative in those submissions.

27.  According to the first Tribunal, the applicant claimed that he used to meet a group of men at a restaurant at the same time on the same day to talk about politics.  In January 2010 the police came and arrested them after, so the applicant thought, a waiter had told the police about them.  They were interrogated by the police at the station and released the same day.  However, the applicant claimed that, even though they had been arrested for discussing politics at this restaurant, they all continued to meet there at the same time and same day after their arrest.  The first Tribunal did not believe that they would take that risk and this Tribunal also held that concern.  When this Tribunal put that concern to the applicant, he said the arrest was just a warning and they were careful.  Nevertheless the Tribunal does not accept that the applicant and these other men would continue to meet at the same place, at the same time and on the same day when they had been arrested there.

28.  To the first Tribunal, the applicant claimed that from 2008 he was posting anti-government content onto a website from a computer in his own home but he was never at any time apprehended by Chinese authorities for doing so (the police who arrested him in January 2010 being unaware of the applicant doing this).  The first Tribunal did not believe that the applicant could do this without ever getting apprehended by the authorities given country information (cited in its decision) to the effect that those same authorities rigorously controlled the use of the internet by Chinese nationals.  This Tribunal holds that same concern and when it put that to the applicant at the hearing he said that the government could arrest someone at any time and he did not know whether they would do that immediately or after some delay.  To the first Tribunal, he said that he was not caught because he was just lucky.  In submissions [in] July 2015, the representative claimed that the period in which the applicant was posting anti-government content onto a website was not long.  The Tribunal is not persuaded by any of those responses and they do not overcome this particular credibility concern. 

29.  To the first Tribunal, the applicant said that after he arrived in Australia he posted content to a Chinese website called Boxun.  However, in his written statement lodged with the first application he said that he put posts onto a Chinese website which were deleted and he then put posts onto the Boxun site.  The first Tribunal found that evidence to be inconsistent and this Tribunal also holds that concern.  To the first Tribunal, when this was put to him, he denied saying that he posted material to only one website.  When this Tribunal put this concern to the applicant, he said that he was fearful to comment on matters like that and there could have been a miscommunication with the interpreter.  Neither of those claims overcomes the Tribunal’s concern about this issue.

30.  To the first Tribunal the applicant said that, on the one hand, his father was someone who would speak up about something he thought was wrong and he would do this with his superiors at work, but, on the other hand, he said that his father would not allow the family to talk about politics because of the fear of harm if they did.  The first Tribunal found that account to be conflicting and did not accept that the applicant’s father would speak up at work but tell family at home not to express views about politics.  This Tribunal holds the same concern and when that was put to the applicant, he said that he could not really explain any apparent contradiction. 

31.  He talked about a clash between East and West cultures.  His father knew that if one spoke out against the government they would have trouble.  To the first Tribunal he said that in fact his father did allow political discussions at home just not outside.  That was not his initial evidence to the first Tribunal and at any rate it is still inconsistent with his father’s claimed willingness to speak out at his workplace.  In submissions [in] July 2015 the representative claimed that the political opinions of the applicant’s father or any family member were not relevant and the applicant’s political views were developed through the influence of his father, not his father’s political views.  That submission does not resolve this particular concern which, in essence, was that, on the one hand, the applicant’s father claimed he would speak up at his work about something that was wrong yet, on the other hand, implored his family not to express views about politics.  That evidence is contradictory and not credible.

32.  The first Tribunal found that the applicant gave inconsistent evidence about his arrest.  These inconsistencies related to whether or not he was held separately or together with friends; the actual date of his arrest and being a Saturday or Sunday and also the number of hours over which he was questioned at the police station.  When those discrepancies were put to him by the first Tribunal, his response was that there had been misunderstandings.  This Tribunal also regards the applicant’s evidence on those matters to be inconsistent and when this was put to him the applicant said that he just could not recall those things and could not comment.  None of those claims are satisfactory explanations for these inconsistencies. 

33.  The first Tribunal found the applicant’s evidence about how he met an individual who the applicant claimed to have supported to protest against the government.  This is because the applicant had first said that he met this person through his work before then saying they had met through friends.  When that concern was put to him by the first Tribunal, the applicant then said that he met this man at a function through his work organised by the customer who was the man’s friend.  This Tribunal held that same concern and when it put this to the applicant he said he met this man through work.  He said that any discrepancy in that respect only arose through miscommunication in the interpreting process.  The Tribunal does not accept that claim and finds that the applicant’s evidence about how he met this man has been, as the first Tribunal found, to be changing and unconvincing.    

34.  In submissions [in] July 2015 the representative made observations about the applicant being associated with someone who had been arrested for being in anti-government activities but her comments did not relate to the actual grounds on which the applicant was disbelieved which have been discussed above and with which this Tribunal agrees.  The representative also said that any inconsistencies in issue were minor and caused by misunderstandings or mistranslations.  It was submitted the applicant gave his best recollection at the time of the hearing before the first Tribunal.  This Tribunal does not accept those claims as excusing or explaining the inconsistencies discussed above.

35.  The representative also complained about the approach taken by the first Tribunal with respect to the applicant’s failure to become involved in political activities while he has been in Australia.  However, this Tribunal can find nothing in that approach that is not sound.  She submitted the applicant fought for democracy and freedom in China but, based on the issues discussed above arising in the decision of the first Tribunal and which impugn his credibility, this Tribunal finds the applicant did no such activities. 

36.  The representative complained that evidence provided after the hearing before the first Tribunal was not properly considered but the Tribunal cannot see any fault in this respect in the first Tribunal’s decision.  It was submitted also that the applicant provided all documentary evidence he could provide to support his protection claims when considered by the first Tribunal.  None of these submissions resolve the issues discussed above which arise in the decision of the first Tribunal and which impugn the applicant’s credibility. 

Conclusions on credibility

37.  Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth.  Accordingly, the Tribunal disbelieves the applicant’s claims about undertaking political activities in China (such as meeting with friends to talk about politics or being involved in protest), being arrested by Chinese police and making anti-government comments on the internet, either here or in China.  The Tribunal finds that all of those claims are false. 

38.  Accordingly, the Tribunal disbelieves the applicant’s claim in his protection visa application form that he had to pay a bribe to be issued with a passport because of his adverse record.  The Tribunal does not believe the applicant holds an adverse record or that he is someone in whom Chinese authorities hold an adverse interest.  The Tribunal also does not believe that the applicant is somebody who disapproves of the Chinese government to any degree that he wishes to discuss that with other people either in private or public.  He may well privately disagree with the Chinese government but the Tribunal disbelieves claims he has made to the department and the Tribunal that he would like to express his views with others but is too afraid to do so.

39.  Because he is not a witness of truth, the Tribunal also disbelieves the account the applicant has given in support of this current protection visa application about officials at the Chinese consulate telling the applicant that he was anti-government and a dissident because he had applied for protection and that he would have to be interviewed by other consulate officials.  The Tribunal accepts that the applicant has approached the Chinese consulate with respect to what is really a Power of Attorney but does not believe that he was otherwise treated as he has alleged.[13]

[13] Copies of this document were produced to the department - see the department file from folio 97.

40.  In submissions made to the Minister for intervention the Tribunal noted references or claims that the applicant had depression and anxiety but he told this Tribunal that the only occasions on which he has needed to see a doctor while he has been in Australia were those which arose from his ill-health late last year related to the injury to his neck and spine.  He told the Tribunal that there is a fractured bone in his neck pressing on nerves and blood vessels which has caused half of his body to be numb and which, he believes, affected his sleep and his memory.

41.  In assessing his credibility the Tribunal has made allowance for these claims but does not accept that the applicant’s inconsistent evidence about his dealings with the Chinese consulate is for any reason other than the fact that the applicant has fabricated it.  These claims about his health do not overcome the remainder of the concerns the Tribunal holds about his credibility.  In response to the hearing invitation, the representative stated that the applicant would need frequent breaks because of his injury and his daughter was also to come and give evidence about providing a medical certificate relating to a prior request that the hearing be postponed because of the applicant’s injury.

42.  That request was refused by the Tribunal because the Tribunal was not provided with a medical certificate clearly stating what the applicant’s injury was, why it prevented him from attending the hearing and when, in the opinion of a medical practitioner, he would be able to attend.  The applicant’s daughter did not attend the hearing and give evidence.  The only explanation provided as to why the requisite medical certificate was not provided was that the applicant would not be attending the neurosurgery clinic of a hospital in [City 1] until his next appointment in late July. 

43.  No explanation was given as to why the applicant simply could not attend his treating doctor or a qualified medical practitioner to issue a certificate which contained the requirements specified above by the Tribunal.  Frequent breaks were taken during the hearing and the applicant appeared to be well able to comprehend the questions he was asked and respond to them.  At the beginning of the hearing he said the interpreter spoke quickly and the interpreter said that he would speak at a slower rate.  At that point the Tribunal told the applicant that if at any time he could not understand the interpreter he need only say so.  To the Tribunal’s observation the applicant and the interpreter communicated with each other in this hearing without any difficulty. 

Assessment of whether there is a real risk that the applicant will suffer significant harm in China

44.  The applicant said that he is a Buddhist but he did not claim to fear harm on that ground.  He said that he has never at any stage practised Falun Gong.  He also told the Tribunal that he has not been involved in political activities since he came to Australia in 2011.  At the beginning of the hearing the Tribunal pressed the applicant closely as to the grounds on which he was afraid to return to China and he mentioned only the two grounds which have been dealt with above and about which his evidence has been found to be not credible.  There is no credible evidence that the applicant suffered harm in China and there is no credible evidence that Chinese authorities or anybody else in China seeks to harm him.  Overall there is no credible evidence before the Tribunal as to why the applicant left China and came to Australia and there is no credible evidence as to why he does not wish to return there.

45.  In his protection visa application form he claimed to fear harm because of his record of applying for protection in Australia (a claim which he subsequently developed into a fear of harm on the same ground due to his claimed dealings with the Chinese consulate in [City 1], claims the Tribunal disbelieves).  The Tribunal has discussed above country information to the effect that unless the applicant has some profile with Chinese authorities as someone of concern to them either through political activities or, for example, the practice and advocacy for Falun Gong, the risk of him suffering significant harm because he has applied for protection in Australia is remote. 

46.  To the department, the representative submitted country information to support this particular ground of the applicant’s protection claims.[14]  For the most part, this country information related to China’s poor human rights record, in particular, its treatment of those who are opposed to it, those perceived as being opposed to it including through the practice of Falun Gong and those who were from certain ethnic groups, for example, Uighurs.  The applicant does not belong to any of these groups and there is no credible evidence that Chinese authorities perceive him as an opponent.

[14] See folios 49 – 77 of the department file.

47.  Some of this information contained assertions that Chinese nationals who had come to Australia and applied for protection, whose claims were unsuccessful and who were sent back to China, had been harmed on return.  In some cases, it was asserted that the credibility of these applicants had been rejected by the department and the Tribunal and that there were flaws in that process.  Where any background is provided about these people it is clear that they themselves assert that they had some profile with the Chinese government as opponents and who claim to have been of interest to the Chinese government for that reason.  There is no credible evidence that the applicant is of interest to the Chinese government on any ground.  The Tribunal is satisfied that its assessment of the applicant’s credibility is correct and this country information does not assist him.

48.  This information contained assertions about the Chinese government having spies in Australia to monitor the activities of its nationals but appearing to indicate that it is people involved in certain activities who are really at risk in this sense such as those undertaking pro-democracy activities or activities for Falun Gong.  The applicant is not such a person.  The materials referred to events in 2005 when, it was asserted, Chinese government officials interviewed Chinese detainees in a detention centre in Sydney asking questions about their identity and whether they had applied for asylum.  It was asserted that in that same year the department had passed on the details of detainees to Chinese officials and if a travel document was to be issued, local police in China had to confirm a person’s identity which put them at risk.

49.  Those events are now many years ago and the Tribunal prefers its own sources of country information as to the consequences of a Chinese national applying for asylum and, for the reasons given above, the Tribunal is satisfied that the risk of the applicant suffering significant harm on this ground is remote.  Finally, the representative provided a decision of a United Nations human rights body which appears to have been issued in March 2013 dealing with a claim by a Chinese national who had applied for asylum in Australia who alleged that officials at a Chinese consulate in Australia made him disclose what visa he was trying to obtain in Australia and asserted that this placed him at risk.

50.  However, this claimant also said that it was not just his status as a failed asylum seeker (and his claimed dealings with the consulate), but, in addition, his political beliefs which, combined, placed him at risk of harm in China.  The Tribunal disbelieves the account advanced by the applicant as to his dealings with officials from the Chinese consulate in 2014.  The Tribunal disbelieves his claims about his political beliefs and activism.  Accordingly, the case put forward does not assist this applicant.

51.  While the applicant made no claim to fear harm on the basis of his health, the Tribunal nevertheless notes that he has received medical treatment with respect to a neck or spinal injury.[15]  The Tribunal understands that he will require some form of follow-up in that respect. The Tribunal put to him that he would be able to access state provided healthcare once he regains his household registration and should there be any delay in that occurring he could access health care privately.[16]  The Tribunal put to the applicant that health care in China is better in urban centres as opposed to rural and in eastern regions like Guangzhou.[17]  Overall, there is no evidence before the Tribunal that health care will be intentionally denied this applicant in China.

[15] See folios 29 – 37 and 52 of the Tribunal file.

[16] See DFAT Country Report People’s Republic of China dated 3 March 2015 at 5.12 which provides that the Hu Kou system provides access to government services including health.  Health services in China are mainly provided by the public system but the private sector has increased its market share in recent years (See Home Office China Country of Origin Information (COI) Report COI Service 20 December 2013 at 11.01).

[17] Sheng Z, 2011, ‘Towards China's Urban Rural Integration: Issues and Options’ International Journal of China Studies, Vol 2 No 2 August / September, p.351; Goldman Sachs 2011, Hukou reform: a mid to long term goal, picking up pace Equity research 10 February, p.6 obtained from on 16 March 2012  and China Development Research Foundation and United Nations Development Program 2005, China Human Development Report 2005, 15 October.

52.  The applicant had no comment to make about this.  He did not claim to be unable to afford health care in China and, even if he had made such a claim, the Tribunal would disbelieve it because he is not a witness of truth.  The Tribunal accepts that the applicant has divorced his wife but he also said that his parents and [sibling] live in China.  While the Tribunal accepts that the applicant has not been able to work since late last year, he nevertheless will have the assistance of family members in China to help him re-integrate back into life there, assist him with his daily needs and access health care for his particular condition until he can resume employment. 

53.  For all of these reasons, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, China, there is a real risk that he will suffer significant harm.

CONCLUSIONS

54.  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)(aa).  There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2). 

DECISION

55.  The Tribunal affirms the decision not to grant the applicant a Protection visa.

Paul Millar
Member

In June 2012 DFAT advised that some Chinese nationals who were unsuccessful applicants for protection in Australia had short interviews with the authorities upon return to China as to why they returned on an entry permit and not a normal ordinary passport. (Department of Immigration and Citizenship 2012, Attitude of Chinese government to Falun Gong claimants arriving in Australia by boat, DIAC Country Information Report No. 12/40 (sourced from DFAT advice of 25 June 2012), 25 June <CISNET China CX289690>).  The applicant himself holds a valid Chinese passport and would not be returning to China on a travel document.